Standing to challenge decisions of planning and zoning boards and local legislative bodies can be a procedural roadblock to plaintiffs who are hoping for their “day in court.”  Further, in the land use context, many states, such as New York, have different rules for standing depending upon whether a land use action is being challenged or whether it is an environmental action, even where the two may be related.  A recent decision from New York’s Appellate Division (Third Department) explains the different tests succinctly.

 

The petitioner, who owns an adjacent parcel of land to the property in question, commenced an action challenging the issuance of a site plan approval and special use permit to the respondent, Patience Realty, for the purpose of constructing a retail shopping space. Following a long negotiation between the town and the developer, during which at some point the town had indicated that it would require Patience to grant an easement over its property to petitioner’s parcel, the town issued a negative declaration of environmental significance and approved the applications without imposing the easement requirement as a condition. The petitioner desired that the town require the respondent to grant him an easement that would enable direct access from his parcel to the main road.  While the petitioner asserted the impact on traffic patterns as a reason, the Court believed it was because an easement would enhance the value of the parcel.

 

The Appellate Court agreed with the trial court that the petitioner lacked standing to challenge both the environmental determination as well as the granting of the land use permits. With respect to standing to challenge the environmental review, the Court noted that that the petitioner failed to meet its burden of demonstrating that it would suffer an injury that is environmental and not solely economic in nature, and that claims that are economic in nature alone do not confer standing to challenge a decision under the State Environmental Quality Review Act.  

 

As to the petitioner’s challenge to the land use matter (e.g., the granting of the site plan and special use permits), the petitioner is required to demonstrate a direct harm that is different from that suffered by the public at large, and that its interest is “within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency acted.” (citations omitted) Although the petitioner’s property is adjacent to the subject property and as such, an inference arises of harm or injury different from that of the public at large, here, however, the Court concluded that “the injuries alleged by the petitioner do not flow from the proposed construction, but from the Town’s failure to condition their approval of the project on the creation of an easement that does not currently exist.” This said the Court, is not a mitigation measure but rather a proactive measure that would enhance the value of the petitioner’s property. Further, said the Court, there is no evidence that the petitioner has any plans to develop his parcel, and that therefore, any alleged harm at this point is merely speculative. As a result, petitioner lacked standing to challenge the land use actions.  

                       

Widewaters Route 11 Potsdam Co., LLC v. Town of Potsdam, 2008 WL 2129829 (N.Y.A.D. 3 Dept. 5/22/2008).

 

The opinion can be accessed at:

http://decisions.courts.state.ny.us/ad3/Decisions/2008/503082.pdf