Development

Supreme Ct., Suffolk Cty

(Costello, J.)

In an article-78 proceeding, neighboring drug store sought to annul a determination modifying parking and buffer requirements to permit construction of a competitive drug store. The court dismissed the petition, holding that the petitioner drug store lacked standing to challenge the board's determination.

Petitioner Genovese Drugs is a tenant in a shopping center located across from a furniture store. In 2000, Genovese's affiliate entered into a contract to purchase the furniture store parcel, but after submitting nine different site plans, was informed that the planning board would not recommend approval of any of them. The following year, Moso entered into a contract of sale for the same furniture store parcel. Moso then met with the town planning department to discuss razing the store and building a CVS pharmacy on the premises. The company sought a waiver of parking and buffer requirements applicable to the parcel, and also applied to modify certain covenants and restrictions on the parcel. It filed an environmental assessment form, and submitted a traffic impact study. After a public hearing, the Planning Board voted to recommend approval of Moso's application. The Town Environmental Analyst declared that the proposed action would have no significant adverse environmental impact, and, after public hearing, the town board approved the application. Genovese then brought this article-78 proceeding, contending the town board had failed to adopt a resolution under the State Environmental Quality Review Act (SEQRA), failed to provide proper notice of the public hearing, and failed to take a hard look at the environmental impact of the project.

In dismissing the petition, the court held that Genovese lacked standing to challenge the town board's determination. The court conceded that because of the close proximity between Genovese and the subject parcel, Genovese was presumptively aggrieved by the board's action. Here, however, the court concluded that the interest of Genovese was not within the zone of interest to be protected by the statute; Genovese was concerned only by increased competition, not by environmental injury. As a result, Genovese lacked standing. Commenting on the merits, the court then indicated that the record before the court belied allegations that the board had failed to assess the environmental impact of the project.

COMMENT

New York courts have developed standing requirements to ensure that neighbors do not challenge zoning determinations merely to thwart business competition. In particular, courts have consistently demanded that injury asserted as grounds for challenging local boards zoning determinations be consistent with the harm the particular ordinance is intended to check. This restrictive approach has often been termed the “zone of interests” test. Thus, even where the proximity of petitioner adjacent landowner to respondent landowner would suggest presumptive injury of some sort, and would thereby lessen adjacent landowner's burden of proving injury-in-fact, courts have only granted adjacent landowner standing where the presumptive injury mirrors the zoning ordinance's purpose. In Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of West Hempstead, 69 N.Y.2d 406, the court held that petitioner car wash lacked sufficient standing to challenge the grant of a variance to adjacent service station to construct and operate a prefabricated metal automatic car wash. In effect, the variance insulated respondent from the building code's prohibition of unprotected metal structures in business and industrial zones. Although the proximity of the second car wash would indeed presumptively threaten adjacent car wash's business interests, the purpose of the zoning ordinance in question was to protect the safety of inhabitants and users of the premises to which it applied, not to protect economic interests of neighbors.

However, New York's restrictive standing requirements do not preclude an economically burdened petitioner from challenging a SEQRA determination where the neighbor-petitioner alleges both an economic and plausible environmental injury. In Matter of Duke & Benedict, Inc. v Town of Southeast & Emgee Highlands, Inc. 253 A.D.2d 877 petitioner landowner sought to annul an amendment to Southeast's zoning code that rezoned adjacent respondent's land from “office professional” to “commercial highway”. Despite respondent's contention that petitioner's action was motivated by economic self-interest the court granted standing, as petitioner alleged legitimate environmental detriment in the form of increased traffic and noise. Nonetheless, the court upheld the board's determination on the merits – ie, the town board had taken the requisite “hard look” at the environmental impact of the rezoning.

Dredging of Drainage Easement Does Not Violate Property Rights

Kaplan v. Incorporated Village of Lynbrook

NYLJ 4/2/03, p. 24, col. 6,

Supreme Ct., Nassau Cty

(Joseph, J.)

In an action by landowners alleging that the village's dredging of a drainage easement constituted a nuisance, an unconstitutional taking, and a violation of the State Environmental Quality Review Act (SEQRA), the village sought summary judgment. The court granted the village's motion, holding that landowners had demonstrated no violation of any property right.

In 1950, the village acquired a 12-foot wide storm water “drainage easement,” known as the Yorkshire Brook, which passed through the parcel of each of the plaintiff-homeowners. The drainage easement serves about half of the residents of the village. When the village began to experience flooding problems in the 1990s, the village discovered that a drainage pipe located in the brook had become clogged with sediment, and needed to be excavated in order to permit storm water to flow through the pipe. When the village began a project of dredging the

easement, the village discovered that the banks of the brook were not sufficiently stable to support themselves, so the village engaged in the shoring and bulk heading of the brook. The project solved the drainage problem, but neighboring homeowners brought this action, contending that the village's action violated their property rights by replacing a country brook with a “1200-foot-long/8-foot-deep/12-foot-wide uncovered trench.”

In granting summary judgment to the village, the court first rejected homeowners' nuisance claim, emphasizing that a nuisance claim requires a showing of unreasonable action, and concluding that homeowners had not come forward with anything beyond conclusory allegations to support the contention that the village had acted unreasonably. The court then rejected the takings claim, noting that the village had never exceeded the rights granted to it by the terms of the 1950 easement. Finally, the court held that the village had not violated SEQRA because the village's action — rehabilitation and reconstruction of an existing drainage brook — is an exempt “Type II” action under SEQRA section 617.5. As a result, the village was entitled to summary judgment.

Can Business Competitor Challenge Planning Determination?

Genovese Drug Stores, Inc. v. Town Board

NYLJ 3/25/03, p. 23, col. 1,

Supreme Ct., Suffolk Cty

(Costello, J.)

In an article-78 proceeding, neighboring drug store sought to annul a determination modifying parking and buffer requirements to permit construction of a competitive drug store. The court dismissed the petition, holding that the petitioner drug store lacked standing to challenge the board's determination.

Petitioner Genovese Drugs is a tenant in a shopping center located across from a furniture store. In 2000, Genovese's affiliate entered into a contract to purchase the furniture store parcel, but after submitting nine different site plans, was informed that the planning board would not recommend approval of any of them. The following year, Moso entered into a contract of sale for the same furniture store parcel. Moso then met with the town planning department to discuss razing the store and building a CVS pharmacy on the premises. The company sought a waiver of parking and buffer requirements applicable to the parcel, and also applied to modify certain covenants and restrictions on the parcel. It filed an environmental assessment form, and submitted a traffic impact study. After a public hearing, the Planning Board voted to recommend approval of Moso's application. The Town Environmental Analyst declared that the proposed action would have no significant adverse environmental impact, and, after public hearing, the town board approved the application. Genovese then brought this article-78 proceeding, contending the town board had failed to adopt a resolution under the State Environmental Quality Review Act (SEQRA), failed to provide proper notice of the public hearing, and failed to take a hard look at the environmental impact of the project.

In dismissing the petition, the court held that Genovese lacked standing to challenge the town board's determination. The court conceded that because of the close proximity between Genovese and the subject parcel, Genovese was presumptively aggrieved by the board's action. Here, however, the court concluded that the interest of Genovese was not within the zone of interest to be protected by the statute; Genovese was concerned only by increased competition, not by environmental injury. As a result, Genovese lacked standing. Commenting on the merits, the court then indicated that the record before the court belied allegations that the board had failed to assess the environmental impact of the project.

COMMENT

New York courts have developed standing requirements to ensure that neighbors do not challenge zoning determinations merely to thwart business competition. In particular, courts have consistently demanded that injury asserted as grounds for challenging local boards zoning determinations be consistent with the harm the particular ordinance is intended to check. This restrictive approach has often been termed the “zone of interests” test. Thus, even where the proximity of petitioner adjacent landowner to respondent landowner would suggest presumptive injury of some sort, and would thereby lessen adjacent landowner's burden of proving injury-in-fact, courts have only granted adjacent landowner standing where the presumptive injury mirrors the zoning ordinance's purpose. In Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of West Hempstead, 69 N.Y.2d 406, the court held that petitioner car wash lacked sufficient standing to challenge the grant of a variance to adjacent service station to construct and operate a prefabricated metal automatic car wash. In effect, the variance insulated respondent from the building code's prohibition of unprotected metal structures in business and industrial zones. Although the proximity of the second car wash would indeed presumptively threaten adjacent car wash's business interests, the purpose of the zoning ordinance in question was to protect the safety of inhabitants and users of the premises to which it applied, not to protect economic interests of neighbors.

However, New York's restrictive standing requirements do not preclude an economically burdened petitioner from challenging a SEQRA determination where the neighbor-petitioner alleges both an economic and plausible environmental injury. In Matter of Duke & Benedict, Inc. v Town of Southeast & Emgee Highlands, Inc. 253 A.D.2d 877 petitioner landowner sought to annul an amendment to Southeast's zoning code that rezoned adjacent respondent's land from “office professional” to “commercial highway”. Despite respondent's contention that petitioner's action was motivated by economic self-interest the court granted standing, as petitioner alleged legitimate environmental detriment in the form of increased traffic and noise. Nonetheless, the court upheld the board's determination on the merits – ie, the town board had taken the requisite “hard look” at the environmental impact of the rezoning.

Dredging of Drainage Easement Does Not Violate Property Rights

Kaplan v. Incorporated Village of Lynbrook

NYLJ 4/2/03, p. 24, col. 6,

Supreme Ct., Nassau Cty

(Joseph, J.)

In an action by landowners alleging that the village's dredging of a drainage easement constituted a nuisance, an unconstitutional taking, and a violation of the State Environmental Quality Review Act (SEQRA), the village sought summary judgment. The court granted the village's motion, holding that landowners had demonstrated no violation of any property right.

In 1950, the village acquired a 12-foot wide storm water “drainage easement,” known as the Yorkshire Brook, which passed through the parcel of each of the plaintiff-homeowners. The drainage easement serves about half of the residents of the village. When the village began to experience flooding problems in the 1990s, the village discovered that a drainage pipe located in the brook had become clogged with sediment, and needed to be excavated in order to permit storm water to flow through the pipe. When the village began a project of dredging the

easement, the village discovered that the banks of the brook were not sufficiently stable to support themselves, so the village engaged in the shoring and bulk heading of the brook. The project solved the drainage problem, but neighboring homeowners brought this action, contending that the village's action violated their property rights by replacing a country brook with a “1200-foot-long/8-foot-deep/12-foot-wide uncovered trench.”

In granting summary judgment to the village, the court first rejected homeowners' nuisance claim, emphasizing that a nuisance claim requires a showing of unreasonable action, and concluding that homeowners had not come forward with anything beyond conclusory allegations to support the contention that the village had acted unreasonably. The court then rejected the takings claim, noting that the village had never exceeded the rights granted to it by the terms of the 1950 easement. Finally, the court held that the village had not violated SEQRA because the village's action — rehabilitation and reconstruction of an existing drainage brook — is an exempt “Type II” action under SEQRA section 617.5. As a result, the village was entitled to summary judgment.