Robert Magee, Lead Writer, RMagee@albanylaw.edu
The Northgate Plaza is a run down shopping plaza in Greece, New York, a town seven miles northwest of Rochester. The Northgate Plaza’s story isn’t unlike those of a lot of shopping plazas in the state. It was built in 1953 during an economic upswing that was only able to carry the plaza for about 25 years.1 Though it was once home to big name stores like J.C. Penny and Woolworth’s,2 the plaza’s biggest draws nowadays are a Hallmark Store, a Citizen’s Bank, a Big Lots marked by a broken sign, and “what might be the slowest, 24-hour McDonald’s, in the history of mankind.”3 Much of the Northgate Plaza is vacant and all involved agree that the plaza has fallen into disrepair. Like many such plazas in its situation, the Northgate’s owners, the Widewaters Group, have looked to Walmart to resuscitate it and Walmart is seeking to oblige.4 Walmart has agreed to build a “supercenter” in the plaza, which would require much of the existing plaza to be knocked down and the eviction of a handful of small businesses operating there.5 Like many such plans, it has drawn the ire of reside local residents, who have formed Residents Against Walmart (RAW). RAW has vowed ardent opposition to its implementation, and insists that the Walmart will erode the character of their neighborhood.6
In September 2007, the Greece Town Planning and Zoning Board approved the plan over these protestations, and the Greece Zoning Board of Appeals followed soon after.7 RAW has appealed a Supreme Court dismissal for lack of standing to the Appellate Division, which will hear argument on the case within the month.8
“For the purpose of promoting the health, safety, morals, or the general welfare of the community,” town boards have the authority to enact zoning regulations which regulate development within the town board’s jurisdiction.9 Though the boards can do this directly, more often town planning boards, panels of five or seven members who are appointed by the town board, promulgate zoning regulations.10 The town board, in turn, is a governing body whose existence is mandated by the New York Constitution to govern most municipal corporations.11 A town board consists of the town supervisor and council members who are elected by the residents of the given town.12 The town board also appoints three to five people to a zoning board of appeals (ZBA)13, which holds public hearings on challenges to decisions made by administrative officials with authority to enforce zoning laws and rules on their validity.14 However, ZBAs are not vested with the authority to review zoning regulations in and of themselves.15 Since the Northgate Plaza is zoned for the commercial use that Wal-Mart would make of it, RAW is forced into the awkward position of appealing Greece zoning officials’ interpretation of existing zoning laws. This RAW can only do by showing that “commercial use” within the existing law does not contemplate or would be violated by the presence of a Wal-Mart Supercenter.
Within its sphere, the authority of a duly constituted ZBA is functionally plenary.16 An aggrieved party with standing may initiate an Article 78 proceeding against a ZBA determination in the relevant division of the Supreme Court17 and will be entitled to a hearing there18 on an expedited basis.19 As with any Article 78 proceeding, the initiating party is limited to specific grounds for appealing the ZBA’s determination. It can allege only that 1) the official failed to perform a duty required by law, 2) that the official acted without jurisdiction, 3) that the official failed to follow proper procedure, misinterpreted the law or acted capriciously, or 4) that the determination (if it was made upon a hearing) was not based on substantial evidence.20 This, coupled with a judicial culture deferential to the on-the-ground-decisions of local officials, means that RAW faces a very high hurdle on appeal, even if they manage to overturn the lower court’s finding that they altogether lacked standing to bring the proceeding in the first place.
The conflict between commercial and residential property use and the question of when the former infringes on the latter are both well tread in both our history and our jurisprudence. What is particularly interesting here is the conflict between RAW and the Greece ZBA.
Being a democratic society, we all have a modicum of authority as voter/citizens over what happens at the Northgate Plaza. Further, America’s adoption of the federalist democratic model as well as private property ownership, causes our authority over one another’s affairs and property to expand or contract, as a practical matter, relative to our proximity to or membership in different political or property owning communities. Residents of a particular political community have a heightened degree of authority over the affairs and property of those around them as a result of 1) their statutory and due process right to function within that community and 2) their right to reasonable use of their property. In the present case, RAW has a particular authority over what happens at the Northgate Plaza because it exists in a political community in which they have rights as voters and because the proposed Walmart development implicates their right to reasonable use of their property.
Thus, RAW has two means by which it can impose its will on the Northgate Plaza in order to keep out the Walmart. They have failed at the more effective of the two: electing like-minded city officials, successfully petitioning existing officials, or building a critical mass within Greece to oppose the Walmart. RAW members had the chance to elect anti-Walmart town board members who would have appointed anti-Walmart planning board and ZBA members. They had the chance to petition officials against the Walmart development or garner enough political support within the community to force office holders to reverse their pro-Walmart stance within their function as fiduciaries to the public trust.
The supreme court determination that RAW lacks standing speaks directly to the first source of their authority and marks RAW’s final terrain within it upon which they can possibly still stand. Failure here forces them to retreat to their second, far less tenable source of authority over the Northgate Plaza as property owners whose rights to reasonable use of their property face adverse implication by the Walmart.
While this conceptualization of RAW’s predicament is useful insofar as it enables us to understand precisely what is at play in Greece, it is of little comfort to RAW which finds its options quickly evaporating in the sun of political and legal reality. Nor can it be of much comfort that their story is likely to be of voter/citizen losers of the sort all political systems must necessarily create.
Lauren Prager & Eric Schillinger, editors.
1 Meaghan M. McDermott, Wal-Mart Challenge to Be Heard This Month, Democrat and Chronicle (Rochester), Jan. 4, 2009.
3 Northgate Plaza, http://absinthebleu.blogspot.com/2008/10/northgate-plaza.html (Oct. 22, 2008, 12:11 EST).
4 McDermott, supra note 1.
9 N.Y. Town Law § 261 (McKinney 2008).
10 Id. at § 271(a).
11 N.Y. Const. art. IX, § 1(a).
12 Id. at § 60.
13 Id. at § 267(2).
14 Id. at § 267-a.
16 See Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 263 (1984) (noting that the “town zoning board of appeals has been exclusively empowered to grant or deny zoning variances.” (emphasis added)).
17 N.Y.C.P.L.R. § 7804 (McKinney 2008).
18 N.Y. Town Law § 274-b (9).
19 Id. at § 267-c (4).
20 N.Y.C.P.L.R. § 7803(1)-(4).