Development

Community Group Lacks Standing to Challenge Special Permit

Matter of Concerned Citizens for Open Space, Inc. v. City of White Plains

NYLJ 8/22/03, p. 23, col. 3

Supreme Ct., Westchester Cty

(Molea, J.)

In an article 78 proceeding challenging grant of an amended special permit, developer and municipal defendants moved to dismiss for lack of standing. The court granted the motion, holding that petitioners – neighbors and a community group – had not demonstrated sufficient proximity to establish standing.

Petitioners are a not-for-profit corporation devoted to protection of the White Plains environment, together with several residents of the City of White Plains. They brought an article 78 proceeding to challenge the White Plains City Council's grant of a special permit authorizing construction of a new building on the grounds of New York Presbyterian Hospital. The challenge alleged both violations of the city's zoning ordinance and of the State Environmental Quality Review Act (SEQRA). Developer and the city moved to dismiss for lack of standing.

In dismissing, the court noted that the only identified member of the not-for-profit organization lived more than 5000 feet from the site of the construction, and that the individual petitioners lived between 826 and 2519 feet from the project. As a result, the court concluded that none of them was entitled to an inference of injury different in kind from that suffered by the public at large. Without such an inference, and without proof of special harm, they lacked standing to challenge the permit.

COMMENT

A landowner must satisfy a two-part test for standing to seek judicial review of a municipality's land-use determination. First, a landowner must allege special damages that differ in kind and degree from that suffered by the community at large. Society of Plastics Industry v. County of Suffolk, 77 NY2d 761, 772. Second, the injury asserted must fall within the zone of interests protected by the invoked statute. Id. at 773. An allegation of close proximity may, however, give rise to an inference of injury that is different from that experienced by the public generally and thereby satisfy the first requirement without a showing of actual injury. In the Matter of Gernatt Asphalt Products, Inc., v. Town of Sardinia 87 N.Y.2d 668, 688.

The immediate neighbor of the subject property is granted the inference of specific injury without having to show any proof of special harm. See Matter of Renee A. Rosch v. Town of Milton Zoning Board of Appeals et al., 142 AD2d 765 (landowners whose property surrounds the disputed parcel on three sides are the beneficiaries of a presumption of specific harm). Courts presume that nearby landowners are the ones most likely to suffer loss in value of property as a result of a change in the character of the immediate neighborhood and are therefore the proper parties to challenge an administrative decision. See Matter of Committee to Preserve Brighton Beach and Manhattan Beach, Inc., et al. v. Council of City of New York, 214 A.D.2d 335, 336 (granting inference of harm based in part on the “presumptive diminishment” in property value owners of land adjacent to the subject property would suffer as a result of the proposed rezoning). The further the landowner's property is from the property in question, the weaker the inference is that the zone change actually harmed the landowner. Instead of fixing an arbitrary distance to measure standing, courts evaluate the effects the contested agency decision would have on the owner of closely located property. Thus, in The Matter of Save Our Main Street Buildings, et al. v. Green County Legislature, 293 AD2d 907, 909, lv denied 98 NY2d 609, landowners who lived within 1000 feet of the proposed office building lacked standing since “their residences are not within sight of the Project, and, as a result, any adverse effects on scenic view would be no different for them than for the public at large.”

Prohibition on 24-Hour Businesses Held Invalid

Matter of Westbury Trombo v. Board of Trustees

NYLJ 8/28/03, p. 20, col. 2

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding challenging the validity of a local law prohibiting 24-hour businesses in areas abutting residential districts, and also challenging denial of landowner's application for a use variance, landowner appealed from Supreme Court's dismissal of the proceeding. The Appellate division reversed, annulled the variance denial, and declared invalid the prohibition on 24-hour businesses.

The village board of trustees enacted two local laws, one in 2000 and another in 2001, making it unlawful to operate a business between the hours of 11 p.m. and 6 a.m. on land zoned for business, industrial or parking uses if the land is within 100 feet of land zoned for residential or apartment uses. The 2001 local law also specified that violation is a misdemeanor, and would subject the violator to fine or imprisonment. Landowner's parcel is located in a business district and is within 100 feet of a residential district. Landowner brought this action challenging the local laws.

In granting landowner's petition, the court started by assuming, without deciding, that Village Law section 7-700 would authorize a village board to prohibit a 24-hour business or to subject such a business to a variance or special permit requirement. The court went on to hold that even if the Village Law were so construed, a village could not exercise that power without demonstrating that the presence of an overnight business would adversely affect the atmosphere of the surrounding area. Generalized community concerns would not establish such an adverse effect. In this case, the record did not include evidence to support the conclusion that a 24-hour business would have detrimental impact on the healthy, safety, welfare, or morals of the community. As a result, the court held that neither the Village Law nor the board's general police power would justify upholding the local laws.

COMMENT

Municipalities that prohibit overnight businesses must provide substantial evidence showing that the restriction promotes health, safety, or general welfare. Demonstration of actual harm resulting from overnight businesses and expert opinions concerning such harm constitute adequate justification for these ordinances. When a village board introduces residential complaints as proof of damage caused by overnight businesses, however, courts require actual experience of that damage.

In Matter of Sheer Pleasure Lingerie v. Town of Colonie Planning Bd., 674 N.Y.S.2d 493, the court upheld a board's prohibition of late night hours when the board's decision was based on numerous residential complaints of increased crime, vandalism and other disturbances. Plaintiff lingerie modeling business had applied to defendant community board for an extension of its business hours, requesting permission to operate until midnight. The board denied the application, but it erroneously sent Sheer Pleasure Lingerie a confirmation of the extension. One year later, responding to residential complaints, the board limited Sheer Pleasure's hours. In upholding the ordinance, the court observed that the residential complaints were based on a year's experience of Sheer Pleasure Lingerie's late hours.

In Louhal Props. v. Strada, 743 N.Y.S.2d 810 aff'd 2003 N.Y. App. Div. LEXIS 9017, on the other hand, the court held a prohibition on a 24-hour businesses invalid because community allegations of harm rested on an inadequate factual foundation. Plaintiff business, seeking to open a 24-hour convenience store, challenged a prohibition on operation between 11 p.m. and 6 a.m. The court upheld the ordinance, explaining that since the community had always contained overnight businesses, residents could not credibly ascertain whether the parking, traffic and garbage problems resulted solely from overnight businesses or from the cumulative effect of all neighborhood businesses. Unlike the residents in Sheer Pleasure, the residents in Louhal had never experienced a time period devoid of overnight businesses by which they would be able to measure the harm caused by those businesses.

Community Group Lacks Standing to Challenge Special Permit

Matter of Concerned Citizens for Open Space, Inc. v. City of White Plains

NYLJ 8/22/03, p. 23, col. 3

Supreme Ct., Westchester Cty

(Molea, J.)

In an article 78 proceeding challenging grant of an amended special permit, developer and municipal defendants moved to dismiss for lack of standing. The court granted the motion, holding that petitioners – neighbors and a community group – had not demonstrated sufficient proximity to establish standing.

Petitioners are a not-for-profit corporation devoted to protection of the White Plains environment, together with several residents of the City of White Plains. They brought an article 78 proceeding to challenge the White Plains City Council's grant of a special permit authorizing construction of a new building on the grounds of New York Presbyterian Hospital. The challenge alleged both violations of the city's zoning ordinance and of the State Environmental Quality Review Act (SEQRA). Developer and the city moved to dismiss for lack of standing.

In dismissing, the court noted that the only identified member of the not-for-profit organization lived more than 5000 feet from the site of the construction, and that the individual petitioners lived between 826 and 2519 feet from the project. As a result, the court concluded that none of them was entitled to an inference of injury different in kind from that suffered by the public at large. Without such an inference, and without proof of special harm, they lacked standing to challenge the permit.

COMMENT

A landowner must satisfy a two-part test for standing to seek judicial review of a municipality's land-use determination. First, a landowner must allege special damages that differ in kind and degree from that suffered by the community at large. Society of Plastics Industry v. County of Suffolk, 77 NY2d 761, 772. Second, the injury asserted must fall within the zone of interests protected by the invoked statute. Id. at 773. An allegation of close proximity may, however, give rise to an inference of injury that is different from that experienced by the public generally and thereby satisfy the first requirement without a showing of actual injury. In the Matter of Gernatt Asphalt Products, Inc., v. Town of Sardinia 87 N.Y.2d 668, 688.

The immediate neighbor of the subject property is granted the inference of specific injury without having to show any proof of special harm. See Matter of Renee A. Rosch v. Town of Milton Zoning Board of Appeals et al., 142 AD2d 765 (landowners whose property surrounds the disputed parcel on three sides are the beneficiaries of a presumption of specific harm). Courts presume that nearby landowners are the ones most likely to suffer loss in value of property as a result of a change in the character of the immediate neighborhood and are therefore the proper parties to challenge an administrative decision. See Matter of Committee to Preserve Brighton Beach and Manhattan Beach, Inc., et al. v. Council of City of New York, 214 A.D.2d 335, 336 (granting inference of harm based in part on the “presumptive diminishment” in property value owners of land adjacent to the subject property would suffer as a result of the proposed rezoning). The further the landowner's property is from the property in question, the weaker the inference is that the zone change actually harmed the landowner. Instead of fixing an arbitrary distance to measure standing, courts evaluate the effects the contested agency decision would have on the owner of closely located property. Thus, in The Matter of Save Our Main Street Buildings, et al. v. Green County Legislature, 293 AD2d 907, 909, lv denied 98 NY2d 609, landowners who lived within 1000 feet of the proposed office building lacked standing since “their residences are not within sight of the Project, and, as a result, any adverse effects on scenic view would be no different for them than for the public at large.”

Prohibition on 24-Hour Businesses Held Invalid

Matter of Westbury Trombo v. Board of Trustees

NYLJ 8/28/03, p. 20, col. 2

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding challenging the validity of a local law prohibiting 24-hour businesses in areas abutting residential districts, and also challenging denial of landowner's application for a use variance, landowner appealed from Supreme Court's dismissal of the proceeding. The Appellate division reversed, annulled the variance denial, and declared invalid the prohibition on 24-hour businesses.

The village board of trustees enacted two local laws, one in 2000 and another in 2001, making it unlawful to operate a business between the hours of 11 p.m. and 6 a.m. on land zoned for business, industrial or parking uses if the land is within 100 feet of land zoned for residential or apartment uses. The 2001 local law also specified that violation is a misdemeanor, and would subject the violator to fine or imprisonment. Landowner's parcel is located in a business district and is within 100 feet of a residential district. Landowner brought this action challenging the local laws.

In granting landowner's petition, the court started by assuming, without deciding, that Village Law section 7-700 would authorize a village board to prohibit a 24-hour business or to subject such a business to a variance or special permit requirement. The court went on to hold that even if the Village Law were so construed, a village could not exercise that power without demonstrating that the presence of an overnight business would adversely affect the atmosphere of the surrounding area. Generalized community concerns would not establish such an adverse effect. In this case, the record did not include evidence to support the conclusion that a 24-hour business would have detrimental impact on the healthy, safety, welfare, or morals of the community. As a result, the court held that neither the Village Law nor the board's general police power would justify upholding the local laws.

COMMENT

Municipalities that prohibit overnight businesses must provide substantial evidence showing that the restriction promotes health, safety, or general welfare. Demonstration of actual harm resulting from overnight businesses and expert opinions concerning such harm constitute adequate justification for these ordinances. When a village board introduces residential complaints as proof of damage caused by overnight businesses, however, courts require actual experience of that damage.

In Matter of Sheer Pleasure Lingerie v. Town of Colonie Planning Bd., 674 N.Y.S.2d 493, the court upheld a board's prohibition of late night hours when the board's decision was based on numerous residential complaints of increased crime, vandalism and other disturbances. Plaintiff lingerie modeling business had applied to defendant community board for an extension of its business hours, requesting permission to operate until midnight. The board denied the application, but it erroneously sent Sheer Pleasure Lingerie a confirmation of the extension. One year later, responding to residential complaints, the board limited Sheer Pleasure's hours. In upholding the ordinance, the court observed that the residential complaints were based on a year's experience of Sheer Pleasure Lingerie's late hours.

In Louhal Props. v. Strada, 743 N.Y.S.2d 810 aff'd 2003 N.Y. App. Div. LEXIS 9017, on the other hand, the court held a prohibition on a 24-hour businesses invalid because community allegations of harm rested on an inadequate factual foundation. Plaintiff business, seeking to open a 24-hour convenience store, challenged a prohibition on operation between 11 p.m. and 6 a.m. The court upheld the ordinance, explaining that since the community had always contained overnight businesses, residents could not credibly ascertain whether the parking, traffic and garbage problems resulted solely from overnight businesses or from the cumulative effect of all neighborhood businesses. Unlike the residents in Sheer Pleasure, the residents in Louhal had never experienced a time period devoid of overnight businesses by which they would be able to measure the harm caused by those businesses.