State of New York
Supreme Court : County of Monroe

OPTITECH GROUP,
ROBERT B. FRAME and
OPTIMATION TECHNOLOGY, INC.,
Petitioners,

For a judgment pursuant to CPLR Article 78

- against -

Index No. 2000/10884

ANDREW V. SIRACUSE, J.

Optitech and the other petitioners in this case are tenants of a high-technology office and light industrial park in Rush. They located there because of the absence of vibration from heavier industries and traffic, which can cause difficulties in fabrication and testing, and the general atmosphere of quiet that is implied in the restrictions written into the Town's zoning code, section 99-14.

That section defines Limited Industrial Districts and lists as permitted uses in such zones scientific or engineering research and/or development; design or manufacture of electric, electronic, or optical instruments, scientific, laboratory or process control instruments, computers and the like; light manufacturing; testing and repairing of these products; support and offices for their design and manufacture; and retail. Retail use, however, is limited to no more than a total of five percent of the land so zoned. In addition, the Planning Board is empowered to issue a special use permit for those uses not listed but similar in nature and compatible with the purpose of the Limited Industrial District, and for distribution centers. Specific conditions are set out for distribution centers, but the authority to grant permits for similar uses is unrestricted. Syracuse Supply Corporation has applied for and received permission to build a rental center and service department for construction equipment in the park. As a preliminary matter the Town's planning board determined that, because the rental business was not open to the public, it was wholesale instead of retail. This was a crucial determination, because Syracuse's proposed facility occupies 10.68 percent of the entire park, more than twice the allowable acreage for all retail uses.

The applicant had argued that they were proposing a distribution center, which is a permitted use in the district, and that it fit with the other uses in the park. The Board was not certain that the facility was properly classified as a distribution center, but after many negotiations between Syracuse Supply and the Town, whereby many modifications were made to the plans to reduce visibility of the equipment and other environmental detriments, the Planning Board decided that the rental of construction equipment was similar to the other "retail and commercial uses" permitted in a Limited Industrial district. It granted a special use permit to Syracuse. This Article 78 proceeding resulted.

The Court finds that the deciding argument is petitioners' first one, which they address in their petition and in their reply: the proposal is prohibited because it is a retail use. Respondents argue that the Board's determinations should not be set aside unless they are arbitrary and capricious. This, of course, is black letter law as it applies to judicial review of administrative determinations. This, on the other hand, is a matter of definition; and while courts will generally defer to administrative bodies in their construction of the zoning code, such deference is inappropriate where, as here, the issue is the matter of the plain meaning of a word in ordinary use.

The Board determined that Syracuse proposed a wholesale business because it rented its equipment only to contractors. But a restricted clientele is not the distinguishing character of wholesale commerce as opposed to retail trade. Wholesale sales are those made for resale. Retail sales are those made to the end user. It is clear that this business is retail, even though the renters are people and firms who supply a service to end users. Individual renters will visit the showroom and grounds, choose items, and take the items off to be used, returning them later for another rental. This is clearly and unequivocally a retail operation, and Syracuse Supply's tacit acknowledgment of this undeniable fact can be seen in their reference to the facility as a "Cat Rental Store".

The Board's difficulty was also evident as they struggled with the applicant's definition of their business as a distribution center. Mr. Pavia, the Board's counsel, advised the Board that the proposal had some characteristics in common with distribution centers. The court, however, holds that this is a significant overstatement. While distribution is not adequately defined in the Zoning Code, the descriptions seem compatible only with the common sense idea of a distribution center; that it serves the needs of one company, which stores and reships its goods to other facilities or to wholesalers. It is certainly true that Syracuse intends to "distribute" its rental fleet to others, but only in the way that Chase Pitkin "distributes" lumber and hardware and McDonald's "distributes" hamburgers and fries.

Classification of this nonconforming retail operation as something other than what it plainly is constitutes not a discretionary matter where the court should defer to the board, but a plain violation of the zoning code. The standard is different if the court were to reach the question of whether the use is consistent with the other uses. It does appear to the court, though, that the storage, rental and repair of such large and heavy equipment is quite incompatible with the object of establishing the Limited Industrial District park; according to petitioners one of the earth movers weighs 30 tons. Moreover, the uses listed in the code define an easily-grasped body of activities: those that relate to and support the manufacture of sensitive, high-technology devices and instruments. The rental of heavy construction equipment is so alien to this category that the court believes that any activity that could be visually screened would have to be considered equally "similar" to the permitted uses. The Board's decision essentially eliminates the very principle of selectivity of use that lies at the heart of the district. As such it is arguably arbitrary and capricious, inasmuch as it ignores the clear legislative classification of businesses by use and reduces the Limited Industrial District's criteria to environmental impact alone. However, since the applicant's business is manifestly retail, the court does not need to reach this point.

The petition is granted, with costs, and the Board's determination of September 6, 2000, granting Syracuse Supply Corporation a special use permit, is annulled, the permit vacated, and insofar as the petition is construed as one seeking declaratory judgment, the application determined to be prohibited under Section 99-14 of the Town of Rush Zoning Code. Mr. Zeftel may prepare the order.

DATED: Rochester, New York

December 19, 2000

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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