State of New York
Supreme Court : County of Monroe

Petitioners,

For a Judgment Pursuant to CPLR Article 78,

- against -

Index No. 8050/93

Respondent,

and

8246 GROUP, Inc.,

Intervenor-Respondent.

_______________________________

MEMORANDUM DECISION

The key issue in this proceeding is whether the City of Rochester's Planning Commission had jurisdiction, under the City Code, to rehear an application for site plan approval. The Code gives the Commission the discretionary authority to determine if the conditions for such a rehearing have been met, and this Court holds that the petitioners have failed to show an abuse of that discretion.

The property at issue is a block-long parcel on Monroe Avenue, between Goodman and Edmonds Streets. The site of a large furniture store, now razed, the parcel is the most important undeveloped piece of commercially-zoned land in the stable, essentially middle-class neighborhoods of the city's east side. As such, it is the subject of much concern both among neighborhood groups and city development officials.

The intervenor's proposal was revised in cooperation with city officials and, when it came up for site plan approval, consisted of three buildings housing three stores: an auto parts store, a major chain video store, and a Rite-Aid Pharmacy. (An existing Rite-Aid in the area would be closed.) The first two shops were to be located along the Monroe Street sidewalk, as the City demanded. (The developer was granted variances from the Zoning Code's setback requirements.) The Rite-Aid building, which faced Goodman Street, was set back from the street with parking in front. The development thus resembled an "L", with buildings along Monroe and Edmonds Streets.

On May 24, 1993, the Planning Commission, stating that "concepts relating to street edge development, giving deference to the pedestrian over the automobile * * * [should not be] abandoned in terms of siting the rear structure", decided to approve the plan subject to a change in the location of the Rite-Aid, which had been required by the Director of Zoning in his conditional site plan approval. The RiteAid would be built along the Goodman Street sidewalk, with parking behind it.

The developer immediately asked to have the decision reconsidered. The main ground for the request was the supposed misrepresentation of the position of SEAC, the South East Area Coalition, the major umbrella group for neighborhood organizations in the area. A letter on SEAC letterhead by Mary Wells, executive director of SEAC but purporting to be on behalf of the Monroe Area Revitalization Committee (MARC), was sent to the Commission, stating that MARC supported the development as submitted to the Commission. There is a suggestion in this letter that Desi Benet, sent to address landscaping and architectural issues, told the Commission that MARC did not approve of the proposal; MARC instead supported it. An affidavit from Benet states that this letter was not authorized by MARC, which had taken no standing on the question of siting the Rite-Aid. In addition, Benet states that no opposition to the application was made at the May 24 meeting on behalf of SEAC or MARC.

The City Code forbids reconsideration or reapplication

unless, in the opinion of the officer or board before which it is brought, substantial new evidence is available or a mistake of law or fact significantly affected the prior denial (Code § 115-34 [A]).

In an opinion referred to but not reproduced municipal attorney Johanna Brennan told the Commission that, as SEAC's position was not one of the specified grounds for review of a site plan in Code § 115-30 (F), it could not qualify the applicant for reconsideration. Nonetheless, the Commission agreed to reconsider the application. There was no public hearing, although a supporter of the developer, Tim Doherty, apparently spoke.

On July 26, 1993, the Commission reversed itself and approved the original plan. The decision stated that

The City Planning Commission does not feel that the concepts relating to street edge development, giving deference to the pedestrian over the automobile as expressed herein, are as important in terms of the siting of the rear structure. The City Planning Commission does not feel that the concepts relating to street edge development, giving deference to the pedestrian over the automobile as expressed herein, are as important in terms of the siting of the rear structure.

The City has agreed that the rehearing was improper, and has taken no other position. The intervenor claims that the Planning Commission decision was not final (and thus 115-34 was not involved), that misrepresentation of the SEAC position was significant and the Commission properly reheard the case because its earlier decision had been affected by an error of fact, and that significant new evidence was presented at the second meeting.

The objection based on the Public Officers Law may be disposed of first. The relevant sections of the law require that meetings be open to the public. They do not require that all decisions be preceded by public hearings, however, and the petitioners, in fact, assert no such claim. The petitioners complain that Doherty, a supporter of the development, was the sole person allowed to speak to the proposal at the second meeting. This speaks to the character of a hearing, not to the openness of the decision-making process. The petition presents no basis for finding a violation of Public Officers Law 103 or the parallel provisions of the City Code.¹

The developer's argument that there has been no final decision by the Commission, and that Code § 115-34 is not invoked, is equally groundless. Section 115-30 (E) (5) explicitly states that the Commission's decision is a final one. There is no escaping the requirements of the former section.

The key language in section 115-34 is the phrase "in the opinion of the officer or board". The Code delegates to the board (in this case, the Planning Commission) the authority to determine when "substantial new evidence is available or a mistake of law or fact significantly affected the prior denial".

The Code does not limit this authority to the list of standards upon which site plan denials may be predicated (Code § 115-30 [F]). Thus, Brennan's informal opinion that the nature of SEAC's position could not serve as a basis for reconsideration finds no support in the Code; the Commission, as the body which best knows the factors it considered at the first set of deliberations, should properly know what mistakes of fact had made a significant impact. Furthermore, the narrowness of the City attorney's position calls both decisions into question. Because a preference for street-edge development is not listed in section 115-30 (F), either, it arguably could not serve as a basis for denying site plan approval.²

By its actions the Commission clearly showed that, in its opinion, its earlier decision had been significantly affected by a mistake of fact. Since the Code defers to the Commission's evaluation of the new evidence or showing of a mistake of law or fact, the Courts must do the same. The issue is not whether the Commission's reversal of the Director of Zoning's position is arbitrary or capricious, as the petitioners would have the Court believe. It is, rather, whether the decision to rehear the application based on the purported misrepresentation of SEAC's attitude was arbitrary or capricious. The Court's focus must remain on the first step of the rehearing process, not the merits of the application itself.

The factual questions raised in the petitioners' reply do not go to this issue. They deal with the apparent authority of speakers and letter-writers, and they are, in any case, significant for what they do not say; Benet states that no opposition to the proposal was expressed on behalf of SEAC. She does not state that SEAC's apparent support for the proposal was positively expressed. Thus, her affidavit does not negate the real possibility that the Commission thought SEAC was neutral when it was in fact supportive. It would be neither arbitrary, capricious nor irrational for the Commission to see this as a significant error of fact.

The transcript of that hearing, provided by the City at the Court's request, shows that Benet's staement could indeed have been construed as indicating neighborhood displeasure with the proposal - not least because it was made after the Commission asked for speakers in opposition.

It is black-letter law that the acts of municipalities are cloaked with a presumption of regularity, and the petitioners have the burden of overcoming this presumption. The Court allowed additional time after the return date so that the parties might submit evidentiary material that would shed light on the bases for the Commission's decision to rehear the application. No submissions were made, and the letters of both interested parties relied almost exclusively on hearsay and rhetoric. Nothing in the papers is capable of overcoming the burden laid on petitioners by the presumption of regularity.

There was an arguable basis for reconsideration in the alleged misrepresentation of neighborhood groups' attitudes towards the development. The facts underlying that alleged misrepresentation do not come within this Court's purview as long as there was a rational basis for the Commission's decision to rehear the application.³ Since that rational basis clearly existed on the papers submitted to the Commission after the May 24 meeting, its decision to rehear the application is protected from judicial second-guessing. The petition is denied, without costs or disbursements.

DATED: September 24, 1993

Andrew V. Siracuse, Supreme Court Justice

RETURN

RETURN