Matter of Center Square Ass'n, Inc. v. City of Albany Board of Zoning Appeals

• Decision Date: 08 July 2004
• Docket Number: 95362.
• Citation: 2004 NY Slip Op 05829,9 A.D.3d 651,780 N.Y.S.2d 203
• Parties: In the Matter of CENTER SQUARE ASSOCIATION, INC., et al., Appellants, v. CITY OF ALBANY BOARD OF ZONING APPEALS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 651

780 N.Y.S.2d 203

2004 NY Slip Op 05829

In the Matter of CENTER SQUARE ASSOCIATION, INC., et al., Appellants, v. CITY OF ALBANY BOARD OF ZONING APPEALS et al., Respondents.

95362.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 8, 2004.

Appeal from a judgment of the Supreme Court (Benza, J.), entered May 15, 2003 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint.

KANE, J.

In 2001, respondent McLaughlin Limited Partnership (hereinafter the partnership) purchased properties at 57 Dove Street and 329 State Street in the City of Albany. Those properties are located in an area of the city zoned for one- and two-family row houses. Respondent W.F. McLaughlin & Company, Inc. (hereinafter McLaughlin) sought a use variance for 57 Dove Street to allow three apartments. After a hearing, respondent City of Albany Board of Zoning Appeals (hereinafter the Board) approved McLaughlin's application. A CPLR article 78 proceeding challenging that decision resulted in Supreme Court remitting the matter to the Board to consider whether McLaughlin's hardship in requesting the variance was self-created, as well as to address the need for a parking variance. On remittal, the Board found that the hardship was not self-created and approved both the use and parking variances.

In 2002, the partnership applied for a use variance for 329 State Street to allow 13 apartments. After a hearing, the Board approved the partnership's application. Petitioners thereafter commenced this combined CPLR article 78 proceeding and declaratory judgment action challenging both approvals. Following respondents' separate preanswer motions to dismiss, each alleging that petitioners lacked standing, Supreme Court dismissed the petition. Petitioners appeal.

Supreme Court erred in finding that petitioner Center Square Association, Inc. (hereinafter the Association) lacked standing to challenge the issuance of the two variances.^* To establish standing, a petitioner must show injury-in-fact, and such injury must fall within the zone of interests to be protected by the statutes or ordinances at issue (see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 412 [1987]). "While standing principles are broadly construed in matters involving zoning and land use development, it nevertheless remains incumbent upon the party challenging such an administrative determination to `show that it would suffer direct harm, injury that is in some way different from that of the public at large'" (Matter of Gallahan v Planning Bd. of City of Ithaca, 307 AD2d 684, 685 [2003], lv denied 1 NY3d 501 [2003] [citations omitted], quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]). That harm "may be presumptively established by a showing of close proximity to the subject property" (Matter of Emmett v Town of Edmeston, 3 AD3d 816, 818 [2004]; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 413-414). It is necessary to determine, however, "whether the neighbor is close enough to suffer some harm other than that experienced by the public generally" (Matter of Oates v Village of Watkins Glen, 290 AD2d 758, 761 [2002]; see Matter of Gallahan v Planning Bd. of City of Ithaca, supra at 685). Here, the Association has members that own property abutting or within several homes of the properties at issue, close enough to establish standing without allegations of individual harm. Additionally, the fact that the Association's members were entitled to receive mandatory notice of the Board's proceedings regarding the subject properties also gives rise to a presumption of injury for standing in this zoning matter (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 413-414).

Even if close proximity by itself did not obviate the necessity of showing individual harm, we find that the Association has demonstrated injury-in-fact. Unlike those...