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

1227
CA 12-00259
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF ADM, LLC, DAVID MORRELL
AND ANNE MORRELL, PETITIONERS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

VILLAGE OF MACEDON AND VILLAGE OF MACEDON
ZONING BOARD OF APPEALS,
RESPONDENTS-RESPONDENTS.
(PROCEEDING NO. 1.)
-----------------------------------------
IN THE MATTER OF ADM, LLC, DAVID MORRELL
AND ANNE MORRELL, PETITIONERS-APPELLANTS,

                    V

VILLAGE OF MACEDON PLANNING BOARD,
RESPONDENT-RESPONDENT.
(PROCEEDING NO. 2.)
-----------------------------------------
ADM, LLC, DAVID MORRELL AND ANNE MORRELL,
PLAINTIFFS-APPELLANTS,

                    V

VILLAGE OF MACEDON, VILLAGE OF MACEDON
PLANNING BOARD, AND REROB, LLC,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 1.)


DAVIDSON FINK LLP, ROCHESTER (DAVID L. RASMUSSEN OF COUNSEL), FOR
PETITIONERS-APPELLANTS AND PLAINTIFFS-APPELLANTS.

NESBITT & WILLIAMS, NEWARK (ARTHUR B. WILLIAMS OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS AND DEFENDANTS-RESPONDENTS VILLAGE OF MACEDON
AND VILLAGE OF MACEDON PLANNING BOARD.

FIX SPINDELMAN BROVITZ & GOLDMAN, P.C., FAIRPORT (REUBEN ORTENBERG OF
COUNSEL), FOR DEFENDANT-RESPONDENT REROB, LLC.


     Appeal from a judgment and order (one paper) of the Supreme Court,
Wayne County (John J. Ark, J.), entered October 13, 2011 in proceedings
pursuant to CPLR article 78 and a declaratory judgment action. The
judgment and order dismissed the petitions and complaint.
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                                                         CA 12-00259

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously affirmed without costs.

     Memorandum: Petitioners-plaintiffs (petitioners) appeal from a
judgment and order dismissing both their complaint for a declaration and
their two CPLR article 78 petitions, all of which challenged various
zoning ordinances and determinations related to the proposed
construction of a single-bay car wash in respondent-defendant Village of
Macedon.

     At the outset, we deny defendant REROB, LLC’s renewed motion to
dismiss the instant appeal as moot. Although the subject car wash has
already been constructed and a certificate of occupancy has been issued,
petitioners had sought to enjoin its construction during the pendency of
this appeal and thus should be permitted to raise the present challenges
(see Matter of Camardo v City of Auburn, 96 AD3d 1437, 1438; Matter of
Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d
1312, 1313, lv dismissed 7 NY3d 803).

     Turning to the merits of petitioners’ appeal, we conclude that
Supreme Court properly dismissed both the petitions and the complaint.
First, to the extent that the complaint sought to annul or vacate the
various administrative determinations at issue here or to prohibit
respondents from granting future applications for either site-plan
approvals or special use permits in connection with the disputed car
wash, a CPLR article 78 proceeding, rather than a declaratory judgment
action, was the appropriate procedural vehicle by which to raise those
challenges (see Matter of Schweichler v Village of Caledonia, 45 AD3d
1281, 1282, lv denied 10 NY3d 703; Matter of Concetta T. Cerame
Irrevocable Family Trust v Town of Perinton Zoning Bd. of Appeals, 27
AD3d 1191, 1192; Home Bldrs. Assn. of Cent. N.Y. v Town of Onondaga, 267
AD2d 973, 974). Second, although properly raised by way of declaratory
judgment, the procedural challenges in the complaint to the zoning
ordinance’s purported amendment are nevertheless time-barred, as are the
CPLR article 78 petitions themselves (see CPLR 217 [1]; Matter of Save
the Pine Bush v City of Albany, 70 NY2d 193, 202-203; Schiener v Town of
Sardinia, 48 AD3d 1253, 1254).

     In any event, petitioners failed to establish the “existence of an
injury in fact--an actual legal stake in the matter being adjudicated”
and therefore lack standing to commence either the action for a
declaration or the two CPLR article 78 proceedings (Society of Plastics
Indus. v County of Suffolk, 77 NY2d 761, 772; see Matter of Niagara
County v Power Auth. of State of N.Y., 82 AD3d 1597, 1598-1599, lv
dismissed and denied 17 NY3d 838; Matter of Brown v County of Erie, 60
AD3d 1442, 1443-1444). Moreover, contrary to petitioners’ contention,
“the threat of increased business competition . . . is not an interest
protected by the zoning laws” and thus could not itself confer standing,
even if adequately demonstrated (Matter of Sun-Brite Car Wash v Board of
Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 415; see
generally Matter of Brighton Residents Against Violence to Children v MW
Props., 304 AD2d 53, 56-58, rearg denied 306 AD2d 960, lv denied 100
NY2d 514).
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                                                         CA 12-00259

     In light of our determination, we need not address petitioners’
remaining contentions.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
