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SUPREME COURTSTATE OF NEW YORK - MONROE COUNTY______________________________________________________

ROCHESTER EASTSIDE RESIDENTS FOR APPROPRIATE DEVELOPMENT, INC.andIGATOPSFY, LLC,

INDEX #2015/11950 Petitioners,

- vs -

CITY OF ROCHESTER,CITY OF ROCHESTER ZONING BOARD OF APPEALS DECISION ROCHESTER CITY PLANNING COMMISSION,CITY OF ROCHESTER DIRECTOR OF PLANNING AND ZONING,STEVE CLEASON,

ALDI INC.,CRLYN ACQUISITIONS, LLC,CBL, LLC, and

JOHN DOES,

Respondents.________________________________________________________

APPEARANCES:

Attorney for Petitioner: Alan J. Knauf, Esq., and Jonathan R. Tantillo, Esq., of Counsel Knauf Shaw LLP1125 Crossroads Building 2 State StreetRochester New York 14614

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Attorney for Respondents, City of Rochester Zoning Board of Appeals, Rochester City Planning Commission and City of Rochester Director of

Planning and Zoning: Brian F. Curran, Corporation Counsel Johanna F. Brennan, Esq., of Counsel 30 Church Street, Room 400A City HallRochester, New York 14614

Attorney for Respondents, Steve Cleason, Aldi, Inc.,

CRLN Acquisitions, LLC and CBL, LLC: Betsy Brugg, Esq. Reuben Ortenberg, Esq. Woods Oviatt Gilman, LLPTwo State Street, Suite 700Rochester, New York 14614

D E C I S I O N

Thomas A. Stander , J.

The Petitioners, Rochester Eastside Residents For Appropriate Development, Inc. (“RERAD”) and

Igatopsfy, LLC (“Igatopsfy”) submit a Petition seeking an order and judgment pursuant to

CPLR Article 78 and other laws and codes

(1) vacating, annulling, and declaring illegal, unconstitutional,invalid, null and/or void approvals by Respondents, City of Rochester, City of Rochester Zoning Board of Appeals, Rochester City Planning Commission, and the City of Rochester Director of Planning and Zoning submitted by or on behalf of Respondents, SteveCleason, Aldi Inc., CRLYN Acquisitions, LLC, and CBL, LLC, for

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a negative declaration under SEQRA, multiple area variances, and aspecial permit waiving the maximum parking spaces for a retail use;

(2) temporarily and permanently enjoining construction of the project,including the issuance of any building permits; and

(3) granting such other and further relief as this Court deems just and proper, including Petitioners’ costs and disbursements.

This proceeding involves the Petitioners claims against the City of Rochester and its Zoning Board

of Appeals (“ZBA”), City Planning Commission (“CPC”), and Director of Planning and Zoning for

determinations made upon an application by the remaining Respondents to construct an Aldi’s food

store on properties located at the corner of Blossom Road and Winton Road in the City of Rochester

(“Project”). The City of Rochester and the various City agencies have issued a Negative Declarationunder SEQRA, approved area variances allowing the building of the Aldi’s store, and approved a

Special Permit for parking spaces.

The Petitioner opposes the actions of the City and its administrative agencies. The Petitioners

commenced this special proceeding by Petition asserting a first cause of action that the approvals and

negative declaration in the SEQRA review were illegal, arbitrary and capricious, and should be

vacated, annulled and declared illegal and invalid because the project was not subjected to anadequate environmental review under SEQRA and Chapter 48. Petitioners also assert a second

cause of action asserting that the approval of the requested variances are arbitrary, capricious and

illegal action in violation of Rochester Zoning Code §120-191(D)(4)(b) and General City Law §81-

b(4)(b). The third cause of action alleges that the City Planning Commission’s decision to grant a

special permit waiving the parking maximum was arbitrary, capricious and illegal action in violation

of Rochester Zoning Code §120-173(D) and General City Law §27-b. The Petition requests that the

Court grant an order and judgment vacating, annulling, and declaring illegal, unconstitutional,

invalid, null and/or void the approvals, including the Negative Declaration, the September Zoning

Board of Appeals decision, the Special Permit waiving the maximum parking spaces and the

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December Zoning Board of Appeals decision; and permanently enjoining construction of the Aldi’s

store Project.

I. STANDING

The Petitioners here challenge the process and steps taken to approve the use of the property as an

Aldi’s Food Store; the approval of area variances and a Special Permit for parking; and the SEQRA

negative declaration.

The Respondents submit objections in point of law. One objection is that the Petitioners lack

standing to commence this proceeding. “Standing is a threshold determination” ( Assoc. For a Better

Long Island, Inc. v New York State Department of Environmental Conservation , 23 NY3d 1,6

[2014]). The Court must first determine whether the Petitioners have standing to commence this

Article 78 proceeding.

A. Law On Standing

i. Land Use

The general principles for standing in this type of proceeding are well-settled:

[There must be the] existence of an injury in fact – an actual stake inthe matter being adjudicated . . . and the requirement that the interestor injury asserted fall within the zone of interests protected by the

statute invoked.

(Soc’y of Plastics Indus v County of Suffolk , 77 NY2d 761, 772-773 [1991]). In the law of standing

there is an additional principle applicable in this proceeding:

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In land use matters especially, we have long imposed the limitationthat the plaintiff, for standing purposes, must show that it wouldsuffer direct harm, injury that is in some way different from that of the public at large ( citations omitted ). This requirement applieswhether the challenge to governmental action is based on a SEQRA

violation ( citations omitted ), or other grounds.

(Soc’y of Plastics at 774). However, the Court determining whether a petitioner lacks standing

should not apply “an overly restrictive analysis of the requirement to show harm ‘different from that

of the public at large’” ( Sierra Club v Village of Painted Post , 26 NY3d 301,310 [2015]; Napolitano

v Town Board of Southeast , __ Misc.3d __, 2015 NYSlip Op 25441, 24 N.Y.S.3d 494, 2015 N.Y.

Misc. LEXIS 4795 [Sup.Ct., Putnam Cty. 2015]).

The Court of Appeals elucidated and further addressed the “special injury” requirement of standing

in the Sierra Club case stating:

The harm that is alleged must be specific to the individuals whoallege it, and must be “different in kind or degree from the public atlarge” ( citation omitted ), but need not be unique. . . . . The number of people who are affected by the challenged action is not dispositiveof standing. . . . . [Petitioner] alleges injuries that are “real anddifferent from the injury most members of the public face” ( citationomitted ). Thus, his allegations about train noise caused by theincreased train traffic keeping him awake at night, even without anyexpress differentiation between the train noise running along thetracks and the noise from the transloading facility, would be sufficientto confer standing.

(Sierra Club at 311). The Court of Appeals concern is that standing rules not be applied in a heavy-

handed manner, so as to ensure that a particular action is not completely shielded from judicial

review ( Id. ).

It is true that the proximity of a petitioner can give rise to an inference of injury.

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A property holder in nearby proximity to premises that are the subjectof a zoning determination may have standing to seek judicial reviewwithout pleading and proving special damage, because adverse effector aggrievement can be inferred from the proximity.

(Sun-Brite Car Wash, Inc. v Board of Zoning and Appeals of the Town of North Hempstead, 69

NY2d 406,409-10 [1987]; Michalak v Zoning Board of Appeals of Town of Pomfret , 286 AD2d 906,

906-07 [4 th Dept. 2001]).

ii. SEQRA

To seek judicial review of administrative actions under SEQRA, the injury must be an environmentalone. In addition, Petitioner must “satisfy the other half of the test for standing [ ]– that “the interest

asserted is arguably within the zone of interest to be protected by the statute” ( citation omitted )”

(Sun-Brite Car Wash at 414; Tuxedo Land Trust, Inc. v Town Board of Town of Tuxedo , 112 AD3d

726 [2 nd Dept. 2013]). Specifically, “[t]hose seeking to raise SEQRA challenges must establish both

“an environmental injury that is in some way different from that of the public at large, and . . . that

the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA””

(Turner v County of Erie , __ AD3d __, 24 N.Y.S.3d 812; 2016 N.Y.App.Div.LEXIS 862; CountyOil Company, Inc. v New York City Department of Environmental Protection , 111 AD3d 718,719

[2 nd Dept. 2013]; see Soc’y of Plastics at 774).

Economic interests related to business competition is not an interest protected or promoted by

SEQRA. “As we have consistently held, ‘economic injury [alone] does not confer standing to sue

under SEQRA’ [ citations omitted ], since it is not within the zone of interests sought to be protected

by the statute” ( Association for a Better Long Island, Inc. v New York State Department of

Conservation , 23 NY3d 1 [2014]). “[T]he threat of increased business competition [ ] is not an

interest protected by the zoning laws [ citations omitted ]” (Sun-Bright at 415). “Allegations of

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potential economic injury alone are insufficient to confer standing under SEQRA” ( County Oil

Company at 719).

B. Standing of RERAD

As set forth above, for matters involving land use the law requires Petitioner, RERAD, to show that

it suffers direct harm, different from that of the general public, but the harm need not be unique

(Sierra Club at 311; Soc’y of Plastics at 774). To challenge SEQRA determinations, the Petitioner

must show an environmental injury and that the alleged injury falls within the zone of interests

sought to be protected by SEQRA ( Turner at 24 N.Y.S.3d 812).

I. RERAD Arguments

RERAD is a not-for-profit organization incorporated October 21, 2015 which was formed so that

concerned and interested citizens can work to preserve and protect the environment and character

of eastside Rochester neighborhoods. RERAD was formed after the application by Aldi’s for

approvals for the Project, and after the ZBA conducted three public hearings on July 23, 2015,

August 20, 2015 and September 24, 2015. The Petitioner RERAD asserts that its members are

within close proximity which gives rise to an inference of injury enabling a nearby owner to

challenge an administrative land use determination without proof of actual injury. RERAD argues

that they are property owners whose homes will be negatively affected by the demolition,

construction, and operation involved in this Project.

The three affidavits of RERAD members submitted in support of this Article 78 proceeding all state

that due to their proximity to the Project site they are uniquely susceptible to aesthetic harms, noise

concerns, and construction and demolition impacts resulting from the Project. They also indicate

that they frequently drive and walk past the site and that they enjoyed frequently patronizing Jim’s

Restaurant before it was closed due to the Project. The affidavit of Clayton Cowles also states his

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driveway connects to Blossom Road and that he is concerned that the development of the Project will

exacerbate already serious traffic congestion.

The proximity, (in a direct line from the Project - not on the road), of the RERAD members who

submit affidavits are as follows:

Clayton Cowles, 752 Blossom Road 494.67 feet(Across the Winton Road intersection)

Mark Ellenwood, 49 Gale Terrace 491.99 feet(In a residential area, off Blossom Road and Winton Road)

James Seitz, no address provided no distance given

RERAD argues that these individuals have an interest in the responsible and sustainable

development of the North Winton Village neighborhood and that this goal is significantly stymied

by the development of the Project.

The harms asserted are the potential of the Project to negatively impact their community through a

deterioration of aesthetics; significant noise, construction, and demolition; and potential exposure

to environmental contamination. RERAD submits that these neighbors who live within 500 feet of the Project have alleged plausible environmental harm and that they have standing.

ii. Arguments of City

The City submits that RERAD was formed after the application was submitted, public comment was

complete, and the initial votes to approve the variances and special permits had been done by the

ZBA and CPC. It also argues that RERAD fails to present evidence that it has been properly formed;

has valid members; and properly authorized this lawsuit. The City also asserts that the Petition fails

to show an injury-in-fact caused by the approved variances, special permit and negative SEQRA

declaration, and quotes the harm alleged in the Petition:

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The Aldi Store will directly impact members of RERAD and degradetheir quality of life and enjoyment of the North Winton Villageneighborhood by, among other things, construction of a large buildingthat is out of scale with existing buildings and zoning requirementsin the neighborhood, demolition of existing buildings that, prior to the

inception of the Project, contained businesses frequented by residentsin the neighborhood, degradation of aesthetics, increased trafficcongestion, and traffic safety issues posed by the entrance/exit, andnoise.

(Amended Petition, ¶13). The City sets forth reasons why these claims of harm are speculative and

are no different than harm to the public at large.

The Respondent City also refutes the distances Petitioners claim they are from the Project andindicates such distances are inaccurate. Respondents point out that the Petitioners are actually

much further away from the Project than they claim, because they measured the direct line distance.

The properties of the RERAD members, although stated as being within 500 feet of the Project in

a direct line on the map, are not in close physical proximity to the Project according to the City.

Respondent City claims that Petitioner, RERAD, fails to satisfy their burden to prove elements of

standing to commence this proceeding and that the Petition of RERAD should be dismissed.

iii. Decision

For standing purposes RERAD members must show that they would suffer direct harm; an injury

that is in some way different from that of the public at large. This requirement applies whether the

challenge to governmental action is based on a SEQRA violation or other grounds.

The Courts have recognized that “[a] property holder in nearby proximity to premises that are the

subject of a zoning determination may have standing to seek judicial review without pleading and

proving special damage, because adverse effect or aggrievement can be inferred from the proximity”

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(Sun-Brite Car Wash, Inc. at 409-10; Michalak at 906-07). Petitioners submit that two RERAD

members are in close proximity to the Project such as to attain standing without showing an injury.

The proximity of a landowner to a challenged project so as to remove the necessity of pleading a

special harm is not exact ( See Matter of Save the Pine Bush, Inc. v Common Council of the City of

Albany , 13 NY3d 297,309 [2009][concurring op.][half mile is not within the presumption; courts

have held those who reside within 500 feet are close enough to remove the burden]; Oates v Village

of Watkins Glen , 290 AD2d 758 [3d Dept. 2002][Plaintiffs residing 530 feet had no standing];

Buerger v Town of Grafton , 235 AD3d 984 [3d Dept. 1997][Plaintiff 600 feet away lacked standing];

Michalak v Zoning Board of Appeals of Town of Pomfret , 286 AD2d 906, 906-07 [4 th Dept. 2001]);

Ontario Hgts Homeowners Assn. v Town of Oswego Planning Bd. , 77 AD3d 1465 [4 th Dept.

2010][Petitioner who owns property 697 from property line of development and 1,242 feet from edge

of development of private sewage treatment plant has standing]). These cases consider whether the

distance was sufficient to put the Petitioner in “close proximity,” so that standing is demonstrated

without having to prove special damages “because adverse effect or aggrievement can be inferred

from the proximity” ( Michalak at 907; Ontario Hgts at 1466).

“The status of neighbor does not, however, automatically provide the entitlement . . . to judicial

review in every instance. Petitioner, for example, may be so far from the subject property that the

effect of the proposed change is no different from that suffered by the public generally” (Sun-Brite

Car Wash at 414).

Here the two RERAD members live at properties that are not contiguous to the Project; the Project

is not visible from their property; and they are not directly impacted by traffic entering and exiting

the Project. The one member who lives on Blossom Road asserts that he is concerned that the

Project will exacerbate already serious traffic congestion at the Blossom Road/Winton Roadintersection. However, the traffic congestion issues alleged to likely be caused by the Project are

merely speculative and based on conjecture. These two members fail to show “close proximity” to

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the Project so as to establish that “adverse effect or aggrievement can be inferred from the

proximity” ( Sun-Brite Car Wash, Inc. at 409-10; Michalak at 906-07).

The Petitioners, RERAD also fail to show a special harm different from the public at large to

establish standing. The two RERAD members who submit an affidavit also list aesthetic harms,

noise concerns and construction and demolition as impacts from the Project. They do not specify

what these items would be. “Petitioners assertions of potential injury are speculative and conclusory

and thus are lacking in probative value” ( Bolton v Town of South Bristol Planning Board , 38 AD3d

1307,1308 [4 th Dept. 2007]). Further, in considering the injuries claimed by the RERAD members,

the evidence shows lack of injury.

As to aesthetics, the current Project site contains several vacant buildings in disrepair, so the

aesthetics of the area will be improved by the planned Project. The character of the neighborhood

at this intersection contains a full-size 44,615 square-foot Tops grocery store; a 13,200 square-foot

CVS pharmacy; a 55,000 square-foot manufacturing business, continuing Developmental Services;

a 120,000 square-foot business center; a 162,000 square-foot mixed use event space, Artisan Works;

and a gas station. The Project consisting of the 15,650 square-foot Aldi’s store does not change the

character of the neighborhood. There is no indication or evidence of noise being an issue from the

proposed Project of a small grocery store. And the Petitioner RERAD fails to assert how

construction or demolition will directly harm them. These alleged harms from the Project are not

direct injuries to the RERAD members which are different or unique from the public at large.

There is discussion of contamination on the property being a direct injury; however, part of the

Project requires the developer to clean up any environmental contamination on the property. There

is no information that establishes that RERAD has an environmental injury that is different from the

public at large and that falls within the zone of interests protected by SEQRA ( see Turner at 24 N.Y.S.3d 812; 2016 N.Y.App.Div.LEXIS 862). Generalized allegations of increased traffic, or

increased noise and light are not environmental harm different from the general public, and do not

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come within the zone of interest protected by SEQRA ( see Shelter Is. Assn. v Zoning Bd of Appeals

of Town of Shelter Is. , 57 AD3d 907,909 [2d Dept. 2008]).

The RERAD members have failed to demonstrate any harm that they suffer that is unique from the

harm suffered by the public at large and fail to demonstrate or establish an environmental harm as

required for a SEQRA challenge. RERAD does not have standing to challenge the actions of the

ZBA and CPC, nor to challenge the determination under SEQRA of a negative declaration.

The Respondents raise the threshold objections in point of law that RERAD lacks standing to

commence this proceeding. Upon review of all the evidence and legal arguments presented, it is the

determination of this Court that RERAD lacks standing to commence this Article 78 proceeding.

C. Standing of Igatopsfy, LLC

Again, for matters involving land use, the law requires Petitioner to show that it suffers direct harm,

different from that of the general public, but the harm need not be unique ( Sierra Club at 311; Soc’y

of Plastics at 774). And to challenge SEQRA determinations, the Petitioner must also show that the

injury is an environmental injury ( Turner at 24 N.Y.S.3d 812).

The Petitioner, Igatopsfy, submits an affidavit of David Flaum, who is the CEO of Flaum

Management Company, the company that manages property owned by Igatopsfy. Igatopsfy owns

property located at 175 North Winton Road and 597 Blossom Road which is currently leased to Tops

for use as a grocery store (“Igatopsfy Property”). The exhibits show that the Igatopsfy Property is

located roughly 275 feet from the Project; and the Project is visible from the Igatopsfy Property.

The affidavit of the management company states that Igatopsfy also has an easement for access over the adjoining parcel at 185 North Winton Road, where a CVS Pharmacy is operated, which allows

Tops and their customers to access the Igatopsfy Property from two driveways on Blossom Road.

These easement property rights are only about 55.75 feet, across Blossom Road, from the Project.

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The affidavit of David Flaum avers that Igatopsfy received “public notice postcards” from the

various City administrative boards that had approval authority over the Project.

I. Standing to Challenge Area Variances and Special Permit for Parking

Petitioner, Igatopsfy, has established that it is a neighbor, in close physical proximity, to the Project

property and received mandatory notice of the administrative hearing. A person receiving mandatory

notice of the administrative hearing “gives rise to a presumption of standing in a zoning case” ( Sun-

Brite Car at 413-14). As a nearby property holder to the premises for the Project, Igatopsfy may

have standing to seek judicial review of the zoning determinations based solely on the adverse effect

inferred from the close proximity ( see Sun-Brite Car at 409-10; Michalak at 906-07). Courts

consider whether the distance is sufficient to put the Petitioner in “close proximity,” so that standing

is demonstrated without having to prove special damages “because adverse effect or aggrievement

can be inferred from the proximity” ( Michalak at 907; Ontario Hgts at 1466). Receiving notice

gives rise to a presumption of standing due to being in close proximity ( Sun-Brite Car at 413-14).

The property of Petitioner, Igatopsfy, is in close proximity to the Project because it has easement

rights directly to Blossom Road, the Igatopsfy property is approximately 275 feet from the Project,

and the Project is visible from Petitioner’s property. The claimed injury is traffic congestion and

difficulties entering/exiting the easement driveways. These interests fall with the zone of interests

protected by the zoning laws. The proximity of Igatopsfy’s property to the Project premises,

demonstrated by receiving administrative notice of the hearing, and the traffic interests falling within

the zone of interest protected by the zoning laws, confers standing without having to prove special

damages because adverse effect or aggrievement can be inferred from the close proximity for

standing purposes.

It is the Court’s determination that Petitioner, Igatopsfy has standing to challenge the determinations

of the ZBA and CPC for the area variances and special permit for parking for the Aldi’s Project.

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ii. Standing to Challenge SEQRA Determinations

For standing to challenge a governmental action based on a SEQRA violation, Petitioner must show

that it would suffer direct environmental harm; injury that is in some way different from that of the

public at large ( see Soc’y of Plastics at 774). To seek judicial review of administrative actions under

SEQRA, Petitioner must also “satisfy the other half of the test for standing [ ]– that “the interest

asserted is arguably within the zone of interest to be protected by the statute” ( citation omitted )”

(Sun-Brite Car Wash, Inc. v Board of Zoning and Appeals of the Town of North Hempstead , 69

NY2d 406,414 [1987]; Tuxedo Land Trust, Inc. v town Board of Town of Tuxedo , 112 AD3d 726

[2 nd Dept. 2013]). Specifically, “[t]hose seeking to raise SEQRA challenges must establish both “an

environmental injury that is in some way different from that of the public at large, and . . . that the

alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA””

(Turner v County of Erie , __ AD3d __, 24 N.Y.S.3d 812; 2016 N.Y.App.Div.LEXIS 862; County

Oil Company at 719).

To challenge the SEQRA determination, Petitioner, Igatopsfy, must establish an environmental

injury that is different from the public at large and that the alleged injury falls within the zone of

interests sought to be protected by SEQRA. An environmental injury is not shown merely by an

adverse effect or aggrievement inferred from being in close proximity. Instead an actual

environmental injury must be alleged. Here, Petitioner asserts that traffic issues, traffic congestion,

and difficulty turning into the easement driveway are environmental injuries different from that of

the public at large. Generalized allegations of increased traffic are not sufficient to establish

standing; there is no “alleged environmental harm that is different from that suffered by the public

at large and that comes within the zone of interest protected by SEQRA” ( see Shelter Is. Assn. v

Zoning Bd of Appeals of Town of Shelter Is. , 57 AD3d 907,909 [2d Dept. 2008]). Here the alleged

traffic issues have been addressed by the Monroe County Department of Transportation, and these

traffic issues are the same injuries suffered by the public at large at this intersection.

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Even if the Court accepts Igatopsfy’s claim that the traffic and driveway congestion show

environmental injuries different from that of the public at large, such alleged environmental injury

must fall within the zone of interest to be protected or promoted by SEQRA. Importantly, SEQRA

does not protect economic interests related to preventing competition and Igatopsfy’s only substantial

objection is economic in nature.

The affidavit in support of the Petition is by David Flaum, the CEO of Flaum Management

Company, who is the management company managing the property owned by Igatopsfy. 1 The

company Igatopsfy, LLC is owned by David Flaum’s three children. David Flaum, as CEO of

Flaum Management, advises that the Igatopsfy property is leased to Tops for use as a grocery store.

Tops is a 44,615 square foot full service grocery store. The Tops store property has an easement for

access over an adjoining parcel, where a 13,200 square foot CVS pharmacy store is located. Flaum

asserts that there will be direct conflict with potential customers for the Aldi’s Store and customers

of Tops to use the driveway easements to the Igatopsfy property. The Flaum affidavit also asserts

that

I am not attempting to offer economic harm as the sole basis for thestanding of Igatopsfy [ sic ] this Article 78 Proceeding, it should benoted that opening of an Aldi Store across the street would create a

very serious risk of causing Tops to not renew the lease at the FlaumProperty.

(Affidavit of David Flaum, Nov. 20, 2016, ¶19).

Petitioner, through its management company, thus speculates on the possible economic harm to

Igatopsfy by Tops not renewing the lease for the property and hypothecation that this large

abandoned Tops building will be more of a blight on the neighborhood than those demolished as part

of the Project ( Id. at ¶19-20). It is Petitioner’s position that the City failed to consider the potential

cumulative impact of their approvals ( Id. at ¶21). .

1

There is no verification of the Petition by Igatopsfy, LLC, or an affidavit from Igatopsfy, LLC in support of the Petition.

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Generalized allegations of increased traffic, or increased noise and light are not environmental harm

different from the general public, and do not come within the zone of interest protected by SEQRA

( see Shelter Is. Assn. v Zoning Bd of Appeals of Town of Shelter Is. , 57 AD3d 907,909 [2d Dept.

2008]). The Igatopsfy Petitioner does not raise environmental harm issues different from that faced

by the general public that fall within the zone of interest to be protected by SEQRA. The arguments

of Igatopsfy’s management company all raise alleged economic harm to Igatopsfy caused by the

Aldi’s Project: difficulty of customers to use the driveway easements on Blossom Road due to

congestion; possible loss of the lease with Tops grocery store; and possible outcome of a large

abandoned building on the Igatopsfy property. The alleged harm of traffic congestion and traffic

issues is speculative and conjecture only. The harm raised by traffic issues directly relates to

customers for the tenant of Igatopsfy’s property. The threat of increased business competition for

Tops, a tenant, for grocery customers caused by the Aldi’s Project is not an interest protected by the

zoning laws ( Sun-Bright at 415).

“As we have consistently held, ‘economic injury [alone] does not confer standing to sue under

SEQRA’ [ citations omitted ], since it is not within the zone of interests sought to be protected by the

statute” ( Association for a Better Long Island, Inc. v New York State Department of Conservation

23 NY3d 1 [2014]). “[T]he threat of increased business competition [ ] is not an interest protected

by the zoning laws [ citations omitted ]” ( Sun-Bright at 415). “Allegations of potential economic

injury alone are insufficient to confer standing under SEQRA” ( County Oil Company at 719).

Allegations and concerns of potential economic injury caused by loss of customers, by loss of a

tenant, or by business competition, are insufficient to confer standing under SEQRA ( see County

Oil Company at 719). The impact of any traffic issues raised by Petitioner, Igatopsfy, relates only

to customers having access to Tops grocery store, the tenant of the Igatopsfy property. Business

competition and economic harm do not fall within the zone of interest protected by SEQRA.Igatopsfy fails to demonstrate an environmental harm that is within the zone of interest to be

protected or promoted by SEQRA.

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It is this Court’s decision that the Petitioner, Igatopsfy, lacks standing to commence this Article 78

proceeding challenging the SEQRA negative declaration.

Even if Igatopsfy had standing to challenge the SEQRA negative declaration, the Court has reviewed

the entire record presented by the parties. It is clear from the record that the negative declaration was

not arbitrary and capricious, and was not in violation of lawful procedure. The record contains

sufficient evidence to find that the SEQRA negative declaration had a rational basis.

II. ZBA AREA VARIANCES APPROVAL

The Petitioner, Igatopsfy, has standing to challenge the granting by the ZBA of the area variances

to the Aldi’s Project. 2

A. Procedural Background

The Zoning Board of Appeals (“ZBA”), after a hearing on September 24, 2015, issued a Notice of

Decision dated October 13, 2015 wherein the request for area variances was approved on specified

conditions. Thereafter, the Petitioners filed a Notice of Petition on October 26, 2015 asserting that

the approval of the variances by the ZBA was arbitrary, capricious and illegal action because it is in

violation of Rochester Zoning Code and General City Law.

The Petitioner submitted that two ZBA members voted on the application for the variances without

certifying on the record that they reviewed the entire record of any portion of the hearings during

which they were absent and that they were fully informed of the essential facts and issues of the

2

The only Petitioner determined to have standing to challenge the ZBA approvals is Igatopsfy, LLC.

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matter being heard so as to be able to cast an informed and independent vote. The Zoning Code

requires such a certification. Thereafter, the ZBA at a December 17, 2015 meeting rescinded its

approval of the Variances granted on October 13, 2015, ZBA members then made certifications on

the record as required by the Zoning Code, and immediately thereafter the ZBA re-approved the

variances (Stipulation, preamble ¶3, Jan. 13, 2016).

The parties entered into a Stipulation on January 13, 2016, which admits service of the Article 78

Notice of Petition filed October 28, 2015; dismisses a Respondent; concedes jurisdiction to the Court

over claims raised in the Amended Notice of Petition and Amended Petition filed January 5, 2016

which added claims challenging the December 17, 2015 ZBA Decision; and set service of papers

dates. The parties then served papers related to the Amended Petition.

The Amended Petition asserts that approval of the variances by the ZBA on December 17, 2015 was

arbitrary, capricious and illegal action in violation of Rochester Zoning Code §120-191(D)(4)(b) and

General City Law §81-b(4)(b). The Petitioner, Igatopsfy, challenges the ZBA approvals of the

variances on a number of basis as set forth in the Petition. In this Article 78 proceeding the

Petitioner asserts that the determinations were made in violation of lawful procedure or were

arbitrary and capricious (CPLR §7803[3]).

B. Arbitrary and Capricious

The ZBA has the authority and power to grant area variances (General City Law §81-b[4][a]). The

statute sets forth items the board shall take into consideration:

In making its determination, the zoning board of appeals shall takeinto consideration the benefit to the applicant if the variance isgranted, as weighed against the detriment to the health, safety andwelfare of the neighborhood or community by such grant. In makingsuch determination the board shall also consider:

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(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will becreated by the granting of the area variance;

(ii) whether the benefit sought by the applicant can be achieved by

some method feasible for the applicant to pursue, other than an areavariance;

(iii) whether the requested area variance is substantial;

(iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in theneighborhood or district; and

(v) whether the alleged difficulty was self-created, whichconsideration shall be relevant to the decision of the board of appeals,

but shall not necessarily preclude the granting of the area variance.

(General City Law §81-b[4][b]).

The ZBA conducted three public hearings, which were held on July 23, 2015; August 20, 2015; and

September 24, 2015 with supporting and opposing information presented. The ZBA issued a Notice

of Decision, with Resolution and Findings of Fact, on October 13, 2015 which approved the

requested area variances on specified conditions. The minutes of the ZBA show that the Boardconsidered all the statutory requirements and made findings based on the information presented and

submitted.

The law is well established on the Court’s review of a zoning board of appeals determination.

Local zoning boards have broad discretion in considering applicationsfor variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion ( citation omitted ). Thus, a determination of a zoning boardshould be sustained upon judicial review if it has a rational basis andis supported by substantial evidence ( citation omitted ).

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( Ifrah v Utschig , 98 NY2d 304,308 [2002]; see People, Inc. v City of Tonawanda Zoning Board of

Appeals , 126 AD3d 1334,1335 [4 th Dept. 2015]; Mimassi v Town of Whitestown Zoning Board of

Appeals, 124 AD3d 1329,1330 [4 th Dept. 2015]; Young Development, Inc. v Town of West Seneca

91 AD3d 1350,1351 [4 th Dept. 2012]; Conway v Town of Irondequoit , 38 AD3d 1279,1280 [4 th Dept.

2007]). “A reviewing court may not substitute its judgment for that of a local zoning board ( citation

omitted ), ‘even if there is substantial evidence supporting a contrary determination’ ( citation

omitted )” ( People, Inc. at 1335; see Conway at 1280).

Based upon the totality of the record submitted, the three public hearings, the substantial input of

information in support and in opposition to the application, and the exhibits presented, it is

determined that the action taken by the Zoning Board of Appeals to approve the requested area

variances was not arbitrary and capricious or an abuse of discretion. The ZBA took into account all

the evidence in its considerations under the General City Law requirements and the decision has a

rational basis, supported by the evidence. The decision of the ZBA to grant the area variances

requested in Respondents application was not arbitrary and capricious.

The Petition by the Petitioner, Igatopsfy, to vacate, annul, and declare illegal, unconstitutional,

invalid, null and/or void Respondents, City of Rochester and City of Rochester Zoning Board of

Appeals approvals for area variances, based on such approvals being arbitrary and capricious, isDENIED.

B. Unlawful Procedure

The Petitioner, Igatopsfy, also submits that there were procedural errors by the ZBA which warrant

a finding that the decision to grant the area variances was illegal. The Petitioner relies upon thetechnical argument that the ZBA failed to have two of its members certify at the September 24, 2015

meeting that they had reviewed the record and information from the prior hearings of July 23, 2015

and August 20, 2015, which they had missed, prior to voting. Petitioner argues that proper

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procedures to reopen the hearing at the December 2015 meeting were not followed because a

unanimous vote of all members present is required. Further Petitioner submits that written

comments allowed by the Notice were not accepted for the public hearing in December and thus the

Decision must be annulled.

The Petitioner’s original Petition challenged the ZBA Decision as violating the Zoning Code based

upon two of the ZBA Board members not certifying on the record that they had reviewed the entire

record of portions of the hearings during which they were absent and that they were fully informed

of the essential facts and issues of the matter being heard so as to be able to cast an informed and

independent vote. To rectify this procedural technicality and comply with the Zoning Code, the ZBA

sent out a Notice for a hearing date of December 17, 2015 for the stated purpose of:

To re-open the hearing solely to allow Zoning Board members tocertify on the record that they have reviewed testimony from thehearings which they were absent, as required by Zoning Code Section12-186, and to conduct a new vote. (No information or testimonywill be taken.)

(Petitioner, Exhibit D).

At the meeting on December 17, 2015 the ZBA voted

[t]o rescind the Board’s decision dated October 13, 2015 and filedOctober 14, 2015 and to re-open the hearing solely for the purpose of

permitting Board members who were absent from one or more of the prior hearings where the matter was heard, to certify for the recordthat they have fully familiarized themselves with the record of thehearings. No additional testimony or written evidence will beaccepted.

The Board voted to rescind pursuant to this motion by a vote of 5 members approving and one

member abstaining. The board members stated the necessary certifications as required by the Zoning

Code The Board voted, by a vote of 5 approving and one abstaining, to adopt the record from the

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hearings held on July 23, August 20 and September 24, 2015 and accepted the certifications of the

Board members. The Board then voted to adopt the Resolution and Findings set forth in the

October 14, 2015 Decision, including all the conditions, as the Resolution and Findings of Fact and

conditions for the Decision, and to approve the area variances requested. The Board approved the

motion with a vote of 4 approve, 1 abstain and 1 deny.

i. Unanimity to Open Hearing

The ZBA returned the Respondents application for area variances to its calendar for December 17,

2015 with the sole purpose to re-open the hearing for board members to certify on the record that

they had performed required reviews of testimony and information from prior hearings prior to a

vote. At the December 17, 2015 meeting, in accordance with General City Law §81-a[12], a motion

was made to rescind the Board’s decision dated October 13, 2015 and to re-open the hearing for the

limited purpose of certifying review of prior records. For such a re-hearing, “[a] unanimous vote of

all members of the board then present is required” (General City Law §81-a[12]).

The vote to rescind and re-open the hearing for the limited purpose stated was unanimously approved

by a vote of 5 members, with one member abstaining. There were no votes to deny the motion to

re-open; thus, it was unanimous. Where a board member present at the meeting must abstain, for whatever reason, his or her presence is a nullity. 3 Thus, the Board unanimously approved re-opening

the hearing pursuant to General City Law §81-a[12].

ii. Pre-printed Notice

The ZBA issued a hearing notice for the December 17, 2015 meeting which states that the limited

purpose is for the re-opening of the hearing for the required certifications of the board members.

3

For example if a board member had to abstain due to a conflict, that individual could not participate on any discussionor votes related to the subject project. If the presence of an abstaining board member is counted for purposes of unanimity, then the conflict would prevent the board from ever taking any action where a unanimous vote was required.

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This notice was published on a pre-printed form that also contained language indicating that the

public could submit comments on this issue, even though the actual notice made clear the purpose

and intent of the meeting, and that no additional evidence would be received . Petitioner asserts that

it’s additional comments on the application for the area variances, which were submitted pursuant

to the pre-printed language on the Notice allowing submissions, were not considered by the Board

at the December hearing.

The limited purpose of the December Board meeting was clearly set forth on the Notice. The Notice

also explicitly states that “No information or testimony will be taken.” The matter had been before

the ZBA on three prior occasions for public comment; July 23, August 20 and September 24, 2015.

Comments and information in support and in opposition to the application for area variances were

accepted and considered at these three hearings. The December 17, 2015 hearing was to correct a

technical procedural issue raised by Petitioners.

The ZBA acted with a rational basis and its determination is supported by the record regarding the

approval of the area variances application: it had provided three prior hearings for public comment,

accepted large amounts of public input, considered all the various submitted exhibits and

documentation, and set a limited purpose meeting to address the necessary certifications of the board

members as to review of all prior records before voting ( see The Fund for Lake George, Inc. v Townof Queensbury Zoning Board of Appeals , 126 AD3d 1152,1154 [3 rd Dept. 2015]). At the

December 17, 2015 meeting the board members properly certified its review of prior hearing records

and information. There is competent evidence in the record that the procedural requirements had

been met for notice of a meeting to re-open the hearing, notice that no additional information would

be taken, and that extensive public hearings had already been held ( see Benderson Development

Company, LLC v Zoning Board of Appeals of City of Utica , 68 AD3d 1814,1816 [4 th Dept. 2009]).

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iii. Conclusion

“[C]ourts do not engage in their own balancing of the factors, but must yield to the ZBA’s discretion

and weighing of the evidence” ( Fund for Lake George at 1155). Here, there were extensive hearings

over three months with public input and various forms of information submitted, and giving due

deference to the ZBA, “the record contains sufficient evidence to find that the ZBA’s determination

to grant the area variances was rational and not arbitrary” ( Fund for Lake George at 1155). The

determination to approve the area variances were not made in violation of lawful procedure and were

not arbitrary and capricious ( see CPLR §7803[3]).

The Petition by the Petitioner, Igatopsfy, to vacate and annul the approvals of the ZBA of the area

variances requested by Respondents based on such decision being arbitrary and capricious and in

violation of lawful procedure is DENIED.

III. CITY PLANNING COMMISSION SPECIAL PERMIT ON PARKING

Petitioner, Igatopsfy, first states in the Petition that the area variances from the zoning board of

appeals were required prior to the City Planning Commission (“CPC”) considering the Special

Permit for parking. The Petitioner does not submit any code provisions or arguments in his

memorandum of law in support of this position. When the City Planning Commission conducted

its final hearing regarding the application for a special permit on the parking, the area variances had

been granted by the ZBA. Now, this Article 78 proceeding is the application challenging the ZBA

granting of the area variances; albeit, with an additional vote held by the ZBA in response to the

initial Article 78 proceeding which rescinded and then re-voted to approve the area variances. Atthe time of the CPC hearing and determination the area variances for the Project had been approved

and granted; and the same area variances were approved at the December 2015 ZBA meeting.

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The Petitioner next argues that the CPC decision was not approved by the Planning Commission,

but rather was prepared after its meeting by the Director. The Objection in Point of Law of the

Respondent City asserts that the record of the CPC shows that it fully complied with all requirements

for granting the special permit by accepting a parking demand analysis that provides for 63 off-street

parking spaces for the Project. The Decision of the CPC sets forth the evidence considered by the

CPC. The Petitioner does not submit any evidentiary proof to support his position that the Decision

was prepared illegally or without lawful procedure.

The third position of the Petitioner is that the Decision of the CPC to grant Aldi’s a special permit

allowing a waiver of the parking spaces was arbitrary and capricious because the findings by the

CPC were insufficient; and there was no evidence in the record regarding the impact on adjacent

properties. The Decision of the CPC approving the Special Permit approving the parking demand

analysis to provide 63 off-street parking spaces is based on the October 19, 2015 meeting. The

record contains extensive information regarding exhibits, testimony at the meeting, and specific

Resolution and Findings of Fact of the CPC.

The determination of the CPC to grant the Special Permit for parking spaces to Aldi’s has a rational

basis based on the documentation and arguments presented. The approval of the Special Permit by

the CPC is not arbitrary and capricious. The proceeding by the Petitioner, Igatopsfy, to vacate andannul the approval of the CPC of the Special Permit allowing 63 off-street parking spaces requested

by Aldi’s based on such decision being arbitrary and capricious and in violation of lawful procedure

is DENIED.

IV. CONCLUSION

The Respondents set forth Objections in Point of Law that the Petitioners do not have standing to

bring this proceeding. The Petitioner RERAD has failed to establish standing to bring this

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proceeding against the Respondents. The Respondents objection in point of law that RERAD lacks

standing is GRANTED. The Article 78 proceeding by Rochester Eastside Residents for

Appropriate Development, Inc. against the Respondents is DISMISSED for lack of standing.

The objections in point of law raised by the Respondents that Igatopsfy, LLC lacks standing to

commence this Article 78 proceeding challenging the SEQRA negative declaration is GRANTED

The Article 78 proceeding by Igatopsfy, LLC against the Respondents challenging the SEQRA

negative declaration is DISMISSED.

The Petitioner IGATOPSFY established standing to bring this Article 78 proceeding against the

Respondents to challenge the determinations of the ZBA and CPC. The objections in point of law

of the Respondents that Igatopsfy lacks standing to challenge these determinations is DENIED.

The determinations of the ZBA approving area variances requested by Respondents for the Aldi’s

Project were not arbitrary and capricious, or in violation of lawful procedure. The determination of

the CPC approving a special permit for parking requested by Respondents for the Aldi’s Project was

not arbitrary and capricious, or in violation of lawful procedure. The Petition to vacate and annul

the approvals of the ZBA for area variances and the CPC for a special permit for parking is

DENIED.

The Article 78 proceeding of the Petitioners, Rochester Eastside Residents For Appropriate

Development, Inc. and Igatopsfy, LLC, seeking an order and judgment vacating, annulling, and

declaring illegal, unconstitutional, invalid, null and/or void approvals by Respondents, City of

Rochester, City of Rochester Zoning Board of Appeals, Rochester City Planning Commission, and

the City of Rochester Director of Planning and Zoning submitted by or on behalf of Respondents,

Steve Cleason, Aldi Inc., CRLYN Acquisitions, LLC, and CBL, LLC, for a negative declaration

under SEQRA, multiple area variances, and a special permit waiving the maximum parking spaces

for a retail use; temporarily and permanently enjoining construction of the project, including the

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issuance of any building permits; and granting such other and further relief as this Court deems just

and proper, including Petitioners’ costs and disbursements, is DISMISSED.

The determinations of the ZBA approving the requested area variances are CONFIRMED . The

determination of the CPC approving the special permit for parking is CONFIRMED. The

determination of a negative declaration under SEQRA is CONFIRMED.

All other applications for relief in the Petition are DENIED and DISMISSED.

SUBMIT JUDGMENT

Counsel for the Respondent, City of Rochester, shall within twenty (20) days of the date of this

Decision submit a Judgment, with this Decision attached, upon approval of all Counsel.

Dated: April 28, 2016Rochester, New York

________________________________________ Thomas A. Stander

Supreme Court Justice

Q:\STANDER\DECISION\DEC_2016\RERAD_Dec.wpd

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