Opinion
December 3, 1984
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Order affirmed, insofar as appealed from, with costs.
Plaintiff demands judgment, inter alia, (1) declaring the present "A" Residence District zoning of the subject property unconstitutional and discriminatory, (2) directing that the defendant town change the zoning classification from "A" Residence District to "E-2" General Residence District, and (3) restraining defendants from enforcing any of the provisions of the Zoning Ordinance of the Town of Oyster Bay applicable to the "A" Residence District against the subject property.
The town, in the fifth through seventh paragraphs of its answer, as an affirmative defense and by way of an objection as a matter of law, demands judgment dismissing the verified complaint on the ground that the court is without power to grant the relief requested by plaintiff insofar as it requests the court to direct the town to change the zoning classification and also requests that defendants be restrained from enforcing the present zoning ordinance.
The general rule regarding zoning classifications is that "courts may not usurp the legislative function of zoning property" ( Dobson Jamaica Realties v. Town of Brookhaven, 96 Misc.2d 722, 726, citing Emjay Props. v. Town of Brookhaven, 42 A.D.2d 907). "[T]he court's function is limited to the declaration of what the zoning classification may not be and does not extend to fixation of the proper zoning classification" ( Shapiro v. Town of Oyster Bay, 27 Misc.2d 844, 845; see, also, Pitaro v Randolph, 80 A.D.2d 553).
However, there is an exception to that general rule. "Under circumstances where the zoning of a plaintiff's property is discriminatory, the courts have held that such a plaintiff must be accorded a change of zoning to remedy the discrimination" ( Dobson Jamaica Realties v. Town of Brookhaven, 96 Misc.2d 722, 726, supra, citing Jurgens v. Town of Huntington, 53 A.D.2d 661; see, also, Berenson v. Town of New Castle, 67 A.D.2d 506).
Injunctive relief is also proper in a zoning case to restrain a defendant from taking any action under a zoning ordinance ( Savatgy v. City of Kingston, 51 Misc.2d 251, affd 26 A.D.2d 978, affd 20 N.Y.2d 258).
Therefore, plaintiff's complaint states a cause of action. We pass upon no other issue. Niehoff, J.P., Boyers, Lawrence and Eiber, JJ., concur.