City of Rochester, Matter of

• Decision Date: 20 October 1988
• Citation: 533 N.Y.S.2d 702,530 N.E.2d 202,72 N.Y.2d 338
• Parties: , 530 N.E.2d 202 In the Matter of the County of Monroe's Compliance with Certain Zoning and Permit Requirements of the City of Rochester in Connection with the City/County Airport Expansion. CITY OF ROCHESTER, Appellant; COUNTY OF MONROE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 702

533 N.Y.S.2d 702

72 N.Y.2d 338, 530 N.E.2d 202

In the Matter of the County of Monroe's Compliance with Certain Zoning and Permit Requirements of the City of Rochester in Connection with the City/County Airport Expansion CITY OF ROCHESTER, Appellant COUNTY OF MONROE, Respondent.

Court of Appeals of New York.

Oct. 20, 1988.

Louis N. Kash, Corp. Counsel (Ellen A. Anderson, Rochester, of counsel), for appellant.

Patrick M. Malgieri, Co. Atty. (Ann M. Kerwick, Rochester, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Should the expansion, with accessory uses, of the Greater Rochester International Airport by the County of Monroe be subject to the site plan approval requirements of the City of Rochester? Based on General Municipal Law § 350 and on the balancing of public interests, we agree with the result at the Appellate Division that it should not.

The facts before the Appellate Division, pursuant to CPLR 3222(b)(3), are that the airport is owned and operated by the County and is located substantially in the City. Between 1984 and 1986, the County proposed and approved amendments to its master plan for the airport, including expansion of the main terminal, improvement of the runway apron, and addition of an enclosed parking garage, an air freight facility, a hotel and a temporary parking facility for use during construction of the enclosed parking facility. All improvements were on property located wholly within the City.

The County initially submitted a site plan application to the City in February 1987, for all of the planned improvements except the temporary parking facility, the air freight facility, and the runways. The City requested additional information concerning the improvements and compliance with the State Environmental Quality Review Act. The County responded that the planned uses (with the exception of the hotel, which is not in issue in this case) were governmental and immune from City site plan oversight, and that its prior practice of keeping the City apprised of airport proposals had been only a courtesy, not an acquiescence to City review. The City asserted review jurisdiction based on the proprietary classification test.

The Appellate Division unanimously declared that the "Rochester City Code § 115-30D(7) and City permit requirements do not apply to the expansion" (131 A.D.2d 74, 80, 520 N.Y.S.2d 676) based on the traditional governmental versus proprietary categorization. Alternatively, it noted that since "the governmental versus proprietary distinction is of ancient vintage" and "may be unconvincing" (id., at 79, 520 N.Y.S.2d 676), the Rochester ordinances were nonetheless inapplicable because the State enabling legislation, General Municipal Law § 350, impliedly frees the County operation of the airport from City control. While the parties' arguments concentrate on the governmental-proprietary classification, both acknowledge that the test may have outlived its usefulness.

We conclude that the time has come for retiring this labeling device. In its place, a "balancing of public interests" analytic approach will be substituted. Talismanic application of the old test "beg[s] the critical question of which governmental interest should prevail when there is a conflict between the zoning ordinance of one political unit and the statutory authority of another unit to perform a designated public function" (Note, Governmental Immunity from Local Zoning Ordinances, 84 Harv.L.Rev. 869 [1971] ).

The governmental-proprietary function test, as traditionally applied in this State to land use, was borrowed from the field of tort liability as derived from the absolute sovereign immunity doctrine (Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 194, 159 N.Y.S.2d 145, 140 N.E.2d 241; compare, County of Westchester v. Village of Mamaroneck, 22 A.D.2d 143, 148-149, 255 N.Y.S.2d 290, affd. 16 N.Y.2d 940, 264 N.Y.S. 925, 212 N.E.2d 442). Under the old test, a municipality is immune from zoning regulations if the uses qualify as governmental (see, Nehrbas v. Incorporated Vil. of Lloyd Harbor, supra [village immune from own zoning ordinance]; Village of Larchmont v. Town of Mamaroneck, 239 N.Y. 551, 147 N.E. 191 [village immune from town ordinance]; Oswald v. Westchester County Park Commn., Sup. 234 N.Y.S.2d 465, affd. 18 A.D.2d 1139, 239 N.Y.S.2d 862 [county immune from town ordinance] ). However, a municipality has been subject to such prescriptions when it acts in a corporate or proprietary capacity (Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 742, 395 N.Y.S.2d 428, 363 N.E.2d 1163 [operation of asphalt plant] ).

The test has surely been on shaky ground for a long time. "Even during its heyday, the distinction between 'governmental' and 'proprietary' functions of government was subjected to a 'veritable landslide' of criticism and was labeled an 'enigma' and an 'absurdity' [citations omitted]. The abandonment of the rule of sovereign immunity has virtually destroyed the only real basis for the creation of the distinction" (County of Nassau v. South Farmingdale Water Dist., 62 A.D.2d 380, 387, 405 N.Y.S.2d 742, affd. 46 N.Y.2d 794, 796, 413 N.Y.S.2d 921, 386 N.E.2d 832 [in affirming, this court added, "the demarcation between governmental or proprietary interests in property owned or operated by government or its subdivisions no longer is as clear as it was in the past"] ).

The Supreme Court itself noted in Garcia v. San Antonio Metro. Tr. Auth., 469 U.S. 528, 531, 105 S.Ct. 1005, 1007, 83 L.Ed.2d 1016, overruling National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245, that an "attempt to draw the boundaries of state regulatory immunity in terms of 'traditional governmental function' is not only unworkable but is also inconsistent with established principles of federalism". The court observed that the governmental function rationale of National League of Cities v. Usery (id.) had been construed as providing immunity from regulation in the governmental operation of a municipal airport (Amersbach v. City of Cleveland, 598 F.2d 1033, 1037-1038 [6th Cir.] ), but not for the regulation of air transportation (Hughes Air Corp. v. Public Utils. Commn., 644 F.2d 1334, 1340-1341 [9th Cir.] ). Consistent with our own court's observation in Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 194, 159 N.Y.S.2d 145, 140 N.E.2d 241, supra, the Supreme Court in Garcia (supra) concluded that an organizing principle behind the test's application was not apparent and, thus, it discarded the governmental-proprietary function label in the field of regulatory immunity under the Commerce Clause.

Contradictions in governmental function designations have even cropped up within traditionally provided municipal services. In O'Brien v. Town of Greenburgh (239 App.Div. 555, 268 N.Y.S. 173, affd. without opn. 266 N.Y. 582, 195 N.E. 210), for example, we affirmed an Appellate Division holding that the collection and disposal of garbage was a proprietary function. Twenty-two years later, we distinguished that holding, concluding that disposal of rubbish was a governmental function, and allowed the storage of garbage trucks in a residential area contrary to village zoning restrictions (Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 195, n. 1, 159 N.Y.S.2d 145, 140 N.E.2d 241, supra). Such contradictions unmask the illusory benefit of the litmus governmental-proprietary distinction (see, Township of Washington v. Village of Ridgewood, 26 N.J. 578, 584, 141 A.2d 308, 311; City of Pittsburgh v. Commonwealth of Pennsylvania, 468 Pa. 174, 178-179, n. 4, 360 A.2d 607, 609-610, n. 4). "[T]he reasoned balancing of the competing public and private interests essential to an equitable resoluti of such conflicts has been forsaken for a mechanical application of convenient labels" (Note, Governmental Immunity from Local Zoning Ordinances, 84 Harv.L.Rev. 869, 872 [1971]; Blackstone Park Improvement Assn. v. Rhode Island Bd. of Stds. & Appeals...