Tozzi disagrees. In a phone interview, he said, "They're right, I'm not a member of the Planning Board. But just as the Town Board looks to their attorneys and engineers to help guide them, that's what I did. It was my very strong intent to keep it as factual as possible."
According to Councilman Peter Klotz of Malta's Town Board, an Article 78 procedure is really the only avenue for a developer whose application has been denied by the Planning Board to pursue.
"The only way to try to reverse a decision is to appeal to a judge that, on technical grounds, the Planning Board acted improperly," said Klotz.
The site lies within Malta's C-1 Downtown District, an area that the town has been hoping to transform into a thriving downtown district for the past 10 years. This planning has spawned Malta's Downtown Design Standards, a document specifying the proper appearance and location of buildings in the proposed downtown.
The lawsuit alleges that the downtown standards are suggestions, not requirements: "The Downtown Design Standards are advisory in nature, not mandatory requirements and not a valid basis for disapproval of an application."
According to Tozzi, that isn't the case.
"There are two kinds of tools to guide design that communities use -- guidelines and standards," he said. "There are policy statements that say 'must' or 'shall,' and there are other advisory statements that say 'should' or 'may.' A lot of times people misconstrue the fact that [the standards] aren't a zoning ordinance, but it's an adopted policy of the town."
In the end, it may be the task of a judge to make the determination of how far developers must go to adhere to the standards.
Klotz said he feels that such litigation, in part, is inevitable for an expanding town.
"I think that as Malta continues to be an attractive place for businesses to do business, more and more applicants are going to press us on our standards, regulations and zoning," he said. "I would not be surprised to see more and more of these as applicants come in and press us to see how firm we are in our regulations and zoning.""