Matter of Bruck v. Town of Rochester Planning Bd.

Matter of Bruck v Town of Rochester Planning Bd.

2026 NY Slip Op 06370 October 29, 2026 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Susan Bruck et al., Appellants,

v

Town of Rochester Planning Board et al., Respondents.

Decided and Entered:October 29, 2026

CV-25-0897

Calendar Date: September 17, 2026

Before: Clark, J.P., Ceresia, Mcshan, Powers And Ryba, JJ.

Stenger, Glass, Hagstrom, Lindars & Iuele, LLP, Wappingers Falls (Mary K. Ephraim of counsel), for appellants. Mary Lou P. Christiana, Kingston, for Town of Rochester Planning Board, respondent. Riseley and Moriello, PLLC, Kingston (Michael A. Moriello of counsel), for Accord, LLC, respondent. [*1]

Clark, J.P.

Appeal from a judgment of the Supreme Court (David Gandin, J.), entered April 11, 2025 in Ulster County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town of Rochester Planning Board granting respondent Accord, LLC site plan approval. In furtherance of a planned redevelopment project (hereinafter the project), respondent Accord, LLC acquired title to a parcel of land in the Hamlet of Accord, Town of Rochester, Ulster County that is the site of a historic granary and seed mill complex. Thereafter, Accord applied to the Town of Rochester Town Board for a rezoning of the subject property into an Economic Enterprise Overlay (hereinafter EEO) district and for approval of its conceptual development plan, which sought to convert the existing structures on the premises into several mixed uses. The project was designated a type I action under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), triggering a review of its potential environmental impacts. After a lengthy environmental and conceptual review, the Town Board issued a negative declaration of environmental significance under SEQRA (see 6 NYCRR 617.12 [c] [1]) and adopted Local Law No. 10 of 2023 (hereinafter Local Law 10), which granted the requested EEO zoning designation and approved the final iteration of Accord's conceptual development plan. In adopting Local Law 10, the Town Board approved Accord's plan to convert the existing structures on the premises into several commercial and residential spaces, including a restaurant, a bike shop, an artist gallery, a coworking space, worker housing and an inn. The Town Board also agreed with Accord's assessment that 63 parking spaces were required for the project under the parking provisions of the Code of the Town of Rochester (hereinafter Town Code), including 57 on-site spaces (of which 25 would be allocated to the proposed restaurant) and six off-site spaces. Thereafter, Accord applied to respondent Town of Rochester Planning Board for site plan approval for the project. The Planning Board undertook an extensive review of Accord's application and held several public hearings on the matter. In May 2024, while the review process was ongoing, the Planning Board received a letter from Accord's architect advising that the scope of the project was being reduced "to eliminate the need for the six off[-]site parking spaces"

originally included in Accord's conceptual development plan, affirming that the artist gallery would no longer be built and that the size of the proposed coworking space would be reduced by 421 square feet. Another public hearing was held in June 2024, at which the issue of parking was a topic of discussion.

By resolution dated July 8, 2024, the Planning Board granted conditional site plan approval for the project, finding that Accord's project proposal, as modified during the site plan review process, was "in substantial conformance [*2]with the conceptual development plan as proposed and authorized [by the Town Board]." Regarding the issue of parking, the Planning Board adopted the Town Board's finding that 57 on-site parking spaces were required for the project under the Town Code (including 25 spaces for the proposed restaurant), but concluded that the six off-site spaces were no longer necessary due to the project modifications made by Accord.

In August 2024, petitioners â​​ two individuals with property near the project site â​​ commenced this CPLR article 78 proceeding seeking to annul the Planning Board's resolution granting conditional site plan approval for the project. The petition alleged, among other things, that the Planning Board violated Town Code § 140-18.1 (D) (2) by approving a modified project proposal that materially deviated from the conceptual development plan as proposed by Accord and

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approved by the Town Board, and "failed to properly calculate [the] parking requirements" for the project in accordance with the Town Code. As for the latter argument, petitioners maintained that the approved parking plans violated Town Code § 140-17 (A) (1) by failing to have one parking space per 50 square feet of floor area in the proposed restaurant, asserting 78 parking spots were required for the restaurant alone given its listed area of 3,914.65 square feet. Respondents joined issue, opposed the relief requested by petitioners, and filed separate memoranda of law setting forth their arguments. As relevant here, Accord also submitted an affidavit from its engineer in opposition to petitioners' claim that parking for the proposed restaurant had been improperly calculated. In his affidavit, the engineer explained that he used an "alternate [one] space per [three] seats" calculation to determine restaurant parking insofar as Town Code § 140-17 does not state whether gross or net square footage of restaurant floor space should be utilized when applying the "one parking space per 50 square feet" standard. The engineer indicated that his alternative calculation accounted for both inside and outside seating space and actual restaurant usage, revealed that the alternative calculation was included on the parking plans submitted to the Town Board during its conceptual development plan review, and emphasized that the Town Code authorizes the Town Board to alter development guidelines when approving adaptive reuse development projects in EEO districts. Additionally, the engineer noted that

"the floor area of the restaurant ha[d] been set

. . . as 1,250 square feet since Town Board review," which, when using a net square footage analysis, equated to 25 restaurant parking spaces. In a reply memorandum of law, petitioners argued, as relevant here, that the ambiguity identified by Accord's engineer pertaining to the proper method to calculate restaurant parking under Town Code § 140-17 mandated a referral to the Code Enforcement Officer (hereinafter CEO) or the Zoning Board of Appeals (hereinafter [*3]ZBA) to resolve the ambiguity before granting conditional site plan approval for the project. Petitioners maintained that the failure to do so rendered the Planning Board's determination arbitrary and capricious. In April 2025, Supreme Court issued a judgment dismissing the petition in full. As relevant here, the court rejected petitioners' argument that the Planning Board violated Town Code § 140-18.1 (D) (1) by granting conditional site plan approval for a modified project proposal that deviated from the original development plans submitted to and approved by the Town Board. In that regard, the court emphasized that the Planning Board is authorized under the Town Code to approve a site plan application for a development project within an EEO district when the application is in "substantial conformance with the conceptual development plan that was submitted to the Town Board and that served as the basis for the zone change to the EEO [d]istrict" (emphasis omitted). Applying that standard, the court noted that the project modifications made during the site plan review process were limited in scope and found that the Planning Board rationally determined that the site plan application, as so modified, was in substantial conformance with the conceptual development plan before the Town Board. The court also rejected petitioners' argument that the parking provisions of the approved site plan violated the restaurant parking requirements of Town Code § 140-17, concluding that the Planning Board was authorized to adopt the Town Board's findings as to the required number of parking spaces for the proposed restaurant and that it rationally did so in this case. Correspondingly, the court declined to consider the merits of petitioners' argument that the Planning Board was required to refer the matter to the CEO or the ZBA to resolve the ambiguity in the Town Code with respect to the proper manner to calculate required restaurant parking, finding that such argument was "improperly raised [by petitioners] for the first time in reply." Petitioners appeal. Contrary to petitioners' contention, we discern no basis upon which to annul the Planning Board's determination to grant conditional site plan approval for the project. It is well established that "a local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board's action was illegal, arbitrary and capricious, or an abuse of discretion" (Matter of Southern Realty & Dev., LLC v Town of Hurley, 218 AD3d 900, 902-903 [3d Dept 2023] [internal quotation marks, brackets and citation omitted]; accord Matter of Cook v Town Bd. of the Town of Southport, 249 AD3d 1372, 1374 [3d Dept 2026]). As with any agency determination, a planning board's action will be deemed arbitrary and capricious "when it is taken without sound basis in reason or regard to the facts" (Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau [*4]Planning Bd., 235 AD3d 1124, 1126 [3d Dept 2025] [internal quotation marks and citations omitted]; accord Matter of Cook v Town Bd. of the Town of Southport, 249 AD3d at 1374). "Furthermore, even if a different result would not have been unreasonable, an agency determination will be sustained if it has a rational basis" (Matter of Biggs v Eden Renewables LLC, 188 AD3d 1544, 1548 [3d Dept 2020] [internal quotation marks and citations omitted]; see Matter of Cook v Town Bd. of the Town of Southport, 249 AD3d at 1374).

We agree with Supreme Court that the Planning Board followed all procedural and substantive requirements of the Town Code in granting conditional site plan approval for the project and that its decision to do so was not arbitrary and capricious. Our determination in that regard is informed by the provisions of the Town Code pertaining to adaptive reuse development projects within EEO districts. As set forth in the Town Code, the intent of an EEO district is to

"promote flexibility in the development process while integrating a diversity of land uses within close proximity to each other" (Code of the Town of Rochester § 140-18 [C]). When an applicant seeks to amend a property's zoning designation to an EEO district in furtherance of an adaptive reuse development project, the applicant must submit a rezoning application to the Town Board along with a conceptual development plan specifying certain information about the project proposal and the existing conditions of the property, among other things (see Code of the Town of Rochester § 140-18.1 [A] [3]; [B] [2] [c], [f]). The Town Board then reviews the application and may either reject it or hold a public hearing on the matter (see Code of the Town of Rochester § 140-18.1 [C] [2]). Following a public hearing, "the Town Board may, in its sole legislative discretion, act to approve, approve with modification[s] or conditions, or disapprove the rezoning application" (Code of the Town of Rochester § 140-18.1 [C] [7]).

As for the Planning Board's role in the process, once the Town Board issues a zoning amendment creating an EEO district, "site plan review and approval by the Planning Board [is] required prior to the issuance of a building permit for any readaptation or modification of development of the property" (Code of the Town of Rochester § 140-18.1 [D] [1]).

"The Planning Board shall review said application pursuant to [Chapter 140 of the zoning code] and by New York State Town Law § 274-A" (Code of the Town of Rochester § 140-18.1 [A] [6]). "The Planning Board shall not approve any site plan application within an EEO [d]istrict unless [it] finds that the plan is in substantial conformance with the conceptual

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development plan that was submitted to the Town Board and that served as the basis for the zone change to the EEO [d]istrict" (Code of the Town of Rochester § 140-18.1 [D] [2]).

The Town Code also delineates certain design standards applicable to projects within EEO districts, including[*5], as relevant here, specified parking standards. In that regard, Town Code § 140-18.1 (H) (2) (c) states that "[r]equired off- street parking spaces [for a project constructed in an EEO district] shall be determined by the Town Board with consideration of recommendations made by the Planning Board and in general conformance with [Town Code] § 140-17"

(Code of the Town of Rochester § 140-18.1 [H] [2] [c] [emphasis added]). Town Code § 140-17, in turn, states that "[o]ff street parking . . . shall be provided as necessary in connection with every use" (Code of the Town of Rochester § 140- 17 [A] [emphasis added]), and delineates a "[b]asic" parking standard of "[one parking] space per 50 square feet [of] floor area" in a restaurant (Code of the Town of Rochester § 140-17 [A] [1]). Nevertheless, the Town Board and the Planning Board are both authorized to "grant waivers of development standards [in EEO districts], if deemed appropriate for the redevelopment of the property" (Code of the Town of Rochester § 140-18.1 [H] [1] [b]), and "the guidelines and . . . sections [of Town Code Chapter 140] may be waived where deemed appropriate by the Town Board in review of the projects for redevelopment of preexisting structures" (Code of the Town of Rochester § 140-18.1 [H] [2] [b]).

Initially, to the extent petitioners argue that the Planning Board exceeded its jurisdiction by granting conditional site plan approval for a modified project proposal that deviated from the conceptual development plan submitted to and approved by the Town Board, we disagree. The only limitation placed on the Planning Board's authority to grant site plan approval for a modified project proposal within an EEO district is a prohibition on doing so when the modified proposal is not in "substantial conformance with the conceptual development plan that was submitted to the Town Board and that served as the basis for the zone change to the EEO [d]istrict" (Code of the Town of Rochester § 140-18.1

[D] [2]). The substantial conformance language, coupled with the intent of an EEO district being to promote flexibility in the development process, establishes that some deviation from the approved conceptual development plan is authorized during the site plan review process.

Here, the project modifications made by Accord during such process were limited to withdrawing plans for the artist gallery, reducing the size of the proposed coworking space, and eliminating the six off-site parking spaces originally included in the conceptual development plan that was submitted to and approved by the Town Board. The modifications did not seek to introduce a new use for the property that had not been approved by the Town Board and did not change the on-site parking plans submitted during the rezoning process. Notably, the Town Code delineates specific circumstances in which proposed modifications to projects within EEO districts must "go back before the Town Board for review" and the modifications made here [*6]were not of the type to trigger that process (Code of the Town of Rochester § 140-18.1 [F] [1]; see Code of the Town of Rochester § 140-18.1 [F] [2], [4]). Given that the modifications reduced the scope of the project in a limited manner, we agree with Supreme Court that the Planning Board rationally determined that the site plan application, as so modified, was "in substantial conformance with the conceptual development plan that was submitted to the Town Board and that served as the basis for the zone change to the EEO [d]istrict" (Code of the Town of Rochester § 140-18.1 [D] [2]). Accordingly, the Planning Board did not exceed its jurisdiction when it granted conditional site plan approval for the modified project proposal.^FN1 Petitioners additionally contend that Supreme Court erred in declining to address the merits of their argument that the Planning Board was required to refer the site plan application to the ZBA or CEO to resolve the alleged ambiguity in Town Code § 140-17 regarding the proper manner to calculate parking for the proposed restaurant. However, petitioners "failed to request that the Planning Board seek an interpretation of the zoning code from the ZBA [or CEO] on this point and cannot be heard to argue about the absence of one now" (Matter of Micklas v Town of Halfmoon Planning Bd., 170 AD3d 1483, 1487 n [3d Dept 2019]). In any event, although petitioners correctly note that "[p]lanning boards are without power to interpret the local zoning law" (Matter of Swantz v Planning Bd. of Vil. of Cobleskill, 34 AD3d 1159, 1160 [3d Dept 2006]; see Matter of BKP Harrison, LLC v Town/Vil. of Harrison, 248 AD3d 1240, 1241 [2d Dept 2026]; Matter of Catskill Heritage Alliance, Inc. v Crossroads Ventures, LLC, 161 AD3d 1413, 1415 [3d Dept 2018]), that is not what occurred here. Instead, the record demonstrates that Accord's alternative parking calculation was put before the Town Board during its review of the EEO district zoning application. The Town Board, in turn, accepted Accord's "proposed calculations" and "number of parking spaces" for the project in Local Law 10, including the 25 spaces allocated to the proposed restaurant that had been calculated using the alternative "one space per three seats" method. The Planning Board merely adopted the Town Board's determination regarding required restaurant parking and its decision granting site plan approval for the project did not interpret Town Code § 140-17 when doing so (see Matter of East Moriches Prop. Owners' Assn., Inc. v Planning Bd. of Town of Brookhaven, 66 AD3d 895, 897 [2d Dept 2009]).

Given that the number of parking spaces for development projects within EEO districts must be in "general conformance" with the parking standards of Town Code § 140-17 (rather than strict conformance) (Code of the Town of Rochester § 140-18.1 [H] [2] [c] [emphasis added]), and the Town Board is authorized to grant waivers of development standards within EEO districts, it is clear that the parking [*7]standards set forth in Town Code § 140-17 are guidelines when applied in EEO districts rather than compulsory requirements. Under these circumstances, a referral to the ZBA or CEO for an interpretation of Town Code § 140-17 was unnecessary (see Matter of Cady v Town of Germantown Planning Bd., 184 AD3d 983, 987 [3d Dept 2020]; Matter of Thorne v Village of Millbrook Planning Bd., 83 AD3d 723, 726 [2d Dept 2011], lv denied 17 NY3d 711 [2011]; see generally Matter of Smith v Town of Thompson Planning Bd., ___ NY3d ___, ___, 2026 NY Slip Op 02435, *1 [2026]). The record establishes that the Planning Board reviewed Accord's parking proposal during its eight-month review process (see Code of the Town of Rochester § 140-54) and specifically considered the alternative calculation pertaining to restaurant parking during that process. An affidavit from a member of the Planning Board confirms that the Board viewed such calculation to be logically tailored to the actual use of the restaurant. In these circumstances, the Planning Board rationally adopted the Town Board's determination regarding required restaurant parking.

Contrary to petitioners' contention, the Planning Board also rationally approved the elimination of the six off-site

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