Development

Shopping Center Owner Lacks Standing to Challenge Site Plan for Neighboring Center

Matter of Riverhead PGC, LLC v. Town of Riverhead

NYLJ 5/19/10, p. 43, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In shopping center owner's article 78 proceeding challenging approval of a site plan for a neighboring center, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the proceeding, holding that shopping center owner lacked standing to challenge the site plan approval.

Wal-Mart is currently a tenant in petitioner's shopping center. The town granted site plan approval for construction of a new Wal-Mart Supercenter on land located two miles away. Shopping center owner then brought this petition challenging the approval, contending that it has standing because if the new store opens, the result will be increased traffic congestion in the area that will make its own center less attractive to tenants. Supreme Court granted the petition, and the town appealed.

In reversing, the Appellate Division started by noting that to establish standing to challenge a zoning determination, a landowner not in direct proximity to the subject property must show a direct injury different from that suffered by the public at large, and that injury must be within the zone of interest protected by th zoning laws. The court then observed that economic harm caused by business competition is not an interest protected by the zoning laws. Finally, the court concluded that the alleged harm that would be caused by traffic congestion two miles away was speculative, and did not adequately demonstrate an injury-in-fact sufficient to confer standing on shopping center owner.

COMMENT

Although it is clear that increased business competition alone does not confer standing, courts have suggested that increased traffic congestion ' like that complained of in Matter of Riverhead ' may confer standing if the challenging party's property is near the challenged use. For example, in Center Square Ass'n Inc., v. City of Albany Bd. of Zoning Appeals, 9 A.D.3 651, the zoning board granted a variance to a landowner seeking to operate an apartment house in an area otherwise zoned for one or two-family houses. The Appellate Division held that a local homeowners association had standing to bring a claim that the variance would cause increased parking congestion. The court distinguished cases where increased traffic caused a general injury to the public at large, and instead held that the parking congestion in the present case constituted a legally recognizable injury. The court concluded that parking congestion fell within the zone of interests of the relevant zoning law, and that the association thus had standing to challenge the variance. Similarly, in
Rosch v. Town of Milton Zoning Bd. of Appeals, 142 A.D.2d 765, the Appellate Division held that a landowner had standing to challenge a zoning variance allowing expansion of a neighboring nursing home facility. According to the court, traffic and noise concerns fell within the zone of interests of the ordinance.

However, a court may be less likely to grant standing to a business owner than a homeowner when the injury suffered is largely concerned with increased traffic, especially when it appears that the business owner is motivated in part by fear of competition. In McGrath v. Town Board of the Town of North Greenbush, 254 A.D.2d 614, for instance, the local zoning board re-zoned a parcel of land for construction of a shopping center that would include a hardware store. The owner of a nearby (and potentially competing) hardware store challenged the board's decision, claiming that resulting traffic congestion would make it difficult for customers to reach the store. A local homeowner also filed a challenge. The court held that the hardware store lacked standing because the injury suffered did not exceed that suffered by the general public. In contrast, the court presumed that the homeowner had suffered an injury-in-fact because her property was so close to the project site; and harm from “increased noise,” “increased vehicle and truck traffic,” and “degradation in the character of the neighborhood and style of life” fell within the zone of interests protected by the zoning laws.

Court Overturns Denial of Permit for Religious Use

Matter of Capriola v. Wright

NYLJ 5/25/10, p. 36, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit and off-street parking variance, landowner appealed from Supreme Court's denial of the petition. he Appellate Division reversed and granted the petition, holding that denial of a special exception permit for a religious use was arbitrary and capricious.

The church owns a parcel in a residential district, and has operated a church on the premises since 2004. In 2007, the village amended its zoning ordinance to require a special exception permit for all religious uses. Landowner applied for a permit, and for a variance from off-street parking requirements. Landowner also offered to limit occupancy of the sanctuary to 46 people, and he prevent any other use of the remainder of the property during services. The Board of Appeals nevertheless denied the special exception permit, and landowner brought this article 78 proceeding. When Supreme Court denied the petition, landowner appealed.

In reversing, the Appellate Division first rejected the village's contention that the church lacked standing because it was organized as a charitable corporation rather than a religious corporation. The court noted that standing would be determined by the proposed use, not the form of organization, and noted that in any event the church had since reorganized as a religious corporation. Turning to the merits, the court held that a municipality has an obligation to accommodate religious uses, and at least has an obligation to suggest conditions that might safeguard the municipality while accommodating the church's needs. Here, no conditions were suggested. As a result, the court granted the petition and remitted to the Board of Appeals with a direction to grant the application subject to reasonable conditions.

SEQRA Challenge Becomes Academic After Completion Of Project

Matter of Wallkill Cemetery Association, Inc. v. Town of Wallkill Planning Board

NYLJ 6/1/10, p. 30, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In a hybrid proceeding and action, cemetery association appealed from Supreme Court's dismissal of the its proceeding challenging a SEQRA determination. The Appellate Division dismissed the appeal as academic because the project has already been completed.

Applicant sought site plan approval for construction of an asphalt plant. The planning board concluded that all negative impacts had been sufficiently mitigated. The cemetery association challenged this finding. The association, however, did not move for a preliminary injunction to enjoin construction of the plant, and then, did not seek a stay pending determination of the appeal. In the interim, applicant built the asphalt plant, which is now fully operational. Meanwhile, Supreme Court dismissed the complaint, and the association appealed.

In dismissing the appeal, the court emphasized the association's failure to preserve its rights pending judicial review, and rejected the association's contention that the applicant had proceeded in bad faith. The court noted that applicant had not started construction until two years after the instant proceeding was commenced, and noted that prejudice to the applicant would be substantial if the court were to grant injunctive relief at this point.

Shopping Center Owner Lacks Standing to Challenge Site Plan for Neighboring Center

Matter of Riverhead PGC, LLC v. Town of Riverhead

NYLJ 5/19/10, p. 43, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In shopping center owner's article 78 proceeding challenging approval of a site plan for a neighboring center, the town appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the proceeding, holding that shopping center owner lacked standing to challenge the site plan approval.

Wal-Mart is currently a tenant in petitioner's shopping center. The town granted site plan approval for construction of a new Wal-Mart Supercenter on land located two miles away. Shopping center owner then brought this petition challenging the approval, contending that it has standing because if the new store opens, the result will be increased traffic congestion in the area that will make its own center less attractive to tenants. Supreme Court granted the petition, and the town appealed.

In reversing, the Appellate Division started by noting that to establish standing to challenge a zoning determination, a landowner not in direct proximity to the subject property must show a direct injury different from that suffered by the public at large, and that injury must be within the zone of interest protected by th zoning laws. The court then observed that economic harm caused by business competition is not an interest protected by the zoning laws. Finally, the court concluded that the alleged harm that would be caused by traffic congestion two miles away was speculative, and did not adequately demonstrate an injury-in-fact sufficient to confer standing on shopping center owner.

COMMENT

Although it is clear that increased business competition alone does not confer standing, courts have suggested that increased traffic congestion ' like that complained of in Matter of Riverhead ' may confer standing if the challenging party's property is near the challenged use. For example, in Center Square Ass'n Inc., v. City of Albany Bd. of Zoning Appeals, 9 A.D.3 651, the zoning board granted a variance to a landowner seeking to operate an apartment house in an area otherwise zoned for one or two-family houses. The Appellate Division held that a local homeowners association had standing to bring a claim that the variance would cause increased parking congestion. The court distinguished cases where increased traffic caused a general injury to the public at large, and instead held that the parking congestion in the present case constituted a legally recognizable injury. The court concluded that parking congestion fell within the zone of interests of the relevant zoning law, and that the association thus had standing to challenge the variance. Similarly, in Rosch v. Town of Milton Zoning Bd. of Appeals, 142 A.D.2d 765, the Appellate Division held that a landowner had standing to challenge a zoning variance allowing expansion of a neighboring nursing home facility. According to the court, traffic and noise concerns fell within the zone of interests of the ordinance.

However, a court may be less likely to grant standing to a business owner than a homeowner when the injury suffered is largely concerned with increased traffic, especially when it appears that the business owner is motivated in part by fear of competition. In McGrath v. Town Board of the Town of North Greenbush, 254 A.D.2d 614, for instance, the local zoning board re-zoned a parcel of land for construction of a shopping center that would include a hardware store. The owner of a nearby (and potentially competing) hardware store challenged the board's decision, claiming that resulting traffic congestion would make it difficult for customers to reach the store. A local homeowner also filed a challenge. The court held that the hardware store lacked standing because the injury suffered did not exceed that suffered by the general public. In contrast, the court presumed that the homeowner had suffered an injury-in-fact because her property was so close to the project site; and harm from “increased noise,” “increased vehicle and truck traffic,” and “degradation in the character of the neighborhood and style of life” fell within the zone of interests protected by the zoning laws.

Court Overturns Denial of Permit for Religious Use

Matter of Capriola v. Wright

NYLJ 5/25/10, p. 36, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit and off-street parking variance, landowner appealed from Supreme Court's denial of the petition. he Appellate Division reversed and granted the petition, holding that denial of a special exception permit for a religious use was arbitrary and capricious.

The church owns a parcel in a residential district, and has operated a church on the premises since 2004. In 2007, the village amended its zoning ordinance to require a special exception permit for all religious uses. Landowner applied for a permit, and for a variance from off-street parking requirements. Landowner also offered to limit occupancy of the sanctuary to 46 people, and he prevent any other use of the remainder of the property during services. The Board of Appeals nevertheless denied the special exception permit, and landowner brought this article 78 proceeding. When Supreme Court denied the petition, landowner appealed.

In reversing, the Appellate Division first rejected the village's contention that the church lacked standing because it was organized as a charitable corporation rather than a religious corporation. The court noted that standing would be determined by the proposed use, not the form of organization, and noted that in any event the church had since reorganized as a religious corporation. Turning to the merits, the court held that a municipality has an obligation to accommodate religious uses, and at least has an obligation to suggest conditions that might safeguard the municipality while accommodating the church's needs. Here, no conditions were suggested. As a result, the court granted the petition and remitted to the Board of Appeals with a direction to grant the application subject to reasonable conditions.

SEQRA Challenge Becomes Academic After Completion Of Project

Matter of Wallkill Cemetery Association, Inc. v. Town of Wallkill Planning Board

NYLJ 6/1/10, p. 30, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In a hybrid proceeding and action, cemetery association appealed from Supreme Court's dismissal of the its proceeding challenging a SEQRA determination. The Appellate Division dismissed the appeal as academic because the project has already been completed.

Applicant sought site plan approval for construction of an asphalt plant. The planning board concluded that all negative impacts had been sufficiently mitigated. The cemetery association challenged this finding. The association, however, did not move for a preliminary injunction to enjoin construction of the plant, and then, did not seek a stay pending determination of the appeal. In the interim, applicant built the asphalt plant, which is now fully operational. Meanwhile, Supreme Court dismissed the complaint, and the association appealed.

In dismissing the appeal, the court emphasized the association's failure to preserve its rights pending judicial review, and rejected the association's contention that the applicant had proceeded in bad faith. The court noted that applicant had not started construction until two years after the instant proceeding was commenced, and noted that prejudice to the applicant would be substantial if the court were to grant injunctive relief at this point.