Court of Appeals Determines Standing to Challenge DEC Regulations

In Association for a Better Long Island, Inc. v. New York State Department of Environmental Conservation, 2014 WL 1280310, 2014 N.Y. Slip Op. 02216, __ N.E.3d __ (Apr. 1, 2014), the Court of Appeals attempted to balance two important, and often conflicting, public policy considerations underlying standing to bring an Article 78 proceeding ' namely that “courts are adjudicating actual controversies for parties that have a genuine stake in the litigation” while also ensuring that there is not an “impenetrable barrier” to the review of the administrative action.

The Case

In this case, the New York State Department of Environmental Conservation (DEC) adopted amendments to its regulations pertaining to endangered and threatened species, allowing individuals to obtain a permit for the incidental taking of these species ' and as part of the permit process, requiring the individual to submit a plan to minimize the impact to these species. Petitioners Town of Riverhead and Town of Riverhead Community Development Agency (Riverhead or Petitioners) are the owners of 3,000 acres of real property that is the habitat for at least two endangered or threatened species, “for the express purpose of redevelopment.”

Petitioners brought an Article 78 proceeding/declaratory judgment action and argued that the amendments were both procedurally and substantively flawed. The procedural claims were based upon the DEC's failure to follow statutorily mandated procedures when adopting the amendments. The substantive claims alleged failure to comply with the State Environmental Quality Review Act (SEQRA) and that the amendments were ultra vires, an impermissible regulatory taking and irrational, arbitrary and capricious.

The Court's Finding

The Court of Appeals found that the procedural claims were ripe and the Petitioners had standing to bring them, while the substantive claims were not ripe and the Petitioners lacked standing.

For Petitioners to have standing to bring the procedural claims, they had to show that they suffered an injury in fact and that the asserted injury was within the zone of interest sought to be protected by the statutes the DEC allegedly violated. Further, because this was a land-use case, Petitioners also had to demonstrate that they would “suffer direct harm, injury that is in some way different from that of the public at large.”

However, the court went on to note that “standing rules 'should not be heavy-handed'” (quoting Sun-Brite Car Wash v. Bd. of Zoning & Appeals of Town of N. Hempstead , 69 N.Y.2d 406, 419) and “we have been reluctant to apply these principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review.” With these public policy implications at the forefront, the court found that Riverhead had alleged facts sufficient to confer standing to pursue the procedural causes of action.

In finding that Petitioners had alleged an injury in fact, the court made particular note of the fact that Petitioners were “titled to land for the purpose of redevelopment” and that Petitioners' “property is subject to the amended regulations.” More to the point, the court explained that Riverhead had previously submitted an application to subdivide the parcel at issue and the DEC provided them with a comprehensive habitat prevention plan and indicated its intent to be lead agency for SEQRA.

The court declined to decide whether land ownership itself, absent the additional facts present here, would be sufficient to allege an injury in fact, but its tone and discussion of the matter suggests it would have answered in the negative. Citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 564, the court wrote:

As the United States Supreme Court has recognized, a litigant's 'some day' intentions ' without any description of concrete plans, or indeed even any specification of when the some day will be ' do not support a finding of the 'actual or imminent' injury that our cases require. Here, however, there is more than an amorphous allegation of potential future injury.

The court further found that Petitioners were within the zone of interest of the statutes the DEC allegedly violated as the statutes set forth procedure to be followed when promulgating rules and regulations, and Petitioners were injured by the alleged violation of those statutes, particularly the deprivation of an opportunity to be heard prior to the DEC adopting the amendments.

The court finished its analysis of the procedural claims by discussing the public policy implications of holding that Petitioners did not have standing in this case. “Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge ' a result that is contrary to the public interest. Given the compressed four-month statute of limitations, we would be erecting an 'impenetrable barrier' to any review of this facet of the administrative action.” The court further noted that even finding that Petitioners had standing in this case, “the universe of potential plaintiffs is suitably delimited,” further suggesting that the court would not find standing upon fewer pertinent facts than those present here. The implication is that merely being a landowner, without more, will not likely confer standing.

Substantive Causes of Action and Public Policy Implications

The court then went on to distinguish Petitioners' standing with respect to the substantive causes of action, and explained why the public policy considerations discussed above did not apply. Petitioners did not have standing to bring the SEQRA claims because the only injury alleged was that the amendment would “impede their ability to develop the property and will cause them to incur substantial costs.” The court summarily rejected this argument, as “we have consistently held, 'economic injury [alone] does not confer standing to sue under SEQRA.'” (quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 777).

With respect to the other substantive claims, the court found that Petitioners would not suffer an actual injury until they “submit a permit application and DEC imposes the requirements of the amended regulations to their detriment.” Along these lines, the court found the claims were not ripe because until there was final agency action inflicting concrete harm, any injury is speculative.

Finally, the public policy implications that were so important to the court with respect to the procedural causes of action did not come into play here since “our finding of lack of standing as to the substantive claims does not create an 'impenetrable barrier' to review, since the statute of limitations does not start to run until the agency issues a determination of a permit application.”

Conclusion

The importance of ensuring the public has a vehicle to challenge administrative actions and the detrimental implications of finding that Petitioners did not have standing with respect to the procedural causes of action was not lost on the court in this case. But at the same time, the court remained wary of expending judicial resources adjudicating the rights of those with only a tangential stake in the litigation, and unnecessarily expanding the universe of potential litigants, as reflected in itss hesitance to dilute the standing requirements to the extent that simply being a landowner would have conferred standing. This case demonstrates the need to balance these interests on a case-by-case basis and take into consideration the policy implications beyond just applying lock-step tests. Going forward, it will be interesting to see how the lower courts interpret this decision and whether they use it as authorization to take a global approach to deciding standing issues.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner and Christie Tomm Addona is an associate at Silverberg Zalantis, LLP in Tarrytown, NY. The firm concentrates its practice on municipal and land use law and related litigation and maintains a blog of related topics at www.blog.szlawfirm.net.

In Association for a Better Long Island, Inc. v. New York State Department of Environmental Conservation, 2014 WL 1280310, 2014 N.Y. Slip Op. 02216, __ N.E.3d __ (Apr. 1, 2014), the Court of Appeals attempted to balance two important, and often conflicting, public policy considerations underlying standing to bring an Article 78 proceeding ' namely that “courts are adjudicating actual controversies for parties that have a genuine stake in the litigation” while also ensuring that there is not an “impenetrable barrier” to the review of the administrative action.

The Case

In this case, the New York State Department of Environmental Conservation (DEC) adopted amendments to its regulations pertaining to endangered and threatened species, allowing individuals to obtain a permit for the incidental taking of these species ' and as part of the permit process, requiring the individual to submit a plan to minimize the impact to these species. Petitioners Town of Riverhead and Town of Riverhead Community Development Agency (Riverhead or Petitioners) are the owners of 3,000 acres of real property that is the habitat for at least two endangered or threatened species, “for the express purpose of redevelopment.”

Petitioners brought an Article 78 proceeding/declaratory judgment action and argued that the amendments were both procedurally and substantively flawed. The procedural claims were based upon the DEC's failure to follow statutorily mandated procedures when adopting the amendments. The substantive claims alleged failure to comply with the State Environmental Quality Review Act (SEQRA) and that the amendments were ultra vires, an impermissible regulatory taking and irrational, arbitrary and capricious.

The Court's Finding

The Court of Appeals found that the procedural claims were ripe and the Petitioners had standing to bring them, while the substantive claims were not ripe and the Petitioners lacked standing.

For Petitioners to have standing to bring the procedural claims, they had to show that they suffered an injury in fact and that the asserted injury was within the zone of interest sought to be protected by the statutes the DEC allegedly violated. Further, because this was a land-use case, Petitioners also had to demonstrate that they would “suffer direct harm, injury that is in some way different from that of the public at large.”

However, the court went on to note that “standing rules 'should not be heavy-handed'” (quoting Sun-Brite Car Wash v. Bd. of Zoning & Appeals of Town of N. Hempstead , 69 N.Y.2d 406, 419) and “we have been reluctant to apply these principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review.” With these public policy implications at the forefront, the court found that Riverhead had alleged facts sufficient to confer standing to pursue the procedural causes of action.

In finding that Petitioners had alleged an injury in fact, the court made particular note of the fact that Petitioners were “titled to land for the purpose of redevelopment” and that Petitioners' “property is subject to the amended regulations.” More to the point, the court explained that Riverhead had previously submitted an application to subdivide the parcel at issue and the DEC provided them with a comprehensive habitat prevention plan and indicated its intent to be lead agency for SEQRA.

The court declined to decide whether land ownership itself, absent the additional facts present here, would be sufficient to allege an injury in fact, but its tone and discussion of the matter suggests it would have answered in the negative. Citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 564, the court wrote:

As the United States Supreme Court has recognized, a litigant's 'some day' intentions ' without any description of concrete plans, or indeed even any specification of when the some day will be ' do not support a finding of the 'actual or imminent' injury that our cases require. Here, however, there is more than an amorphous allegation of potential future injury.

The court further found that Petitioners were within the zone of interest of the statutes the DEC allegedly violated as the statutes set forth procedure to be followed when promulgating rules and regulations, and Petitioners were injured by the alleged violation of those statutes, particularly the deprivation of an opportunity to be heard prior to the DEC adopting the amendments.

The court finished its analysis of the procedural claims by discussing the public policy implications of holding that Petitioners did not have standing in this case. “Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge ' a result that is contrary to the public interest. Given the compressed four-month statute of limitations, we would be erecting an 'impenetrable barrier' to any review of this facet of the administrative action.” The court further noted that even finding that Petitioners had standing in this case, “the universe of potential plaintiffs is suitably delimited,” further suggesting that the court would not find standing upon fewer pertinent facts than those present here. The implication is that merely being a landowner, without more, will not likely confer standing.

Substantive Causes of Action and Public Policy Implications

The court then went on to distinguish Petitioners' standing with respect to the substantive causes of action, and explained why the public policy considerations discussed above did not apply. Petitioners did not have standing to bring the SEQRA claims because the only injury alleged was that the amendment would “impede their ability to develop the property and will cause them to incur substantial costs.” The court summarily rejected this argument, as “we have consistently held, 'economic injury [alone] does not confer standing to sue under SEQRA.'” (quoting Society of Plastics Indus. v. County of Suffolk , 77 N.Y.2d 761, 777).

With respect to the other substantive claims, the court found that Petitioners would not suffer an actual injury until they “submit a permit application and DEC imposes the requirements of the amended regulations to their detriment.” Along these lines, the court found the claims were not ripe because until there was final agency action inflicting concrete harm, any injury is speculative.

Finally, the public policy implications that were so important to the court with respect to the procedural causes of action did not come into play here since “our finding of lack of standing as to the substantive claims does not create an 'impenetrable barrier' to review, since the statute of limitations does not start to run until the agency issues a determination of a permit application.”

Conclusion

The importance of ensuring the public has a vehicle to challenge administrative actions and the detrimental implications of finding that Petitioners did not have standing with respect to the procedural causes of action was not lost on the court in this case. But at the same time, the court remained wary of expending judicial resources adjudicating the rights of those with only a tangential stake in the litigation, and unnecessarily expanding the universe of potential litigants, as reflected in itss hesitance to dilute the standing requirements to the extent that simply being a landowner would have conferred standing. This case demonstrates the need to balance these interests on a case-by-case basis and take into consideration the policy implications beyond just applying lock-step tests. Going forward, it will be interesting to see how the lower courts interpret this decision and whether they use it as authorization to take a global approach to deciding standing issues.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner and Christie Tomm Addona is an associate at Silverberg Zalantis, LLP in Tarrytown, NY. The firm concentrates its practice on municipal and land use law and related litigation and maintains a blog of related topics at www.blog.szlawfirm.net.