Matter of Save the Pine Bush, Inc. v. Planning Board of the Town of Clifton Park
| Decision Date | 11 April 2008 |
| Docket Number | 503595. |
| Parties | In the Matter of SAVE THE PINE BUSH, INC., et al., Appellants, v. PLANNING BOARD OF THE TOWN OF CLIFTON PARK et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the Supreme Court (Kramer, J.), entered February 1, 2007 in Schenectady County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motions to dismiss the petition.
Donald C. Greene, through his company, respondent DCG Development Company, submitted a site plan to respondent Planning Board of the Town of Clifton Park seeking to construct seven light industrial buildings on a 36.68-acre parcel of undeveloped land located within the town. A portion of this property has been identified as a potential habitat for an endangered species known as the Karner Blue Butterfly (Lycaeides melissa samuelis). When the Planning Board, in its capacity as lead agency for the project (see ECL art 8), issued a negative declaration as to the impact this project would have on the surrounding environment and granted site plan approval, petitioner Save the Pine Bush, Inc. (hereinafter petitioner) and several of its individual members commenced this CPLR article 78 proceeding challenging this determination and seeking to set it aside. Respondents moved to dismiss the petition pursuant to CPLR 7804 (e) asserting, among other things, that petitioners lacked standing. Supreme Court granted the motions and this appeal ensued. Because we agree that petitioners lack standing to maintain this proceeding, we now affirm.
To establish standing, petitioner must show 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 NY2d 761, 774 [1991]) and that such injury falls within the zone of interests, or "concerns[] sought to be promoted or protected by the statutory provision under which the agency has acted" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 773; see Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d 979, 981 [2007]). Moreover, as an organization seeking standing, petitioner "must demonstrate that at least one of its members would have standing to sue individually, that the interests it asserts are germane to its purpose and that the resolution of the claim does not require the participation of its individual members" (Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d at 982; see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 775).
In its petition, petitioner claims that it has standing to maintain this action because it is an environmental organization dedicated in part to the preservation and protection of the Karner Blue Butterfly, and that the proposed development, if implemented, would result in the destruction of this creature's habitat.1 The petition also alleges that 10 of petitioner's individual members have a special interest in the preservation of this species because they regularly engage in recreational activities in the "Karner Blue Butterfly habitat areas and have either seen these butterflies or have actively looked for them." Essentially, it is argued that because the members enjoy observing the Karner Blue Butterfly as part of their recreational activities, they have a special interest in insuring that the property is not used in a way that would interfere with this activity. While the members undoubtedly engage in this activity, and routinely seek to observe this creature in its habitat, the interest that they seek to protect (i.e., the viewing of a portion of private property from a public byway) is no different than the interest enjoyed by the public at large.2 Such an activity—and the impact on it as the result of the proposed development of this property —does not establish the "`specific...
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