Long Island Pine Barrens Soc'y, Inc. v. Cent. Pine Barrens Joint Planning

• Decision Date: 29 January 2014
• Citation: 980 N.Y.S.2d 468,113 A.D.3d 853,2014 N.Y. Slip Op. 00511
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of LONG ISLAND PINE BARRENS SOCIETY, INC., et al., appellants, v. CENTRAL PINE BARRENS JOINT PLANNING & POLICY COMMISSION, et al., respondents.

113 A.D.3d 853

980 N.Y.S.2d 468

2014 N.Y. Slip Op. 00511

In the Matter of LONG ISLAND PINE BARRENS SOCIETY, INC., et al., appellants,

v.CENTRAL PINE BARRENS JOINT PLANNING & POLICY COMMISSION, et al., respondents.

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

Jan. 29, 2014.

Regina Seltzer, Bellport, N.Y., for appellants.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and Leslie B. Dubeck of counsel), for respondent Central Pine Barrens Joint Planning & Policy Commission.

MacLachlan & Eagan, East Hampton, N.Y. (David E. Eagan and Brian E. Matthews of counsel), for respondent JCJC Holding Company, Inc.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Central Pine Barrens Joint Planning and Policy Commission dated June 15, 2011, which, after a hearing, inter alia, granted the application of JCJC Holding Company, Inc., for an extraordinary hardship waiver pursuant to ECL 57–0121(10) and 57–0123(3)(a), the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Leis III, J.), entered May 7, 2012, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs.

This matter involves a parcel of real property located within the “core preservation area” of the Long Island Central Pine Barrens. The property is also located within a residentially zoned area of the Town of Southampton. A predecessor in interest of the respondent JCJC Holding Company, Inc. (hereinafter JCJC), purchased the property in 1970 and constructed a 3,354–square–foot brick building on it, which it leased to the New York State Police (hereinafter the State Police) for use as barracks. The area surrounding the property primarily consists of wooded, public, open space managed by the Suffolk County Department of Parks, Recreation and Conservation. JCJC purchased the property in 2003 and continued leasing it to the State Police until 2008, at which point the State Police vacated the building and JCJC began using the property to operate a commercial landscaping and horticultural services business. At some subsequent time, JCJC was notified that this use was not consistent with the underlying zoning and, in November 2010, it applied to the Town of Southampton Zoning Board of Appeals (hereinafter the ZBA) for a variance to continue utilizing the property for a commercial use. Since the property was located within the Central Pine Barrens “core preservation area,” the ZBA referred the matter to the respondent Central Pine Barrens Joint Planning and Policy Commission (hereinafter the Commission) as an “involved agency” pursuant to the State Environmental Quality Review Act (ECL article 8; hereinafter SEQRA). The Commission assumed lead agency status for purposes of SEQRA.

In March 2011, JCJC applied to the Commission for an extraordinary hardship waiver pursuant to ECL 57–0121(10) and 57–0123(3)(a) to permit it to continue to use the existing facility to operate its business. In its extraordinary hardship waiver application, JCJC argued that its proposed utilization of the parcel constituted a reduction in intensity of use from the former round-the-clock use of the property for State Police barracks, since JCJC would store a limited number of vehicles on the property, there would be no expansion of the existing building or parking lot, and the enterprise would only operate during normal business hours. The Commission held a public hearing on the issue of JCJC's waiver application, at which Richard Amper, appearing in his capacity as Executive Director of the petitioner Long Island Pine Barrens Society, Inc. (hereinafter the Society), argued that the hardship sought to be alleviated by JCJC was self-created and, therefore, the hardship waiver application should be denied. In a determination dated June 15, 2011, the Commission granted JCJC the waiver.

The Society and Amper, in his capacity as the Society's Executive Director and in his individual capacity (hereinafter together the petitioners), commenced this proceeding pursuant to CPLR article 78 to review the Commission's determination. In their verified petition, the petitioners averred that the Society is a not-for-profit corporation, whose mission, among other things, is to support research of the Pine Barrens, to disseminate information to the general public regarding the Pine Barrens, and to support the preservation of the Pine Barrens “on a forever-wild basis.” The Society has approximately 3,000 members and is a voting member of the Central Pine Barrens Advisory Committee, which was created by ECL 57–0119(9). According to the petition and Amper's accompanying affidavit, “[i]n his professional capacity, [Amper] takes residents and policy makers through the Core Preservation Area of the Pine Barrens to afford an understanding of the significance of the Pine Barrens Ecosystem.” Further, “[a]s an individual, [Amper] was the leading activist in the creation of the Pine Barrens Protection Act and Comprehensive Land Use Plan.”

The Supreme Court denied the CPLR article 78 petition on the ground that the petitioners lacked standing to maintain the proceeding. The court further held, in the alternative, that the challenged determination was not arbitrary and capricious. This appeal ensued.

Contrary to JCJC's initial contention, the petitioners' notice of appeal, which recites that they appeal “from a Judgment ... dismissing [the] Petition due to lack of standing,” does not limit their appeal solely to the issue of standing. CPLR 5515 provides that a notice of appeal “shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken” (CPLR 5515[1] ). This requirement is jurisdictional ( see Rich v. Manhattan Ry. Co., 150 N.Y. 542, 546, 44 N.E. 1097), and “[b]y taking an appeal from only a part of a judgment or order, a party waives its right to appeal from the remainder thereof” ( City of Mount Vernon v. Mount Vernon Hous. Auth., 235 A.D.2d 516, 517, 652 N.Y.S.2d 771). Here, however, the notice of appeal contains no words of limitation or other language expressly or implicitly limiting the appeal to only a specific part of the judgment appealed from ( cf. id.;cf. also Levitt v. Levitt, 97 A.D.3d 543, 545, 948 N.Y.S.2d 108;Boyle v. Boyle, 44 A.D.3d 885, 885–886, 844 N.Y.S.2d 384). Rather, the reference to a lack of standing in the notice of appeal simply constitutes language describing the judgment, and does not limit the issues on the appeal.

With regard to the issue of standing, the Supreme Court erred in holding that the petitioners lacked standing to challenge the determination. Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 570 N.Y.S.2d 778, 573 N.E.2d 1034. As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that “one or more of its members would have standing to sue” as an individual ( id. at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034). An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” ( id. at 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034) and “the in-fact injury of which [he or she] complains ... falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory...