Opinion
100551.
Decided April 10, 2008.
The instant action is a combined Article 78 proceeding and action for a declaratory judgment in which petitioner (Benderson) seeks annulment of the denial by the Town of Victor Planning Board (Planning Board) of approval of modifications to a previously approved site plan to construct a retail shopping plaza in the Town of Victor known as the Victor Crossing Project. Petitioner also seeks a declaration that the Town of Victor's Route 96-251 Architectural Guidelines are unconstitutionally vague and unenforceable and seeks a permanent injunction against their application or enforcement.
After an approval process spanning nearly seven years, the Planning Board gave petitioner final site plan approval to construct the Victor Crossing Project in February 2007. After satisfying the conditions of final approval, petitioner began construction in September 2007. At present, construction is on-going.
In October 2007, petitioner sought approval from the Planning Board for modifications to the previously approved site plan to allow for a change in tenants for the project. The modifications consisted of changes to the footprints of certain buildings on site. It does not appear to be in dispute that the modified site plan maintained the same total square footage, access points, setbacks, landscaping elements, parking spaces, building heights, maximum building size and architectural elements as the previously approved final site plan.
Petitioner alleges that on January 22, 2008, the Planning Board voted to deny Benderson's application for approval of the site plan modifications without setting forth any rational basis or justification. Petitioner argues that the Planning Board's denial of the site plan modifications was wholly arbitrary and capricious and unsupported by substantial evidence in the record. Furthermore, to the extent that the Board's denial was based upon its interpretation of the Town's Architectural Guidelines, the petitioner contends that the Guidelines are impermissibly vague and subjective. As a result, Benderson argues that it is entitled to a judgment and order directing the Planning Board to grant its application for approval of the modified site plan.
The respondent Planning Board asserts that the original approved site plan consisted of four buildings, one of which would contain a large retailer (most likely Wal Mart), flanked by two smaller retailers. The remaining three buildings were to house a series of smaller retailers. The plan was to create a "town center"-like structure that would be surrounded by existing residential development. The modified site plan removed the smaller retailers flanking the large space and reconfigured a long, rectangular building designed to house a series of small retailers into one that housed a large, square shaped retailer, flanked on one side by small retail shops. The respondent asserts that, in essence, the new site plan created two large dominant retail spaces, including parking, with two subservient rows of small retailers, with little incentive for pedestrians to move between the two structures.
At a January 22, 2008, Planning Board meeting, the proposed site plan modifications were brought forward for a vote. After some debate, Board member Santoro made a motion to approve a resolution with findings of fact approving the modified site plan. Although the Board consists of seven members, one board seat was vacant and one member was not in attendance on that date. Two members voted in favor of the resolution and three members voted against it. As such, the resolution did not carry. No additional resolutions in favor of, or in opposition to, the modified site plan were offered. The instant proceeding was thereafter instituted.
The first issue that must be addressed by this Court is whether or not the actions by the Planning Board on January 22, 2008 constituted a final determination that can be challenged herein. The respondent asserts that the instant petition challenges a non-final determination and should, therefore, be dismissed. The petitioner argues that its challenge to the Planning Board's rejection of its modified site plan is ripe for judicial review.
The planning board herein consisted of seven members. At the time of the vote at issue, one board seat was vacant and one member of the board was not present. Under New York State law, every motion or resolution of a planning board requires for its adoption the affirmative vote of a majority of all the members of the planning board (Town Law § 271). Therefore, with respect to the instant matter, in order to have approved the modified site plan, four of the five members in attendance at the meeting would have needed to vote in favor of any proposed resolution. There was no motion made to deny the site plan modifications. Moreover, pursuant to Town Law, such a motion would have required the supporting votes of a majority of the members of the board in order to carry. As a result, the board did not vote to approve the motion in favor of the modified site plan, nor did it vote to approve a motion denying the application.
Nor is there any provision in the law that would allow this Court to treat a failure to vote on the site plan modification as a de facto, or default, denial (see, Nyack Hospital v. Village of Nyack Planning Board, 231 AD2d 617). In Nyack, the Second Department found that a failure to render a decision could not be considered an approval. "The failure of the Legislature to include an approval-by-default provision in the site plan statutes is a strong indication that such exclusion was intended . . ." ( Nyack Hospital v. Village of Nyack Planning Board, supra).
Likewise herein, if the Legislature had intended to include a denial-by-default provision for non-actions of the Planning Boards, it would have done so. This is confirmed by the Legislature's affirmative determination in other statutes that a failure to act is construed as a denial by default (see, Town Law § 267-a(13)(b) (with respect to a Zoning Board of Appeals in exercising its appellate jurisdiction, "if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied.")
No such default provision pertaining to actions, or failures to act, of a planning board is contained in Town Law § 271(16). "Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning; words are not to be rejected as superfluous (see, Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86; see also McKinney's Cons Laws of New York, Book 1, Statutes §§ 94, 231). The failure of the Legislature to include a default denial provision for actions taken by planning boards is a strong indication that such exclusion was intended ( Nyack Hospital v. Village of Nyack Planning Board, supra; McKinney's Cons Law of NY, Book 1, Statutes § 74). This is particularly so where the same legislative action included a default denial provision for zoning boards of appeals (see, Town Law § 267-a).
Benderson's reliance on the Court of Appeals' case of Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, supra, is misplaced. In Tall Trees Construction, the Court of Appeals considered Town Law § 267-a, which has now been amended as a result of this decision. The same legislative action added Town Law § 271(16). Specifically:
"the general city law, the town law, the village law and the general municipal law [were amended], in relation to requiring an affirmative vote of a majority of all members of a planning board, zoning board of appeals, county planning board or regional planning council in order to take action, and to provide for a default denial by the zoning board of appeals where it fails to pass a motion overruling a decision of the enforcement officer." NY LEGIS 662 (2002).
Given the Legislature's failure to provide for a default denial by planning boards, this Court hereby finds that in the instant matter before it, the Planning Board's review of Benderson's modified site plan amounted to a non-final action of the Planning Board and therefore may not be reviewed in the context of the instant Article 78 petition. This proceeding must be dismissed and the matter remitted to the Planning Board in order for a vote to be taken on the petitioner's application in accordance with Town Law § 271(16).
In light of this Court's determination that the actions taken by the Planning Board on January 22, 2008, constituted a non-final determination of the Board, the substantive claims raised by Benderson are not ripe for judicial review and cannot be considered herein.
With respect to the declaratory judgment action, this Court agrees with the respondent-defendant herein and determines that the action does not raise a justiciable controversy. It is fundamental that in order to establish a cause of action for a declaratory judgment, a plaintiff must present a justiciable controversy (see, Cherry v. Koch, 126 AD2d 346). Standing under CPLR 3001 is conferred where a plaintiff can establish an injury or the threat of injury (see, DiFrancesco v. County of Rockland , 41 AD3d 530 ). In the instant action, this Court has determined herein that the Planning Board's determination was a non-action. As a result, the plaintiff's challenge to the provisions of the Town's Architectural Guidelines is premature. Therefore, it cannot be said that plaintiff has standing in a declaratory judgment action to determine the constitutionality of the Guidelines. Because at this juncture there is no "justiciable controversy," the Court need not address whether the Guidelines are unconstitutionally vague (see, Schultz v. City of Port Jervis, 242 AD2d 699).
Based upon the foregoing, this Court finds that the Planning Board's review of the modified site plan was a non-final action. Therefore, the instant Article 78 proceeding is dismissed. This matter is remitted to the Planning Board for a vote on Benderson's application pursuant to Town Law § 271 (16). The declaratory judgment action challenging the constitutionality of the Architectural Review Guidelines is dismissed for lack of a justiciable controversy.
Submit Order in accordance herewith.