Vill. of Woodbury v. Seggos

• Citation: 65 N.Y.S.3d 76,154 A.D.3d 1256
• Parties: In the Matter of VILLAGE OF WOODBURY et al., Appellants, v. Basil SEGGOS, as Acting Commissioner of Environmental Conservation, et al., Respondents. (Proceeding No. 1.). In the Matter of Black Rock Forest Consortium et al., Appellants, et al., Petitioners, v. New York State Department of Environmental Conservation et al., Respondents. (Proceeding No. 2.).
• Decision Date: 26 October 2017
• Court: New York Supreme Court Appellate Division

154 A.D.3d 1256

65 N.Y.S.3d 76

In the Matter of VILLAGE OF WOODBURY et al., Appellants,

v.Basil SEGGOS, as Acting Commissioner of Environmental Conservation, et al., Respondents. (Proceeding No. 1.).

In the Matter of Black Rock Forest Consortium et al., Appellants, et al., Petitioners,

v.New York State Department of Environmental Conservation et al., Respondents. (Proceeding No. 2.).

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

Oct. 26, 2017.

Feerick Lynch MacCartney & Nugent PLLC, South Nyack (Dennis E.A. Lynch of counsel), for Village of Woodbury and another, appellants.

Drake Loeb PLLC, New Windsor (Stephen J. Gaba of counsel), for Black Rock Forest Consortium and others, appellants.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh (John W. Furst of counsel), for Village of Cornwall–on–Hudson, appellant.

Eric T. Schneiderman, Attorney General, Albany (Philip Bein of counsel), for Basil Seggos and another, respondents.

Whiteman Osterman & Hanna LLP, Albany (Robert S. Rosborough IV of counsel), for Village of Kiryas Joel and another, respondents.

Before: McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ.

DEVINE, J.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered May 24, 2016 in Albany County, which, among other things, in two combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment, granted respondents' motions to dismiss the amended petition/ complaint in proceeding No. 2.

Respondent Village of Kiryas Joel is located in Orange County and uses several wells for its municipal water supply. Kiryas Joel has been building, in the face of legal challenges, a 13–mile long pipeline that would allow it to tap into an aqueduct owned and operated by the City of New York for additional water (see Administrative Code of City of NY § 24–360; Matter of County of Orange v. Village of Kiryas Joel, 44 A.D.3d 765, 844 N.Y.S.2d 57 [2007] ; see also Matter of Town of Woodbury v. County of Orange, 114 A.D.3d 951, 952–953, 981 N.Y.S.2d 126 [2014], lv. denied 24 N.Y.3d 903, 2014 WL 4454969 [2014] ). Authorization to withdraw water from the aqueduct will not be granted unless Kiryas Joel demonstrates, among other things, that it has "an adequate backup water supply source" in the event water from the aqueduct is unavailable.

Kiryas Joel acquired property in Mountainville, Town of Cornwall, Orange County that was suitable for a needed pump station along the pipeline route and provided access to a principal aquifer with "abundant potential water supply" (State Dept of Envtl Conservation, Division of Water Technical and Operational Guidance Series [2.1.3]: Primary and Principal Aquifer Determinations, at 2 [Oct. 23, 1990], available at http://www.dec.ny.gov/docs/water_pdf/togs213.pdf [accessed Oct. 20, 2017] ). Following favorable hydrogeological testing, Kiryas Joel applied to respondent Department of Environmental Conservation (hereinafter DEC) for a permit to develop a well field at the Mountainville site and withdraw water from the aquifer. Respondent Village of Kiryas Joel Board of Trustees (hereinafter Village Board), a respondent in proceeding No. 1, then assumed lead agency status for the review of the well drilling conducted under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ). The Village Board ultimately made a negative declaration under SEQRA, finding no significant adverse environmental impact flowing from the well field development, and a challenge to that determination was dismissed by Supreme Court (Lefkowitz, J.) in 2014.

The water supply permit application was reviewed by DEC while the SEQRA process and challenge to it was ongoing, and DEC issued a draft permit in 2013 and conducted a legislative hearing to consider public comment. In 2015, DEC issued a final permit that consolidated all of Kiryas Joel's prior supply permits and allowed the monitored withdrawal of up to 612,000 gallons of water a day from a well at the Mountainville site. These hybrid CPLR article 78 proceedings and declaratory judgment actions followed.

Petitioners in proceeding No. 1 sought relief including annulment of the water withdrawal permit, a declaration that the Village Board's SEQRA determination was void and an injunction barring the permitted water withdrawal from the Mountainville site. Petitioners in proceeding No. 2 sought similar relief. A stipulation subsequently joined the two proceedings and the parties agreed to rely upon a single record and filing schedule.

DEC and respondent Acting Commissioner of Environmental Conservation served an answer in proceeding No. 1 that raised several objections in point of law, including that petitioners lacked standing to commence it. DEC moved to dismiss proceeding No. 2 on various grounds, including standing, and the other respondents moved to dismiss both proceedings. Further motion practice ensued that included a cross motion by the proceeding No. 1 petitioners for summary judgment. Supreme Court thereafter issued a judgment holding that only petitioners Village of Woodbury, Town of Woodbury, Village of Cornwall–on–Hudson and Town of Cornwall in proceeding No. 1 (hereinafter the municipalities) had standing to bring suit. As for them, Supreme Court noted that the challenges to the SEQRA determination were barred by res judicata in some cases and untimely in all, as well as that the claims relating to the grant of the water withdrawal permit were belied by "overwhelming documentary evidence." Supreme Court accordingly dismissed the amended petitions/ complaints in their entirety, prompting these appeals by all petitioners in proceeding No. 1 and petitioners Storm King Art Center and Black Rock Forest Consortium in proceeding No. 2.¹

The issue of standing having been raised, petitioners were obliged to "establish[ ] 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 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 [2013], lv. denied 21 N.Y.3d 862, 2013 WL 4516420 [2013] ). Petitioners must have more than "[g]eneralized environmental concerns" to satisfy that burden and, unlike in cases involving zoning issues, "there is no presumption of standing to raise a SEQRA [or other environmental] challenge based on a party's close proximity alone" ( 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] ; see Matter of Shapiro v. Torres, 153 A.D.3d 835, 836, 60 N.Y.S.3d 366 [2017] ). Moreover, "[t]he injury in fact element must be based on more than conjecture or speculation" (Matter of Animal Legal Defense Fund, Inc. v. Aubertine, 119 A.D.3d 1202, 1203, 991 N.Y.S.2d 482 [2014] ). Standing rules are not applied "in an overly restrictive manner" that will "completely shield a particular action from judicial review" ( Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d at 6, 988 N.Y.S.2d 115, 11 N.E.3d 188 ), however, and we will "deem the allegations in the petition[/complaint] to be true and construe them in the light most favorable to the petitioner[s]" in assessing whether a sufficiently precise injury has been articulated ( Matter of Town of Amsterdam v. Amsterdam Indus. Dev. Agency, 95 A.D.3d 1539, 1541 n. 3, 945 N.Y.S.2d 434 [2012] ; see Matter of Powers v. De Groodt, 43 A.D.3d 509, 512, 841 N.Y.S.2d 163 [2007] ).

Supreme Court determined, and we agree, that petitioner Black Rock Fish and Game Club of Cornwall, Inc. in proceeding No. 1, as well as the proceeding No. 2 petitioners, lacked standing. All of those petitioners are organizations who alleged that the approved water withdrawal might deplete ground water in the area to the extent that "water-dependent natural resources," such as the nearby Woodbury Creek, will be impacted. Accepting those allegations at face value—and assuming that these petitioners either did, or did not need to, articulate grounds for organizational standing (see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004] )—the harm is "no different in kind or degree from that suffered by the general public in the vicinity ... and [does] not confer standing" (Matter of Powers v. De Groodt, 43 A.D.3d at 513, 841 N.Y.S.2d 163 ; see Matter of Save the Pine Bush, Inc. v. Planning Bd. of Town of Clifton Park, 50 A.D.3d 1296, 1297–1298, 856 N.Y.S.2d 687 [2008], lv. denied 10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403 [2008] ; Matter of Buerger v. Town of Grafton, 235 A.D.2d 984, 985, 652 N.Y.S.2d 880 [1997], lv. denied 89 N.Y.2d 816, 659 N.Y.S.2d 856, 681 N.E.2d 1303 [1997] ). Accordingly, Supreme Court properly dismissed proceeding No. 1 with regard to Black Rock Fish and Game Club of Cornwall, Inc. and proceeding No. 2 in its entirety, on standing grounds.

The remaining proceeding No. 1 petitioners—including, contrary to the conclusion of Supreme Court, petitioners Henry N. Christensen Jr., Susan Webber Christensen and Sevinch Bridges—had standing. An impact upon a nearby landowner's water supply constitutes an injury specific enough to confer standing to challenge the action that caused it (see ECL 15–1503[2][c], [f] ; 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] ; Matter of Many v. Village of Sharon Springs Bd. of Trustees, 218 A.D.2d 845, 845–846, 629 N.Y.S.2d 868 [1995] ), and that is precisely the type of injury the neighbors allege the Mountainville well will cause to their private...