Todd Mart, Inc. v. Town Bd. of Town of Webster

• Decision Date: 10 July 1975
• Citation: 49 A.D.2d 12,370 N.Y.S.2d 683
• Parties: TODD MART, INC., Respondent, v. TOWN BOARD OF TOWN OF WEBSTER and Town of Webster, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 683

370 N.Y.S.2d 683

49 A.D.2d 12

TODD MART, INC., Respondent, v. TOWN BOARD OF TOWN OF WEBSTER and Town of Webster, Appellants.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1975.

Elliott, Stern & Calabrese, Rochester, for appellants (Michael J. Greene, Webster, of counsel).

Sutter & Summers, Webster, for respondent (Donald C. Summers, Webster, of counsel).

Before MARSH, P.J., and MOULE, MAHONEY, GOLDMAN and WITMER, J.J.

OPINION

COLEMAN, Justice.

Petitioner-respondent Todd Mart, Inc. (Todd), a developer of retail shopping centers, brought this Article 78 proceeding to annul a decision of the respondents-appellants, Town Board of the Town of Webster and Town of Webster (Town Board) denying petitioner's application to rezone 20 acres of land for the construction of a shopping center. Special Term reversed the Town Board's determination and remitted the matter of the Town Board 'to make necessary findings of fact.'

Under the Town of Webster Zoning Ordinance and Official Map which were adopted on June 26, 1969 in accordance with 'the general intent of a comprehensive plan', the subject property, presently owned by petitioner, was placed in a C-S commercial shopping center district. The permitted uses in such a district are limited to single family dwellings, and various public, religious and agricultural uses (Webster Zoning Ordinance § 59--11A). The ordinance provides that 'The Town Board may establish a PCS planned shopping center district in a C-S District in accordance with procedures set forth in Articles IV and V hereof' (Section 59--19).

In accordance with the ordinance petitioner submitted a sketch plan for the shopping center to the Webster Planning Board. The submitted plan indicated that the shopping center would be enclosed and include a theater, bank, supermarket, general department store, and numerous other shops. After several meetings and discussions of the sketch plan application the Planning Board submitted a favorable report to the Town Board. Thereafter, on July 12, 1973 the Town Board passed the following resolution at its regular meeting:

'that the proposed Monroe Mall-Todd Mart Incorporated PUD project on the corner of Five Mile Line Road and Ridge Road, appears to meet the objectives set forth in Section 59--23 of the Zoning Ordinance and would be in the public interest. Further, that the project be referred to the Planning Board for progression of preliminary plans under Section 59--26 of the Zoning Ordinance.'

This favorable determination was made pursuant to subsection D of section 59--25 of the ordinance which provides in relevant part that:

'Such determination or recommendations by the Town Board shall be advisory only and shall not constitute approval or disapproval of the plans for the project, nor shall it constitute a commitment or agreement by the Town Board to take any further action whether in the nature of legislation or otherwise in connection with such proposal.'

Under the PUD zoning procedure the next step provided for application for Planning Board approval of a preliminary development plan, followed by a public hearing by the Town Board and then reconsideration by that Board. Article IV, section 59--26 of the ordinance provides:

'If after the public hearing the Town Board shall determine that the proposed development conforms to applicable state, county and town laws, ordinances and regulations, and is in the public interest, it shall adopt a resolution declaring its intention to zone the applicant's property for the proposed planned unit development upon the applicant receiving approval of final plans therefor from the Planning Board and upon the developer meeting such additional conditions as the Town Board shall deem appropriate in each case and shall set forth in such resolution.'

Eventually the Planning Board on December 20, 1973 gave preliminary approval of the plan subject to conditions relating to drainage, signs, construction of an access road and other matters, and it referred the application to the Town Board. After substantial opposition voiced by several residents at public hearings held on February 14th and May 9, 1974 the Town Board on May 23, 1974, by unanimous resolution, denied 'the request for 'intent to re-zone ". The Town Board's refusal to declare its intention to rezone was supported by 18 specific findings included among which were incompatibility with the existing residential character of the area; increased automobile traffic, noise, and congestion on the highway, close to the busiest intersection in the Town; inadequate flood control plans as affecting soil erosion and pollutants; poor and unsuitable soil conditions for commercial development which would be a source of potential blight; material changes in the ultimate access from the original plan which had been approved by the Planning Board; petitions in opposition signed and submitted at the two public hearings by 587 residents; and no adequate provision for buffers. The Town Board in its findings concluded that petitioner had not proved that the proposed shopping center would create 'a more desirable environment' and that approval of 'this shopping center would not be in the public interest'.

After this action by the Town Board, petitioner commenced the present Article 78 proceeding to annul the Town Board's determination and to secure an order requiring that its property be rezoned as requested. The petition also alleged that the zoning ordinance as applied by the Town Board was 'unlawful and illegal and an unconstitutional deprivation of petitioner's due process and confiscatory'. Special Term, nothing that the constitutionality of the ordinance was not questioned, properly stated that the 'question for determination is whether the action of the Town Board is legislative or administrative'. The court answered the question by holding that the Town Board's denial of the application for a declaration of 'intent to rezone' was administrative in nature and was not legislative. Special Term with particularity reviewed the factual findings of the Town Board and held that these findings were 'conclusory statements' which are 'arbitrary and unreasonabl and therefore required remand to the Town Board for further factual development.

This appeal presents a relatively new concept in New York zoning law--the planned unit development (PUD). Essentially, 'The planned unit development technique is a legislative response to changing patterns of land development and the demonstrated shortcomings of orthodox zoning regulations.' (1 Anderson, New York Zoning Law and Practice (2d ed.), § 8.28.) The 'changing patterns' are the relatively recent prevalence of large scale developments, such as new towns and suburbs around urban communities; the related shortcomings of orthodox zoning are its inflexibility and inability to mix diverse land-uses with a localized district. The planned unit development concept has evolved to meet these specific land-use control problems. It made available to communities a maximum choice in types of environment. It creates a flexible floating zone which, as in the instant case, hovers without definite boundaries until subsequent action by the zoning authority affixes it to an identified area. It multiplies the community's options to provide for compatible and efficient uses of land.

The usual PUD technique, as in the Webster Zoning Ordinance, involves a two-stage process: 1--description of the permissible type or types of PUD districts in the original zoning ordinance, and 2--location and approval of particular PUD districts by supplemental action at a later time. This secondary stage usually involves regulation of the developer's land-use planning by public planning officials and then formal amendment of the zoning ordinance and map to locate an approved PUD district (1 Anderson, New York Zoning Law and Practice (2d ed.), §§ 8.28--8.34). The instant case raises the issue of whether this secondary determination approving or rejecting a PUD zoning change is a legislative or administrative determination. If the determination of the Webster Town Board is 'administrative', then petitioner's proper procedural form is the Article 78 proceeding which it instituted. If, however, the determination is 'legislative', than an Article 78 review is inappropriate; for in that event petitioner's proper procedural course would be a declaratory judgment action to test the validity or constitutionality of the legislative action. This procedural distinction is of limited significance in the case at bar because the courts under CPLR 103(c) may review challenged zoning determinations even though the improper procedural form has been employed. (See, Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 457--458, 322 N.Y.S.2d 696, 702--703, 271 N.E.2d 537, 542; Matter of Willey v. Garnsey, 45 A.D.2d 227, 228, 357 N.Y.S.2d 281, 283.) More importantly, however, the 'legislative-administrative' distinction determines the substantive standard for judicial review of the zoning determination. If the determination is characterized as administrative, a more exacting judicial inquiry is permitted, that is, whether the challenged determination is contrary to local standards, arbitrary, capricious, discriminatory, an abuse of discretion, or supported by substantial evidence (CPLR 7803). On the other hand, if the challenged determination is legislative, judicial review is more limited. Such a review may only ascertain whether the local legislative body had authority to act as it did under its zoning enabling statute (see Town Law, §§ 260--264) or whether the legislative action is an unconstitutional taking or deprivation of due process or equal protection under the Fifth and Fourteenth Amendments. Because...