City of Plattsburgh v. Mannix

• Decision Date: 06 November 1980
• Citation: 77 A.D.2d 114,432 N.Y.S.2d 910
• Parties: In the Matter of CITY OF PLATTSBURGH, Appellant, v. Martin MANNIX, Jr. et al., Individually and as the Town of Plattsburgh Town Board et al., Respondents, and Parcon Realty, Inc., Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 910

432 N.Y.S.2d 910

77 A.D.2d 114

In the Matter of CITY OF PLATTSBURGH, Appellant, v. Martin MANNIX, Jr. et al., Individually and as the Town of Plattsburgh Town Board et al., Respondents and Parcon Realty, Inc., Intervenor-Respondent.

Supreme Court, Appellate Division, Third Department.

Nov. 6, 1980.

Thomas A. Robinson, Corp. Counsel, Plattsburgh (John E. Clute, Plattsburgh, of counsel), for appellant.

Clyde A. Lewis, Plattsburgh, for respondents.

Rutnik & Rutnik, Albany (Polly N. Rutnik, Albany, of counsel), for intervenor-respondent.

Before MAHONEY, P. J., and GREENBLOTT, STALEY, MAIN and MIKOLL, JJ.

OPINION FOR AFFIRMANCE

MAIN, Justice.

At issue in this proceeding are actions of various boards of the Town of Plattsburgh relative to a 100-acre tract of land in the Town, 60 acres of which intervenor-respondent Parcon Realty, Inc. proposes to develop as the Champlain Mall shopping center. Petitioner here challenges the action of the Town Board on October 2, 1978 rezoning the 100-acre tract from R-2, i. e., residential district without utilities, to C-2, i. e., shopping center commercial district, the determination of the Town Planning Board on October 24, 1978 that the proposed shopping center project would not require an environmental impact statement under the State Environmental Quality Review Act (SEQRA) and the action of the Town Zoning Board of Appeals on October 30, 1978 granting Parcon Realty in the development of the shopping center a variance from certain parking and off-street loading space requirements contained in the Town's Zoning Ordinance. While the net effect of these actions would unquestionably be to facilitate Parcon Realty's development of the shopping center, that fact is plainly insufficient to render the actions improper, and for the reasons that follow we hold the dismissal of petitioner's application should be affirmed.

Initially, we find that petitioner's challenge to the amendment to the zoning ordinance by the Town Board cannot be sustained and, in so ruling, hold that the provisions of SEQRA did not require a determination whether to prepare an "environmental impact statement" prior to the adoption of the amendment on October 2, 1978. Prior to November 1, 1978 (see 6 NYCRR 617.12(2)(i), eff. Nov. 1, 1978) only "type I actions" as exclusively listed in 6 NYCRR 617.15(e) (eff. Jan. 24, 1978) required such a determination, and a review of the list reveals that it does not include an amendment to a municipality's zoning ordinance changing the allowable use of a district such as presented here. With regard to any other challenge to the amendment, petitioner lacks the requisite standing because it had a right to be heard at a public hearing on the proposed amendment, but no right to judicial review of the Town Board...