Opinion
CA 03-00458
October 2, 2003.
Appeal from a judgment (denominated judgment and order) of Supreme Court, Monroe County (Galloway, J.), entered April 11, 2002, which dismissed the petition in this CPLR article 78 proceeding.
ASANDROV LAW OFFICE, ROCHESTER (LOUIS V. ASANDROV OF COUNSEL), FOR PETITIONER-APPELLANT.
LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (DONALD L. CRUMB, JR., OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: WISNER, J.P., HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination of respondent City of Rochester Preservation Board (Board) denying his application for a certificate of appropriateness legalizing his construction of a deck at the rear of his house, which is located within the East Avenue Preservation District. In addition, petitioner contended that Rochester City Code former 115.37 (now Rochester Zoning Code 120-194), the preservation ordinance at issue, is unlawful and unconstitutional. Petitioner appeals from a judgment dismissing his petition.
Petitioner failed to include in the petition his present contention that enactment of the preservation ordinance was not a proper exercise of municipal authority and thus has failed to preserve that contention for our review ( see Matter of Preservation Assn. of Cent. N.Y. v. Marcoccia, 284 A.D.2d 948, 948-949; Matter of Koschuk v. Kleinfelder, 270 A.D.2d 963; see also Gregory v. Town of Cambria, 69 N.Y.2d 655, 656-657). In any event, there is no merit to that contention. The enactment of the preservation ordinance is explicitly authorized by General Municipal Law 96-a (the second of two sections so numbered) and 119-dd.
There also is no merit to petitioner's challenge to the constitutionality of the preservation ordinance. The ordinance is not unconstitutionally vague and does not constitute an overbroad delegation of authority to the Board ( see Matter of Save the Pine Bush v City of Albany, 70 N.Y.2d 193, 203-205; City of Albany v. Lee, 53 N.Y.2d 633; Matter of Russo v. Beckelman, 204 A.D.2d 160, 161-162, lv denied 85 N.Y.2d 802; see also Rector, Wardens, and Members of Vestry of St. Bartholomew's Church v. City of New York, 728 F. Supp. 958, 964, affd 914 F.2d 348, cert denied 499 U.S. 905).
Finally, we conclude that the Board's determination to deny petitioner's application for a certificate of appropriateness is not arbitrary and capricious ( see Marcoccia, 284 A.D.2d at 948; Matter of Farash Corp. v. City of Rochester, 275 A.D.2d 957, 957-958, lv denied 96 N.Y.2d 701). The record establishes that there is a rational basis for the Board's determination to disallow the deck as visually, historically, and compositionally inappropriate for or incompatible with the residential structure and its yard and the preservation district as a whole.