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Petitioners Failed to Show the Noise from a Train Affected Them Differently From the Public at Large/Therefore the Petitioners Did Not Have Standing to Raise a Challenge to the Source of the Noise Under the State Environmental Quality Review Act/Purpose of the Standing Requirement in this Context Explained

The Fourth Department determined the petitioners did not have standing to bring  a proceeding to raise a challenge under the State Environmental Quality Review Act (SEQRA) because the noise complaints stemming from a train running through town did not affect the petitioners differently from the public at large.  The train runs through the town pursuant to resolutions allowing the town to sell excess municipal water to a buyer in Pennsylvania.  The Fourth Department noted that the complaints related solely to the operation of the train, not to the operation of the “transloading facility” where the water is loaded onto the trains:

There is no dispute that “[c]ourts surely do provide a forum for airing issues of vital public concern, but so do public hearings and publicly elected legislatures, both of which have functioned here. By contrast to those forums, a litigant must establish its standing in order to seek judicial review” … . “With the growth of litigation to enforce public values, such as protection of the environment, the subject of standing has become a troublesome one for the courts” … . “ ‘[I]njury in fact’ has become the touchstone” for standing …, because “[t]he existence of an injury in fact–an actual legal stake in the matter being adjudicated–ensures that the party seeking review has some concrete interest in prosecuting the action” … .

It is well established that “[s]tanding requirements ‘are not mere pleading requirements but [instead are] an indispensable part of the plaintiff’s case[,]’ and therefore ‘each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof’ ” … . Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise” a challenge under the State Environmental Quality Review Act ([SEQRA] ECL art 8) based solely on a party’s proximity … . In such a situation, the party seeking to establish standing must establish that the injury of which he or she complains “falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected” …, and that he or she “would suffer direct harm, injury that is in some way different from that of the public at large” … .

While we agree with petitioners that noise falls within the zone of interests sought to be protected by SEQRA (…see generally ECL 8-0105 [6]), we conclude that respondents met their burden of establishing as a matter of law that [petitioner] did not sustain an injury that was different from that of the public at large. Matter of Sierra Club… v Village of Painted Post, 202, 4th Dept 3-28-14

 

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Criteria for Judicial Review of Agency’s Action Under the State Environmental Quality Review Act Explained

The First Department determined Supreme Court should not have declared that the NYC Industrial Development Agency’s [IDA’s] issuance of a negative declaration (finding no further environmental review necessary for a project in the Bronx) violated the State Environmental Quality Review Act (SEQRA).  In so finding, the First Department explained the criteria for court review in this context:

“‘[J]udicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure'” …. “[T]he courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'” … .

Our review of the record establishes that the determination of IDA not to require a Supplemental Environmental Impact Study (SEIS) was not affected by an error of law, arbitrary and capricious, or an abuse of discretion … . Likewise, the record reflects that, as the lead agency, IDA identified the relevant areas of environmental concern related to the proposed action (including traffic, air quality and noise impact), took the requisite “hard look” at them and, in its negative declaration, set forth a reasoned elaboration of the basis for its determination that a SEIS [Supplemental Environmental Impact Statement] was not required … . Thus, Supreme Court should have declared that IDA’s issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. Matter of South Bronx Unitd! v New York City Indus Dev Agency, 2014 NY Slip 02132, 1st Dept 3-27-14

 

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Challenge to Environmental Impact Statement Premature/Not Ripe for Adjudication Until the Special Use Permit and Site-Plan Approval (which Precipated the Enviromental Review) Are Issued

The Second Department determined a challenge to finding pursuant to the State Environmental Quality Review Act (SEQRA) was not ripe.  The environmental review was precipitatied by an application for a special use permit and site-plan approval.  Although the town board had approved the final environmental impact statement (FEIS), the special use permit and site-plan approval were still pending:

An action taken by an agency pursuant to SEQRA may be challenged only when such action is final (see CPLR 7801[1]). An agency action is final when the decisionmaker arrives at a ” definitive position on the issue that inflicts an actual, concrete injury'” … . The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party … .Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication… . Matter of Patel v Board of Trustees of Inc Vil of Muttontown, 2014 NY Slip Op 01756, 2nd Dept 3-19-14

 

Society Supporting Protection of Preservation Area Had Standing to Challenge Waiver Allowing Business to Operate in Area

The Second Department determined that the petitioners had standing to challenge the planning commission’s determination that the respondents should be granted a hardship waiver (Environmental Conservation Law 57-0121(10)) to continue a commercial landscaping and horticultural services business in a preservation area (Long Island Central Pine Barrens).  Richard Amper, in his capacity as Executive Director of the Long Island Barrens Society, Inc, opposed the granting of the waiver and brought the underlying Arcticle 78 proceeding.  The Second Department determined the respondent had met the requirements for a hardship waiver.  On the question of standing, the Second Department wrote:

…[T]he Supreme Court erred in holding that the petitioners lacked standing to challenge the determination. Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v County of Suffolk (77 NY2d 761). As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that “one or more of its members would have standing to sue” as an individual (id. at 775). An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773 …). In Matter of Save the Pine Bush, Inc. v Common Council of City of Albany (13 NY3d 297), the Court of Appeals held that, in land-use and environmental cases, “a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing . . . to challenge government actions that threaten that resource” (id. at 301). Here, the petitioners established that Amper, in both his individual and professional capacities, uses and enjoys the Pine Barrens to a greater degree than most other members of the public. The fact that Amper lives some distance from the property in question is not dispositive (see id. at 305…). Further, the petitioners established that the threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens falls within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993 (L 1993, ch 262) (hereinafter the Act) … . Thus, Amper has standing to sue individually, and his standing satisfied the first prong of the test for the Society’s organizational standing. The Society meets the second and third prongs of the organizational standing test, namely that its interests in the instant proceeding are germane to its purposes, and that “neither the asserted claim nor the appropriate relief requires the participation of the individual members.” Therefore, the Society also has standing to challenge the Commission’s determination (id. at 775). Matter of Long Is Pine Barrnes Socy, Inc v Central Pine Barrens Joint Planning & Policy Commn, 2014 NY Slip Op 00511, 2nd Dept 1-29-14

 

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Valid State Purpose (Conserving Drinking Water) Did Not Relieve State of Liability Re: Breach of an Agreement to Provide a Certain Amount of Water to a Hydroelectric Power Provider

The Third Department determined that a contract with a hydroelectric power provider requiring a certain amount of water to be released from a reservoir was unambiguous and therefore must be enforced.  The amount of water released was less than called for in the contract due to a drought and concerns about the drinking water supply:

The parties to the agreement intended to resolve a dispute after defendants took claimant’s predecessor’s land in eminent domain.  Claimant’s predecessor wanted to ensure that sufficient water would reach its hydroelectric generation facility and accepted a considerably smaller amount of money than it sought, in exchange for the rights associated with the water release rates from the reservoir.  These rights would be far less valuable if defendants could deviate from the operating diagram’s release rates, and avoid liability in doing so, as long as defendants supported their actions with any State purpose. Pursuant to the agreement, defendants could only avoid liability if they deviated from the operating diagram’s release rates for a State canal use or purpose.  Because defendants altered the release rate for the purpose of preserving safe drinking water during a drought – a legitimate public and State purpose (see ECL 15-0105 [5]) – and not for a canal-related purpose, defendants are liable for breaching the contract… .  Erie Boulevard Hydropower v State, 516510, 3rd Dept 1-9-14

 

Strict Liability for Clean Up of Petroleum Spilled Between 1890 and 1935

The Fourth Department determined the current owners of land contaminated with petroleum between 1890 and 1935 were strictly liable for clean-up under the Navigation Law, despite intervening use of the land as a scrap yard:

We conclude that plaintiffs established their entitlement to a determination that defendants are contributing “dischargers” pursuant to Navigation Law § 172 (8) and thus are strictly liable under section 181 (1) for, inter alia, the cleanup and removal costs…, despite the fact that the parcels subsequently were the sites for various commercial operations that also may have contributed to the contamination of the properties, including a scrap yard.  …

Plaintiffs provided the affidavits of two experts explaining that samples taken from depths of 6 to 14 feet below the surface contained contaminants that are consistent with refinery operations and that, based upon the age and depths of the samples, could only have been caused by the refinery operations. One Flint St LLC… v Exxon Mobil Corporation…, 1281, 4th Dept 12-27-13

 

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Criteria for Review of Agency’s Condemnation of Land Explained/Failure to Consider Future Development of Land Did Not Constitute Improper Segmentation of Environmental Impact Review

The Fourth Department determined the condemnation of land by the Lockport Industrial Development Agency (LIDA) and the related State Environmental Quality Review Act (SEQRA) review were properly done. The court determined that the failure to consider future development of the land did not amount to an improper segmentation of the SEQRA review process: The court explained its review powers in this context as follows:

It is well settled that the scope of our review of LIDA’s determination is “very limited” … .  We must “ ‘either confirm or reject [LIDA’s] determination and findings,’ and [our] review is confined to whether (1) the proceeding was constitutionally sound; (2) [LIDA] had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use” (id.; see EDPL 207 [C]).  “The burden is on the party challenging the condemnation to establish that the determination ‘was without foundation and baseless’ . . . Thus, ‘[i]f an adequate basis for a determination is shown and the objector cannot show that the determination was without foundation, the [condemnor’s] determination should be confirmed’… . * * *

Although LIDA considered only the impact of the acquisition and not the impact of potential development, we reject [the] contention that LIDA thereby improperly segmented the SEQRA review process (see 6 NYCRR 617.2 [ag]).  Although LIDA intends to sell the property to a potential developer, there was no identified purchaser or specific plan for development at the time the SEQRA review was conducted …, and thus we conclude that under these facts the acquisition is not a “separate part[] ‘of a set of activities or steps’ in a single action or project”… . Matter of GM Components Holdings LLC v Town of Lockport Industrial Development Agency, 1275, 4th Dept 12-27-13

 

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Planning Board’s Determination Subdivision Was Exempt from Conservation Measures Under “Grandfathering” Laws Upheld

The Third Department determined the town planning board’s approval of a final subdivision plan was proper.  The petitioners challenged the approval arguing, in part, that the town’s repeated renewal of grandfathering provisions (under which the subdivision plan was approved) was unlawful. Under the grandfathering provisions, the subdivision was deemed exempt from certain conservation measures. The Third Department disagreed:

“A town’s zoning determination is entitled to a strong presumption of validity; therefore, one who challenges such a determination bears a heavy burden of demonstrating, ‘beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful'” … .  While “[z]oning laws must be enacted in accordance with a comprehensive land use plan” … to establish compliance, “respondents need only show that the zoning amendment was adopted for ‘a legitimate governmental purpose'” and the amendment will not be considered arbitrary unless “‘there is no reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end'” … .  … As set forth in the comprehensive plan, the Town’s primary concerns included “ensuring the community remains a great place to live, work, and visit, attracting new industry and employment opportunities, and conserving the area’s natural resources and remaining open spaces.”  The adoption of the initial grandfathering provision clearly evidenced and furthered the Town’s interest in balancing conservation measures with community development and, particularly, the interests of property owners who had, at the time the comprehensive plan was adopted, invested substantial time and money in developing their property in accordance with previous land use laws and zoning requirements … .

Petitioners have not shown that, under the circumstances here, the challenged extensions … were inordinately lengthy as to render them “arbitrary and unreasonable or otherwise unlawful”… .  Matter of Birchwood Neighborhood Association v Planning Board of the Town of Colonie, 516284, 3rd Dept 12-19-13

 

Petitioners’ Properties Not Close Enough to Proposed Development to Confer Standing to Allege Violations of the State Environmental Quality Review Act (SEQRA)

The Second Department determined petitioners did not have standing to bring an action alleging violations of the State Environmental Quality Review Act (SEQRA) because petitioners’ properties were not sufficiently close to the location of the development project:

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 … . An injury in fact may be inferred from a showing of close proximity of the petitioner’s property to the proposed development … . Generally, the relevant distance is the distance between the petitioner’s property and the actual structure or development itself, not the distance between the petitioner’s property and the property line of the site … . Here, the individual petitioners’ properties were not located in sufficient proximity to the proposed development to give rise to standing … . Matter of Tuxedo Land Trust Inc v Town Bd of Town of Tuxedo, 2013 NY Slip Op 08255, 2nd Dept 12-11-13

 

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Regulations Promulgated by Administrative Bodies Are Quasilegislative Acts—Any Challenge to the Regulations Must Be Brought in an Article 78 Proceeding Alleging the Regulations to Be Arbitrary and Capricious

The Third Department assumed, without deciding, that the plaintiffs, three New York residents and electricity ratepayers, had standing to bring an action challenging the Regional Greenhouse Gas Initiative (RGGI) which implemented a carbon-dioxide-emission cap and trade program for New York power plants.  The challenged RGGI regulations had been promulgated by the Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA). The court determined the complaint was properly dismissed because, although couched in terms of a request for a declaratory judgment, the action should have been brought as an Article 78 proceeding subject to the four-month statute of limitations:

Although declaratory judgment actions are typically governed by a six-year statute of limitations (see CPLR 213 [1]), “a court must look to the underlying claim and the nature of the relief sought and determine whether such claim could have been properly made in another form” …. “Where, as here, governmental activity is being challenged, the immediate inquiry is whether the challenge could have been advanced in a CPLR article 78 proceeding” … .  “While it is well established that a challenge to the validity of legislation may not be brought under [CPLR] article 78, this principle does not apply to the quasilegislative acts and decisions of administrative agencies,” which are subject to a four-month statute of limitations … .

Here, plaintiffs’ first three causes of action challenge the validity of the RGGI regulations promulgated by DEC and NYSERDA pursuant to the statutory authority granted to those respective administrative bodies pursuant to the Environmental Conservation Law and the Public Authorities Law.  The enactment of such regulations was “quasi-legislative” and, as such, plaintiffs’ challenges thereto were capable of being reviewed in the context of a CPLR article 78 proceeding … .  Although at times couched in terms of constitutional infirmity and illegality, the essence of plaintiffs’ claims against DEC and NYSERDA is that the RGGI regulations are “arbitrary and capricious” and that the decision to promulgate such regulations was “affected by an error of law” (CPLR 7803 [3]…).  Thrun v Cuomo, 516556, 3rd Dept 12-5-13

 

 

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