Webster Associates v. Town of Webster
| Decision Date | 18 February 1981 |
| Citation | 112 Misc.2d 396,447 N.Y.S.2d 401 |
| Parties | WEBSTER ASSOCIATES, Peter Wahl, Betty Wahl, Othello Thurston, Arlene Kusse, Donald Kusse, Philip Furnari, Warren Ghysel and John McLaughlin, Petitioners, v. TOWN OF WEBSTER, Edmund Heiligman, Nancy Thomas, Robert Murphy, Henry Kujawa and Irving Kent, as members of and constituting the Town Board of the Town of Webster; Irving Kent, Individually; Expressway Associates, and Bruce C. Hegedorn, Respondents. |
| Court | New York Supreme Court |
Winer, Neuburger & Sive, New York City (David Sive, New York City, of counsel), and Robinson, Williams, Angeloff & Frank, Rochester (Bernard A. Frank, Rochester, of counsel), for petitioners.
Sutton, DeLeeuw, Clark & Darcy, Rochester (Robert L. Teamerson, Rochester, of counsel), for respondents Town of Webster; Edmund Heiligman, Nancy Thomas, Robert Murphy, Henry Kujawa and Irving Kent, as members of and constituting the Town Board of the Town of Webster; and Irving Kent, Individually.
Harter, Secrest & Emery, Rochester (William H. Helferich III, and Neal D. Madden, Rochester, of counsel), for respondent Expressway Associates.
Middleton, Wilson, Boylan & Gianniny, Rochester (John M. Wilson II, Rochester, of counsel), for respondent Bruce C. Hegedorn.
DECISION
On October 23, 1980 the Webster Town Board passed a resolution declaring its intent to rezone a large parcel of land to permit the construction there of a regional shopping mall. Since that time certain Webster residents and a competing developer, Webster Associates, Inc., have attempted to overturn that rezoning decision by commencing an Article 78 proceeding and a declaratory judgment action against the Town of Webster and its Board members and against the owners of the subject parcel, Bruce C. Hegedorn and Expressway Associates (Expressway).
Generally, these new actions allege three grounds for overturning the Town Board's resolution: (1) That the decision to rezone without Town Planning Board approval contravened the Webster Zoning Ordinance; (2) That the resolution was impermissibly tainted by the bias of Town Board member Irving Kent; and (3) That the Town Board failed in several respects to comply with the State Environmental Quality Review Act (SEQRA) and its companion regulations.
This is, in many respects, a companion case to Bliek v. Town of Webster, 104 Misc.2d 852, 429 N.Y.S.2d 811 in which several of these same parties appeared before me regarding an unsuccessful attempt by Webster Associates to rezone a competing site in Webster, one-half mile from the Hegedorn-Expressway parcel. The current actions are before the court on motions brought by all of the parties as follows:
1. The petitioners-plaintiffs (hereinafter "petitioners") seek an order for examinations before trial of Town Supervisor Irving Kent and Ronald C. Lyon, P. E., a consulting engineer, pursuant to CPLR § 408.
2. Respondents Kent, the Town of Webster and Expressway move to consolidate the declaratory judgment action and the Article 78 proceeding, pursuant to CPLR 602(a). This motion is granted (Bliek v. Town of Webster, 104 Misc.2d 852, 859-860, 429 N.Y.S.2d 811, supra).
3. Respondents Kent and the Town of Webster move to dismiss the consolidated action, pursuant to CPLR 3211(a)(7), for failure to state a cause of action, for summary judgment pursuant to CPLR 3212 in the consolidated action, and for dismissal of the actions as to Webster Associates, pursuant to CPLR 3211(a)(3), for lack of standing.
4. Respondent Expressway seeks dismissal of the Article 78 proceeding, pursuant to CPLR 7806, and summary judgment 5. Respondent Hegedorn moves for summary judgment in the declaratory judgment action.
in the declaratory judgment action, pursuant to CPLR 3212.
On October 18, 1979, Expressway announced its intention to build a regional shopping center on a 95-acre parcel of land located in the Town of Webster and zoned a "CS" (Commercial Shopping Center) district. Since the Town's Zoning Ordinance permitted such a project only in a "PCS" (Planned Shopping Commercial) district Expressway first had to obtain a rezoning of its parcel through the procedures provided by the Webster Town Code and the State Environmental Quality Review Act (Environmental Conservation Law, Article 8) and its companion regulations (see generally, Bliek v. Town of Webster, supra).
On May 21, 1980, having consulted with various state and regional agencies, Expressway filed a Draft Environmental Impact Statement (DEIS) for the Town Board's approval. On June 12, 1980 the Board accepted the DEIS with respect to scope, content and adequacy, pursuant to ECL § 8-0109(5) and 6 NYCRR 617.8(b), but only after Expressway had submitted additional material ("Addendum # 1") consisting of 33 pages of additions and revisions to the DEIS and a new report on Air Quality.
On July 14, 1980, the Town Board, during the period provided for public comment on the DEIS, held a public hearing on the Draft Statement, which was, under the circumstances, mandatory (see 6 NYCRR § 617.8(d)). At the hearing, the public learned for the first time that more additions and revisions to the DEIS (Addendum # 2) had been submitted to the Board that day. The Board, despite requests from petitioners and others, declined to refile and recirculate the DEIS as amended. It did, however, extend the public comment period for an additional month.
The SEQRA process was then completed in normal course. The Final Environmental Impact Statement (FEIS) was submitted on September 16, 1980 and filed and circulated on September 26, 1980. This document consisted of the DEIS, public and agency comments thereon, and a fair amount of new material generated in response to the public comments, all as allowed by SEQRA (6 NYCRR 617.14(h)). Perhaps the most significant new material was an amendment to that portion of the DEIS which discussed alternatives to the proposed development as required by SEQRA (ECL § 8-0109(4); 6 NYCRR 617.14(f)(5)). The initial submission treated this subject in one page; the revision encompassed seventeen pages.
While the process of environmental review was under way, Expressway was also qualifying its project in the multi-step zoning procedure mandated by the Webster Town Code Planned Unit Development (PUD) statute (Town Zoning Ordinance § 59-21 et seq.). One of the requirements of the ordinance was that Expressway submit a "preliminary development plan" to the Town Planning Board for its approval (Town Zoning Ordinance § 59-26A., B.). After heated public hearings, during which Town Supervisor Kent expressed his support for the Expressway project and accused certain Planning Board members of opposing it in favor of a competing Webster Associates project, the Planning Board disapproved Expressway's preliminary development plan by a 4-2-1 vote.
Thereafter, on August 11, 1980, the Planning Board notified the Town Board of its disapproval of the mall proposal. Notwithstanding the Planning Board's determination, the Town Board decided, on October 16, 1980, to proceed with the application and scheduled a public hearing on a declaration of intent to rezone the property (Webster Zoning Ordinance § 59-26). Such a declaration is for all intents and purposes the final step in Webster's zoning process (Bliek v. Town of Webster, supra).
The respondents contend that Webster Associates lack standing to maintain this action. Moreover, all but respondent Hegedorn (who withdrew his objection at oral argument) claim that the other petitioners, as nominees of Webster Associates, are equally devoid of standing.
Taking the claims in inverse order, it is apparent that the individual petitioners have standing to sue. Regardless of their motivation, they allege residence in the Town of Webster, a denial of due process under SEQRA, and detrimental environmental impacts on their homes and properties which will occur if the rezoning takes place and the proposed mall is built. These allegations are sufficient to entitle them to challenge the Town's rezoning and SEQRA decisions (Bliek v. Town of Webster, supra; H.O.M.E.S. v. Urban Dev. Corp., 69 A.D.2d 222, 418 N.Y.S.2d 827).
The standing of Webster Associates, however, is a different matter. It neither resides nor owns land in the Town. Its only connection to this proceeding is that it is an optionee of a rival tract upon which it is seeking to obtain rezoning in order to develop its own regional mall. Its claim is, nevertheless, that as an optionee of land within the Town it stands in the shoes of the landowner and thus may assert any environmental claims which the owner has. In support of its position, Webster Associates cites two New York cases, Matter of Taxpayers' Assn. v. Board of Appeals, 301 N.Y. 215, 93 N.E.2d 645 and Mtr. of Atlantic Co. v. Bd. of Appeals, 14 Misc.2d 1022, 180 N.Y.S.2d 656, in which contract vendees were granted standing. In addition, it claims standing under Dairylea Co-op v. Walkley, 38 N.Y.2d 6, 377 N.Y.S.2d 451, 339 N.E.2d 865, wherein the Court of Appeals held that standing to challenge administrative action devolves upon anyone with an interest which is arguably within the zone of interests protected by the statute at issue.
Webster Associates' status as an optionee is insufficient to furnish the standing necessary to maintain these actions. At oral argument petitioner conceded that its actual interest is purely commercial. The parcel affected by the Town's action is not, as in the cases Webster Associates cites, the one upon which petitioner holds the options. While its...
To continue reading
Request your trial
-
Gernatt Asphalt Products, Inc. v. Town of Sardinia
... ... 56 N.Y.2d 859, 453 N.Y.S.2d 427, 438 N.E.2d 1142; Webster Assocs. v. Town of Webster, 112 Misc.2d 396, 402, 447 N.Y.S.2d 401, affd. 85 A.D.2d 882, 446 ... ...
-
Society of Plastics Industry, Inc. v. County of Suffolk
... ... We sustained that law against constitutional challenge in Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 484 N.Y.S.2d 528, 473 N.E.2d 756 ... Town Bd., supra, 83 A.D.2d at 341, 443 N.Y.S.2d 951; Webster Assocs. v. Town of Webster, 112 Misc.2d 396, 402, 447 N.Y.S.2d 401, aff'd ... ...
-
Glen Head--Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay
... ... v. Town Bd. of Town of Tuxedo, 69 A.D.2d 320, 418 N.Y.S.2d 638; Webster Assoc. v. Town of Webster, 112 Misc.2d 396, 447 N.Y.S.2d 401, affd. 85 A.D.2d 882, 446 N.Y.S.2d ... ...
-
Altaire Builders, Inc. v. Village of Horseheads
... ... was reviewed initially by the Village Planning Commission, the Town Planning Board and the Planning Board of the County of Chemung, and ... See, Webster Associates v. Town of Webster, 112 Misc.2d 396, 447 N.Y.S.2d 401, 407 ... ...
-
Showcase Panel Iii: the States & Administrative Law
...1986) (explaining that reasoned "reasoned consideration" must be given to each pertinent factor); Webster Assocs. v. Town of Webster, 447 N.Y.S.2d 401 (N.Y. Sup. Ct. 1981); Abell v. Nash Cty. Bd. of Educ., 321 S.E.2d 502 (N.C. Ct. App. 1984); In re Ohio Power Co., 40 N.E.3d 1060 (Ohio 2015)......
-
Balancing Conservation and Development Through Environmental Impact Review
...Inc. v. Town of Oyster Bay, 453 N.Y.S.2d 732, 737-38 (App. Div. 1982) (citations omitted). 64 Webster Assoc. v. Town of Webster, 447 N.Y.S.2d 401, 414 (Sup. Ct. 1981), rev’d on other grounds , Webster Assoc. v. Town of Webster, 451 N.E.2d 189 (N.Y. 1983). 65 N.Y. Comp. Codes R. & Regs. tit.......
-
Better Equipping the Environmental Protection Act to Conserve Connecticut's Natural Resources
...1982); Salmon v. Flacke, 449 N.Y.S.2d 610 (Sup. Ct. 1982), revd 458 N.Y.S.2a 755 (App. Div. 1982); Webster Assocs. v. Town of Webster, 447 N.Y.S.2d 401(Sup. Ct. Center Square Ass'n, Inc. v. Coming, 430 N.Y.S.2d 953 (Sup. Ct. 1980); Bliekv. Town of Webster, 429 N.Y.S.2d 811 (St. Ct. 1980); D......