Otsego 2000, Inc. v. Planning Bd. of Town of Otsego

• Decision Date: 31 October 1991
• Parties: In the Matter of OTSEGO 2000, INC., Appellant, v. PLANNING BOARD OF the TOWN OF OTSEGO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 584

575 N.Y.S.2d 584

171 A.D.2d 258

In the Matter of OTSEGO 2000, INC., Appellant, v. PLANNING BOARD OF the TOWN OF OTSEGO et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Oct. 31, 1991.

Burke, Cavalier, Lindy & Engel, P.C., Albany (Andrew W. Gilchrist, of counsel), for appellant.

Dorfman, McCormack, Lynch & Phillips, Nyack (Dennis E.A. Lynch, of counsel), for Five Mile Point Development Corporation, respondent.

Robert K. Anderberg, Ossining, for Open Space Institute, Inc. and others, amici curiae.

Before MAHONEY, P.J., and CASEY, WEISS, MERCURE and CREW, JJ.

CASEY, Justice.

Appeal from a judgment of the Supreme Court (Harlem, J.), entered November 8, 1990 in Otsego County in a proceeding pursuant to CPLR article 78, which denied a motion by petitioner for a preliminary injunction, and dismissed the petition due to petitioner's lack of standing.

At issue on this appeal is whether petitioner, a not-for-profit corporation organized for charitable purposes which include the preservation and promotion of the natural beauty, wholesome environment and varied economic landscape of the Otsego Lake region, has standing to maintain this proceeding to annul a determination of respondent Planning Board of the Town of Otsego in Otsego County which granted, inter alia, preliminary approval of a property owner's application to construct a number of residential units. Petitioner contends that the Planning Board violated the provisions of the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA), the Town's land use law and subdivision regulations, and Real Property Law § 339-f. We agree with Supreme Court that petitioner lacks standing to maintain this proceeding and, therefore, affirm the judgment.

The gist of petitioner's standing claim is that it is vitally concerned with the future of Otsego Lake and its surrounding land, which have unique environmental, ecological, recreational and aesthetic characteristics. According to petitioner, its members include residents of the Town and other communities surrounding Otsego Lake who are interested in these environmental and related land use issues. Based upon these allegations, petitioner claims that the interests it seeks to promote by mounting this challenge to the Planning Board's action are within the zone of interest protected by SEQRA and the Town's land use regulations. As the Court of Appeals recently made clear, however, the zone of interest test is a limitation which the courts have added as a rule of self-restraint to supplement the essential principle of injury in fact, which the court described as the "touchstone" of standing (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772-773, 570 N.Y.S.2d 778, 573 N.E.2d 1034). The court specifically explained:

In land use matters especially, we have long imposed the limitation that the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large * * *. This requirement applies whether the challenge to governmental action is based on a SEQRA violation * * * or other grounds (id., at 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [citations omitted].

There is nothing in the record to indicate that petitioner has standing in its own right to maintain this proceeding. For example, there is no allegation that petitioner is an owner of the property that is the subject of the governmental action (see, Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d 524, 529, 549 N.Y.S.2d 638, 548 N.E.2d 1289). Nor is there any claim that petitioner uses the property that is the subject of the governmental action (see, Matter of Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce v. Williams, 131 A.D.2d 205, 210, 521 N.Y.S.2d 321, affd. 72 N.Y.2d 137, 531 N.Y.S.2d 791, 527 N.E.2d 274). In addition, there is no claim that petitioner is an owner of property in close proximity to the proposed project who will be adversely affected (see, Matter of Friends of Woodstock v. Town of Woodstock Planning Bd., 152 A.D.2d 876, 878, 543 N.Y.S.2d 1007). Rather, petitioner appears to be an organization dedicated to environmental preservation seeking to represent persons who are concerned with environmental and related land use issues. "In such instances, in-fact injury within the zone of interest of environmental statutes has been established by proof that agency action will directly harm association members in their use and enjoyment of the affected natural resources * * * " (Society of Plastics Indus. v. County of Suffolk, supra, 77 N.Y.2d at 776, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [citation omitted], but petitioner has failed to submit...