“General” Code Provision Saves Dollar Store Endeavor: Superfluous Interpretations Are Not Required

July 13, 2020

In Cady v Town of Germantown Planning Bd., 2020 NY Slip Op 03440 [3d Dept 2020], the Appellate Division, Third Department, reversed the Columbia County Supreme Court’s judgment annulling site plan approval, and dismissed the Article 78 petition. Among other things, the Court’s decision addressed whether the Planning Board exceeded its authority and improperly interpreted the zoning code when it approved a 71-foot façade for a project within a scenic overlay district where the zoning code “suggested” a 50-foot limitation.

In January 2015, applicant Primax Properties, LLC (“Primax”) applied to the Town of Germantown (“Germantown”) Planning Board for subdivision and site plan approval to subdivide a 6.1-acre lot into two lots; the owners would retain a 4.7-acre lot, and other 1.4-acre lot would be conveyed to Primax for the construction of a 9,000 square-foot Dollar General store. The retail store is a permitted use requiring site plan approval, and the property is within Germantown’s scenic viewshed overlay district – designed to protect the Hudson River corridor and the Catskill Mountain viewshed in accordance with the comprehensive plan.

The Germantown Planning Board declared itself lead agency for review of Primax’s application under the State Environmental Quality Review Act (“SEQRA”) and issued a positive declaration. After various draft environmental impact statements (“EIS”) and public hearing and comment, Primax submitted a final EIS which the Germantown Planning Board accepted. The Germantown Planning Board also adopted a draft SEQRA findings statement. Part of the draft SEQRA findings statement indicated that, “although the proposed 71-foot-wide building and accompanying signage would be visible from surrounding locations, the building and signage were ‘not expected to present a significant visual impact on the viewshed.’”

Predominantly negative comments were submitted during public hearing and comment on the Germantown Planning Board’s draft SEQRA findings statement. Afterwards, the Germantown Planning Board adopted a resolution conditionally approving the site plan and subdivision. The resolution incorporated the SEQRA findings, and noted that the project complied with all standards for subdivision and site plan approval and the applicable zoning and design standards. Adjacent neighbors commenced a hybrid Article 78 proceeding and declaratory judgment action setting forth 12 causes of action to challenge the site plan approval, among other things.

The neighbors argued that the Germantown Planning Board exceeded its authority by approving a 71-foot façade without a referral or submission to the Germantown Zoning Board of Appeals (“ZBA”) for a determination as to whether an area variance is required. The Supreme Court agreed with the neighbors and annulled the Germantown Planning Board approval because it found the Germantown Planning Board exceeded its authority under the zoning code by failing to refer the issue of the 71-foot façade to the Germantown ZBA. Primax and the Germantown Planning Board appealed, and the Appellate Division reversed.

The Third Department found the lower court erred in concluding that the Germantown Planning Board exceeded its authority in declining to refer the project to the Germantown ZBA. Although local planning boards generally lack authority to interpret their respective zoning codes and this authority is generally reserved for zoning boards of appeals, “a planning board . . . will not be required to refer a matter to a zoning board for a superfluous interpretation of an unambiguous provision contained in the zoning code.”

Germantown’s zoning code, in pertinent part, states “the length of any façade should generally not exceed 50 feet maximum horizontal dimension.” Because this code provision is devoid of any compulsory language, it is deliberately phrased as a guideline – rather than a prohibition. Further, while the Germantown zoning code states the word “shall” is mandatory unless otherwise indicated and other provisions in the code use the word shall, the provision relating to the façade length does not include the word “shall.”

Accordingly, the Court held Germantown Planning Board did not exceed its authority because its approval of the site plan is rational and based simply upon an unambiguous reading of the code. The Court’s decision is a reminder that only zoning boards have the authority to interpret local zoning codes; however, if the zoning code is unambiguous, then planning board is free to act within the purview of its authority.