Dexter v. Town Bd. of Town of Gates

• Decision Date: 18 February 1975
• Citation: 36 N.Y.2d 102,365 N.Y.S.2d 506,324 N.E.2d 870
• Parties: , 324 N.E.2d 870 In the Matter of Robert F. DEXTER et al., Appellants, v. TOWN BOARD OF the TOWN OF GATES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 506

365 N.Y.S.2d 506

36 N.Y.2d 102, 324 N.E.2d 870

In the Matter of Robert F. DEXTER et al., Appellants, v. TOWN BOARD OF the TOWN OF GATES, Respondent.

Court of Appeals of New York.

Feb. 18, 1975.

Neil Bubel, Rochester, for appellants.

Richard S. Mayberry and Vincent Assini, Rochester, for respondent. JASEN, Judge.

Wegman Enterprises, Inc., as contract-vendee, petitioned the respondent Town Board of the Town of Gates to rezone approximately 12 acres of land from an R--8A residential classification to a B--1 commercial classification. The purpose of the rezoning was to permit development of the site as a retail shopping center for a Wegmans Food Market and other stores. After a hearing, the town board resolved to rezone the property, but imposed a series of conditions upon its rezoning. The most pertinent of the conditions, ¹ which had given rise to this appeal, is the condition with provides '(t)hat said application for the construction of a retail supermarket by Wegman Enterprises, Inc., and related commercial structures, shall inure to the benefit of Wegman Enterprises, Inc., only, and for that specific purpose only.'

Petitioners sought to invalidate the charge in zoning as being arbitrary and capricious and not in accord with the comprehensive town plan adopted in 1963. When the matter first reached the Appellate Division (40 A.D.2d 754, 338 N.Y.S.2d 428), the court remitted it 'to the Town Board for further proceedings to demonstrate that it acted in accordance with a comprehensive plan.' Upon remand, the town board reaffirmed the new zoning classification, setting forth the reasons for the rezoning--that the population of the town had increased, the area surrounding the parcel was already commercially developed, and that a shopping complex would further the general welfare of the community. Once again the petitioners challenged the town board's action, but the Appellate Division (43 A.D.2d 899, 900, 351 N.Y.S.2d 237, 239) dismissed the petition, finding 'that the action of the Town Board in adopting the zoning change was not arbitrary or capricious and was in accordance with the general comprehensive planning of the Town'.

While it is a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies it (see Matter of Weinrib v. Weisler, 27 N.Y.S.2d 592, 313 N.Y.S.2d 407, 261 N.E.2d 406, affg. 33 A.D.2d 923, 307 N.Y.S.2d 603; 1 Rathkopf, Law of Zoning and Planning, p. 1--24), we recognize that customarily, as is here illustrated, when a change of zone, a variance or a special permit is sought, there is a specific project sponsored by a particular developer which is the subject of the application. As a practical matter, the application is usually predicated on a particular type structure, often accompanied by architectural renderings, for a particular use by a specific intended user. In the usual case, the application and accompanying graphic material come to constitute a series of representations frequently bolstered at the hearing by additional promises or assurances made to meet objections there raised. Throughout, attention focuses on the reputation of the applicant and his relationship to the community and the particular intended use. And all too often the administrative or legislative determination seems to turn on the identity of the applicant or intended user, rather than upon neutral planning and zoning principles.

The error in this approach, however, is lack of adherence to the fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it. (See Matter of Weinrib v. Weisler, Supra; Vlahos Realty Co. v. Little Boar's Head Dist., 101 N.H. 460, 463, 146 A.2d 257; Mayor v. Poe, 224 Md. 428, 433, 168 A.2d 193; 1 Rathkopf, Law of Zoning and Planning, p. 1--24.) While it is proper for a zoning board to impose appropriate conditions and safeguards in conjunction with a change of zone or a grant of a variance or...