| Matter of Schweichler v Village of Caledonia |
| 2007 NY Slip Op 08504 [45 AD3d 1281] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Laurence P. Schweichler, D.D.S., Appellant, vVillage of Caledonia et al., Respondents, et al., Respondents. |
—[*1] Underberg & Kessler LLP, Rochester (Ronald G. Hull of counsel), forrespondents-respondents Village of Caledonia and Village of Caledonia Planning Board. Woods Oviatt Gilman LLP, Rochester (Kristopher J. Vurraro of counsel), forrespondent-respondent Hardwood Properties, LLC.
Appeal from a judgment (denominated order) of the Supreme Court, Livingston County(Joan S. Kohout, A.J.), entered October 3, 2006 in a proceeding pursuant to CPLR article 78. Thejudgment, inter alia, dismissed the second amended and supplemental petition.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law without costs, the second amended and supplemental petition isgranted in part by annulling the determination approving the site plan in question and anyresubdivision and the matter is remitted to respondent Village of Caledonia Planning Board forfurther proceedings in accordance with the following memorandum: Petitioner commenced thishybrid CPLR article 78 proceeding/declaratory judgment action seeking to annul the rezoning ofproperty approved by the Village Board of respondent Village of Caledonia (Village) to enablerespondent Hardwood Properties, LLC (Hardwood) to develop a multifamily housing project(project) on the property. In addition, petitioner sought, inter alia, to annul the negativedeclaration issued pursuant to article 8 of the Environmental Conservation Law (StateEnvironmental Quality Review Act [SEQRA]) and the site plan approval by respondent Villageof Caledonia Planning Board (Planning Board). We note at the outset that a declaratory judgmentaction is not an appropriate procedural vehicle for challenging administrative determinations, andthus this is properly only a proceeding pursuant to CPLR article 78 (see generally Matter of Concetta T. CerameIrrevocable Family Trust v Town of Perinton Zoning Bd. of Appeals, 27 AD3d 1191,1192 [2006]).
Contrary to petitioner's contention, the rezoning of the property from an R-2 residential[*2]district to an R-3 residential district was not impermissiblespot zoning. Although the Village's 2003 comprehensive strategic plan was not a formalenactment pursuant to Village Law § 7-722 (see generally Asian Ams. for Equality vKoch, 72 NY2d 121, 131 [1988]; Los-Green, Inc. v Weber, 156 AD2d 994 [1989],lv denied 76 NY2d 701 [1990]), the rezoning pursuant thereto was nevertheless "part of awell-considered and comprehensive plan calculated to serve the general welfare of thecommunity" (Matter of Daniels v Van Voris, 241 AD2d 796, 799 [1997]).We agree with Supreme Court that petitioner had standing to contest the SEQRAdetermination (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668,687-688 [1996]; see generally Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency,76 NY2d 428, 433 [1990]), and we further agree with the court that the Planning Board took thenecessary hard look at environmental impacts by considering, e.g., water resources, aesthetic,historic and archaeological resources, transportation and traffic issues, and the growth andcharacter of the community and neighborhood, before issuing the negative declaration (seeMatter of Kahn v Pasnik, 90 NY2d 569, 574 [1997]; Gernatt Asphalt Prods., 87NY2d at 688; Matter of Bolton v Townof S. Bristol Planning Bd., 38 AD3d 1307 [2007]). It was not necessary for the PlanningBoard to consider the cumulative impact that development of other rezoned properties wouldhave on the environment, particularly with respect to the water supply, inasmuch as there were noother proposed or pending developments of multifamily residences before it (cf. Matter ofSave the Pine Bush v City of Albany, 70 NY2d 193, 206-207 [1987]). Moreover, weconclude that the Planning Board's failure to notify the Zoning Board of Appeals of the SEQRAreview as an involved agency does not require invalidation of the negative declaration (seeResidents of Bergen Believe in Envt. & Democracy v County of Monroe, 159 AD2d 81,83-84 [1990], appeal dismissed 76 NY2d 936 [1990], lv denied 77 NY2d 803[1991]; cf. Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 151-152[1992]; see generally 6 NYCRR 617.6).Although we agree with petitioner that the Planning Board technically violated PublicOfficers Law § 105 (1) at its March 22, 2006 meeting, we conclude that petitioner has notshown "good cause why, as a sanction, we should exercise our discretion to void" the PlanningBoard's actions as a result of such a violation (Matter of Griswald v Village of Penn Yan,244 AD2d 950, 951 [1997]; see § 107 [1]).
Nevertheless, we agree with petitioner that, although there was no technical violation ofthe General Municipal Law (see generally General Municipal Law § 800 [3];§ 809 [2]; Matter of Zagoreos v Conklin, 109 AD2d 281, 287 [1985]), three of themembers of the Planning Board appeared to have impermissibly prejudged Hardwood'sapplication for rezoning inasmuch as they signed a petition in favor of the rezoning and theproject (see 1993 Ops Atty Gen No. 93-6; 1988 Ops Atty Gen No. 88-60; 1984 Ops AttyGen No. 84-11; see also 1988 Ops St Comp No. 88-68; see generally Matter ofDePaolo v Town of Ithaca, 258 AD2d 68, 72 [1999], lv denied 94 NY2d 751 [1999];3 Salkin, New York Zoning Law & Practice § 31:09 [4th ed]). In addition, the PlanningBoard's chairperson manifested actual bias when she wrote a letter to the Mayor supporting boththe rezoning and the project, noting therein that she "would really like to see new housingavailable to [her] should [she] decide to sell [her] home and move into something maintenancefree" (see generally 3 Salkin, New York Zoning Law & Practice § 31:09). Weconclude that the appearance of bias and actual bias in this case require annulment of thePlanning Board's site plan approval.Furthermore, we agree with petitioner that the site plan did not comply with the VillageCode and thus that the court erred in concluding that the Planning Board's interpretation of thesetback requirements of the Village zoning ordinances had a rational basis and was supported bysubstantial evidence (see generally Matter of Retail Prop. Trust v Board of Zoning Appeals ofTown of Hempstead, 98 NY2d 190, 196 [2002]; Matter of North Country Citizens for Responsible [*3]Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d1098, 1100 [2007]). In reaching that conclusion, the court merely relied on a letter to thePlanning Board from the Village Code Enforcement Officer stating in a conclusory manner that"the applicant has produced a plan that will meet all of the zoning requirements." The record isdevoid of any actual measurements, and respondents have made no attempt to explain how themeasurements on the preliminary site approval map are in compliance with the requirements ofthe zoning ordinances. We therefore agree with petitioner that the approval of the site plan mustbe annulled (see Matter of Tallini v Rose, 208 AD2d 546 [1994], lv denied 85NY2d 801 [1995]; see also Purchase Envtl. Protective Assn. v Strati, 163 AD2d 596, 597[1990]). In addition, we conclude that the court erred in determining that the resubdivision of theproperty effectively occurred when the Planning Board approved the site plan. The answer of theVillage and the Planning Board to the "second amended and supplemental petition" states that"the Planning Board has yet to authorize merger of the two tax parcels [and] that thecommencement of this . . . proceeding stayed final action on the application[,which] will be taken up by the Planning Board when the stay is removed."We therefore reverse the judgment, grant the second amended and supplemental petitionin part by annulling the determination approving the site plan and any resubdivision and remit thematter to the Planning Board for a de novo determination of the application for site planapproval. We note that, pursuant to Village Law § 7-718 (16) (b), the Planning Board'schairperson is authorized to designate alternate members, if necessary, to replace the three biasedmembers not eligible to participate in the review of the application for site plan approvalpursuant to our decision. In the event that the chairperson of the Planning Board determined bythis Court to be biased is presently the chairperson of the Planning Board, an acting chairpersonpursuant to Village Law § 7-718 (10) should perform the duties of the chairperson withrespect to the application for site plan approval. Present—Scudder, P.J., Hurlbutt, Gorski,Centra and Green, JJ.