In the Matter of Brunswick Smart Growth Inc. v. Town of Brunswick

• Decision Date: 06 May 2010
• Parties: In the Matter of BRUNSWICK SMART GROWTH, INC., et al., Appellants,v.TOWN OF BRUNSWICK, Respondent.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1267
901 N.Y.S.2d 387
2010 N.Y. Slip Op. 03824

In the Matter of BRUNSWICK SMART GROWTH, INC., et al., Appellants,
v.
TOWN OF BRUNSWICK, Respondent.

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

May 6, 2010.

[901 N.Y.S.2d 388]

Peter Henner, Clarksville, for appellants.Tuczinski, Cavalier, Burstein & Collura, P.C., Albany (Andrew W. Gilchrist of counsel), for respondent.Stephen A. Downs, Selkirk, for Save the Pine Bush, Inc., amicus curiae.Before: PETERS, J.P., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.LAHTINEN, J.

[73 A.D.3d 1267] Appeal from a judgment of the Supreme Court (O'Connor, J.), entered July 30, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the amended petition.

[73 A.D.3d 1268] Petitioner Brunswick Smart Growth, Inc., a citizen action group, and two individuals who reside in the Town of Brunswick, Rensselaer County, commenced this CPLR article 78 proceeding challenging the procedures that respondent has adopted for approving development projects. They contend that those procedures are defective in that respondent's 2001 comprehensive plan fails to comply with Town Law § 272–a(10) because it does not specifically provide for periodic review, respondent neglected to properly update its zoning regulations, respondent implemented a practice of approving projects that are inconsistent with its comprehensive plan, and respondent did not consider the cumulative environmental impact of projects. Supreme Court granted respondent's motion to dismiss upon the ground that petitioners lacked standing. Petitioners appeal.

The dual showing typically required for standing includes establishing an injury-in-fact and demonstrating that such injury falls within the zone of interests protected by the pertinent statute or regulation ( see Matter of Colella v. Board of Assessors of County of Nassau, 95 N.Y.2d 401, 409–410, 718 N.Y.S.2d 268, 741 N.E.2d 113 [2000] ). In land use cases, the test is framed in terms of “ ‘direct harm,’ ” which “ ‘is in some way different from that of the public at large’ ” ( 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], quoting 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] ). While geographical proximity provides one potential avenue to standing in land use cases, it is not an...