        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

811
CA 12-00349
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


MEAD SQUARE COMMONS, LLC, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

VILLAGE OF VICTOR, DEFENDANT-RESPONDENT.


BOND, SCHOENECK & KING, PLLC, ROCHESTER (KARL S. ESSLER OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

REID A. HOLTER, VICTOR, FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Ontario County (Craig J. Doran, A.J.), entered November 7, 2011. The
judgment denied plaintiff’s motion for summary judgment and granted
defendant’s cross motion for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying defendant’s 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 defendant as follows:

          It is ADJUDGED and DECLARED that section 170-13 of
     defendant’s Zoning Ordinance is valid and enforceable

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking injunctive
relief and a declaration that section 170-13 (C) (1) of defendant’s
Zoning Ordinance (Ordinance) is unlawful, invalid and unenforceable.
That section prohibits the operation of a “formula fast-food
restaurant” (FFFR) in defendant’s “Central Business District” (§ 170-
13 [C] [1] [d]; see Ordinance §§ 50-12, 170-3 [B]). An FFFR is
defined in section 170-13 (C) (1) (b) as “[a]ny establishment,
required by contract, franchise or other arrangements, to offer two or
more of the following: [1] Standardized menus, ingredients, food
preparation, and/or uniforms[;] [2] Prepared food in ready-to-consume
state[;] [3] Food sold over the counter in disposable containers and
wrappers[;] [4] Food selected from a limited menu[;] [5] Food sold for
immediate consumption on or off premises[;] [6] Where customer pays
before eating.” The stated purpose of section 170-13 (C) (1) is “to
maintain [defendant’s] . . . unique village character, the vitality of
[its] commercial districts, and the quality of life of [its]
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                                                         CA 12-00349

residents.”

     Plaintiff, a limited liability company that owns real property in
the Central Business District, challenges the validity of Ordinance §
170-13 because plaintiff seeks to lease commercial space for a Subway
restaurant, which qualifies as an FFFR under the Ordinance. In its
complaint, plaintiff alleges that section 170-13 is unconstitutional
because it “is based solely upon the ownership or control of the
restaurant owner and not upon the characteristics of the use itself.”
Plaintiff further alleges that section 170-13 should be declared
invalid because it “excessively regulates the details” of plaintiff’s
business operation. Plaintiff moved for summary judgment, and
defendant cross-moved for summary judgment dismissing the complaint.
Supreme Court denied plaintiff’s motion and granted defendant’s cross
motion.

     Relying largely on Matter of Dexter v Town Bd. of Town of Gates
(36 NY2d 102), plaintiff contends that the court erred in rejecting
its allegation that Ordinance § 170-13 improperly regulates the
ownership rather than the use of property within the Central Business
District. We reject that contention. In Dexter, the Town Board
resolved to rezone 12 acres of land from a residential classification
to a commercial classification to permit the construction of a
supermarket (see id. at 104). The resolution was conditioned,
however, upon a specified corporation developing the land and
constructing the supermarket, which suggested that the site would
revert back to its former classification if that corporation did not
develop the property (see id. at 106). The Court of Appeals held that
such a condition was invalid based upon its “lack of adherence to the
fundamental rule that zoning deals basically with land use and not
with the person who owns or occupies it” (id. at 105; see Matter of
St. Onge v Donovan, 71 NY2d 507, 514-517). The fundamental rule
referred to in Dexter is in essence a “prohibition against ad hominem
zoning decisions” (Village of Valatie v Smith, 83 NY2d 396, 403; see
St. Onge, 71 NY2d at 514-517).

     Here, unlike in Dexter, the challenged Ordinance section does not
single out a particular property owner for favorable or unfavorable
treatment (cf. St. Onge, 71 NY2d at 516-517; Dexter, 36 NY2d at 104-
106; Matter of Kempisty v Town of Geddes, 93 AD3d 1167, 1170-1171).
Rather, all property owners in the Central Business District are
treated the same under section 170-13 inasmuch as all property owners
are prohibited from operating an FFFR (see Village of Valatie, 83 NY2d
at 403). Contrary to plaintiff’s related contention, we conclude that
section 170-13 regulates the use, not the ownership, of the subject
property. Indeed, plaintiff is not an FFFR, nor does it seek to
operate an FFFR. Instead, plaintiff is a property owner that seeks to
rent commercial space to an FFFR. Thus, it is plaintiff’s use of the
property that is being regulated, and its ownership status is
irrelevant.

     We further conclude that the court properly determined that
Ordinance § 170-13 does not improperly regulate the manner of
plaintiff’s business operations (cf. Matter of Old Country Burgers
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                                                         CA 12-00349

Co., Inc. v Town Bd. of Town of Oyster Bay, 160 AD2d 805, 806; Matter
of Schlosser v Michaelis, 18 AD2d 940, 940-941). We note that
plaintiff failed to preserve for our review any contention that there
is no rational basis for distinguishing between FFFRs and non-FFFRs
that meet two or more of the criteria set forth in section 170-13
because it did not advance that contention in support of its motion
(see Morgan v Town of W. Bloomfield, 295 AD2d 902, 904).

     Finally, we conclude that the court erred in granting that part
of the defendant’s cross motion seeking dismissal of the declaratory
judgment causes of action rather than declaring the rights of the
parties (see Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d
1047; Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954). We
therefore modify the judgment by denying defendant’s cross motion to
the extent that it sought summary judgment dismissing the declaratory
judgment causes of action, reinstating those causes of action, and
declaring section 170-13 of the Ordinance, including the prohibition
of FFFRs, is valid and enforceable.




Entered:   July 6, 2012                        Frances E. Cafarell
                                               Clerk of the Court
