This constitutes the court's decision regarding the Article 78 petition of Point Five Development Grant & James LLC against respondents City of Syracuse Planning Commission, Dr. Ruben Cowart, Kathleen Murphy, Steven Kulick, Robert Rohde and George Matthews, solely in their capacity as Chairperson and members of the Planning Commission.

Petitioner Point Five owns and/or leases property at 2327 James Street in Syracuse's Eastwood neighborhood. By resolution dated December 19, 2005 respondent Syracuse Planning Commission, acting under its project site review authority, approved Point Five's proposal to construct a Walgreen's drug store at the site. Pet. Ex. A. The Planning Commission approved the plan with several conditions, one of which was that "[p]rior to the installation of any signage, a signage plan shall be submitted to the City Planning Commission for its review and approval." Id. Although the city approved some of petitioner's sign proposals, it rejected application for a ground sign by resolution dated June 8, 2009. Pet. Ex. B.

Petitioner submitted an additional sign proposal by letter dated June 25, 2009. Pet. Ex. C. Petitioner proposed to install a projecting wall-mounted sign with a changeable LED display on the side of its store facing James Street. The Planning Commission reviewed the proposal and conducted a public hearing on July 20, 2009. By resolution dated July 20, 2009, the commission denied the proposal. Pet. Ex. D. Petitioner now seeks to overturn the July 20, 2009 decision.

Petitioner contends that the Planning Commission's decision was improper because the "practical difficulties" standard it applied is illegal, unenforceable and vague. Respondent contends that petitioner's objections are misplaced because the sign request was not a variance application and substantial evidence supported the commission's decision.

The Commission's approval of the Walgreen's store was based on its authority for project site review in city zoning regulations. Ladd Aff. ¶ 6; Lamendola Aff. ¶ 6; Zoning Ordinance Part C, § I, Art. 10 (Ex. A to Ladd Aff.). Project site review requires a point by point analysis of the proposal that includes, where applicable, comparison of the project with "specifically required adopted design criteria." Art. 10.VI.G.3. The Walgreens site was subject to "specifically required adopted design criteria" known as the "James Street Overlay District." Ladd Aff. ¶¶ 9-10 & Ex. B.

According to the project site review ordinance, the Planning Commission has "authority to grant waivers of area, number, or design requirements" for properties under review. Art. 10.VII. In making the waiver decision, "the Commission must find that practical difficulties would occur with respect to the economic and functional utilization of the property under consideration and that reasonable alternatives otherwise permitted do not exist." Id. In addition, "[p]ractical difficulties affecting the property under consideration must be weighed against the impact the Waiver would have on the character of the surrounding area." Id. The James Street Overlay regulations identifies an identical standard for consideration of "exceptions" to its basic [*2]standards and design requirements. Zoning Ordinance Part C, § 10, Art. 1.5.

Petitioner contends that the practical difficulties standard applied in this matter was improper, citing Sasso v. Osgood, 86 NY2d 374 (1995). Sasso concerned interpretation of NY Town Law § 267-b with respect to area variances. Sasso, 86 NY2d at 381-82. The city agrees that, pursuant to Sasso, the practical difficulties standard cannot be applied to an area variance application. It contends, however, that petitioner's application did not involve an area variance, so Sasso does not apply. Instead, petitioner sought a waiver to design requirements under the city's site plan review ordinance.

Section 27-a of the General City Law gives city planning boards authority to conduct site plan review. Section 27-a(3) provides that application for an area variance in the context of a proposed site plan must be made to the zoning board of appeals. The statute defines an "area variance" as "authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations." NY Gen. City Law § 81-b(1)(b).

There is no evidence that petitioner's sign application concerned an area variance. Point Five made the application to the Planning Commission, not the Zoning Board of Appeals. The only evidence in the record shows that the application was part of the larger project site review process. Ladd Aff. ¶¶ 6, 11, 13, 17-18, see also first "whereas" clause of 7/20/09 resolution (Pet. Ex. D). Finally, the sign application was not an area variance under the statutory definition.

Similarly, there is no evidence to support petitioner's conclusory assertion that its sign request was a separate special permit application. Point Five's self-serving statements that its latest sign application was separate from the overall project site review process is contrary to the specific language of the Planning Commission's resolutions and the record as a whole.

Section 27-a(5) gives the planning board power to waive requirements in the context of site plan review. The Syracuse project site review ordinance contains this power. Unlike Section 267-b of the Town Law, the statute does not require the planning board to adopt a particular standard in making its analysis. Thus, Syracuse's project site review ordinance is not invalid based on its adoption of the practical difficulties standard in assessing waivers.

Furthermore, substantial evidence supported the planning commission's rejection of petitioner's waiver application. A local zoning board's factual determination must be confirmed if it has a rational basis and substantial evidence supports it. Toys R Us v. Silva, 89 NY2d 411, 423 (1996); Cowan v. Kern, 41 NY2d 591, 598 (1977). A reviewing court may not substitute its judgment for that of the zoning board. Silva, 89 NY2d at 423.

The record contains ample evidence from which the Planning Commission could rationally conclude that the projecting sign with its changeable LED display, especially when combined with the signs already approved for the Walgreen's store, was out of character with the Eastwood neighborhood. There also was evidence that, among other things, the sign would have [*3]been distracting to motorists, obscured by existing traffic poles and not even necessary for a motorist driving west on James Street to recognize the store. Return at 23-38; 42-49; see also Return Ex. 2 (public hearing transcript). Point Five supplied only speculation that the sign was needed to maximize profits at the store. Return Ex. 2 at 10-11, 25-26.

For the foregoing reasons, the petition is denied and dismissed. Counsel for respondent is directed to prepare an order consistent with this decision to be submitted to the court on notice within 30 days. The order shall attach a copy of this letter decision and incorporate it therein.

Dated: April 29, 2010_____________________________

Syracuse, New YorkDEBORAH H. KARALUNAS

SUPREME COURT JUSTICE