Matter of North Country Citizens for Responsible Growth, Inc. v. Town of Potsdam Planning Board

• Decision Date: 26 April 2007
• Docket Number: 500767.
• Citation: 2007 NY Slip Op 03608,834 N.Y.S.2d 568,39 A.D.3d 1098
• Parties: In the Matter of NORTH COUNTRY CITIZENS FOR RESPONSIBLE GROWTH, INC., Petitioner, and CHARLES S. DUNCAN, SR. et al., Appellants, v. TOWN OF POTSDAM PLANNING BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 1098

834 N.Y.S.2d 568

2007 NY Slip Op 03608

In the Matter of NORTH COUNTRY CITIZENS FOR RESPONSIBLE GROWTH, INC., Petitioner, and CHARLES S. DUNCAN, SR. et al., Appellants, v. TOWN OF POTSDAM PLANNING BOARD et al., Respondents.

500767.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 26, 2007.

Appeal from a judgment of the Supreme Court (Dawson, J.), entered March 22, 2006 in Essex County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review determinations of respondents Town of Potsdam Planning Board and/or Town of Potsdam Zoning Board of Appeals granting an area variance and approval for the construction of a Wal-Mart Supercenter.

Mugglin, J.

In May 2004, respondent Wal-Mart Stores, Inc. submitted an application to respondent Town of Potsdam Planning Board for a building permit to construct a Wal-Mart Supercenter on State Route 11 in the Town of Potsdam, St. Lawrence County. According to the application, which included a draft environmental impact statement, the Wal-Mart Supercenter would consist of a retail store, garden center, tire and lube garage, gas station and an approximately 900-space parking lot. Under the Town of Potsdam Zoning Code, one portion of the proposed site is in a Community Center (C-C) zoning district and the rest is in a Residential-Agricultural (R-A) zoning district; in addition, the entire property is within a Planned Development (P-D) overlay district. Following the submission of Wal-Mart's building permit application, the Planning Board resolved to serve as the lead agency for purposes of a type I review pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]). The extensive review process, which was completed over 17 months, included public comments, additional testing, detailed reviews by respondents' attorneys and experts, and comments from various agencies. In September 2005, the Planning Board unanimously accepted the proposed final environmental impact statement. The Planning Board subsequently issued its SEQRA findings, which were filed with the Town of Potsdam Town Clerk on October 5, 2005.

In February 2005, while the SEQRA review was ongoing, Wal-Mart submitted a request for an area variance to respondent Town of Potsdam Zoning Board of Appeals (hereinafter ZBA). The variance was needed because Wal-Mart's proposed site plan situated its tire and lube garage 146 feet from the property line of petitioners Charles S. Duncan Sr. and Evalyn C. Duncan (hereinafter collectively referred to as the individual petitioners), and the Town of Potsdam Zoning Code requires a 200-foot setback. On October 25, 2005, following two public hearings, the ZBA adopted a resolution unanimously approving the area variance. On October 26, 2005, the Planning Board determined that the site plan was consistent with the provisions of the Town of Potsdam Zoning Code and unanimously resolved to approve Wal-Mart's site plan subject to certain stated conditions. The Planning Board found, among other things, that Wal-Mart's proposed use was an appropriate use in the relevant zoning districts. In November 2005, the individual petitioners and another commenced this combined CPLR article 78 proceeding and declaratory judgment action contending, among other things, that determinations by the Planning Board and the ZBA were arbitrary and capricious, and that the Planning Board failed to comply with certain SEQRA requirements. Following oral argument, Supreme Court dismissed the petition. The individual petitioners now appeal.

First, the individual petitioners contend that the Planning Board's approval of the Wal-Mart Supercenter should be annulled as irrational, arbitrary and capricious because the Wal-Mart Supercenter is neither an appropriate use in the C-C and R-A zoning districts, nor in the P-D overlay district. We accord great deference to a planning board's interpretation of a zoning ordinance and "its determination will be upheld if it has a rational basis and is supported by substantial evidence" (Matter of Committee to Protect Overlook, Inc. v Town of Woodstock Zoning Bd. of Appeals, 24 AD3d 1103, 1104-1105 [2005], lv denied 6 NY3d 714 [2006]; see Appelbaum v Deutsch, 66 NY2d 975, 977-978 [1985]; Matter of Kantor v Olsen, 9 AD3d 814, 815 [2004]). Also, "[w]here substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 196 [2002]).

Pursuant to Town of Potsdam Zoning Code § 110-7 (C) (8) (c), "[u]ses otherwise permitted in the R-A and C-C districts and uses permitted by special exception in the R-A and C-C districts as well as those uses deemed appropriate by the Town Planning Board ... may be permitted in the P-D overlay district." Retail stores are a permitted use in a C-C district (see Town of Potsdam Zoning Code § 110-7 [C] [4] [b] [8]), while parking lots, gasoline stations and garages are permitted in a C-C district by special exception (see Town of Potsdam Zoning Code § 110-7 [C] [4] [c] [5], [18]). Accordingly, the Planning Board deemed Wal-Mart's proposed use as an "appropriate use[] within the P-D District ... in accordance with the review procedures outlined in [Town of Potsdam Zoning Code § 110-7 (C) (8) (d)]." The use was deemed appropriate upon a finding that the Wal-Mart site plan was "in harmony with the orderly development of the district" and was not "more objectionable to nearby properties ... than would be the operations of any permitted use" (Town of Potsdam Zoning Code § 110-8 [A] [4] [a], [b]). Also, the Wal-Mart Supercenter proposal met the purpose of a P-D overlay district, which is "[t]o encourage planned development in the transportation corridor between Route 11 and the Conrail Railroad between Canton and Potsdam" (Town of Potsdam Zoning Code § 110-7 [C] [8] [a]).

Indeed, the Town of Potsdam's Community Development Strategy, published in 2004, specifically stated that "[r]etail development of all sizes should be encouraged in the highway corridor areas" [emphasis added], which includes the location of the proposed Wal-Mart. Although the Wal-Mart site plan certainly involves more intense uses than those currently in the area, there was nonetheless substantial evidence to support a finding that such use was permitted within a P-D overlay district. While a contrary determination may well have been supported by this record, there was a rational basis supporting the Planning Board's determination, which, therefore, must be upheld (see Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, supra at 196).

The individual petitioners next contend that the ZBA's approval of Wal-Mart's application for an area variance should be annulled as arbitrary and capricious on the basis that the ZBA failed to properly consider the factors for granting a variance as delineated in Town Law § 267-b. "In making its determination whether to grant an area variance, a zoning board of appeals is required, pursuant to Town Law § 267-b (3), to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted" (Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002] [citation omitted]; see Matter of Sasso v Osgood, 86 NY2d 374, 382, 384 [1995]; Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, 16 AD3d 715, 724 [2005]). In applying this balancing test, the ZBA must consider the five statutory factors (see Town Law § 267-b [3] [b]). The ZBA's conclusion is entitled to considerable deference "if it is found to have a rational basis and is supported by substantial evidence in the record" (Matter of Johnson v Town of Queensbury Zoning Bd. of Appeals, 8 AD3d 741, 742 [2004]; see Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, supra at 723-724).

In deciding whether to issue the area variance, the ZBA addressed the five specific criteria. First, the ZBA found that the "character of the neighborhood will not be adversely affected by a variance of 54 feet from the required setback of 200 feet from a residential property line." This conclusion was supported by evidence that, while the garage would be 146 feet from the property line, it was approximately 1,260 feet from the individual petitioners' residence. In addition, the services to be provided at the garage are...