Ecology Action v. Van Cort

• Citation: 417 N.Y.S.2d 165,99 Misc.2d 664
• Parties: ECOLOGY ACTION, Daniel Hoffman, Richard Lourie, Terence Garahan, Eloise Stewart, Dale Colongeli, and Paul Gates, Petitioners, v. H. Matthys VAN CORT, as Director of the City of Ithaca Department of Planning and Development, The City of Ithaca Department of Planning and Development, The City of Ithaca Planning and Development Board, The City of Ithaca, Cornell University, and UFAIR Development Corporation, a/k/a UFAIR Realty Corporation, Respondents.
• Decision Date: 01 May 1979
• Court: United States State Supreme Court (New York)

Page 165

417 N.Y.S.2d 165

99 Misc.2d 664

ECOLOGY ACTION, Daniel Hoffman, Richard Lourie, Terence

Garahan, Eloise Stewart, Dale Colongeli, and Paul

Gates, Petitioners, v. H. Matthys VAN CORT, as Director of the City of Ithaca

Department of Planning and Development, The City of Ithaca

Department of Planning and Development, The City of Ithaca

Planning and Development Board, The City of Ithaca, Cornell

University, and UFAIR Development Corporation, a/k/a UFAIR

Realty Corporation, Respondents.

Supreme Court, Special Term, Tompkins County.

May 1, 1979.

Charles Guttman, Ithaca, for petitioners

Martin A. Shapiro, City Atty., City of Ithaca, Ithaca, for respondents H. Matthys Van Cort, the City of Ithaca Planning Department, the City of Ithaca Planning Board and the City of Ithaca.

Bond, Schoeneck & King, Syracuse (John S. Ferguson, Syracuse, of counsel), for respondents Cornell University and UFAIR Realty Corp.

DECISION

RICHARD F. KUHNEN, Justice Presiding.

The Department of Planning of the City of Ithaca, New York has granted conditional approval to UFAIR Realty Corporation (a holding company of Cornell University) to subdivide 45 acres of undeveloped commercially zoned land on the west side of Route 13, south of West Clinton Street, in the City of Ithaca.

Petitioners seek under Article 78 of the CPLR to review the action of the Department and to set it aside as arbitrary, capricious, an abuse of discretion and as illegal for failure to comply strictly with the provisions of the State Environmental Quality Review Act (Art. 8 of the Environmental Conservation Law "SEQR") and the Ithaca Environmental Quality Review Ordinance "EQR". UFAIR and Cornell University (hereinafter referred to as "Respondents") attack the standing of petitioners to bring the proceeding, claim that it is barred by the short statute of limitations in section 38 of the General City Law, deny that the action was arbitrary, capricious, an abuse of discretion, or illegal, and insist that the provisions of SEQR and EQR were fully complied with.

The court will initially direct its attention to the issues of petitioners' standing inasmuch as a decision on that issue would dispose of all other issues without further analysis.

Respondents, citing Dairylea Cooperative, Inc. v. Walkley, 38 N.Y.2d 6, 377 N.Y.S.2d 451, 339 N.E.2d 865 (1975), say that to establish standing petitioners must demonstrate that the action complained of will, in fact, have a harmful effect upon petitioners and that the interest asserted is within the zone of interest to be protected by the statute upon which the challenge is premised. In the case cited, at page 9, 377 N.Y.S.2d 451, at page 453, 339 N.E.2d 865, at page 867, the court stated:

"Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which must be considered at the outset of any litigation. Under traditional theory a party had standing only where he established that his legal rights had been invaded (see, e. g., Tennessee Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543). This approach, known as the 'legal interest' test has recently been disavowed because it focuses on the issues to be litigated rather than on the party bringing suit (citing cases). The 'zone of interest' test was formulated to ascertain the petitioner's status without necessarily dealing with the merits of the litigation. A petitioner need only show that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute."

Respondents point out: "Petitioners Colongeli and Gates' primary asserted interest in the Department's decision to approve the subdivision application is an adverse effect from increased business competition." Both have interests in commercial enterprises near the area of the project of the type which may very well experience such competition. Such a possibility in itself is clearly insufficient to establish standing to challenge. Paolangeli v. Stevens, 19 A.D.2d 763, 241 N.Y.S.2d 518 (3d Dept, 1963); Bank v. Allen, 35 A.D.2d 245, 315 N.Y.S.2d 323 (3d Dept, 1970).

Such an interest, say respondents, is not one which the statute was designed to protect:

"It is the intent of the legislature that . . . due consideration is given to preventing Environmental damage." N.Y.ECL § 8-0103(9). (Italics added.)

"Petitioners Louri and Garahan . . . assert only that development of the proposed subdivision may result in the loss of a local business, and thereby inconvenience them." Again this is not an Environmental interest, and, in any event, it is "premature and speculative". Tooker v. Albright, 71 Misc.2d 619, 620, 336 N.Y.S.2d 278, 280 (1972).

Petitioner Hoffman is not a resident of the City of Ithaca, but the petition asserts that he is one "who frequently comes to the City of Ithaca and who is concerned with its environment". Petitioner Eloise Stewart, according to the petition, "is a resident of the City of Ithaca and member of Ecology Action . . . deeply concerned with the environment and ecology of this area". Both fail to allege, as respondents claim they must, that they "personally and specifically feel the impact of the agency action". Conservation Law Foundation of R. I. v. General Services Administration, D.C., 427 F.Supp. 1369; Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The federal decisions are relevant as the state act (SEQR) was closely patterned upon the National Environmental Policy Act (NEPA). The two petitioners respondents point out, fail to allege that they personally make use of the area (as in the first case cited) "or have some other direct interest in the specific area".

Finally, Ecology Action has not alleged direct injury to itself or to its members, say respondents, and has therefore not shown the requisite standing. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Tooker v. Albright, supra.

Petitioners have attempted to answer these criticisms by filing additional affidavits, the receipt of which by the court respondents object to on the ground that the petition must stand or fall by itself, that "(p)etitioners seek to introduce affidavits not to supplement the petition but to supplant it".

Even if respondents are correct in their contention that the affidavits submitted are not strictly supplementary, the petitioners will not be denied their day in court on such a technicality if in fact the petition together with the affidavits entitle them to be heard. See Litemore Electric Company v. Kawecki, 48 Misc.2d 347, 265 N.Y.S.2d 29, and cases there cited.

From the affidavits submitted, it appears that petitioner Ecology Action is an unincorporated association of residents of the Ithaca area who are dedicated to preserving and protecting the environment. It has over 40 active members and over 100 members who are involved in at least one of its committees or projects. Many live in the City of Ithaca and several live in the immediate neighborhood of the proposed commercial development. The affiant members state that the project involves "the largest single undeveloped parcel of land in the City of Ithaca. It will generate a great amount of traffic and air pollution . . . it will make life in the City of Ithaca less pleasant, less healthful and less safe".

In Douglaston Civic Ass'n v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317 (1974), the court enunciated a new and more liberal policy as to the standing of "neighborhood and civic associations" to challenge land use rulings. The court there stated, at page 7, at page 835 of 364 N.Y.S.2d, at page 320 of 324 N.E.2d:

". . . we believe that an appropriate representative association should have standing to assert rights of the individual members of the association where such persons may be affected by a rezoning, variance or an exception determination of a zoning board."

We feel that the position adopted in that case is applicable to petitioners in the present case and that the allegations of the petition and affidavits meet the criteria there laid down to apply "(i)n determining whether a particular organization should have such standing". See, also, Dairylea Cooperative, Inc. v. Walkley, 38 N.Y.2d 6, 377 N.Y.S.2d 451, 339 N.E.2d 865.

We hold accordingly that petitioners have standing to seek the relief requested.

A more serious problem however is presented by the attack in respondents' answer on the timeliness of the challenge.

The petition (paragraph 1) states that the purpose of the proceeding is "to review a determination that a proposal by respondents Cornell University/UFAIR Development Corporation to subdivide a certain forty-five (45) acre parcel of property in the City of Ithaca would not have a significant effect on the environment . . ."

The notice of petition adds that a second purpose is "reversing, annulling and setting aside the approval of the City of Ithaca Department of Planning and Development of the aforesaid subdivision".

The problem presented is that a review of the decision approving the subdivision must be "commenced within thirty days after the filing of the decision in the office of the board. General City Law, § 38. Only if petitioners are entitled to a separate review of the decision of nonenvironmental effect, are they governed by the four-month provision of CPLR 217. Concededly, the petition was not brought within the 30-day limitation.

A brief recital of events is helpful. The application by Cornell for permission to subdivide its property into six lots for future sale and commercial development was made early in 1978. After a number of intermediate steps, including a public hearing on March 27, 1978, it was decided by the Planning Board on April 11, 1978 to require an Environmental Assessment Form under the State Environmental Quality Review Act (SEQR). This EAF was...