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SUPREME COURT

STATE OF NEW YORK - MONROE COUNTY
______________________________________________________
ROCHESTER EASTSIDE RESIDENTS FOR
APPROPRIATE DEVELOPMENT, INC.
and
IGATOPSFY, LLC,
INDEX #2015/11950
Petitioners,
- vs CITY OF ROCHESTER,
CITY OF ROCHESTER ZONING BOARD OF APPEALS
ROCHESTER CITY PLANNING COMMISSION,
CITY OF ROCHESTER DIRECTOR OF
PLANNING AND ZONING,
STEVE CLEASON,
ALDI INC.,
CRLYN ACQUISITIONS, LLC,
CBL, LLC, and
JOHN DOES,

DECISION

Respondents.
________________________________________________________

APPEARANCES:

Attorney for Petitioner:

Alan J. Knauf, Esq., and
Jonathan R. Tantillo, Esq., of Counsel
Knauf Shaw LLP
1125 Crossroads Building
2 State Street
Rochester New York 14614

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

Attorney for Respondents,
Steve Cleason, Aldi, Inc.,
CRLN Acquisitions, LLC
and CBL, LLC:

Brian F. Curran, Corporation Counsel
Johanna F. Brennan, Esq., of Counsel
30 Church Street, Room 400A
City Hall
Rochester, New York 14614

Betsy Brugg, Esq.
Reuben Ortenberg, Esq.
Woods Oviatt Gilman, LLP
Two State Street, Suite 700
Rochester, New York 14614

DECISION

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, Steve
Cleason, Aldi Inc., CRLYN Acquisitions, LLC, and CBL, LLC, for
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a negative declaration under SEQRA, multiple area variances, and a
special 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 Declaration
under 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 an
adequate 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 §81b(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 in
the matter being adjudicated . . . and the requirement that the interest
or 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 limitation
that the plaintiff, for standing purposes, must show that it would
suffer direct harm, injury that is in some way different from that of
the public at large (citations omitted). This requirement applies
whether 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 who
allege it, and must be “different in kind or degree from the public at
large” (citation omitted), but need not be unique. . . . . The number
of people who are affected by the challenged action is not dispositive
of standing. . . . . [Petitioner] alleges injuries that are “real and
different from the injury most members of the public face” (citation
omitted). Thus, his allegations about train noise caused by the
increased train traffic keeping him awake at night, even without any
express differentiation between the train noise running along the
tracks and the noise from the transloading facility, would be sufficient
to confer standing.

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

(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 [4th Dept. 2001]).

ii.

SEQRA

To seek judicial review of administrative actions under SEQRA, the injury must be an environmental
one. 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 [2nd 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, Inc. v New York City Department of Environmental Protection, 111 AD3d 718,719
[2nd 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 degrade
their quality of life and enjoyment of the North Winton Village
neighborhood by, among other things, construction of a large building
that is out of scale with existing buildings and zoning requirements
in the neighborhood, demolition of existing buildings that, prior to the
inception of the Project, contained businesses frequented by residents
in the neighborhood, degradation of aesthetics, increased traffic
congestion, and traffic safety issues posed by the entrance/exit, and
noise.

(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 and
indicates 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 [4th Dept. 2001]);
Ontario Hgts Homeowners Assn. v Town of Oswego Planning Bd., 77 AD3d 1465 [4th 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 Road
intersection. 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 [4th 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” (SunBrite 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
[2nd 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 the
standing of Igatopsfy [sic] this Article 78 Proceeding, it should be
noted 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 Flaum
Property.

(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 take
into consideration the benefit to the applicant if the variance is
granted, as weighed against the detriment to the health, safety and
welfare of the neighborhood or community by such grant. In making
such 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 be
created 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 area
variance;
(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 the
neighborhood or district; and
(v) whether the alleged difficulty was self-created, which
consideration 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 Board
considered 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 applications
for 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 board
should be sustained upon judicial review if it has a rational basis and
is 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 [4th Dept. 2015]; Mimassi v Town of Whitestown Zoning Board of
Appeals, 124 AD3d 1329,1330 [4th Dept. 2015]; Young Development, Inc. v Town of West Seneca,
91 AD3d 1350,1351 [4th Dept. 2012]; Conway v Town of Irondequoit, 38 AD3d 1279,1280 [4th 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, is
DENIED.

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 the
technical 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 to
certify on the record that they have reviewed testimony from the
hearings which they were absent, as required by Zoning Code Section
12-186, and to conduct a new vote. (No information or testimony
will 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 filed
October 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 record
that they have fully familiarized themselves with the record of the
hearings. No additional testimony or written evidence will be
accepted.

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 discussion
or 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 Town
of Queensbury Zoning Board of Appeals, 126 AD3d 1152,1154 [3rd 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 [4th 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. At
the 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 and
annul 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, 2016
Rochester, New York

________________________________________
Thomas A. Stander
Supreme Court Justice

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

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