Town of Waterford v. N.Y.S. Dep't of Envtl. Conservation

• Decision Date: 29 October 2020
• Docket Number: 528595,528560
• Parties: In the Matter of TOWN OF WATERFORD et al., Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents. (Proceeding No. 1.) In the Matter of Town of Halfmoon et al., Appellants, v. New York State Department of Environmental Conservation et al., Respondents. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1437
134 N.Y.S.3d 545

In the Matter of TOWN OF WATERFORD et al., Appellants,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.

(Proceeding No. 1.)

In the Matter of Town of Halfmoon et al., Appellants,
v.
New York State Department of Environmental Conservation et al., Respondents.

(Proceeding No. 2.)

528560
528595

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

Calendar Date: September 14, 2020
Decided and Entered: October 29, 2020

134 N.Y.S.3d 547

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Mark Schachner of counsel), for Town of Waterford and others, appellants.

Nolan Heller Kauffman LLP, Albany (David A. Engel of counsel), for Town of Halfmoon and others, appellants.

Letitia James, Attorney General, Albany (Meredith G. Lee–Clark of counsel), for New York State Department of Environmental Conservation, respondent.

Bond, Schoeneck & King PLLC, Syracuse (Kevin M. Bernstein of counsel), for Town of Colonie and others, respondents.

Todd D. Ommen, Pace Environmental Litigation Clinic, White Plains, for Riverkeeper, Inc., amicus curiae.

Before: Garry, P.J., Clark, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Devine, J.

Appeals (1) from an order of the Supreme Court (Crowell, J.), entered July 16, 2018 in Saratoga County, which, in two proceedings pursuant to CPLR article 78, granted a motion by respondent Department of Environmental Conservation to change venue, and (2) from a judgment of

134 N.Y.S.3d 548

said court (Young, J.), entered January 25, 2019 in Albany County, which, in two proceedings pursuant to CPLR article 78, dismissed the amended petitions.

Respondent Town of Colonie (hereinafter Colonie) owns a landfill, located near the banks of the Mohawk River in Albany County, that is currently operated by respondent Capital Region Landfills, Inc. (hereinafter CRL) under the authority of a solid waste management facility permit issued by respondent Department of Environmental Conservation (hereinafter DEC) (see ECL 27–0703; 6 NYCRR former part 360). As the landfill was running out of space, Colonie applied for modification of the DEC permit and other permits needed for the landfill to expand above and next to the existing site. DEC assumed lead agency status and issued a positive declaration pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ), after which it embarked upon a years-long review of the environmental impacts of the landfill expansion. At the conclusion of that process, DEC determined that the landfill expansion would not have a significant negative environmental impact and granted the necessary approvals with conditions intended to head off such impacts, including barring operations within 500 feet of the river and capping the maximum height of the landfill.

Two Saratoga County municipalities on the far bank of the river and several of their residents – namely, petitioner Town of Waterford and 11 of its residents (hereinafter collectively referred to as the Waterford petitioners) in proceeding No. 1 and petitioner Town of Halfmoon and five of its residents (hereinafter collectively referred to as the Halfmoon petitioners) in proceeding No. 2 – commenced these CPLR article 78 proceedings against various entities to, among other things, challenge DEC's SEQRA findings and the ensuing permits. As is relevant here, Colonie and CRL answered the petitions and amended petitions and raised the objection that petitioners lacked standing to sue. DEC also joined issue but, before doing so, served demands to change the venue of both proceedings from Saratoga County to Albany County. The rejection of those demands led to a motion by DEC to change venue that was granted by Supreme Court (Crowell, J.) in July 2018. Thereafter, Supreme Court (Young, J.) issued a January 2019 judgment in which it determined that petitioners lacked standing and dismissed the amended petitions. Petitioners appeal from the July 2018 order and the January 2019 judgment.¹

To begin, inasmuch as the issue of petitioners' standing to challenge DEC's actions was raised, they were obliged to show an actual stake in the controversy by "establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated" ( Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 6, 988 N.Y.S.2d 115, 11 N.E.3d 188 [2014] ; see Matter of New York State Bd. of Regents v. State Univ. of N.Y., 178 A.D.3d 11, 17, 111 N.Y.S.3d 724 [2019], lvs denied

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35 N.Y.3d 912, 128 N.Y.S.3d 470, 152 N.E.3d 161 [2020] ; Matter of Village of Woodbury v. Seggos, 154 A.D.3d 1256, 1258, 65 N.Y.S.3d 76 [2017] ). As petitioners correctly note, the fact that the individual petitioners reside some distance away from the landfill did not preclude them from having standing to challenge the determinations permitting its expansion (see Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 304–305, 890 N.Y.S.2d 405, 918 N.E.2d 917 [2009] ; Matter of Hohman v. Town of Poestenkill, 179 A.D.3d 1172, 1173–1174, 115 N.Y.S.3d 572 [2020] ). That said, many of the impacts alleged were either economic impacts that do not afford standing to challenge a SEQRA determination (see Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d at 8–9, 988 N.Y.S.2d 115, 11 N.E.3d 188 ; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 777, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ; Matter of Village of Canajoharie v. Planning Bd. of Town of Florida, 63 A.D.3d 1498, 1501–1502, 882 N.Y.S.2d 526 [2009] ) or amounted to displeasure with the sights and smells of the landfill that would not ordinarily be "specific to the individuals who allege it, and ... ‘different in kind or degree from the public at large’ " so as to afford standing ( Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d 301, 311, 22 N.Y.S.3d 388, 43 N.E.3d 745 [2015], quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 778, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; see Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, 13 N.Y.3d at 306, 890 N.Y.S.2d 405, 918 N.E.2d 917 ; Matter of Finger Lakes Zero Waste Coalition, Inc. v. Martens, 95 A.D.3d 1420, 1422, 944 N.Y.S.2d 336 [2012], lv denied 19 N.Y.3d 811, 951 N.Y.S.2d 721, 976 N.E.2d 250 [2012] ; Matter of Save Our Main St. Bldgs. v. Greene County Legislature, 293 A.D.2d 907, 908, 740 N.Y.S.2d 715 [2002], lv denied 98 N.Y.2d 609, 747 N.Y.S.2d 409, 775 N.E.2d 1288 [2002] ).

It nevertheless appears that at least some of the petitioners will suffer distinct environmental harm under the circumstances presented in these proceedings. For instance, although one might expect the visual impact of the landfill expansion to be widespread, DEC specifically found that the impact would be limited and that the areas where the individual petitioners live and/or maintain recreation facilities would be among the few having a "generally unobstructed" view of the landfill. Many of the individual petitioners confirmed that they can see the landfill from their residences, explained how they are personally impacted by the sights, sounds, smells and dust generated by operations there, and further articulated how those impacts will worsen if the landfill expansion goes forward (see Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d at 311, 22 N.Y.S.3d 388 ; Matter of Cady v. Town of Germantown Planning Bd., 184 A.D.3d 983, 985–986, 126 N.Y.S.3d 543 [2020] ; Matter of Humane Socy. of U.S. v. Empire State Dev. Corp., 53 A.D.3d 1013, 1017, 863 N.Y.S.2d 107 [2008], lv denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009] ; compare Matter of Finger Lakes Zero Waste Coalition, Inc. v. Martens, 95 A.D.3d at 1422–1423, 944 N.Y.S.2d 336 ). Moreover, the Halfmoon petitioners alleged that those impacts will impair the use and enjoyment of Halfmoon's public park, trails and boat launches across the river, while one of the individual Halfmoon petitioners described how she was intimately involved in the development of a trail system and boat launch along the river and...