Opinion
2015–07114 Index No. 4353/14
12-06-2017
In the MATTER OF BOARD OF FIRE COMMISSIONERS OF the FAIRVIEW FIRE DISTRICT, a District Corporation of the State of New York, appellant, v. TOWN OF POUGHKEEPSIE PLANNING BOARD, et al., respondents.
Jacobowitz & Gubits, LLP, Walden, New York (George Lithco of counsel), for appellant. Mackey, Butts & Wise, Millbrook, N.Y. (Joshua E. Mackey and Rebecca A. Valk of counsel), for respondents Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York. Teahan & Constantino LLP, Poughkeepsie, N.Y. (Richard I. Cantor of counsel), for respondent Page Park Associates, LLC.
Jacobowitz & Gubits, LLP, Walden, New York (George Lithco of counsel), for appellant.
Mackey, Butts & Wise, Millbrook, N.Y. (Joshua E. Mackey and Rebecca A. Valk of counsel), for respondents Town of Poughkeepsie Planning Board, Town of Poughkeepsie Town Board, and Town of Poughkeepsie, a Municipal Corporation of the State of New York.
Teahan & Constantino LLP, Poughkeepsie, N.Y. (Richard I. Cantor of counsel), for respondent Page Park Associates, LLC.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Poughkeepsie dated August 21, 2014, issuing a negative declaration pursuant to the State Environmental Quality Review Act (ECL art 8), and granting a land contour permit to Page Park Associates, LLC, and to review a determination of the Town Board of the Town of Poughkeepsie dated October 1, 2014, granting the application of Page Park Associates, LLC, for a zoning overlay district to its property, and action for related declaratory relief, the petitioner/plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Dutchess County (Sproat, J.), dated April 17, 2015, as denied the petition and dismissed the proceeding/action.
ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
Page Park Associates, LLC (hereinafter Page), proposed to construct a multifamily residential project in the Town of Poughkeepsie. The project, known as "Fairview Commons" (hereinafter the FC project), was located within the Fairview Fire District. After the Town of Poughkeepsie Planning Board (hereinafter the Planning Board) conducted its review pursuant to the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA), it issued a negative declaration on August 21, 2014. Thereafter, the Board of Commissioners of the Fairview Fire District, a District Corporation of the State of New York (hereinafter the petitioner), commenced this hybrid proceeding (Fairview I) challenging the Planning Board's SEQRA determination, and action for related declaratory relief, against the Planning Board, the Town of Poughkeepsie Town Board (hereinafter Town Board), the Town of Poughkeepsie, a Municipal Corporation of the State of New York (hereinafter collectively the Town respondents), and Page (hereinafter collectively the respondents). In its petition/complaint, the petitioner asserted three causes of action. After the Town Board granted Page's rezoning application on October 1, 2014, the petitioner amended the petition/complaint to add a fourth cause of action challenging the Town Board's granting of Page's application for a zoning overlay district to its property, since the Town Board relied upon the SEQRA determination.
The Supreme Court, in the judgment appealed from, denied the petition and dismissed the proceeding/action, finding that the petitioner lacked standing, and that, in any event, the Planning Board had complied with SEQRA. The petitioner appeals.
"To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA" (Matter of Tuxedo Land Trust, Inc. v. Town Bd. of Town of Tuxedo, 112 A.D.3d 726, 727–728, 977 N.Y.S.2d 272 ; see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772–774, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; Matter of Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 89–90, 841 N.Y.S.2d 321 ). To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature (see Matter of County Oil Co., Inc. v. New York City Dept. of Envtl. Protection, 111 A.D.3d 718, 719, 975 N.Y.S.2d 114 ; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 A.D.2d 771, 772, 583 N.Y.S.2d 503 ). Although raising economic concerns does not foreclose standing to also raise environmental injury (see Matter of Blue Lawn v. County of Westchester, 293 A.D.2d 532, 534, 740 N.Y.S.2d 404 ; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 A.D.2d at 772, 583 N.Y.S.2d 503 ), economic injury is not by itself within the zone of interests which SEQRA seeks to protect (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 777, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 433, 559 N.Y.S.2d 947, 559 N.E.2d 641 ; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 A.D.2d at 772, 583 N.Y.S.2d 503). Here, the petitioner's concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 777, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d at 433, 559 N.Y.S.2d 947, 559 N.E.2d 641 ; Matter of Valhalla Union Free School Dist. v. Board of Legislators of County of Westchester, 183 A.D.2d at 772, 583 N.Y.S.2d 503).
Moreover, the petitioner's claim relating to traffic impacts was insufficient to establish standing, since the petitioner failed to demonstrate an environmental injury different from that suffered by the public at large (see Matter of Shelter Is. Assn. v. Zoning Bd. of Appeals of Town of Shelter Is., 57 A.D.3d 907, 909, 869 N.Y.S.2d 615 ; Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 213 A.D.2d 484, 485–486, 623 N.Y.S.2d 613 ).
Nor did the petitioner's status as a municipal agency confer standing upon it, since a "municipality is limited to asserting rights that are its own ... and is not permitted to assert the collective individual rights of its residents" (Matter of Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d at 91, 841 N.Y.S.2d 321 ). In order to establish standing, in addition to showing that the alleged injury to the community character fell within the zone of interest protected by SEQRA, the petitioner had to show an environmental injury that was different from that of the public at large, and was not purely economic, which it failed to do (see Vinnie Montes Waste Sys. v. Town of Oyster Bay, 199 A.D.2d 493, 495, 606 N.Y.S.2d 41 ).
The petitioner also did not have standing in its representative capacity. "In order to establish standing to challenge a SEQRA determination, a municipality must demonstrate how its personal or property rights, either personally or in a representative capacity, will be directly and specifically affected apart from any damage suffered by the public at large" ( Matter of Town of Amsterdam v. Amsterdam Indus. Dev. Agency, 95 A.D.3d 1539, 1541, 945 N.Y.S.2d 434 [internal quotation marks omitted] ). Here, the petitioner did not allege in its petition/complaint that it was acting in its representative capacity for its affected citizens, but merely alleged the economic costs to it as a result of the FC project and other pending or anticipated projects (see generally Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d at 433–434, 559 N.Y.S.2d 947, 559 N.E.2d 641 ). Accordingly, the Supreme Court properly determined that the petitioner lacked standing, and dismissed the proceeding/action.
Since this Court has previously denied motions by Page to dismiss the appeal as academic, its current contention that the plaintiff's appeal should be dismissed as academic on the same ground as previously asserted is precluded by the doctrine of the law of the case (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 ).
In light of our determination, we need not reach the petitioner's remaining contention.
DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.