Opinion
2012-12-28
In the Matter of ADM, LLC, David Morrell and Anne Morrell, Petitioners–Appellants, v. VILLAGE OF MACEDON and Village of Macedon Zoning Board of Appeals, Respondents–Respondents. (Proceeding No. 1.) In the Matter of ADM, LLC, David Morrell and Anne Morrell, Petitioners–Appellants, v. Village of Macedon Planning Board, Respondent–Respondent. (Proceeding No. 2.) ADM, LLC, David Morrell and Anne Morrell, Plaintiffs–Appellants, v. Village of Macedon, Village of Macedon Planning Board, and Rerob, LLC, Defendants–Respondents. (Action No. 1.)
Davidson Fink LLP, Rochester (David L. Rasmussen of Counsel), for Petitioners–Appellants and Plaintiffs–Appellants. Nesbitt & Williams, Newark (Arthur B. Williams Of Counsel), for Respondents–Respondents and Defendants–Respondents Village of Macedon and Village of Macedon Planning Board.
Davidson Fink LLP, Rochester (David L. Rasmussen of Counsel), for Petitioners–Appellants and Plaintiffs–Appellants. Nesbitt & Williams, Newark (Arthur B. Williams Of Counsel), for Respondents–Respondents and Defendants–Respondents Village of Macedon and Village of Macedon Planning Board.
Fix Spindelman Brovitz & Goldman, P.C., Fairport (Reuben Ortenberg of Counsel), for Defendant–Respondent Rerob, LLC.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Petitioners-plaintiffs (petitioners) appeal from a judgment and order dismissing both their complaint for a declaration and their two CPLR article 78 petitions, all of which challenged various zoning ordinances and determinations related to the proposed construction of a single-bay car wash in respondent-defendant Village of Macedon.
At the outset, we deny defendant REROB, LLC's renewed motion to dismiss the instant appeal as moot. Although the subject car wash has already been constructed and a certificate of occupancy has been issued, petitioners had sought to enjoin its construction during the pendency of this appeal and thus should be permitted to raise the present challenges ( see Matter of Camardo v. City of Auburn, 96 A.D.3d 1437, 1438, 949 N.Y.S.2d 302;Matter of Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 A.D.3d 1312, 1313, 807 N.Y.S.2d 243,lv. dismissed7 N.Y.3d 803, 821 N.Y.S.2d 810, 854 N.E.2d 1274).
Turning to the merits of petitioners' appeal, we conclude that Supreme Court properly dismissed both the petitions and the complaint. First, to the extent that the complaint sought to annul or vacate the various administrative determinations at issue here or to prohibit respondents from granting future applications for either site-plan approvals or special use permits in connection with the disputed car wash, a CPLR article 78 proceeding, rather than a declaratory judgment action, was the appropriate procedural vehicle by which to raise those challenges ( see Matter of Schweichler v. Village of Caledonia, 45 A.D.3d 1281, 1282, 845 N.Y.S.2d 901,lv. denied10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010;Matter of Concetta T. Cerame Irrevocable Family Trust v. Town of Perinton Zoning Bd. of Appeals, 27 A.D.3d 1191, 1192, 811 N.Y.S.2d 852;Home Bldrs. Assn. of Cent. N.Y. v. Town of Onondaga, 267 A.D.2d 973, 974, 701 N.Y.S.2d 542). Second, although properly raised by way of declaratory judgment, the procedural challenges in the complaint to the zoning ordinance's purported amendment are nevertheless time-barred, as are the CPLR article 78 petitions themselves ( seeCPLR 217[1]; Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 202–203, 518 N.Y.S.2d 943, 512 N.E.2d 526;Schiener v. Town of Sardinia, 48 A.D.3d 1253, 1254, 852 N.Y.S.2d 538).
In any event, petitioners failed to establish the “existence of an injury in fact—an actual legal stake in the matter being adjudicated” and therefore lack standing to commence either the action for a declaration or the two CPLR article 78 proceedings ( Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034;see Matter of Niagara County v. Power Auth. of State of N.Y., 82 A.D.3d 1597, 1598–1599, 919 N.Y.S.2d 618,lv. dismissed and denied17 N.Y.3d 838, 930 N.Y.S.2d 533, 954 N.E.2d 1158;Matter of Brown v. County of Erie, 60 A.D.3d 1442, 1443–1444, 876 N.Y.S.2d 801). Moreover, contrary to petitioners' contention, “the threat of increased business competition ... is not an interest protected by the zoning laws” and thus could not itself confer standing, even if adequately demonstrated ( Matter of Sun–Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 415, 515 N.Y.S.2d 418, 508 N.E.2d 130;see generally Matter of Brighton Residents Against Violence to Children v. MW Props., 304 A.D.2d 53, 56–58, 757 N.Y.S.2d 399,rearg. denied306 A.D.2d 960, 2003 WL 21374025,lv. denied100 N.Y.2d 514, 769 N.Y.S.2d 200, 801 N.E.2d 421).
In light of our determination, we need not address petitioners' remaining contentions.
It is hereby ORDERED that the judgment and order so appealed from is unanimously affirmed without costs.