ZIONTS v. TOWN OF AMHERST

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Stanley ZIONTS and Harriette A. Zionts, Petitioners-Respondents, v. TOWN OF AMHERST, Respondent-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND KEHOE, JJ. E. Thomas Jones, Town Attorney, Williamsville (J. Matthew Plunkett of Counsel), for Respondent-Appellant. H.A. Zionts, Williamsville, Petitioner-Respondent Pro Se, and for Stanley Zionts, Petitioner-Respondent.

Respondent, Town of Amherst (Town), appeals from a judgment granting the CPLR article 78 petition, annulling the determination of the Town of Amherst Town Board (Board) to deny petitioners' rezoning application and ordering the Board to rezone petitioners' property.   Petitioners are owners of property in the Town and in August 2001, they applied to the Board for rezoning of the property from agricultural to residential.   The Board denied the application, and petitioners commenced this proceeding pursuant to CPLR article 78 to review that determination.   In annulling the Board's determination, Supreme Court determined that the denial of petitioners' application was arbitrary and capricious.   We reverse.

 Initially, we note that the denial of an application to have property rezoned is a legislative action (see Matter of Benderson Dev. Co. v. Swiatek, 162 A.D.2d 1023, 1024, 557 N.Y.S.2d 807;  Matter of Rodriques v. McCluskey, 156 A.D.2d 369, 548 N.Y.S.2d 323) and, therefore, the proper vehicle for review of that determination is an action for a declaratory judgment, not a CPLR article 78 proceeding (see Benderson Dev. Co., 162 A.D.2d at 1023, 557 N.Y.S.2d 807;  Matter of Wolfe v. Town Bd. of Town of Islip, 133 A.D.2d 636, 519 N.Y.S.2d 744;  Kasper v. Town of Brookhaven, 122 A.D.2d 200, 504 N.Y.S.2d 736;  cf. Home Bldrs. Assn. of Cent. N.Y. v. Town of Onondaga, 267 A.D.2d 973, 974, 701 N.Y.S.2d 542).   We therefore dismiss the petition.

 Even assuming, arguendo, that this action was properly before us, we would nevertheless reverse.   We note, however, that a reversal would not have been as the result of an obvious mistake in the wherefore clause of the petition, which was properly disregarded (see CPLR 2001).   The remainder of the petition, as well as all of the other documents in the record, clearly indicate the rezoning designation sought by petitioners.

 When considering a rezoning application, a municipality is not required to state its reasons for denying the application (see Litz v. Town Bd. of Guilderland, 197 A.D.2d 825, 827, 602 N.Y.S.2d 966).   The determination denying an application to rezone must be upheld if it “bears a substantial relationship to public health, safety, welfare or morals” (id.;   see Benderson Dev. Co., 162 A.D.2d at 1024, 557 N.Y.S.2d 807).   We conclude that the record contains evidence that the denial of petitioners' application was, at least in part, reasonably related to public welfare, health and safety (see Litz, 197 A.D.2d at 827-828, 602 N.Y.S.2d 966).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is dismissed.

MEMORANDUM: