Cohen v. Vecchio

—In an action for a judgment declaring that the rezoning of the plaintiffs’ property from a "WSI” commercial zone to a "R-10” residential zone was unconstitutional, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Luciano, J.), entered April 5, 1991, which granted the defendants’ motion for summary judgment. Ordered that the order is affirmed, with costs. In 1987 the plaintiffs’ property, along with several other parcels near the Smithhaven Mall in Smithtown, was rezoned as part of an effort to slow the commercial growth of the area and to improve traffic conditions. The plaintiffs brought this action claiming that the rezoning was not done pursuant to a comprehensive plan and that it constituted a taking. Contrary to the plaintiffs’ contentions, we find that the Supreme Court properly granted the defendants’ motion for summary judgment. In their motion for summary judgment, the defendants asserted that the rezoning was done pursuant to a comprehensive plan in order to insure future cohesive development in the area, to contain the high rate of commercial development, and to improve traffic flow and ease congestion. They further asserted that development and use of the subject rezoned [500] property was economically viable. These assertions were supported by an affidavit of the Town Planning Director, minutes of the December 4, 1986, Town Board hearing on the rezoning proposal, and a traffic study of the area. The strong presumption of constitutionality of zoning regulations (see, Matter of Torsoe Bros. Constr. Corp. v Architecture & Community Appearance Bd. of Review, 120 AD2d 738, 739; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brook-ville, 51 NY2d 338, 344, cert denied 450 US 1042), combined with the defendants’ submission of the affidavit and documentary evidence, sufficed to establish the defendants’ entitlement to judgment as a matter of law. Thus the burden shifted to the plaintiffs to lay bare their proof and demonstrate the existence of a triable issue of fact (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). The plaintiffs failed to meet this burden. Their conclusory assertion that the rezoning was not done pursuant to the comprehensive plan was insufficient to raise an issue of fact. Furthermore, they failed to raise an issue of fact pertaining to whether a taking had occurred. When a zoning regulation is attacked as confiscatory and unconstitutional, the owner must establish that no reasonable return may be had from any permitted use (see, McGowan v Cohalan, 41 NY2d 434, 436; Matter of Grimpel Assocs. v Cohalan, 41 NY2d 431, 432). At oral argument on the motion, the plaintiffs acknowledged that the property as rezoned could be used for an economically propitious reason. Although they argued that no one would build a house there because nobody would buy the houses, these arguments were mere conjecture and were unsupported by evidentiary proof in admissible form. Thompson, J. P., Bracken and Fiber, JJ., concur.