Court of Appeals Modifies Standing Test in Land-Use Cases

In certain circumstances, residing in close proximity to the proposed project (which is measured from where the construction will be, not the respective property lines) may create a presumption of an injury in fact. Tuxedo Land Trust, Inc. v. Town Bd. of Town of Tuxedo, 112 A.D.3d 726 (2d Dep't 2013). However, this is a stringent standard as the Appellate Divisions have found that distances of 530 feet ( Oates v. Vill. of Watkins Glen, 290 A.D.2d 758 (3d Dep't 2002)), 600 feet, (Buerger v. Town of Grafton, 235 A.D.2d 984 (3d Dep't 1997)), 700 feet (Gallahan v. Planning Bd. of City of Ithaca, 307 A.D.2d 684 (3d Dep't 2003)), 1,000 feet (Burns Pharmacy of Rensselaer, Inc. v. Conley, 146 A.D.2d 842 (3d Dep't 1989)) and 1,300 feet (id ) from the proposed project were not sufficiently close “to be afforded any presumption of injury-in-fact on the basis of proximity alone.” Harris v. Town Bd. of Town of Riverhead, 73 A.D.3d 922 (2d Dep't 2010).

Moreover, as explained by the Court of Appeals in an earlier decision, the “status of neighbor does not, however, automatically provide the entitlement, or admission ticket, to judicial review.” Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of North Hempstead, 69 N.Y.2d 406 (1987). Regardless of the petitioner's proximity to the proposed project and whether there is a presumed injury-in-fact based upon that proximity, the petitioner must still show that his interests differ from that of the public at large. Shelter Island Ass'n v. Zoning Bd. of Appeals of Town of Shelter Island, 57 A.D.3d 907 (2d Dep't 2008), and “were arguably within the 'zone of interests' to be protected by the statute.” Id. “Since the zone of interests, or concerns, of SEQRA encompasses the impact of agency action on the relationship between the citizens of this State and their environment, the petitioner must demonstrate a potential injury which is 'environmental and not solely economic in nature.'” Bridon Realty Co. v. Town Bd. of Town of Clarkstown, 250 A.D.2d 677 (2d Dep't 1998).

A Case in Point

In Sierra Club, the Court of Appeals reversed the Appellate Division, Sierra Club v. Vill. of Painted Post, 115 A.D.3d 1310, and remanded the matter ' holding that one petitioner did have standing even though the general public was also impacted by train noises that formed a basis for that petitioner's objections. The court held that while, in order to have standing to challenge a SEQRA determination a party must demonstrate they suffer a harm different from the public at large the “number of people who are affected by the challenged action is not dispositive of standing.” Id. at 392.

Sierra Club involved an agreement by the Village to sell water to a company in Pennsylvania and a lease by the Village of a site to another company to operate a loading station for the water to be sold. The agreement to sell the water was treated as a Type II action that requires no further environmental review and the lease for the transfer station was treated as a Type I action and a negative declaration was issued. Several not-for-profit entities and individuals brought an Article 78 proceeding challenging the two actions.

The State Supreme Court found that with the exception of one individual, the petitioners lacked standing as they failed to demonstrate how the project impacted them in any way that did not also impact the general public. The lower court, however, did find that one individual, Marvin, who lived across from the loading station and complained of noise from the trains passing through the station, did have standing. The court then overturned the Village Board's actions.

On appeal, the Appellate Division determined that Marvin did not have standing and reversed without reaching the merits of the SEQRA claims. The Appellate Division found that Marvin was not complaining about the loading facility's operational noises, but rather about the noise of the trains passing through the loading facility. Therefore, the Appellate Division concluded Marvin suffered from the same noise as the public at large.

The Court of Appeals reversed on the issue of Marvin's standing and remitted the matter to the Appellate Division to address the merits. The Court of Appeals held:

' his allegation about train noise caused by the increased train traffic keeping him awake at night, even without any express differentiation between the train noise running along the tracks and the noise from the transloading facility, would be sufficient to confer standing.

Id. at 311.

Upon remand the Appellate Division upheld the lower court, finding there had been a failure to undertake a proper environmental review. 134 A.D.3d 1475 (4th Dep'2015).

Conclusion

At this time, the full implications of Sierra Club on standing determinations is not entirely clear. It will likely take additional rulings to clarify its full impact.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land-use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net/.