Niagara Pres. Coal., Inc. v. N.Y. Power Auth.

• Citation: 994 N.Y.S.2d 487,2014 N.Y. Slip Op. 06694,121 A.D.3d 1507
• Decision Date: 03 October 2014
• Docket Number: 877 CA 13-01025.
• Parties: In the Matter of NIAGARA PRESERVATION COALITION, INC., Petitioner–Plaintiff–Appellant, v. NEW YORK POWER AUTHORITY, Gil C. Quiniones, President and Chief Executive Officer of New York Power Authority, New York State Office of Parks, Recreation and Historic Preservation, Rose Harvey, Commissioner, New York State Office of Parks, Recreation and Historic Preservation and Maid of the Mist Corporation, Respondents–Defendants–Respondents.
• Court: New York Supreme Court Appellate Division

121 A.D.3d 1507

994 N.Y.S.2d 487

2014 N.Y. Slip Op. 06694

In the Matter of NIAGARA PRESERVATION COALITION, INC., Petitioner–Plaintiff–Appellant

v.NEW YORK POWER AUTHORITY, Gil C. Quiniones, President and Chief Executive Officer of New York Power Authority, New York State Office of Parks, Recreation and Historic Preservation, Rose Harvey, Commissioner, New York State Office of Parks, Recreation and Historic Preservation and Maid of the Mist Corporation, Respondents–Defendants–Respondents.

877 CA 13-01025.

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

Oct. 3, 2014.

Knauf Shaw LLP, Rochester (Linda R. Shaw of Counsel), for Petitioner–Plaintiff–Appellant.

Whiteman Osterman & Hanna LLP, Albany (John J. Henry of Counsel), for Respondents–Defendants–Respondents New York Power Authority and Gil C. Quiniones, President and Chief Executive Officer of New York Power Authority.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of Counsel), for Respondents–Defendants–Respondents New York State Office of Parks, Recreation and Historic Preservation and Rose Harvey, Commissioner, New York State

Office of Parks, Recreation and Historic Preservation.

Damon Morey LLP, Buffalo (Brian D. Gwitt of Counsel), for Respondent–Defendant–Respondent Maid of the Mist Corporation.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.

OpinionMEMORANDUM:

Petitioner-plaintiff (petitioner) commenced this hybrid CPLR article 78 proceeding/declaratory judgment action (proceeding) seeking relief with respect to the development and construction of a storage facility for boats owned by respondent-defendant Maid of the Mist Corporation (MOTM), located on property owned by respondent-defendant New York Power Authority (N.Y.PA), and operated by respondent-defendant New York State Office of Parks, Recreation and Historic Preservation (Parks) as part of Niagara Falls State Park. MOTM and its predecessors in interest have operated boat excursions at the base of Niagara Falls since 1846. Consistent with MOTM's 40–year lease with Parks and 25–year lease with the Ontario (Canada) Niagara Parks Commission (NPC), the boats were dry-docked during the winter in a facility on the Canadian side of the Niagara River. NPC, however, rescinded its lease with MOTM and, in February 2012, awarded the Canadian license to Hornblower Canada (Hornblower), a California-based cruise company, thereby giving Hornblower exclusive rights to the Canadian dock facility as of January 1, 2014. On November 30, 2012, Parks, MOTM and N.Y.PA entered into a memorandum of understanding concerning the development and construction of a storage facility for the MOTM boats, which would be located next to and over part of the former Schoellkopf Power Station No. 3, the ruins of which are listed in the National Register of Historic Places. Pursuant to the agreement, the facility would include a vertical marine lift to hoist boats out of the water, two platforms to serve as winter dry docks, and a 3,500–square–foot maintenance building, which would be built at MOTM's expense. Ownership of the facility would be subsequently transferred to Parks (cf. Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation, 22 N.Y.3d 648, 652, 985 N.Y.S.2d 422, 8 N.E.3d 797 ). N.Y.PA, with the consent of Parks, assumed lead agency status for purposes of environmental review of the project pursuant to the State Environmental Quality Review Act (SEQRA). Following the completion of a full assessment form prepared by MOTM and N.Y.PA, together with a supporting analysis prepared by an engineering firm, N.Y.PA issued a negative declaration of significant adverse impact on the environment on February 19, 2013. Petitioner was formed on February 20, 2013 for the purpose of challenging the project, and it is undisputed that petitioner received assistance from Hornblower in establishing organizational status.

Petitioner commenced this proceeding on April 4, 2013, seeking annulment of the SEQRA determination and certain declaratory relief. Petitioners alleged, inter alia, that respondents-defendants (hereafter, respondents) violated SEQRA insofar as the negative declaration was arbitrary and capricious; that respondents' actions constitute parkland alienation; and that respondents violated zoning ordinances of the City of Niagara Falls by eliminating historic resources. Petitioner, by order to show cause filed April 5, 2013, sought a preliminary injunction to prohibit construction, which respondents opposed, and obtained a temporary restraining order. Following oral argument on April 11, 2013, Supreme Court vacated the temporary restraining order, denied the application for a preliminary injunction, and, sua sponte, effectively dismissed the petition/complaint (petition) on the ground that, inter alia, petitioner lacked standing to commence the proceeding. We affirm.

As an initial matter, we deny respondents' motion to dismiss the appeal as moot or barred by laches (see Matter of Camardo v. City of Auburn, 96 A.D.3d 1437, 1438, 949 N.Y.S.2d 302 ).

Contrary to petitioner's contention, the court properly dismissed the first cause of action on the ground that petitioner lacked standing to commence the proceeding challenging the SEQRA determination. Although respondents did not move to dismiss the petition, or interpose an answer alleging lack of standing, we reject petitioner's contention that respondents waived that defense (see generally Pataki v. New York State Assembly, 4 N.Y.3d 75, 88, 791 N.Y.S.2d 458, 824 N.E.2d 898 ). The issue of standing was properly before the court in connection with the application for a preliminary injunction. It is well established that, “ [w]hether a [petitioner] seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [emphasis added] ). Indeed, “[w]hen a party seeks an injunction, [it] ‘opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading’ ” (Clark v. New York State Off. of Parks, Recreation & Historic Preserv., 288 A.D.2d 934, 935, 732 N.Y.S.2d 200, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 272, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). Parks, in opposition to the application for a preliminary injunction, asserted that petitioner had not alleged sufficient facts to establish standing to challenge the SEQRA determination; that petitioner had not alleged that it pays taxes and thus failed to establish standing as a taxpayer; and that petitioner had failed to state a basis for common-law standing.

“[S]tanding requirements are not mere pleading requirements but [instead are] an indispensable part of the [petitioner's] case[,] and therefore each element must be supported in the same way as any other matter on which the [petitioner] bears the burden of proof” (Matter of Sierra Club v. Village of Painted Post, 115 A.D.3d 1310, 1311, 983 N.Y.S.2d 380 [internal quotation marks omitted]; see Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 306, 890 N.Y.S.2d 405, 918 N.E.2d 917 ). The court properly determined that neither the petition itself nor the supplemental affidavits, which petitioner submitted in response to Parks' opposition to the petition based on lack of standing, establish petitioner's standing to challenge the SEQRA determination. It is axiomatic that, in land use matters, petitioner must demonstrate “that it would suffer direct harm, [an] injury that is in some way different from the public at large ... [i.e.], that [it has] a direct interest in the administrative action being challenged, different in kind or degree from that of the public at large” (Society of Plastics Indus., 77 N.Y.2d at 774–775, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; see Matter of Kindred v. Monroe County, 119 A.D.3d 1347, 1348, 989 N.Y.S.2d 732 ). Where, as here, a petitioner claims associational or organizational standing to challenge a governmental action, it must meet three requirements to establish such standing: that one or more of its members would have standing to sue; that the interests it asserts are germane to its purpose to such a degree as to satisfy the court that it is the appropriate representative of those interests; and “that neither the asserted claim nor the appropriate relief requires the participation of the individual members. These requirements ensure that the requisite injury is established and that the organization is the proper party to seek redress” (Society of Plastics Indus., 77 N.Y.2d at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; see Matter of Clean Water Advocates of N.Y., Inc. v. New York State Dept. of Envtl. Conservation, 103 A.D.3d 1006, 1007, 962 N.Y.S.2d 390, lv. denied 21 N.Y.3d 862, 2013 WL 4516420 ).

We conclude that petitioner failed to establish either an injury, or that it is the proper party to seek redress. Although petitioner submitted a supplemental affidavit of one of its members stating that he has a longtime personal and professional interest in the gorge trail and the ruins of the former hydroelectric plant, “ ‘interest’ and ‘injury’ are not synonymous ... A general-or even special-interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case” (Matter of Citizens Emergency Comm. to Preserve Preserv. v. Tierney, 70 A.D.3d 576, 576, 896 N.Y.S.2d 41, lv. denied 15 N.Y.3d 710, 2010 WL 4068592 ; see Clean Water Advocates of N.Y., Inc., 103 A.D.3d at...