| Schlossin v Town of Marilla |
| 2008 NY Slip Op 00865 [48 AD3d 1118] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Robert Schlossin et al., Appellants, v Town of Marilla et al.,Respondents. |
—[*1] DiFilippo & Flaherty, P.C., East Aurora (Anthony DiFilippo, III, of counsel), fordefendants-respondents.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, ErieCounty (John A. Michalek, J.), entered October 25, 2006 in an action seeking, inter alia, adeclaratory judgment. The judgment, among other things, dismissed the complaint.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the provision dismissing that part of the complaint seeking a declaration and grantingjudgment in favor of defendants as follows: "It is ADJUDGED and DECLARED that Town ofMarilla Zoning Law §§ 210-8, 210-10 (A) and § 210-11 (A) (28) are valid andas modified the judgment is affirmed without costs."
Memorandum: Plaintiff Robert Schlossin, the owner of a 45-acre parcel of land in defendantTown of Marilla (Town) and plaintiff Creekside Development, LLC (Creekside), the contractvendee for that property, commenced this action seeking, inter alia, a declaration annullingsections 210-8, 210-10(A) and 210-11(A) (28) of the Town's Zoning Law on the grounds thatthey exceed the authority granted to the Town and defendant Town Board of the Town of Marilla(Town Board) pursuant to Town Law § 261 and are unconstitutional. Those sections of thezoning law restrict the ability of Creekside to proceed with its plan to develop the property,which is zoned as an agricultural district, by constructing a housing subdivision consisting of 32single-family homes. Plaintiffs had sought to rezone the property as rural-residential in order topermit the subdivision to proceed. In denying the application, the Town Board determined thatthe proposed rezoning would be inconsistent with the comprehensive plan designating the area inwhich the property was located as predominately agricultural, in order to preserve "open space"and the agricultural integrity of the Town.
Although Supreme Court properly determined "on the merits" that plaintiffs are not entitledto the relief sought, the court erred in dismissing that part of the complaint seeking a [*2]declaration and should have made a declaration (see Hirsch vLindor Realty Corp., 63 NY2d 878, 881 [1984]; Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]). Wetherefore modify the judgment accordingly.
Contrary to the contention of plaintiffs in their first cause of action, defendants have notexceeded their authority pursuant to Town Law § 261 to enact zoning laws to "regulate. . . open spaces, the density of population, and the location and use of buildings. . . for . . . residence" in order to promote the general welfare of thecommunity (id.).Plaintiffs contend in their second cause of action that the zoning laws at issue, which prohibitthe construction of a housing subdivision in an agricultural district, do not constitute a validexercise of the Town's police power to regulate private property because they do not have alegitimate government purpose and there is no reasonable relation between the end sought to beachieved and the means used to achieve that end. We reject that contention. Here, the recordestablishes that the subdivision restrictions in the agricultural district were enacted in furtheranceof the legitimate governmental interest of preserving the agricultural integrity of the Town andthat, in permitting housing subdivisions to be constructed in areas zoned as rural residential butnot in agricultural districts, there is a reasonable relation between the end sought to be achievedand the means used to achieve that end (see generally McMinn v Town of Oyster Bay, 66NY2d 544, 549 [1985]).
We reject the further contention of plaintiffs in their second cause of action that their right tosubstantive due process was violated by the Town Board's denial of the application to rezone theproperty in order to accommodate the plan to construct a housing subdivision. In order toestablish that they were denied substantive due process, plaintiffs "must establish a cognizableproperty interest, meaning a vested property interest, or 'more than a mere expectation or hope to[obtain approval of their application]; they must show that pursuant to State or local law, theyhad a legitimate claim of entitlement to [obtain such approval]' " (Bower Assoc. v Town of Pleasant Val.,2 NY3d 617, 627 [2004]). Defendants established that plaintiffs lack the requisite vestedproperty interest (cf. Town of Orangetown v Magee, 88 NY2d 41, 52-53 [1996]).Furthermore, defendants' actions cannot be said to have constituted "egregious official conduct[so as] to be arbitrary in the constitutional sense" (Bower Assoc., 2 NY3d at 628 [internalquotation marks omitted]; cf. Magee, 88 NY2d at 53).
Because 42 USC § 1983 "protects against municipal actions that violate aproperty owner's rights to due process . . . under the Fifth and FourteenthAmendments to the United States Constitution" (Bower Assoc., 2 NY3d at 626), and wehave concluded that plaintiffs' constitutional rights have not been violated, the court properlydismissed the third cause of action. Present—Scudder, P.J., Martoche, Smith, Lunn andPine, JJ.