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In the Matter of Jerrold Ferraro

December 30, 2010

IN THE MATTER OF JERROLD FERRARO, JUDITH FERRARO, WILLIAM FLEMING, LORETTA C. AQUILINA, KATHLEEN AQUILINA, JUDITH HYATT, GWEN RICHTHAMMER, MONICA C. WATERS, ARLENE MEROWITZ, AND DANIEL WARD, INDIVIDUALLY AND AS A MEMBER OF TOWN BOARD OF TOWN OF AMHERST, PETITIONERS-PLAINTIFFS-APPELLANTS,
v.
TOWN BOARD OF TOWN OF AMHERST, BENDERSON DEVELOPMENT COMPANY, LLC, BUFFALO-MAPLE ROAD LLC, AND BUFFALO-ANDERSON ASSOCIATES, LLC, RESPONDENTS-DEFENDANTS-RESPONDENTS.



Appeal from a judgment of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered September 15, 2009 in a hybrid CPLR article 78 proceeding and declaratory judgment action. The judgment declared that Local Law No. 8 of the Town of Amherst is valid and lawful and otherwise dismissed the petition and complaint.

Matter of Ferraro v Town Bd. of Town of Amherst

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

Memorandum: Petitioners-plaintiffs (petitioners) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, to annul the determination of respondent-defendant Town Board of Town of Amherst (Town Board) in favor of rezoning two adjacent parcels of property north of Maple Road in the Town of Amherst (Town). The property at issue is owned by respondents-defendants Buffalo-Maple Road LLC and Buffalo-Anderson Associates, LLC, and respondent-defendant Benderson Development Company, LLC is their agent (collectively, Benderson respondents). The property (hereafter, Benderson property) is situated to the east of a sports arena, to the south of the University at Buffalo North Campus (University) and to the south and west of the Audubon Golf Course (golf course). Most of the petitioners reside on the south side of Maple Road, which is a residential area. The Benderson respondents sought to have their property rezoned in order to construct various commercial buildings, condominiums and a hotel. After petitioners protested the proposed rezoning, the Benderson respondents amended the petition for rezoning to include a 101-foot buffer zone immediately adjacent to Maple Road, which would retain the same zoning classification. The Town Board approved the amended petition for rezoning by a vote of 4 to 3, concluding that the proposed rezoning was "generally consistent" with the Town's Bicentennial Comprehensive Plan (Plan). Supreme Court determined, inter alia, that the resolution approving the proposed rezoning passed by the Town Board's majority vote and that a three-fourths majority vote was not required, and the court otherwise dismissed the petition and complaint.

Petitioners contend that reversal is required because the owners of more than 20% of the property lying directly opposite the Benderson property had protested the rezoning and thus the petition for rezoning required the approval of at least three-fourths of the Town Board members (see Town Law § 265 [1] [c]). We reject that contention. Pursuant to Town Law § 265 (1) (c), the approval of at least three-fourths of the members of a town board is required in the event that an amendment is protested by "the owners of [20%] or more of the area of land directly opposite thereto, extending [100] feet from the street frontage of such opposite land." Petitioners contend that their properties were "directly opposite" the Benderson property and within 100 feet from the south side of Maple Road. Respondents, however, contend that petitioners' properties were required to be within 100 feet of the portion of the Benderson property to be rezoned in order for section 265 (1) (c) to apply. We agree with respondents.

Here, we must determine what area of property is referred to by the word "thereto" in Town Law § 265 (1) (c). The legislative history of that section establishes that subdivision (1) (c) was intended to apply to property directly opposite the property included in the proposed rezoning. The original proposed language of the statute provided that a three-fourths vote was required if written protests were filed by "the owners of [20%] or more of the area of land directly opposite to that land included in such proposed change, extending [100] feet from the street frontage of such opposite land" (Recommendation of Law Rev Commn, 1990 McKinney's Session Laws of NY, at 2311 [emphasis added]). The word "thereto" in the statute as enacted was substituted for the emphasized language in the proposed statute. Inasmuch as there would be a 101-foot buffer zone between petitioners' properties and the rezoned portion of the Benderson property, we conclude that petitioners' properties are not directly opposite the property to be rezoned and that the property to be rezoned is not within 100 feet of the street frontage of petitioners' properties. Indeed, the buffer zone created by the Benderson respondents renders Town Law § 265 (1) (c) inapplicable (see e.g. Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 314-315; Ryan Homes, Inc. v Town Bd. of Town of Mendon, 7 Misc 3d 709, 712-714).

Petitioners further contend that the driveways to the proposed development on the Benderson property should have been rezoned and that petitioners' properties would be within 100 feet of that rezoned property. The Commissioner of Building for the Town determined in a memorandum to the Town Board that the driveways would serve a dual purpose and thus were not required to be rezoned, and petitioners did not appeal that determination to the Zoning Board of Appeals. Even assuming, arguendo, that petitioners were not required to exhaust their administrative remedies with respect to the determination of the Commissioner of Building, we conclude that petitioners' contention lacks merit (see Matter of Hampton Hill Villas Condominium Bd. of Mgrs. v Town of Amherst Zoning Bd. of Appeals, 13 AD3d 1079).

We reject petitioners' contention that the proposed rezoning violated the Town's Plan. "If the validity of the legislative classification for zoning purposes [is] fairly debatable, the legislative judgment must be allowed to control . . . Thus, where the [challenging parties] fail[] to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld" (Bergstol v Town of Monroe, 15 AD3d 324, 325, lv denied 5 NY3d 701 [internal quotation marks omitted]; see Matter of Meteor Enters., LLC v Bylewski, 38 AD3d 1356, 1358). By its terms, the Plan was not "meant to dictate land use . . . [Rather, it] was intended to communicate the overall direction and concept of future development." It was "designed to be flexible . . . [and] to provide a generalized guide for future development . . . ." Pursuant to the Plan, property to the north of the golf course was set aside for a mixed-use center. The Plan also set aside the area of the Benderson property for park areas and green space, and residential areas along Maple Road were to be protected "from further encroachments by new commercial development or redevelopment." In addition, however, the Plan sought to encourage commercial development near the University and permitted commercial development in specific corridors, including a section of Maple Road close to the location of the Benderson property. The Town Board concluded that the proposed rezoning was consistent with the Plan because of the Benderson property's proximity to the University, the fact that Maple Road was a major arterial road and the unlikely use of the Benderson property for any other development, based on its contamination and proximity to the sports arena and the University's stadium. Although the Benderson property is not adjacent to the University's campus loop or accessible by Millersport Highway, the Benderson property is still in proximity to the University and is close to the Plan's proposed location of a mixed-use center. Further, the Plan's proposed location for a mixed-use center is also across the street from a residential area and is buffered by green area in much the same way as the Benderson respondents' proposed development. Although the recreation space on the north side of Maple Road, as proposed in the Plan, will give way to commercial development, there will be a large recreational area preserved to the east of petitioners' properties. Keeping in mind that the Plan was intended to be flexible and was meant to provide a generalized guide to future development, we conclude that it is "fairly debatable" whether the proposed rezoning is consistent with the overallPlan (Bergstol, 15 AD3d at 325 [internal quotation marks omitted]). It is undisputed that the proposed rezoning of the Benderson property conflicts with the Plan's intended use of that property, but our review must be based on the Plan as a whole. Thus, because petitioners failed "to establish a clear conflict" with the overall Plan, the Town Board's zoning determination must be upheld (id.).

In view of our determination, we see no need to address petitioners' remaining contentions.

All concur except Fahey, J., who dissents and votes to reverse in accordance with the following Memorandum: I respectfully dissent inasmuch as I conclude that Supreme Court erred in dismissing the petition and complaint seeking, inter alia, to annul the determination that approved the rezoning petition and amended the Bicentennial Comprehensive Plan (Plan) of the Town of Amherst (Town) and in declaring that Local Law No. 8 of 2008 was valid. I

This appeal arises from the efforts of respondents-defendants Benderson Development Company, LLC, Buffalo-Maple Road LLC and Buffalo-Anderson Associates, LLC (collectively, Benderson respondents) to develop two adjacent parcels of property (collectively, Benderson property) located on Maple Road in the Town. The larger of the parcels, which was the former home of the Buffalo Shooting Club, consists of approximately 31.589 acres and had been zoned Community Facilities (CF). The smaller of the parcels consists of approximately 1.737 acres and had been zoned Residential 3 (R-3).

The Benderson property sits on the north side of Maple Road and is bordered on its west side by a residential area and on its north and east sides by the Audubon Golf Course (golf course). Both parcels of the Benderson property consist of primarily open, cleared space across Maple Road from a residential area. The Plan, which is intended, inter alia, "to communicate the overall direction and concept of future development . . . [and] to present a composite picture of the Town at full development," alternatively ...


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