Development

Community Organization Lacks Standing to Challenge SEQRA Determination

Matter of Tuxedo Land Trust, Inc. v. Town of Tuxedo

NYLJ 3/12/12

Supreme Ct., Orange Cty.

(Lefkowitz, J.)

In an article 78 proceeding challenging the town board's issuance of an amendment to a special permit and site plan approval, the town moved to dismiss for lack of standing and for failure to state a cause of action. The court dismissed the petition, holding that petitioner community organization lacked standing to challenge the town board's SEQRA determination, and that the town board had not engaged in spot zoning.

Tuxedo Reserve Owner, LLC (TRO) owns about 2,400 acres in the town in three non-contiguous tracts. In 2004, the town board, after conducting SEQRA review, issued a special permit and preliminary site plan approval permitting construction of residential and commercial space. All of one tract, more than 905 of the second tract, and much of the third tract were to be preserved as open space. There were no challenges to the SEQRA determination or to the permit. In 2007, when TRO applied for an amendment to add five acres of development, the town board approved the amendment, and there were no challenges. In 2008, TRO applied for further amendments, increasing the amount of commercial development, altering the mix of residential units, and developing an additional 32-acres previously designated for open space. This time, the town board required TRO to prepare a draft supplemental environmental impact statement (DSEIS). In 2010, after viewing other projects developed by TRO in New Jersey and Florida, the board accepted a final SEIS, and amended the prior permit and site plan to allow changing the mix of uses. Individuals and a not-for-profit incorporated to preserve community character and preserve natural resources, then brought this article 78 proceeding challenging the SEQRA determination and the approval of the amendment.

In dismissing the proceeding, the court first held that the petitioners lacked standing to challenge the
SEQRA determination. The court concluded that because the not-for-profit did not own land in the area, and because the individuals did not own land in the immediate vicinity of the areas affected by amendment to the original site plan, they were not entitled to the presumption that they are adversely affected by the action. As a result, they were obligated to demonstrate that they would suffer environmental injury different from that suffered by the public at large. Here, their allegations that they would suffer from increased traffic, drinking water pollution, and diminution of the enjoyment of the historic character of the village, were not harms different from those suffered by all residents of the village adjoining the development. The court then turned to the spot zoning challenge, in which petitioners alleged that the village's application of its planned integrated development (PID) district to TRO's land constituted spot zoning because it was done only to benefit TRO. The court held that even if application of the PID district to landowner's land did benefit only this landowner, that was not enough to establish spot zoning. Here, because the town had conducted extensive review to ensure that the development was in keeping with a comprehensive plan, there was no evidence that TRO's benefit would come at the expense of neighbors. As a result, application of the PID district to TRO's parcel did not constitute spot zoning.

COMMENT

Even when a plaintiff is not entitled to the presumption that arises from owning property within the “immediate vicinity” of the site undergoing SEQRA review, he can still establish standing in an Article 78 proceeding if he can show that his injury is distinct from that of the general public because he “uses and enjoys a natural resource more than most other members of the public.” Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297. In City of Albany, the Court of Appeals held that challengers had standing because, as members of “Save the Pine Bush, Inc.,” they regularly used and enjoyed the Albany Pine Bush Preserve ' a nature preserve near the development site ' to observe and study a type of endangered butterfly. However, the Court of Appeals ruled against challengers on the merits, finding that the City of Albany had complied with SEQRA in considering only the major environmental effects of the rezoning.

In a few subsequent cases where, as in City of Albany, the proximity presumption was inapplicable, courts have followed the Court of Appeals' lead and granted standing only to dismiss on the merits. For example, in In re Rizzo, 31 Misc.3d 1206(A), the court held that the owner of land across the street from a proposed Verizon data center had standing to challenge rezoning of the Verizon property even though the proximity presumption was rebutted because challenger neither lived on nor regularly visited her property. The court indicated that, as owner of the adjacent property her injury with regard to “traffic, aesthetics and the character of the neighborhood or surrounding community” was still more specific than that of the general public. But the court ruled against her on the merits, holding that the town board's SEQRA review was sufficient. Similarly, in Druyan v. Village Bd. of Trustees of Village of Cayuga Heights, 33 Misc.3d 1203(A), the court granted standing to challengers of village board's plan to limit the local white-tailed deer population because, though some of the challengers did not reside in the village, they had established that they, more than others, regularly enjoyed observing the deer. The court then dismissed all seven claims on the merits.

At least one case invoked City of Albany to grant standing to a challenger who ultimately succeeded on the merits. In Peconic Baykeeper, Inc. v. Board of Trustees, 2010 WL 875758, a Suffolk County Supreme Court judge held that petitioner organization had standing where its mission was to safeguard the aquatic ecosystems of the Peconic Bay and South Shore of Long Island and where its members regularly used and enjoyed those watersheds by fishing, boating, and swimming. The court then ruled for petitioner on the merits, holding that the board of trustees had improperly failed to perform an environmental review of its marina expansion project.

However, courts are unwilling to grant standing just to reach the merits where the injury complained of is so general that most members of the public suffer it as well, e.g. increased traffic in town or a negative economic impact on the community. Thus, in Harris v. Town Bd. of Town of Riverhead, 73 A.D.3d 922, the court denied standing to challengers of the town's approval of construction of a Wal-Mart Supercenter. The court held that neither the individual plaintiffs' claim of injury due to increased traffic near their homes nor the plaintiff union's claim of injury from the negative effect of the Wal-Mart store on local businesses where its members worked amounted to a specific injury as both the increased traffic and the loss of local businesses would affect the entire community.

Community Organization Lacks Standing to Challenge SEQRA Determination

Matter of Tuxedo Land Trust, Inc. v. Town of Tuxedo

NYLJ 3/12/12

Supreme Ct., Orange Cty.

(Lefkowitz, J.)

In an article 78 proceeding challenging the town board's issuance of an amendment to a special permit and site plan approval, the town moved to dismiss for lack of standing and for failure to state a cause of action. The court dismissed the petition, holding that petitioner community organization lacked standing to challenge the town board's SEQRA determination, and that the town board had not engaged in spot zoning.

Tuxedo Reserve Owner, LLC (TRO) owns about 2,400 acres in the town in three non-contiguous tracts. In 2004, the town board, after conducting SEQRA review, issued a special permit and preliminary site plan approval permitting construction of residential and commercial space. All of one tract, more than 905 of the second tract, and much of the third tract were to be preserved as open space. There were no challenges to the SEQRA determination or to the permit. In 2007, when TRO applied for an amendment to add five acres of development, the town board approved the amendment, and there were no challenges. In 2008, TRO applied for further amendments, increasing the amount of commercial development, altering the mix of residential units, and developing an additional 32-acres previously designated for open space. This time, the town board required TRO to prepare a draft supplemental environmental impact statement (DSEIS). In 2010, after viewing other projects developed by TRO in New Jersey and Florida, the board accepted a final SEIS, and amended the prior permit and site plan to allow changing the mix of uses. Individuals and a not-for-profit incorporated to preserve community character and preserve natural resources, then brought this article 78 proceeding challenging the SEQRA determination and the approval of the amendment.

In dismissing the proceeding, the court first held that the petitioners lacked standing to challenge the
SEQRA determination. The court concluded that because the not-for-profit did not own land in the area, and because the individuals did not own land in the immediate vicinity of the areas affected by amendment to the original site plan, they were not entitled to the presumption that they are adversely affected by the action. As a result, they were obligated to demonstrate that they would suffer environmental injury different from that suffered by the public at large. Here, their allegations that they would suffer from increased traffic, drinking water pollution, and diminution of the enjoyment of the historic character of the village, were not harms different from those suffered by all residents of the village adjoining the development. The court then turned to the spot zoning challenge, in which petitioners alleged that the village's application of its planned integrated development (PID) district to TRO's land constituted spot zoning because it was done only to benefit TRO. The court held that even if application of the PID district to landowner's land did benefit only this landowner, that was not enough to establish spot zoning. Here, because the town had conducted extensive review to ensure that the development was in keeping with a comprehensive plan, there was no evidence that TRO's benefit would come at the expense of neighbors. As a result, application of the PID district to TRO's parcel did not constitute spot zoning.

COMMENT

Even when a plaintiff is not entitled to the presumption that arises from owning property within the “immediate vicinity” of the site undergoing SEQRA review, he can still establish standing in an Article 78 proceeding if he can show that his injury is distinct from that of the general public because he “uses and enjoys a natural resource more than most other members of the public.” Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297. In City of Albany, the Court of Appeals held that challengers had standing because, as members of “Save the Pine Bush, Inc.,” they regularly used and enjoyed the Albany Pine Bush Preserve ' a nature preserve near the development site ' to observe and study a type of endangered butterfly. However, the Court of Appeals ruled against challengers on the merits, finding that the City of Albany had complied with SEQRA in considering only the major environmental effects of the rezoning.

In a few subsequent cases where, as in City of Albany, the proximity presumption was inapplicable, courts have followed the Court of Appeals' lead and granted standing only to dismiss on the merits. For example, in In re Rizzo, 31 Misc.3d 1206(A), the court held that the owner of land across the street from a proposed Verizon data center had standing to challenge rezoning of the Verizon property even though the proximity presumption was rebutted because challenger neither lived on nor regularly visited her property. The court indicated that, as owner of the adjacent property her injury with regard to “traffic, aesthetics and the character of the neighborhood or surrounding community” was still more specific than that of the general public. But the court ruled against her on the merits, holding that the town board's SEQRA review was sufficient. Similarly, in Druyan v. Village Bd. of Trustees of Village of Cayuga Heights, 33 Misc.3d 1203(A), the court granted standing to challengers of village board's plan to limit the local white-tailed deer population because, though some of the challengers did not reside in the village, they had established that they, more than others, regularly enjoyed observing the deer. The court then dismissed all seven claims on the merits.

At least one case invoked City of Albany to grant standing to a challenger who ultimately succeeded on the merits. In Peconic Baykeeper, Inc. v. Board of Trustees, 2010 WL 875758, a Suffolk County Supreme Court judge held that petitioner organization had standing where its mission was to safeguard the aquatic ecosystems of the Peconic Bay and South Shore of Long Island and where its members regularly used and enjoyed those watersheds by fishing, boating, and swimming. The court then ruled for petitioner on the merits, holding that the board of trustees had improperly failed to perform an environmental review of its marina expansion project.

However, courts are unwilling to grant standing just to reach the merits where the injury complained of is so general that most members of the public suffer it as well, e.g. increased traffic in town or a negative economic impact on the community. Thus, in Harris v. Town Bd. of Town of Riverhead, 73 A.D.3d 922, the court denied standing to challengers of the town's approval of construction of a Wal-Mart Supercenter. The court held that neither the individual plaintiffs' claim of injury due to increased traffic near their homes nor the plaintiff union's claim of injury from the negative effect of the Wal-Mart store on local businesses where its members worked amounted to a specific injury as both the increased traffic and the loss of local businesses would affect the entire community.