Development

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging the grant of a hardship waiver, petitioners, an environmental group and one of its members, appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the group had standing but denying the petition on the merits.

Landowner's predecessor purchased the subject property in 1970 and constructed a building that it leased to the New York State Police for use as a barracks. Landowner purchased the parcel in 2003 and continued leasing it to the state police until 2008, when the police vacated the building. Landowner then began using the property to operate a landscaping and horticultural services building. When landowner was informed that the use was not a permitted use of the parcel, which was located in the Central Pine Barrens, landowner sought a variance from the town Zoning Board of Appeals (ZBA). The ZBA referred the matter to the Central Pine Barrens Joint Planning and Policy Commission, and landowner applied to the commission for an extraordinary hardship waiver pursuant to sections 57-0121 and 57-0123 of the Environmental Conservation Law. At a public hearing, petitioner Amper, Executive Director of the Long Island Pine Barrens Society, opposed the waiver on the ground that the hardship was self-created. The commission nevertheless granted the waiver, and Amper and the Society brought this article 78 proceeding. Supreme Court dismissed, contending that petitioners lacked standing, and petitioners appealed.

In affirming, the Appellate Division first held that Amper and the society had standing to bring the proceeding because Amper established that he uses and enjoys the Pine Barrens more than most other members of the public. Similarly, the society has standing because its interests in the proceeding are germane to its purposes and the claim does not require participation of individual members. On the merits, however, the court upheld the commission's determination, noting that landowner's proposed use was less intensive than the prior use as a police barracks, and that the commission's determination was not arbitrary or capricious.

Hardship Waiver for Pine Barrens Development Upheld

Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning & Policy Commission

NYLJ 1/31/14, p. 25, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In an article 78 proceeding challenging the grant of a hardship waiver, petitioners, an environmental group and one of its members, appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the group had standing but denying the petition on the merits.

Landowner's predecessor purchased the subject property in 1970 and constructed a building that it leased to the New York State Police for use as a barracks. Landowner purchased the parcel in 2003 and continued leasing it to the state police until 2008, when the police vacated the building. Landowner then began using the property to operate a landscaping and horticultural services building. When landowner was informed that the use was not a permitted use of the parcel, which was located in the Central Pine Barrens, landowner sought a variance from the town Zoning Board of Appeals (ZBA). The ZBA referred the matter to the Central Pine Barrens Joint Planning and Policy Commission, and landowner applied to the commission for an extraordinary hardship waiver pursuant to sections 57-0121 and 57-0123 of the Environmental Conservation Law. At a public hearing, petitioner Amper, Executive Director of the Long Island Pine Barrens Society, opposed the waiver on the ground that the hardship was self-created. The commission nevertheless granted the waiver, and Amper and the Society brought this article 78 proceeding. Supreme Court dismissed, contending that petitioners lacked standing, and petitioners appealed.

In affirming, the Appellate Division first held that Amper and the society had standing to bring the proceeding because Amper established that he uses and enjoys the Pine Barrens more than most other members of the public. Similarly, the society has standing because its interests in the proceeding are germane to its purposes and the claim does not require participation of individual members. On the merits, however, the court upheld the commission's determination, noting that landowner's proposed use was less intensive than the prior use as a police barracks, and that the commission's determination was not arbitrary or capricious.