Hohman v. Town of Poestenkill
| Decision Date | 02 January 2020 |
| Docket Number | 527125 |
| Citation | 179 A.D.3d 1172,115 N.Y.S.3d 572 |
| Parties | In the Matter of Kenneth HOHMAN et al., Appellants, v. TOWN OF POESTENKILL et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
179 A.D.3d 1172
115 N.Y.S.3d 572
In the Matter of Kenneth HOHMAN et al., Appellants,
v.
TOWN OF POESTENKILL et al., Respondents.
527125
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: November 21, 2019
Decided and Entered: January 2, 2020
Kenneth Hohman and Lori Friday, Poestenskill, appellants pro se.
John T. Casey Jr., Town Attorney, Poestenskill, for respondents.
Before: Garry, P.J., Egan Jr., Lynch and Devine, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered August 9, 2018 in Rensselaer County, which, among other things, in a proceeding pursuant to CPLR article 78, dismissed the petition.
The Barberville Nature Preserve (hereinafter the nature preserve) is an approximately 138–acre parcel of property owned and maintained by the Nature Conservancy as a designated "forever wild" natural resource area located within the Town of Poestenkill, Rensselaer County. In 2015, after
learning that the Nature Conservancy was interested in potentially divesting itself from ownership of the nature preserve, the Town Board of respondent Town of Poestenkill entered into preliminary negotiations with the Nature Conservancy regarding the potential acquisition thereof and, in August 2015, an advisory committee was created to develop a draft plan and explore potential issues should the Town elect to move forward with such an acquisition. Following receipt of the advisory committee's findings and several public hearings conducted with regard to the potential acquisition, at a February 2018 meeting, the Town Board classified the land acquisition as a type I action pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ), inasmuch as it involved the acquisition of over 100 contiguous acres of land (see 6 NYCRR 617.4 [b][4] ), designated itself as lead agency and thereafter prepared a full environmental assessment form (hereinafter EAF). At the next Town Board meeting in March 2018, the Town Board reviewed the completed EAF and issued a negative declaration, concluding that acquisition of the nature preserve would have "no adverse environmental impact."
In April 2018, petitioners commenced this CPLR article 78 proceeding seeking to, among other things, rescind the Town Board's negative declaration, contending that it failed to comply with SEQRA. Respondents answered, asserting, among other affirmative defenses, petitioners' lack of standing, and they counterclaimed for a declaratory judgment that the Town complied with all applicable laws and regulations and that the Town Board's negative
declaration was lawful and proper. By judgment entered August 9, 2018, Supreme Court concluded that petitioners lacked standing, dismissed the petition and granted respondents' counterclaim for a declaratory judgment. Petitioners appeal.
We affirm. Petitioners do not have standing to challenge the Town's SEQRA determination. It is well settled that standing to challenge an alleged SEQRA violation by a governmental entity requires a petitioner to demonstrate "that it would suffer direct harm, injury that is in some way different from that of the public at large" ( 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 [1991] ; see 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 [2015] ; Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 304, 890 N.Y.S.2d 405, 918 N.E.2d 917 [2009] ; Schulz v. Town Bd. of the Town of Queensbury, 178 A.D.3d 85, 88, 111 N.Y.S.3d 732[2019] ). Importantly, "[p]etitioners must have more than generalized environmental concerns
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