Clausen W. Summers et al., Respondents, v. City of Glen Cove et al., Appellants, 21 A.D.2d 884

In an action to declare the zoning ordinance of the defendant City of Glen Cove to be invalid and unconstitutional as applied to plaintiffs’ property, on the ground that the ordinance is confiscatory in its effect, the city and its officials appeal from a judgment of the Supreme Court, Nassau County, entered October 11, 1963 upon the court’s decision and opinion after a nonjury trial, declaring that, as applied to plaintiffs’ property, the oi’dinance is unconstitutional and void, and restraining the defendants from enforcing it against plaintiffs’ property.

Judgment reversed on the law and the facts, without costs, and complaint dismissed. Findings of fact implicit or contained in the decision and opinion of the Special Term, insofar as they may be inconsistent herewith, are reversed, and new findings are made as indicated herein. In our opinion, plaintiffs failed to prove that their property cannot be used for the purposes permitted by the ordinance. At best, on this record, the issue of the validity of the ordinance is fairly debatable; hence, the ordinance may not be held to be confiscatory and unconstitutional (Shepard v. Village of Skaneateles, 300 N.

Y. 115; Gerzof v. Town of Huntington, 8 A D 2d 841, affd. 8 N Y 2d 788). Ughetta, Acting P. J., Kleinfeld and Rabin, JJ., concur; Hill and Hopkins, JJ., dissent and vote to affirm the judgment.