Search results for: standing

Before adjudication, a court must determine whether a plaintiff has standing. Standing means that the party has a right to access the courts for a particular dispute. A petitioner bears the burden to show an actual injury and that the violated statute was meant to prevent this type of injury. In land use matters specifically, a petitioner “must show that it would suffer direct harm, injury that is in some way different from the public at large” (Thiele v. Town of Southampton Zoning Board of Appeals, internal citations and quotes omitted).

In Thiele, individual petitioners, as well as the Long Island Pine Barrens Society, Inc. and other environmental groups, challenged the Town of Southampton Zoning Board of Appeals’ determination that a private golf course was a permitted accessory use to a proposed residential development. The DLV Quogue respondents want to develop a residential subdivision and a private, 18-hole golf course, and maintain and operate other buildings and structures. In an opinion from November 4, 2021, the Suffolk County Supreme Court held that all of the petitioners lacked standing because they did not show any injuries that were individualized. When considering injury implied by distance to the project site, the court explained that close proximity may be an important consideration, but is never enough on its own. Further, the relevant distance must be measured from the structure or development at issue, not just from property line to property line. Here, the distance of the petitioners’ properties did not help their case. Although there is no specific standard for distance, the closest petitioners had over 700 feet of a forested buffer zone separating their residences from the golf course, and the court did not consider that proximate.

When discussing the requirement that an individual petitioner has an “actual and specific injury that is different in kind of degree from that alleged to be suffered by the general public, and that is not too speculative,” the court specified that groundwater pollution on its own does not suffice. The court cited a 1995 case from the Appellate Division, Second Department, Long Island Pine Barrens Society v. Planning Board of the Town of Brookhaven, which held that “generalized allegations that project will have adverse impact on underlying aquifer” were not enough to establish standing (internal citation omitted). Therefore, the court in Thiele had to follow and expand on the long-standing proposition that a Long Island resident cannot challenge a project to protect the sole source aquifer that spans most of the island unless there is a more particularized accusation. For example, the court in Thiele mentioned that there was no evidence that any of the petitioners have a private or on-site well, implying that if there could be a showing that such a well would be polluted, that could be enough of an individualized injury to establish standing. By extension, this means that there is no general standing to keep Pine Barrens areas undeveloped, even though the sandy soil means that the underlying aquifer is susceptible to pollution. Here, the court also stated that there was no sufficient evidence of harm to the aquifer, and that there was no evidence that the individual petitioners would be “prevented from using or enjoying the Pine Barrens.” Therefore, petitioners should show these kinds of injuries to meet the standing requirements.

Regarding standing for the environmental organizations, the court distinguished cases where petitioners were successful. Unlike in Thiele, in Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning & Policy Commission, an Appellate Division, Second Department case from 2016, petitioners sought to protect a portion of the Pine Barrens that was in the “core preservation area.” Additionally, this area was within the “zone of interests sought to be protected by the Pine Barrens Act of 1993,” so organizational standing was granted (internal citation omitted). In order for organizations to have standing, the most important consideration is that at least one member would have standing to sue. Further, the interest an organization asserts must be relevant to its purpose. Last, neither the claim nor the relief sought must require the involvement of individual members. Therefore, though the Long Island Pine Barrens Society was also a petitioner in Thiele, whether the area is in the “core preservation area” makes the difference because of the protection afforded by the Pine Barrens Act.

 

A popular topic on this blog is standing in the context of a challenge to a municipal determination, primarily under the State Environmental Quality Review Act.   A recent case issued by the Appellate Division, Second Department, entitled Matter of McCrory v Village of Mamaroneck Board of Trustees, involves standing in the context of a challenge to a municipal action under the Open Meetings Law (Article 7 of the Public Officers Law).

Here are the pertinent facts , based on the appellate court decision and news reports about the case.

Petitioners/Plaintiffs, (‘Petitioners”), Suzanne McCrory and Stuart Tiekert, reside in the Village of Mamaroneck and are self-appointed watchdogs of the Village’s municipal boards.  In March 2017, they receive an email notice about a general meeting of the Village Board of Trustees (“Village Board”) to be held the following morning. Petitioner McCrory attends the meeting, which starts with a motion to go into executive session for the purported reason to discuss contract negotiations and to confer with the Village Attorney.  After the executive session concludes, the public meeting reopens and the Village Board  indicates that while in executive session, they discussed hiring a new Village manager. In listening to the ensuing discussion, McCrory apparently concludes that the executive session included several other matters that should have been discussed in the public session but were not.

Petitioners bring a hybrid Article 78 proceeding/declaratory judgment action (“hybrid proceeding”) against the Village Board, complaining that the Village Board improperly went into a closed “executive session.”  Petitioners also contend that the Village Board has a pattern of holding improper executive sessions, fails to provide adequate notice and fails to accurately record minutes for these closed sessions.

The Village Board moved to dismiss the hybrid proceeding based on lack of standing, which motion was granted by the trial court. The appellate court unanimously reversed and reinstated the hybrid proceeding, finding that Petitioners have standing and remanding the matter back to the trial court for a decision on the merits.

The Appellate Division Decision

As noted in the decison, the purpose of the Open Meetings Law is to ensure that “public business be performed in an open and public manner” so that “citizens of this state [are] fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.  The people must be able to remain informed if they are to retain control over those who are their public servants.  It is only in this climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created.”  The appellate court noted that the provisions of the Open Meetings Law “are to be given broad and liberal construction. . .to achieve the purpose for which it was enacted.”

The appellate court further explained that Section 103 of the law requires “every meeting of a public body shall be open to the general public.” The statute permits a public body to go into closed executive session but only for specified reasons.  Sections 104 and 106 of the law require public notice of the time and place of a meeting and that minutes of an open meeting shall be taken and must be made available to the general public.

The appellate court noted that Section 107(1) of the law sets forth the criteria of who can bring a challenge for a violation of the Open Meetings Law.  That section provides that “[a]ny aggrieved person shall have standing to enforce the provisions of this article against a public body by commencement of [an Article 78] proceeding or an action for declaratory judgment and injunctive relief.”

The appellate court then explained who is an “aggrieved person” in order to bring an Open Meetings Law challenge to municipal action.  It first noted that the general rule for establishing standing to challenge governmental actions is that a petitioner must show it suffered an injury in fact and that the injury “falls within the zone of interests sought to be promoted or protected by the statutory provision under which the government has acted.”  As to the “injury in fact” criteria, the appellate court noted the challenging party has to have “an actual legal stake in the matter being adjudicated and has suffered a cognizable harm.” Thus, tenuous or conjectural harms are not sufficient to establish standing. Rather, the harm needs to be “sufficiently concrete and particularized to warrant judicial intervention.”

The appellate court then looked at other types of cases to explain “aggrievement.”  In the context of a tax certiorari proceeding, ” a person is aggrieved when an assessment has a direct adverse affect on the challenger’s pecuniary interests.”  In the context of an appeal, “an appellant may only seek review upon a showing that he or she is ‘aggrieved’ by a judgment or order,” which requires that the appellant show it asked for relief that was denied in whole or in part, or opposed relief sought against it, which relief was granted in whole or in part.

The appellate court then turned its attention to “aggrievement” in the context of a violation of the Open Meetings Law, noting that the case law is “sparse.”  In Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d 157 [2d Dept. 1982], a dismissed probationary teacher brought a claim under the Open Meetings Law seeking to overturn the decision to fire her, which decision was made in an executive session followed by an open public meeting. The Court found she had standing under the Open Meetings Law due to her “membership in the class aggrieved by the board’s unintentional lapse in its decision-making process (i.e., the citizenry), and not from her status as the subject of those deliberations whose private employment interests are affected by the resulting determination.”  In Matter of Friends of the Pine Bush v Planning Bd. of the City of Albany, 71 AD2d 780 [3rd Dept. 1979], approval of two subdivision plats was challenged by an unincorporated association and five individual members, who reside in Albany, for failing to comply with the Open Meetings Law.  The trial court’s dismissal of the proceeding on lack of standing grounds was reversed by the Appellate Division, Third Department, which determined that the individual petitioners were aggrieved and had standing.  The appellate court also discussed Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 29 Misc 3d 1206(A) [Sup. Ct. Onondaga County 2010].  In that case, petitioner, a member of the general public, a taxpayer in the district and an employee of the school district, was found to have standing because “he was in ‘the zone of interest’ that the Open Meeting Law was designed to protect.”  He also had attended the board meeting at which the public was excluded and “was a member of the citizenry aggrieved by the alleged violation.”

The appellate court then focused  on the trial court’s decision.  The lower court denied standing to petitioners McCrory and Tiekert and dismissed their hybrid proceeding, using the reasoning from land use cases that a petitioner “must show that it would suffer direct harm (i.e., injury in fact) that is in some way different from that of the public at large.”  In reversing that ruling, the appellate court noted that the matter involves a question of statutory interpretation.  The appellate court also noted that the harm or injury addressed by the Open Meetings Law is the “unlawful exclusion of the public from a municipal meeting” and that the Open Meetings Law “confers upon the public the right to attend certain meetings of public bodies.”  Thus, standing to challenge a violation of the Open Meetings Law requires that petitioner only establish it was excluded from a meeting that should have been open to the public.   The trial court’s use of a second criteria to establish standing,  that a petitioner must also suffer a personal harm or property injury in order to assert a claim for violations of the Open Meetings Law, was contrary to the Legislature’s intent in enacting the statute.

As a result, the trial court must now decide the matter on the merits.

 

 

 

 

 

 

 

 

 

 

The City of New Rochelle adopted an ordinance in 2017, amending the zoning code to apply a senior citizen overlay district to certain real property comprised of approximately 3.4 acres at 121 Mill Road in New Rochelle.  The City adopted a negative declaration pursuant to the New York State Environmental Quality Review Act for the amendment. The zoning code amendment allowed for the development of a 64-unit memory care facility for people with Alzheimer’s disease, dementia and other forms of memory loss, creating specialized housing for elderly residents. Petitioners challenged the adoption via an article 78 proceeding and declaratory judgment action. Petitioners alleged, in part, that the proposed assisted living complex was actually a medical care facility proposed to provide care and services to memory challenged senior citizens rather than senior housing.

The Supreme Court, in Matter of Vasser et al. v. City of New Rochelle et al, Anne E. Minihan, J., Index No. 57315-2017, Westchester County, dated September 14, 2017 dismissed the proceeding for lack of standing. The Court noted that petitioners live outside the 250 foot radius of property owners that are required to receive mailed hearing notices pursuant to the City Code. Additionally, the Court found petitioners’ concerns about noise, odor and traffic speculative, overbroad and unripe given that the proposed development was still subject to administrative review and approval before the Planning Board. The Supreme Court stated “petitioners’ arguments concerning standing merely based on proximity would essentially negate the element of a distinct injury, and such a strained interpretation of the requirement finds no support in the case law.” Petitioners appealed.

In Vasser v. City of New Rochelle, 2020 N.Y.Slip Op. 00868, Index No. 2017-11116, February 5, 2020, the Appellate Division, Second Department affirmed the Supreme Court’s determination. In its decision, the Court reiterated the law of standing as it relates to zoning amendments and land use decisions stating,

“Standing is, of course, a threshold requirement for a plaintiff seeking to challenge governmental action” (New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405). The petitioner “has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated” (Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 6, 988 N.Y.S.2d 115, 11 N.E.3d 188). Additionally, in land use matters, the petitioner “ ‘must show that it would suffer direct harm, injury that is in some way different from that of the public at large’ ” (Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d 301, 310, 22 N.Y.S.3d 388, 43 N.E.3d 745, quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034). Allegations of harm must not be conclusory or speculative (see e.g. Matter of Panevan Corp. v. Town of Greenburgh, 144 A.D.3d 806, 808, 40 N.Y.S.3d 530).”

The Court found that petitioners’ residences were approximately 1,200 to 1,800 feet from the proposed development, not adjacent to the subject property but several streets and building lots away, separated by another housing complex. Additionally, the court determined that petitioners’ claims were speculative and unsubstantiated and failed to establish that they would suffer any direct injury-in-fact different in kind or degree from that experienced by the public at large.   Accordingly, the Court affirmed the Supreme Court’s determination to dismiss the proceeding for lack of standing.

 

Several prior blog posts discussed standing requirements under the State Environmental Quality Review Act (SEQRA) and the timeliness of challenging a SEQRA determination. A decision from the Appellate Division, Third Department, Schulz v Town Board of the Town of Queensbury, issued on October 24, 2019, involved both of these elements and was a one-two punch that knocked out a challenge to a municipal decision. Here are the pertinent facts.

The Town of Queensbury Sanitary Sewer Project 

The Town of Queensbury began considering establishing a sanitary sewer district for a portion of the Town in 2013. The Town determined the project was an Unlisted Action under SEQRA and in January 2016, the Town Board adopted a resolution indicating it intended to serve as Lead Agency.  At the conclusion of its September 12, 2016 public hearing on the proposal, the Town Board completed its review under SEQRA and issued a negative declaration, finding that the proposed sewer district would not have any potential significant adverse environmental impacts. The Town then approved a resolution to establish the sanitary sewer district, subject to a permissible referendum. Notice of the adoption of the resolution was thereafter published and no petition for referendum was filed.

In December 2016, the Town submitted an application for approval of the district to the State Comptroller, which was granted on November 10, 2017. The Town then adopted the final order establishing the sanitary sewer district on November 20, 2017. In January 2018, the Town Board adopted a resolution authorizing the issuance of approximately $1.9 million in serial bonds and bond anticipation notes to pay for the cost of the project. On March 1, 2018, the Town closed on $325,000.00 of the authorized financing.  On July 2, 2018, the Town Board accepted a bid to construct the sanitary sewer project.

Mr. Schulz did not participate in the public hearing that preceded the SEQRA negative declaration and sewer resolution. Rather, at the October 2016 Town Board meeting, he read into the record and submitted a “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” He submitted another “Petition for the Redress of Grievances” at the June 4, 2018 Town Board meeting. The Town did not respond to either of these documents.

On July 2, 2018, Mr. Schulz commenced an action against the Town Board and Town officials, seeking declaratory and injunctive relief and a temporary restraining order to stop the project. The Town cross-moved to dismiss the action, which cross-motion was granted by the trial court.  In the Trial Court Decision, issued September 19, 2018, the trial court determined that Mr. Schulz’s SEQRA claims were time-barred. The trial court also ruled that his constitutional claims failed to state a claim. Mr. Schulz’s motion to reargue and renew was subsequently denied by the trial court.

The Appellate Division Decision

On appeal to the Appellate Division, Third Department, the Court first evaluated the SEQRA issue and determined that Mr. Schulz lacked standing. The Court noted that Mr. Schulz failed to show how he would suffer direct harm and also failed to demonstrate how his claimed injury was different from an injury to the public at large. The Court pointed out that Mr. Schulz did not reside in the Town and that while part of his homestead may have straddled the Town boundary line, his property was 15 miles away from the sanitary sewer district.

The Court was equally blunt about the untimeliness of his SEQRA challenge. The Court noted that the negative declaration was issued in September 2016 and the final approval of the sewer district occurred in November 2017. His lawsuit was commenced almost eight months later, in July 2018. The Court ruled that Mr. Schulz could not skirt the four-month statute of limitations applicable to a SEQRA challenge by casting his claims in the form of declaratory or injunctive relief causes of action. Furthermore, his allegations that he was entitled to a longer period of time to sue because he claimed the Town Board knowingly lied in the SEQRA documentation which prevented him from suing sooner was rejected by the Court because he had not included a separate cause of action for fraud.

The Court also rejected his constitutional claims, noting that Mr. Schulz was not prevented from filing his “grievance petitions,” but also noting that nothing required the Town to listen or respond to these petitions.  The Court stated that “[r]equiring a response to every petition, especially in this digital age in which petitions can be copied and circulated with great speed and ease, could create a crushing burden on governmental agencies and officials and waylay them from performance of their duties.”

 

 

The Appellate Division recently issued a decision that explained why a massage therapist and the American Massage Therapy Association, (AMTA), a professional organization of massage therapists, lacked standing to challenge a local law enacted by the Town of Greenburgh.  At issue in Matter of American Massage Therapy Association v Town of Greenburgh  was  a  local law that  required massage therapists to obtain licenses from the Town.  The local law was inapplicable to solo practitioners.

The petitioners contended that the enactment of the local law violated the State Environmental Quality Review Act (SEQRA) and the Open Meetings Law.  They also contended that the local law was preempted by state law.

The appellate court affirmed the dismissal of the proceeding by the trial court, noting that petitioners lacked standing to challenge the local law.  First, the appellate court explained that standing requires a party to have “an interest in the claim at issue to the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.”   More particularly, the  petitioner must establish “an injury in fact that falls within the relevant zone of interests sought to be protected by law.”   An injury in fact requires a showing that the petitioner “will actually be harmed by the challenged action, and that the injury is  more than conjectural.”   The Court also noted that an organization must demonstrate that at least one of its members  has standing in order it to have standing.

As the individual petitioner was a solo practitioner and expressly exempted from coverage by the local law, the Court found that the therapist did not have standing because any supposed injury that therapist could sustain was conjectural. As to the AMTA, the Court determined that it failed to establish standing as it did not present any evidence that the individual petitioner or any other member was covered by the local law.

In Schmidt v. City of Buffalo Planning Bd., 174 A.D.3d 1413 (4th Dept., July 31, 2019), the petitioner, Terrence Robinson, filed suit to prevent the demolition of an architecturally significant apartment complex, claiming that the City Planning Board failed to comply with the State Environmental Quality Review Act (SEQRA) when it adopted a negative declaration of environmental significance on an application to redevelop the site. The appellate court affirmed the lower court’s order and judgment, dismissing Mr. Robinson’s claims for lack of standing.

Buffalo City Hall

In its opinion, the Court reminded that “[t]hose seeking to raise SEQRA challenges must establish both an environmental injury that is in some way different from that of the public at large, and … that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” 174 A.D.3d at 1413 (internal citations and quotations omitted). Petitioner, an architecture enthusiast, claimed he would suffer sufficient injury to confer standing upon him because he had a specific interest in visiting and photographing the apartments, and in historic preservation generally. The appellate court rejected petitioner’s argument, writing that “[i]nterest and injury are not synonymous … A general — or even special — nterest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case. Here, petitioner’s appreciation for historical and architectural sites does not rise to the level of injury different from that of the public at large for standing purposes.” Id.

The injuries Mr. Robinson alleged in support of his standing argument are reminiscent of those successfully advanced by the petitioners in Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297 (2009). There, the individual petitioners were members of an organization dedicated to the use and appreciation of the Albany Pine Bush, an environmentally significant region in Albany, New York. The petitioners sued the City’s Common Council to prevent a hotel development near the Butterfly Hill area of the Pine Bush, a known habitat of the endangered Karner blue butterfly and other protected and endangered species. The New York Court of Appeals ruled that the individual petitioners demonstrated sufficient injury for standing under SEQRA because they use the Pine Bush for recreation, study, and to enjoy the unique habitat there and, therefore, would be harmed in a manner different from the public at large if that ecosystem were disrupted by the proposed development. 13 N.Y.3d at 921-22.

The Court of Appeals decision in Save the Pine Bush, Inc., is not discussed or cited in the Fourth Department’s opinion in Schmidt. Nonetheless, the differing outcomes on the issue of standing beg the question: When does a petitioner’s “interest” in an environmental resource cross the threshold from a mere interest into something sufficient to confer standing? Similar to the petitioners in Save the Pine Bush, whose injury derived from their interest in visiting and studying an environmentally significant area, Mr. Robinson’s alleged injury arose from his interest in visiting and photographing an architecturally significant apartment building. For admirers of great architecture, is the loss of an architecturally significant building not the same as the extinction of an endangered species for a lover of nature?

A copy of the Court’s decision can be accessed on the Fourth Department’s website: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2019/07-31-19/alpha.shtm.

A recent case from the Appellate Division, Second Department, addresses one of our favorite topics, standing. It is a cautionary tale about how not to establish standing.

Tilcon New York, Inc. v Town of New Windsor involved a hybrid proceeding in which the plaintiff/petitioner asserted nine separate causes of action. The appellate court determined that plaintiff/petitioner lacked standing on each of the causes of action, resulting in the dismissal of the petition/complaint.

The case stems from a 2013 lease between Jointa Lime Company (Jointa) and the Town of New Windsor (Town) for Town-owned property. The lease expired in April 2016. Prior to the lease expiring, Jointa requested that it become a month-to-month tenant and the Town agreed, with the proviso that the Town could terminate the tenancy on 30-days’ notice. Jointa remained in possession after April 2016 and the Town continued to accept the monthly rent payments.

In May 2016, Tilcon New York, Inc. (Tilcon) commenced the hybrid proceeding. Tilcon is a business competitor of Jointa. Tilcon claimed that the month-to-month holdover tenancy violated Town Law §§ 29(11) and 64(2), General Municipal Law (GML) §§ 51 and 103 and the State Environmental Quality Review Act (SEQRA).

On appeal, the Appellate Division determined that Tilcon lacked standing on all of its asserted claims. First, the appellate court explained that standing requirements “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case” and that “each element must be supported in the same way as any other matter on which the plaintiff bears the burden.” The appellate court further noted that in order to sustain a challenge to a governmental action, a plaintiff/petitioner must show “it will suffer direct harm, injury that is in some way different from that of the public at large,” and that the alleged in-fact injury “falls within the zone of interests, or concerns, sought to be promoted or protected by the statutory provisions under which the agency has acted.” The appellate court also noted that “a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue” even if the “issue may be one of vital public concern.”

With these principles in mind, the appellate court then turned to the myriad of causes of action asserted by Tilcon against the Town.

Tilcon claimed that the Town violated Town Law §§ 29(11) and 64(2) by failing to comply with statutory requirements applicable to leasing. The appellate court found that Tilcon “failed to describe any injury to itself, either actual or potential, that has resulted from these alleged violations, much less an injury different from the general injury to the public at large that results from the Town’s alleged violation of the procedural requirements for leasing real property.” The court further noted that Tilcon, at best, may have suffered increased business competition, which the court found was insufficient to support standing.

The appellate court next dealt with the claims asserted against the Town Zoning Board of Appeals (ZBA). The appellate court noted that Tilcon was not a party to those proceedings and the decision was not adverse to Tilcon. As a result, the court found that Tilcon lacked standing for the claim asserted against the ZBA because “Tilcon failed to demonstrate it suffered an injury-in-fact distinct from the public at large.”

The appellate court next turned it focus to the claims made under SEQRA. It noted that “a generalized interest in the environment” was insufficient to establish standing under SEQRA. Similarly, the court found that Tilcon only alleged economic injury, and did not allege any environmental injury that was different from the public at large. As a result, Tilcon lacked standing to assert claims under SEQRA.

The appellate court also rejected Tilcon’s GML § 51 challenge. Tilcon was found not to have standing under that section, which “authorizes taxpayer suits to prevent waste, collusion, fraud, or other illegal acts” because Tilcon failed to include any such allegations. Rather, at most, the court noted that Tilcon may have alleged a failure to follow statutory procedure, which “does not constitute the fraud or illegality necessary to support a taxpayer action pursuant to section 51.”

Finally, the appellate court rejected Tilcon’s claims for common-law taxpayer standing. That type of claim is reserved for challenges to “important governmental actions” where “the failure to accord such standing would be in effect…an impenetrable barrier to any judicial scrutiny of legislative action.” Here, the month-to-month holdover lease was found not to be of “appreciable public significance beyond the immediately affected parties.”

This case makes it abundantly clear that standing is an essential element of challenges to municipal determinations. A petitioners needs to show more than dissatisfaction with the municipal decision. It has to explain in detail how it is injured, how its injury is different from the public at large and how it falls within the zone of interests sought to be protected by the statute under which the municipality acted. Failure to make this factual showing will doom a challenge on standing grounds.

 

In The Committee for Environmentally Sound Development v. Amsterdam Avenue Development Associates, LLC, 2019 WL 1206357, 2019 N.Y. Slip Op. 30621(U), Index No. 153819 (Sup. Ct. New York Co., March 14, 2019), the Supreme Court, New York County, granted a petition to annul a resolution upholding the issuance of a building permit (“Permit”) for the construction of a 55-story mixed commercial-residential tower (“Project”) because the interpretation of the applicable zoning resolution had changed after forty years. The Project site is comprised of 110,794 square-feet and is located at 200 Amsterdam Avenue, New York, New York (“Property”), within a zoning block bounded by Amsterdam Avenue, West 66th Street, West End Avenue and West 70th Street (“Block”).

The Block was originally a single, large zoning lot containing the Lincoln Towers condominium buildings. In 1977, the Block was subdivided into two separate zoning lots: one zoning lot contained the Lincoln Towers (“Lincoln Lot”) and the other zoning lot would ultimately, in effect, become the Property.[1] Zoning lots and tax lots are two distinct concepts, and the distinctions and interpretations thereof under New York City’s (“City”) zoning resolution form the basis of the challenge and annulment of the Permit.

Amsterdam Avenue Redevelopment Associates, LLC (“Amsterdam”) sought to develop the Project, and the initial challenge claimed violations of the zoning resolution’s open space requirements. (We discussed the City’s Open Space law recently in a January 2019 Blog.) In May 2017, the City’s Department of Buildings (“City DOB”) concluded the Project satisfied the open space requirements, approved the proposed zoning diagram and issued the Permit (“May 2017 Approval”). The Committee for Environmentally Sound Development (“CESD”) appealed the May 2017 Approval to the City DOB’s Manhattan Borough Commissioner, who issued a notice of objections and intent to revoke the Permit. The City DOB noted it would verify the open space ratio and the proper formation of the zoning lot. In September 2017, the City DOB determined the Project complied with the zoning resolution, lifted the notice to revoke and reissued the Permit (“September 2017 Approval”).

CESD challenged the September 2017 Approval by appealing to the City’s Board of Standards and Appeals (“City BSA”), seeking an interpretation of the zoning resolution pertaining to whether the Property complies with the definition of a “zoning lot.” Specifically, CESD claimed that the Property, made up of parts of several tax lots, was not valid under the City’s zoning resolution and this noncompliance invalidates the Permit. Ultimately, in July 2018, the City BSA denied the appeal and upheld the Permit (“BSA Resolution”). CESD and the Municipal Arts Society of New York (“MASNY”) commenced an Article 78 proceeding seeking to annul the BSA Resolution, revoke the Permit and halt the Project’s construction.

CESD and MASNY argued the BSA Resolution should be annulled and the Permit invalidated because the 39-sided zoning lot comprising the Property is not a proper zoning lot within the meaning of the zoning resolution, i.e. it is comprised of several partial tax lots and, so, it is neither unsubdivided nor consists of two or more lots of record. Amsterdam argued the Permit was properly granted as per the historical interpretation of “zoning lot” under the City’s zoning resolution. In pertinent part, Amsterdam relied upon a City DOB Departmental Memorandum of Acting Commissioner Irving Minkin from 1978 (“Minkin Memorandum”), which summarizes a number of amendments to the definition of “zoning lot” at the time, and concluded that a single zoning lot may consist of one or more tax lots or parts of tax lots.

However, during the appeal before the City BSA, the City DOB’s Assistant General Counsel submitted a letter (“DOB Letter”) in which he agreed with CESD’s and MASNY’s interpretation of the definition of “zoning lot,” and admitted the Minkin Memorandum was incorrect. The DOB Letter also indicated that the City DOB began writing a departmental bulletin to clarify the proper procedures and forms required to create and verify proper formation of a zoning lot: “[i]n the context of the subject appeal, the Minkin Memo[randum’s] incorrect interpretation…came to light.” The correct interpretation does not permit a “zoning lot” to consist of parts of tax lots.

Despite this, the DOB Letter requested that the City BSA affirm the September 2017 Approval based upon the Minkin Memorandum because: (i) the Minkin Memorandum is not unreasonable (albeit incorrect); (ii) the September 2017 Approval is based upon a 40-year longstanding interpretation of the zoning resolution; and (iii) the Minkin Memorandum was not yet rescinded.

The Supreme Court granted the petition and annulled the BSA Resolution, which upheld the Permit, based upon the DOB Letter, among other things. The Court held the BSA Resolution is unreasonable because it failed to address the merits of CESD’s appeal of the Permit, i.e. interpreting a “zoning lot,” and it ignores the City DOB’s determination that the Minkin Memorandum is flawed, thus leaving the issue unresolved. Moreover, the BSA Resolution is inconsistent with the zoning resolution as interpreted by the City DOB. The City DOB stated that the Minkin Memorandum was incorrect at the time of CESD’s appeal, but the City DOB chose not to act on its draft bulletin and planned to hold the same in abeyance until the resolution of the issues herein. The City BSA’s decision to adhere to an admittedly wrong historical interpretation on the basis that it has not formally rescinded or superseded is erroneous. “[B]y publicly correcting its interpretation of [the zoning resolution] during [the appeal before the City BSA], the [City] DOB undermined the statutory basis for its issuance of the Permit in the first instance.”

The Court remanded the matter back to the City BSA  and instructed the City BSA to review the Permit in accordance with the plain language of the zoning resolution and in accordance with its decision. The ruling follows the well-settled principle that, absent narrow exceptions (e.g. bad faith), the present interpretation or effect of the law at the time of the review of a determination applies – not the interpretation or effect at the time the challenged determination was made.

[1] The Lincoln Lot consisted of portions of tax lots 1, 30, 70 and 80 and the entirety of tax lot 90; the other lot consisted of portions of tax lots 1, 30, 70 and 80 and the entirety of tax lots 10, 12 and 65 (“Other Lot”). In 2005, tax lots 1, 30, 70 and 80 became condominium lots 7501, 7505, 7502 and 7503, respectively. In 2007, tax lots 133 and 134 merged into the Other Lot. (At one point or another, tax lot 12 was reapportioned into tax lots 12 and 18). In 2012, tax lot 65 became condominium lot 7506 and merged with the Other Lot. Lastly, in 2015, tax lots 10, 12, 18 and portions of condominium lots 7501 and 7505 were subdivided out of the Other Lot. Thus, the Other Lot ultimately consists of portions of condominium lots 7501, 7505, 7502 and 7503, the entirety of condominium lot 7506 and tax lots 133 and 134, and these comprise the Property.

Over the past several years, this blog has presented several posts on the topic of standing. It is a frequent topic because it is often raised as a threshold issue in zoning and land use cases. If a challenger to an administrative decision fails to establish it has standing, the challenge will be dismissed even before the Court reaches the merits.

A decision from the Appellate Division, Second Department, issued on February 20, 2019, involved an interesting take on standing. In Matter of City of Rye v Westchester County Board of Legislators, the City of Rye (City) tried to upend a negative declaration issued by the Westchester County Board of Legislators (County) under the State Environmental Quality Review Act (SEQRA) in connection with several proposed projects at Playland Park (Park), an amusement park. The Park is owned by the County and is located entirely within the City’s boundaries.

The facts are set forth in the Trial Court Decision, Order and Judgment, issued March 20, 2017. In August 2010, the County sought proposals to reinvent the “iconic and historic Playland Park to thrive in the 21st century” through private redevelopment, “in a way that maximizes its resources and location, while reducing the financial burden to taxpayers of operating Playland Park.” In July 2013, the County entered into an agreement with Sustainable Rye Playland, Inc., to be the manager and operator of the Park.

A dispute arose between the County and the City as to which would act as lead agency for the proposed projects. The City requested that the New York State Department of Environmental Conservation (NYSDEC) determine which governmental entity should be the lead agency, but the NYSDEC never made that determination, as the agreement with Sustainable Rye Playland, Inc. was terminated and the City thereafter withdrew its lead agency dispute.

In August 2015, Standard Amusements LLC entered into an agreement with the County to operate and manage the Park and to undertake certain redevelopment projects at the Park.  In January 2016, the County Director of Planning prepared a Full Environmental Assessment Form for projects to renovate the parking, plaza and games structures at the Park. After several public meetings were held, the County, in May 2016, adopted a negative declaration resolution for the projects.

Two months later, in July 2016, the City advised the County that it objected to the County declaring itself the lead agency, and contended that the County failed to give appropriate notice of the May 2016 meeting. Later in July, the County issued a notice of the negative declaration to “Involved/Interested Agencies,” including the City. The City and the two individual petitioners sued.

As to the two individual petitioners, the trial court recited the requirements to establish standing.  A petitioner that is challenging an administrative decision has to show that it  “sustained or will sustain an injury-in-fact, which injury is within the zone of interests promoted or protected by the statutory provision under which the administrative officer has acted, and that the harm the petitioner suffered from such injury is different in some way from that suffered by the public at large” (citing the landmark case of Matter of Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991]). The trial court noted that in SEQRA cases, the injury-in-fact must be environmental in nature. The trial court also noted that when standing is raised, “perfunctory allegations of harm” are not sufficient, and petitioners “must prove that their injury is real and different from the injury most members of the public face” (citing to Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 [2009]). The trial court determined that neither individual petitioner met this burden of proof and also rejected their claims that their properties were in close proximity to the project site to raise a presumption of injury. One of the properties was within 150 feet from the boundary line of the Park site, the other was about a mile away. Neither petitioner got the presumption because, as the trial court noted, proximity is measured from the petitioner’s property to the actual site of the project at issue, and not from the nearest boundary line of the entire parcel it is located on. As to the alleged injury, complaints about being able to see the lights of the rides, or park visitors parking illegally along the streets of a petitioner’s neighborhood, already existed and were not related to, or a consequence of, the proposed projects.

Turning to the City’s standing, the trial court noted that the entire Park is located within the borders of the City, but the proximity inference  does not operate the same way for a municipal entity.  Rather, a municipal entity has to “articulate a specific municipal interest in the potential environmental impacts of the action being challenged” from the County’s alleged failure to comply with SEQRA. For example, standing has been conferred when the lead agency failed to consider the impact on a municipality’s community character in connection with the approval, or when the action is inconsistent with the surrounding density zones in adjacent villages and could lead to substantial residential development in an adjoining town or adversely affects the municipality’s water supply. The trial court concluded the City did not have standing under this theory.

The trial court then evaluated the City’s claim of standing due to its role as an “involved agency.” The trial court noted that an “involved agency” “has jurisdiction by law to fund, approve or directly undertake an action.”  The trial court noted that the City did not directly allege it was an “involved agency” in the petition. Instead, the City contended the County’s “actions have materially diminished Rye’s ability to promote, protect and improve the quality of life for its residents and to protect and, where possible, enhance the environment” or “violated Rye’s city code and undermined Rye’s efforts and plans to enhance and promote its status as a coastal city on Long Island Sound by protecting natural resources.”

The trial court applied a balancing test to determine if the County’s actions were or were not exempt from the City’s zoning code and other local laws.  The factors it used included (1) the nature and scope of the entity seeking immunity from the local laws, (2) the land use involved with the project; (3) the extent of the public interest served by the project, (4) the effect the local laws have on the project, and (5) the impact on legitimate local interests. The trial court found that balancing the public interests favored the County. It noted that the Park had been in existence for almost a century, prior to the City’s existence; the City did not identify any state law that gives it express authority to permit, approve or regulate the County’s use of the Park; and the County’s action, although exempt from City oversight, was subject to oversight, in particular via the various public hearings involved in the approval process. The trial court, therefore, concluded the City lacked standing as an “involved agency.”

The Second Department affirmed the determination of the trial court, dismissing the proceeding because the City lacked standing. First, the appellate court discussed and rejected the City’s assertion that it had standing because it was an “involved agency” under 6 NYCRR 617.2[t], because it found that the proposed development projects are immune from local zoning and land use laws.   The appellate court then discussed and rejected the City’s assertion it had standing based on its “interest in the potential environmental impacts of the development projects on the City of Rye’s community character.” The appellate court also affirmed the lack of standing of the two individual petitioners, noting that both had failed to demonstrate that they suffered an injury-in-fact that fell within the zone of interests protected by SEQRA.

So, what’s the takeaway?  When confronted with a challenge to an administrative decision, a municipality should always evaluate whether or not a petitioner has standing, regardless of whether the challenge is from a governmental entity, non-governmental entity or person.

 

Standing is a threshold issue in challenges to administrative decisions.  Prior blog posts have dealt with standing in cases involving challenges to local land use and zoning decisions.  If standing is not established, the party seeking to overturn the administrative decision will see its proceeding dismissed without any consideration of the merits.  Whether a party has standing is quite fact-sensitive but there are certain overarching principals that should be remembered.  Most notably, a petitioner must show in its pleadings that it suffered a harm that is different from the harm suffered by the general public, that the harm is within the zone of interest sought to be protected by the applicable statute, and that the alleged harm is not speculative.

Late last month, the Appellate Division, Third Department, issued two companion decisions that caught our “standing” attention. While the cases involve a challenge to a loophole in the Election Law for limited liability companies, referred to as the LLC Loophole, the matters were resolved on the basis of the lack standing of the petitioners.  In these cases, petitioners raised interesting arguments that they thought would support their standing to challenge an administrative decision, but the Court found them unpersuasive.  The Court’s evaluation of the standing claims may be helpful to those seeking to establish or to defeat standing in the land use and zoning matters.

The Facts     

According to the decisions,  Brennan Center For Justice v. NYS Board of Elections (Docket 524905) and Brennan Center For Justice v. NYS Board of Elections (Docket 524950), petitioners were the Brennan Center For Justice at NYU Law School (the “Brennan Center”), a self-described “not-for-profit, non-partisan public policy and law institute that focuses on issues of democracy and justice” and six individual petitioners who were current or former legislators or candidates for legislative office. Respondent, the New York State Board of Elections, (“Board of Elections”), was described in the decisions as “a bi-partisan agency governed by four appointed commissioners and vested with the statutory authority to issue instructions, rules and regulations pertaining to campaign financing practices, among other things.”

New York State’s Election Law contains provisions that limit campaign contributions for various types of donors.  When limited liability companies were authorized in New York in 1994, the Legislature did not amend the Election Law to address campaign limits for this type of entity. In 1996, the Board of Elections issued an opinion that treated limited liability companies as individuals for purposes of campaign contribution limits. This allowed limited liability companies to donate larger amounts to campaigns than corporations or partnerships could donate. While there were efforts legislatively to close the LLC Loophole, none were successful.

In April 2015, one of the commissioners of the Board of Elections sought to close the LLC Loophole by making a motion to direct the board’s counsel to rescind the 1996 opinion and provide guidance on limits that should apply to contributions by limited liability companies. The motion failed, whereupon the Petitioners sought review in a hybrid Article 78 proceeding and declaratory judgment action (“Hybrid Proceeding”). The Supreme Court dismissed the Hybrid Proceeding, which the Appellate Division affirmed in one of the companion decisions.

In April 2016, one of the commissioners made a new motion seeking approval of a draft opinion that would rescind the 1996 opinion and replace it with an opinion that treated limited liability companies in the same manner as partnerships and corporations with respect to campaign contribution limits. This motion also failed. Petitioners commenced another Hybrid Proceeding seeking to invalidate what the Board of Elections did in April 2016 and to replace the 1996 opinion with the 2016 draft opinion. The Supreme Court dismissed the second action, and the Appellate Division affirmed in the second companion decision.

The Appellate Division Decisions

In both cases, the Appellate Division found that the individual petitioners lacked standing. The appellate court found that their claims of harm – that the LLC Loophole “hampers their electoral campaigns by placing them at a competitive disadvantage against opponents who receive large contributions,” “damages their ability to represent their constituents,” harms the voters by “limiting their choices among candidates and hiding the identity of donors,” and “would cause them to suffer disadvantages in future elections” did not confer standing. The court found all these claims to be neither different nor distinct from those of the public at large and were also conjectural.

Similarly, the appellate court found that the Brennan Center lacked standing. The Brennan Center claimed the LLC Loophole “harms its staff contributors and volunteers by limiting their candidate choices and unduly influencing their political representatives.” The appellate court found that this alleged harm was no different than the harm suffered by the general public and did not support standing. The appellate court also rejected the Brennan Center’s claim that it was injured by having to advocate for the closure of the LLC Loophole, which required it to expend resources. The majority also noted that petitioners could not establish standing by claiming that the LLC Loophole caused disparities in campaign contributions, wryly noting that the “[o]ur political system does not mandate equal funding for all candidates.”

The Appellate Division also found that the courts were not the appropriate place to fix the LLC Loophole. Rather, it “resolved around policy choices and value determinations constitutionally committed to the legislative and executive branches.”

Moral Of The Story

As to the applicability of these decisions to Land Use and Zoning – the bottom line is never forget “standing.”  It is a fundamental element that must be established by petitioners and a fundamental defense that should be considered and raised, if applicable, by respondents, in challenges to governmental actions. As noted in the decisions and in the introductory paragraphs, above, petitioners must show “that they have suffered an injury-in-fact and that the injury is within the zone of interest protected by the statute at issue.” Otherwise they will be found to lack standing and will be unable to challenge a determination on the merits.