SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1265 

CA 16-00600 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

IN THE MATTER OF EXPRESSVIEW DEVELOPMENT, INC., 

ON ITS OWN BEHALF AND AS AGENT OF CANANDAIGUA 

NATIONAL BANK, TRUSTEE OF THE MAX M. FARASH 

DECLARATION OF TRUST DATED JULY 6, 2007, AND 

CANANDAIGUA NATIONAL BANK, TRUSTEE OF THE MAX M. 

FARASH DECLARATION OF TRUST, DATED JULY 6, 2007, 

PETITIONERS-PLAINTIFFS-APPELLANTS, 

 

V MEMORANDUM AND ORDER

TOWN OF GATES ZONING BOARD OF APPEALS AND TOWN 

OF GATES, RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR

PETITIONERS-PLAINTIFFS-APPELLANTS. 

SHAPIRO, DICARO & BARAK, LLC, ROCHESTER (ELLIS OSTER OF COUNSEL), FOR

RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Monroe County (Ann Marie Taddeo, J.), entered January 21, 2016 in a

hybrid CPLR article 78 proceeding and declaratory judgment action. 

The judgment, insofar as appealed from, granted the cross motion of

respondents-defendants to dismiss the amended petition-complaint. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by denying the cross motion to the

extent that it sought dismissal of the declaratory judgment causes of

action, reinstating those causes of action, and granting judgment in

favor of respondents-defendants as follows: 

It is ADJUDGED AND DECLARED that the Town of Gates Code

§ 190-22 (E) is constitutional, 

and as modified the judgment is affirmed without costs. 

Memorandum: As relevant in this zoning dispute, the Max M.

Farash Declaration of Trust, dated July 6, 2007 (Trust), of which

petitioner-plaintiff Canandaigua National Bank is the trustee, owns

real property located within the boundaries of respondent-defendant

Town of Gates (Town) adjacent to Interstate 390 (hereafter, highway). 

Five of the six landlocked, undeveloped parcels that make up the

subject property were purchased by an individual in the 1960s and
-2- 1265 

CA 16-00600 

1970s, and a plan was subsequently approved in 1982 for the

development of an industrial park on the property. Developer Max M.

Farash purchased the parcels and a sixth adjacent parcel in 1986, but

he never developed the property in accordance with the industrial park

plan. Farash was declared incompetent prior to his death, and the

Trust became the owner of the property. The Trust attempted to sell

the property in 2009, and the only offer came from petitionerplaintiff Expressview Development, Inc., contingent upon its receipt

of variances that would allow it to construct billboards that would be

visible from the highway. The billboards, as planned, would violate

the Town of Gates Code § 190-22 (E) which, in sum, prohibits

commercial signs not located on the site of the business for which

they advertise. Following an initial application that was denied

without prejudice, petitioners-plaintiffs (petitioners) again sought

use and area variances permitting the installation of the billboards,

but respondent-defendant Town of Gates Zoning Board of Appeals (ZBA)

denied their application after considering the matter at a hearing. 

Petitioners commenced this hybrid CPLR article 78 proceeding and

declaratory judgment action seeking, inter alia, to annul the

determination of the ZBA, and a declaration that the Town of Gates

Code § 190-22 (E) is unconstitutional. Supreme Court, inter alia,

granted the cross motion of respondents-defendants (respondents)

dismissing the amended petition-complaint (amended petition).

It is well established that “[c]ourts may set aside a zoning

board determination only where the record reveals that the board acted

illegally or arbitrarily, or abused its discretion, or that it merely

succumbed to generalized community pressure . . . ‘It matters not

whether, in close cases, a court would have, or should have, decided

the matter differently. The judicial responsibility is to review

zoning decisions but not, absent proof of arbitrary and unreasonable

action, to make them’ ” (Matter of Pecoraro v Board of Appeals of Town

of Hempstead, 2 NY3d 608, 613). Thus, “[a] reviewing court may not

substitute its judgment for that of a local zoning board . . . , ‘even

if there is substantial evidence supporting a contrary

determination’ ” (Matter of People, Inc. v City of Tonawanda Zoning

Bd. of Appeals, 126 AD3d 1334, 1335). Indeed, “[w]hen reviewing the

determinations of a Zoning Board, courts consider ‘substantial

evidence’ only to determine whether the record contains sufficient

evidence to support the rationality of the Board’s determination”

(Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2).

Petitioners’ contention that the determination was arbitrary and

capricious because the ZBA failed to adhere to its precedent is

without merit inasmuch as petitioners failed to establish the

existence of earlier determinations by the ZBA that were based on

essentially the same facts as petitioners’ present application (see

Matter of Mimassi v Town of Whitestown Zoning Bd. of Appeals, 124 AD3d

1329, 1330; see generally Matter of Tall Trees Constr. Corp. v Zoning

Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93). The settlement

of a federal lawsuit in 1999 by the executive and legislative branches

of the Town permitting the installation of certain billboards along

the highway by a pair of outdoor advertisers—which was not a

determination made by the ZBA as a result of its administrative
-3- 1265 

CA 16-00600 

variance process—did not constitute precedent from which the ZBA was

required to explain any departure (see Matter of Conversions for Real

Estate, LLC v Zoning Bd. of Appeals of Inc. Vil. of Roslyn, 31 AD3d

635, 636; see generally Mimassi, 124 AD3d at 1330; Matter of Brady v

Town of Islip Zoning Bd. of Appeals, 65 AD3d 1337, 1340, lv denied 14

NY3d 703). Contrary to petitioners’ further contention, they did not

raise the argument that the settlement constituted precedential

grounds for granting the requested variances until they served the

amended petition, and thus the court did not engage in an

impermissible post-hoc rationalization of the ZBA’s determination when

it addressed and rejected that argument (see generally Matter of

Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753,

758; Matter of Millpond Mgt., Inc. v Town of Ulster Zoning Bd. of

Appeals, 42 AD3d 804, 805 n).

We reject petitioners’ contention that the ZBA acted arbitrarily

and capriciously in determining that they failed to establish the

factors constituting unnecessary hardship required for the issuance of

the use variances (see Town Law § 267-b [2] [b]). The court properly

determined, upon review of the record as a whole, including the

evidence submitted to the ZBA, the findings and conclusions

articulated by the ZBA during the hearing, and its subsequent letter

decision (see generally Matter of Duchmann v Town of Hamburg, 90 AD3d

1642, 1644; Matter of East Coast Props. v City of Oneida Planning Bd.,

167 AD2d 641, 643), that there is substantial evidence supporting the

ZBA’s determination that the hardship was self-created (see § 267-b

[2] [b] [4]). The record evidence did not establish whether Farash

originally intended to develop the industrial park, and it is

undisputed that the plan was never pursued. Although subsequent

changes in economic conditions may have rendered the industrial park

plan financially infeasible, the record establishes that the extent of

the limitations on the property of which Farash knew or should have

known at the time of his purchase have remained. Indeed, Farash

purchased the property after the approval of the industrial park plan,

the adoption of applicable zoning restrictions, and the construction

of the highway adjacent to the property. Thus, the Trust possesses

the same unused, oddly-shaped, difficult-to-develop property that

Farash purchased, and although the purchase may now be viewed as a

poor investment, courts are not responsible for “guarantee[ing] the

investments of careless land buyers” (Matter of Barby Land Corp. v

Ziegner, 65 AD2d 793, 794, affd for reasons stated 49 NY2d 729; cf.

Matter of Kontogiannis v Fritts, 131 AD2d 944, 946; see generally

Matter of Carriage Works Enters. v Siegel, 118 AD2d 568, 570).

Contrary to petitioners’ contention, the court properly concluded

that there is substantial evidence supporting the ZBA’s determination

that the billboards would have a negative and adverse effect upon the

character of the neighborhood inasmuch as the relevant area could not

aesthetically support additional signs (see Town Law § 267-b [2] [b]

[3]; see generally Matter of Cromwell v Ferrier, 19 NY2d 263, 272,

rearg denied 19 NY2d 862). We conclude, contrary to petitioners’

further contention, that members of the ZBA did not act upon

consideration of their own surveys, and thus the members of the ZBA
-4- 1265 

CA 16-00600 

were not required to place on the record their personal observations

of the area inasmuch as there was evidence contained in petitioners’

submissions, including maps and photographs, establishing the quantity

and nature of the billboards already in existence along the relevant

portion of the highway (cf. Matter of Community Synagogue v Bates, 1

NY2d 445, 454).

Based on the foregoing, we conclude that the court properly

determined that the ZBA’s determination has a rational basis and is

not arbitrary and capricious (see CPLR 7803 [3]). We have considered

petitioners’ remaining contentions with respect to the ZBA’s denial of

their application for the variances and conclude that none of those

contentions require reversal or modification of the judgment.

We reject petitioners’ contention that the court erred in

dismissing those parts of the amended petition alleging that the ZBA

violated their constitutional rights to equal protection through

selective enforcement of the zoning regulations. Even assuming,

arguendo, that petitioners and the other outdoor advertisers were

similarly situated, petitioners failed to allege that respondents

singled them out “with an ‘evil eye and an unequal hand, so as

practically to make unjust and illegal discriminations between persons

in similar circumstances’ ” (Bower Assoc. v Town of Pleasant Val., 2

NY3d 617, 631; see Masi Mgt., Inc. v Town of Ogden [appeal No. 3], 273

AD2d 837, 838). We also conclude that the court properly dismissed

the amended petition to the extent that it asserted additional claims

based upon alleged violations of petitioners’ due process and equal

protection rights under the Federal and State Constitutions (see Bower

Assoc., 2 NY3d at 627-630; Fike v Town of Webster, 11 AD3d 888, 889).

We reject petitioners’ further contention that the Town of Gates

Code § 190-22 (E) is an unconstitutional restraint of freedom of

speech under the First Amendment on the ground that it improperly

distinguishes between on-site and off-site commercial signs. The

decision by the United States Supreme Court in Reed v Town of Gilbert,

Arizona (___ US ___, 135 S Ct 2218) did not overturn the prevailing

intermediate scrutiny test for restrictions on commercial speech set

forth in Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of

N.Y. (447 US 557, 561-566; see e.g. Lone Star Sec. & Video, Inc. v

City of Los Angeles, 827 F3d 1192, 1198 n 3; Dana’s R.R. Supply v

Attorney Gen., State of Florida, 807 F3d 1235, 1246-1247; Boelter v

Advance Mag. Publs. Inc., ___ F Supp 3d ___, ___ n 15). When

evaluated under the Central Hudson test, petitioners’ contention lacks

merit (see Metromedia, Inc. v City of San Diego, 453 US 490, 498-499,

510-512; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 488-489).

The court nonetheless erred in granting that part of respondents’

cross motion seeking dismissal of the declaratory judgment causes of

action rather than declaring the rights of the parties (see Mead Sq.

Commons, LLC v Village of Victor, 97 AD3d 1162, 1164; Matter of

Lindberg v Town of Manlius Planning Bd., 41 AD3d 1231, 1232). We

therefore modify the judgment by denying respondents’ cross motion to

the extent that it sought dismissal of the declaratory judgment causes
-5- 1265 

CA 16-00600 

of action, reinstating those causes of action, and granting judgment

in favor of respondents by adjudging and declaring that the Town of

Gates Code § 190-22 (E) is constitutional.

Entered: February 3, 2017 Frances E. Cafarell

Clerk of the Court