Cade v. Stapf

• Citation: 937 N.Y.S.2d 673,2012 N.Y. Slip Op. 00439,91 A.D.3d 1229
• Parties: In the Matter of William J. CADE, Appellant, v. Robert STAPF, as Chairperson of the Planning Board of the Town of New Scotland, et al., Respondents, et al., Respondent.
• Decision Date: 26 January 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00439
91 A.D.3d 1229
937 N.Y.S.2d 673

In the Matter of William J. CADE, Appellant,
v.
Robert STAPF, as Chairperson of the Planning Board of the Town of New Scotland, et al., Respondents, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 26, 2012.

[937 N.Y.S.2d 674]

Lynch & Hetman, P.L.L.C., Albany (Peter A. Lynch of counsel), for appellant.

Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Jeffrey S. Baker of counsel), for Robert Stapf and others, respondents.

Stockli Slevin & Peters, L.L.P., Albany (Mary Elizabeth Slevin of counsel), for Garrison Projects, L.L.C., respondent.

Before: MERCURE, Acting P.J., PETERS, ROSE, LAHTINEN and GARRY, JJ.

ROSE, J.

[91 A.D.3d 1229] Appeal from that part of a judgment of the Supreme Court (McDonough, J.), entered May 20, 2010 in Albany County, which partially dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent Planning Board of the Town of New Scotland granting the application of respondent Garrison Projects, LLC for cluster subdivision approval.

In 2005, respondent Garrison Projects, LLC applied for approval of a planned unit development on property located in the Town of New Scotland, Albany County. The Town Board of the Town of New Scotland identified numerous involved agencies and commenced a coordinated review of the project as lead agency pursuant to the State Environmental Quality Review Act ( see ECL art 8 [hereinafter SEQRA] ). In 2007, when the project was modified so that it fell within the provisions of the [91 A.D.3d 1230] Town ordinance for a cluster subdivision, the Town Board transferred lead agency status to respondent Planning Board of the Town of New Scotland. As successor lead agency, the

[937 N.Y.S.2d 675]

Planning Board accepted the positive declaration and scoping document prepared during the proceedings before the Town Board and continued with a full SEQRA review. Ultimately, the Planning Board issued SEQRA findings and, in December 2009, granted approval of the subdivision application conditioned upon, among other things, issuance of a height variance for the project's proposed water tower by respondent Zoning Board of Appeals of the Town of New Scotland (hereinafter ZBA) and approval of the project's open space maintenance plan by the Town Board. Petitioner, an adjacent landowner, commenced this CPLR article 78 proceeding seeking, among other things, to annul the Planning Board's conditional approval of the subdivision application. Supreme Court dismissed that portion of the petition, and this appeal ensued.

We turn first to the threshold issue of standing, and petitioner's contention that Supreme Court erred by narrowly limiting his standing to challenge the Planning Board's determinations. Supreme Court found that petitioner demonstrated an injury-in-fact within the zone of interest sought to be protected by SEQRA so as to have standing to challenge the Planning Board's SEQRA determination based on the proximity of his property to the project and his view of the proposed water tower located 400 feet from his house ( see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773–774, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991]; Matter of Ziemba v. City of Troy, 37 A.D.3d 68, 70–71, 827 N.Y.S.2d 322 [2006], lv. denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007]; Matter of Steele v. Town of Salem Planning Bd., 200 A.D.2d 870, 606 N.Y.S.2d 810 [1994], lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415 [1994] ). Despite that finding, however, Supreme Court concluded that petitioner lacked standing to raise the specific...