MEMORANDUM DECISION

In what is described as a declaratory judgment action, the plaintiff seeks a determination that the defendant Town violated its own development moratorium in accepting a plat for a subdivision developed by the defendant corporations, and an injunction staying further site clearing work. The defendants, in turn, have cross-moved to dismiss based on (1) standing, (2) the statute of limitations, (3) alleged failure to comply with Town Law § 268, and (4) failure to state a claim by showing that the Town's actions were arbitrary and capricious.

The development in question, section 4 of Eastman Hills, received final subdivision approval from the Town of Irondequoit on August 21, 1989. On October 2, 1991, section 4 was split into three sections; 4A is the only one involved in this action. At the same time final subdivision approval was granted for section 4A.

In April, 1992, the Town passed a six-month moratorium on acceptance, filing, etc. of final plats in an area that included the Eastman Hills development. (The area is roughly that part of the Town above Titus Avenue and below Durand Eastman Park.) This moratorium has since been extended and is currently in force.

The developer was slow in the necessary filings, and according to the Town wanted reconfirmation of the 1991 approvals. It was apparently concerned, as well, with the effect of the moratorium. Consequently, before the Board's decision the Town attorney was consulted. In a written opinion he held that the moratorium did not apply to Eastman Hills, which was seeking only to resubmit previously approved plats. Accordingly, on October 23, 1992, the Town Planning Board once again approved the subdivision. Although the developer has characterized this as a mere confirmation, the language of the resolution reads like a new approval. No protest was made to this decision, which the parties agree was made known to the plaintiff.

Town Law § 276 (4 - 5) states that conditional approval of a final plat expires in 180 days, with the option of two 90-day extensions. The developers did not obtain the necessary certification of compliance with the Board-imposed conditions, and after the 180-day period had expired, on May 10, 1993, the Planning Board gave them a 90-day extension and granted an amendment to the site plan changing the location of the water line. A further opinion letter from the Town attorney reiterated his conclusion that the moratorium did not apply to the subdivision.

The resolution approving the water line shift and the extension was filed on May 17, 1993, and within 30 days the Coalition brought the present action. After it was started, the Town Board passed a resolution determining that the moratorium did not and would not apply to the Eastman Hills development.

The Coalition wants the site clearing operations on the property stopped, alleging possible damage to a stream that flows into Durand Eastman Park and other general environmental problems. The defendants do not address the merits of the development itself, relying instead on procedural arguments and on the Town's power to interpret its own ordinances -- in this case, the moratorium.

It should be noted that the plaintiff submitted papers, dated September 15 and 16, late in the afternoon preceding the return date of this motion and on the return date itself. These were untimely and they have not been considered by the Court. Their submission was an attempt to establish the plaintiff's standing by identifying some of the members as adjacent landowners, and by arguing the specific damage to their property that would be caused by the new development.

The standing issue in this case, however, is not resolvable on the property interests of the members. It arises from the basis of standing -- namely, aggrievement -- and the peculiar circumstances of the moratorium. As the Court of Appeals has stated,

Aggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants (or respondents), or -- put another way -- that it has sustained special damage, different in kind and degree from the community generally (Matter of Sun-Brite Car Wash v Board of Zoning and Appeals of Town of North Hempstead, 69 NY2d 406, 413).

It is, in fact, difficult to see how the plaintiff has been damaged in a legally cognizable sense. This is not a rezoning case, in which the character of allowable development in an area is changed, to the possible detriment of the neighbors' property. The subdivision area has at all relevant times been zoned for precisely the development now underway. The adjacent property owners bought their homes and home sites with the actual or constructive knowledge that the undeveloped land next door was zoned R-1.

The plaintiff can seek only to have the moratorium effective with respect to the subdivision. This is a very limited interest, though. The moratorium cannot be made permanent without involving serious constitutional issues, and the papers submitted show no ongoing process of rezoning that would affect the subdivision. All that the plaintiff has lost by the plat approval is a pause of undetermined but finite length before the permitted development resumes.

It is questionable whether this loss is sufficient to give the plaintiff standing. The plaintiff would certainly be unable to require the Town to extend the moratorium upon its expiration or to bar it from repealing the moratorium.

In spite of these concerns, however, the Court will consider that the plaintiff has standing, since there would appear to be no other party that could require the Town to comply with its own moratorium.

The defendants have also challenged this action on the grounds that no demand was made to the Town under Town Law § 268, and that absent such a demand and a ten-day waiting period no action lies against the Town. This argument rests on a misconstruction of that section, which allows a private action to enforce Town ordinances or regulations, but only after a demand is made that the Town act on its own behalf. The actions in section 268, then, are directed at private parties in violation of municipal ordinances, not at the municipality itself. There is no suggestion in the papers that the developers are acting under an invalid building permit or are doing anything in violation of the permit they have. The Town has no action against them for violation of any ordinance or regulation, and section 268 thus does not come into play.

However, the defendants are correct when they argue that the action is untimely. The specific act complained of is the Town's determination that the moratorium did not prevent the continuing approval of the Eastman Hills. This took place in October, 1992. The May decision dealt only with the placement of the water line, a question in which the Coalition has no interest.

Decisions of the Planning Board are reviewed by Article 78 proceedings which must be commenced within 30 days of the filing of the decision (Town Law § 282). This was not done. Calling this a declaratory judgment action does not change matters. The Court should look to the content of the action, not the form. Moreover, declaratory relief is inappropriate when an Article 78 relief is available (Elkort v 490 West End Ave. Co., 38 AD2d 1, 4).

It is clear in this case that the plaintiff is complaining of an act, to wit, the approval of the plat in spite of the moratorium. The controversy between the parties arises from that act, and it should have been resolved in that context. The plaintiff had the opportunity to do so in October, and failed.

At oral argument the plaintiff cited a recent Third Department case, Matter of Rosenberg v Town of Lloyd (181 AD2d 959), for the proposition that the 180-day conditional approval cannot be revived by a tardy extension; the conditional approval must be given de novo. The plaintiff thus claims that the May 10 reapproval involves all the same issues as the October decision and amounts to a fresh violation of the moratorium.

This argument is not convincing. The applicability of the moratorium was specifically at issue in the October meeting and the Planning Board's decision was not challenged at that time. The case resembles those in which an unsuccessful applicant makes successive reapplications and attempts to date his proceeding from the last denial; this is only effective if the later applications are based on new facts (See, Matter of Buck v Zoning Bd. of Appeals & Bldg. Inspector of Town of Shawangunk, 90 AD2d 582; Matter of Reiss v Kilborne, 33 AD2d 885). Similarly, the October decision constituted the Planning Board's determination, and its inadvertence in failing to extend the time for certification before the 180-day period expired does not reopen the questions decided then.

The proceeding should be dismissed. It may be noted, however, that, were the Court to address the merits, it would uphold the Town's actions. The Town's interpretation of its own ordinances is persuasive, though not determinative. Moreover, the Town Board itself has expressed its opinion that the moratorium was not intended to cover this property. Whatever the effect of this resolution, it suggests that the only result of a holding for the plaintiff would be an amendment of the moratorium and an immediate reapproval of the development. The delay and expense to the developer would not be balanced by any corresponding benefit to the plaintiff. This would be the kind of pointless act which the law abhors.

The complaint is dismissed, without costs or disbursements. The defendants may submit an order.

DATED: September 23, 1993

Andrew V. Siracuse, J.S.C.

HOME GUIDES CASES ISSUES INDEX