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<br /> • § 8.03[1] ZONING AND LAND USE CONTROLS 8-50
<br /> • • Several constitutional and legal challenges to bonus zoning plans
<br /> can be posed. Specifically, it can be argued: (I) that such plans are . -
<br /> NYS2d 734,191 NE2d 272(1963),where the New York Court of Appeals sustained
<br /> .on aesthetic grounds an ordinance prohibiting the erection of a clothesline in a front
<br /> or side yard fatting a street.The court stated in pertinent part, 12 NY2d at 466-468
<br /> R: than,
<br /> "There are a number of early decisions,both in this State(see People ex teL .
<br /> neburgh Ada Co. v.Murphy. 195 N.Y. 126)and elsewhere(see,e.g. Varney
<br /> &Green v. Williams. 155 Cal 318; City of Chica go v. Gunnin g System. 214 I . • ` S
<br /> 628; City of Passaic v. Paterson Bill!Wring Adv. &Sign Painting Co. 72 N. J.
<br /> L 285;Bryan v.City of Chaster,212 Pa.259),which hold that aesthetic consider-
<br /> ations are not alone sufficient to justify exercise of the police power. But since
<br /> ' 1930 this court has taken pains repeatedly to declare that the issue is an open and
<br /> • 'unsettled'one in New York.(People v.Rubenfeld. 254 N.Y.245,248-249;see, •
<br /> S • also,Perlmutter v. Greene, 259 N.Y. 327;332;New York State Thruway.Auth. .
<br /> v. Ashley Motor Ca, 10 N Y 2d 151, 1i6-i,57.) In addition, we have actually
<br /> reeognized the governmental interest in preserving the appearanco'of the commu-
<br /> nity by bolding that,whether or not aesthetic considerations are in and of theca- •
<br /> selves sufficient to support an exercise of the police power,they may be taken into
<br /> account by the legislative body in enacting laws which are also designed to
<br /> promote health and safety.(See,e.g.,Matter of Wulfsoim v.Burden, 241 N. Y.
<br /> 288, 303; Downey v. Village of Kensington, 257 N. Y. 221, 230; Perlmutter v.
<br /> • Greene, 259 N.Y.327,331-332,supra;Baddour v. City of Long Beach, 279 N.
<br /> . Y. 167, 174, Matter of Presnell v. Leslie. 3 N Y 2d 384, 389; New York State
<br /> '_ Thruway Auth. v. Ashley Motor Ct. 10 N Y 2d 151, 157, supra.) `AEsthetic
<br /> considerations',this court wrote in Dowsey v. Village of Kensington (257 N. Y.
<br /> • - 221, 230, supra), "are, fortunately, not wholly without weight in a practical '
<br /> world. -
<br /> . "Once it be conceded that aesthetics is a valid subject of legislative concern,
<br /> . the conclusion seems inescapable that reasonable legislation designed to promote •
<br /> that end is a valid and permissible exercise of the police power.If zoning restric-
<br /> • dons'which implement a policy of neighborhood amenity'are to be stricken as
<br /> invalid,it should be,one commentator has said,not because they seek to promote
<br /> 'aesthetic objectives'but solely because the restrictions constitute'unreasonable -
<br /> q.
<br /> devices of implementing community policy.'(Dukeminier,Zoning for Aesthetic
<br /> • Objectives:A Reappraisal,20 Law&Contemp. Prob. 218,231.)Consequently,
<br /> whether such a statute or ordinance should be voided should depend upon
<br /> whether the restriction was'an arbitrary and irrational method of achieving an
<br /> attractive,efficiently functioning,prosperous community—and not upon whether
<br /> . - the objectives were primarily aesthetic.'(Dukeminier,loc cit.)And,indeed,this '
<br /> view finds support in an ever-increasing number of cases from other jurisdictions
<br /> which recognize that aesthetic considerations alone may warrant an exercise of
<br /> • the police power.(See,e.g.,Berman v.Parker. 348 U.S.26,33; General Outdoor
<br /> ' Ada Co.v.Department of Public Works.289 Mass. 149,187--188,app.dsmd.297
<br /> ° U. S. 725;Sunad. inc. v. City of Sarasota, 122 So. 2d 611
<br /> [Fla.]; State ex reL
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