Village of Hempsteadv.SRA Realty Corp.

Appellate Division of the Supreme Court of New York, Second DepartmentOct 17, 1994
208 A.D.2d 713 (N.Y. App. Div. 1994)
208 A.D.2d 713617 N.Y.S.2d 794

October 17, 1994

Appeal from the Supreme Court, Nassau County (Murphy, J.).

Ordered that the order is affirmed, with costs.

The code provision at issue prohibited the installation or maintenance of sheet metal security gates over openings to stores facing the street. Its stated purpose was to promote the aesthetics of the village, while the unwritten purpose was to rid the village of the "ghetto look". Some five years prior to its enactment, the defendants had installed sheet metal security gates on the windows and doors of their store located at 55-57 Main Street, because several break-ins had occurred. The village sought an injunction to require the defendants to permanently remove their gates.

It is well settled that aesthetics is a valid subject for the legislative exercise of the police power (see, People v. Stover, 12 N.Y.2d 462), and that the constitutionality of a municipal ordinance is presumed (see, Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11). However, the exercise of a municipality's police power cannot be arbitrary or unreasonable, and must be reasonably related to the health, comfort, safety, and welfare of the community (see, Health Ins. Assn. v. Harnett, 44 N.Y.2d 302, 309-310; Suffolk Outdoor Adv. v. Hulse, 56 A.D.2d 365, 372). In addition, the validity of an ordinance such as the one here may be dependent on its reasonableness as applied to the particular landowner involved (see, Sarrds, Inc. v. City of White Plains, 68 A.D.2d 905, 906). Moreover, where a law would have retroactive effect, as here, the courts will scrutinize the legislation more closely to examine "whether the law is reasonably calculated to serve a compelling public interest * * * and the extent to which retrospective application creates unfairness" (Niagara Recycling v. Town of Niagara, 83 A.D.2d 316, 326).

We agree with the determination of the Supreme Court that the code provision was invalid as applied to these defendants. The provision requires the removal of the defendants' security gates, which had been installed five years prior to its enactment, without any provision for a cost abatement or other method to offset the cost. It is unfair to require business owners to absorb the cost or forego any security gates (see, Modjeska Sign Studios v. Berle, 43 N.Y.2d 468, 478). Mandating the defendants to remove their existing gates without a compensation or amortization provision is unduly burdensome to the defendants. Thus, Village of Hempstead Code § 50-28 (d) is unconstitutional as applied to the defendants (see, Sackson v. Zimmerman, 103 A.D.2d 843, 844, quoting Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 272). Balletta, J.P., Rosenblatt, Miller and Ritter, JJ., concur.