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Neighbor Standing to Challenge SEQRA Determinations
When does an immediately adjacent neighbor have standing to challenge a SEQRA determination? In Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals, 69 N.Y.2d 406, the Court of Appeals made it clear that adjacent neighbors have presumptive standing to challenge zoning determinations. However, in Hohman v. Town of Poestenkill, 2020 WL 20407, a case decided in January, the Third Department, following its own precedent, has held that no similar presumption arises with respect to SEQRA determinations, at least when the SEQRA determination does not arise in the context of zoning. The Third Department's holding stands in contrast to Second Department cases applying the Sun-Brite rule to SEQRA determinations even outside the zoning context.
|The Hohman case
In Hohman, the town entered into negotiations with the Nature Conservancy to acquire a 138-acre parcel owned and maintained by the Conservancy. The town board classified the action as a Type I action under SEQRA and prepared an environmental assessment form (EAF). Upon review of the EAF, the town board issued a negative declaration, concluding that the acquisition would have no adverse environmental impact. Neighbors brought this article 78 proceeding challenging the determination, but Supreme Court concluded that neighbors lacked standing.
In affirming, the Appellate Division conceded that neighbors own property directly adjacent to the nature preserve. But the court held that in challenges to SEQRA determinations, unlike challenges to zoning determinations, ownership of land in close proximity to the affected land does not create a presumption of standing. The court concluded that the harms alleged by the neighbors — increased vehicle and pedestrian traffic from a newly proposed parking lot and hiking trail — were not distinct from harms that would be suffered by the public at large. As a result, the court concluded that neighbors lacked standing. The court went on to conclude that the alleged injuries were speculative and conjectural, and the court held that Supreme Court had properly granted the town's counterclaim for a declaratory judgment that the town had complied with SEQRA.
|Land Use Standing in the Court of Appeals
In Matter of Sun-Brite, the Court of Appeals articulated the general rule that standing to challenge administrative determinations requires proof that the challenger "sustained special damage, different in kind and degree from the community generally." But the court then noted that "it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules." Towards that end, the court created a presumption of standing for neighbors who own land in close proximity to the subject of the challenged zoning measure:
[A] person with property located in the immediate vicinity of the subject property will be adversely affected in a way different from the community at large; loss of value of individual property may be presumed from depreciation of the character of the immediate neighborhood. Thus, an allegation of close proximity alone may give rise to an inference of damage or injury that enables a nearby owner to challenge a zoning board decision without proof of actual injury.
Sun-Brite did not involve a SEQRA determination. But the court has cited Sun-Brite's standing analysis with apparent approval in cases that did involve SEQRA determinations. For instance, in Matter of Har Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, the court cited Sun-Brite while holding that a landowner has presumptive standing to challenge a SEQRA determination with respect to his own land. Moreover, in Mobil Oil Corp. v. Syracuse Industrial Develop. Agency, 76 N.Y.2d 428, another SEQRA case, the court expressly acknowledged that Har was "based on" Sun-Brite's holding that a property owner with a close relationship to the subject property has standing without the need to prove special damages. And in Save the Pine Bush, Inc. v. Common Council of Albany, 13 N.Y.3d 297, the court, in holding that an association had standing to challenge a SEQRA determination even though none of its members owned property adjacent to the subject property, acknowledged that even the city was willing to concede that owners of adjacent property would have standing to challenge the determination.
Har, Mobil Oil, and Save the Pine Bush all involved SEQRA determinations made in the context of zoning proposals. Do the same rules apply outside the zoning contest? The Appellate Divisions have split on that issue.
|The Appellate Divisions
The Third Department's position, exemplified in the recent Hohman decision, is that proximity does not generate a presumption of standing to challenge SEQRA determinations except when those determinations are made in the context of a zoning controversy. Thus, in Save Our Main Street Buildings v. Green County Legislatures, 293 A.D.2d 907, the Third Department held that neighbors did not have standing to challenge a SEQRA determination made in the context of a redevelopment project that involved destruction of buildings of alleged historic significance, indicating that "when no zoning-related issue is involved, there is no presumption of standing to raise a SEQRA challenge based on a party's close proximity alone." The Fourth Department has endorsed the same position. See, Kindred v. Monroe County, 119 A.D.3d 1347 (holding that neighbors had no presumptive standing to challenge environmental review of permit for county fair).
By contrast, the Second Department has applied the Sun-Brite presumption of standing to SEQRA determinations made outside the zoning contest. In Long Island Contractors' Assn. v. Town of Riverhead, 17 A.D.3d 590, the Second Department held that immediate neighbors of a proposed asphalt manufacturing facility enjoyed a presumption of standing. The case involved no zoning determination.
Whether the presumption of standing should apply to all land use determinations or only to those involving zoning issues is an issue, therefore, ripe for Court of Appeals review.
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Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of this newsletter's LJN sibling New York Real Estate Law Reporter.
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