Posted by: Patricia Salkin | March 6, 2014

NY Appellate Court Determines Individual and Organization Standing to Challenge Action of LI Pine Barrens Commission and Upholds Hardship Waiver Under LI Barrens Act

A predecessor in interest of the respondent JCJC Holding Company, Inc. (“JCJC”), purchased real property in 1970 located within the “core preservation area” of the Long Island Central Pine Barrens and also located within a residentially zoned area of the Town of Southampton, New York. It constructed a 3,354-square-foot brick building on it, which it leased to the New York State Police (“State Police”) for use as barracks. The property primarily consisted of wooded, public, open space managed by the Suffolk County Department of Parks, Recreation and Conservation. JCJC purchased the property in 2003 and continued leasing it to the State Police until 2008, at which point the State Police vacated the building and JCJC began using the property to operate a commercial landscaping and horticultural services business. JCJC was notified that this use was not consistent with the underlying zoning and it applied to the Town of Southampton Zoning Board of Appeals (“ZBA”) for a variance to continue utilizing the property for a commercial use.

JCJC applied to the respondent Central Pine Barrens Joint Planning and Policy Commission (“Commission”) for an extraordinary hardship waiver pursuant to ECL 57-0121(10) and 57-0123(3)(a) to permit it to continue to use the existing facility. JCJC argued that its proposed utilization of the parcel constituted a reduction in intensity of use from the former round-the-clock use of the property for State Police barracks and the enterprise would only operate during normal business hours. The Commission held a public hearing at which Richard Amper (“Amper”), appearing in his capacity as Executive Director of the petitioner Long Island Pine Barrens Society, Inc. (“Society”), argued that the hardship sought to be alleviated was self-created and, therefore, should be denied. The Commission granted JCJC the waiver.

The Society and Amper (“the petitioners”) commenced a proceeding challenging the decision. The petitioners averred that the Society was a not-for-profit corporation, whose mission was to support research and preservation of the Pine Barrens “on a forever-wild basis.” According to Amper’s affidavit, in his professional capacity, Amper took residents and policy makers through the Core Preservation Area of the Pine Barrens to afford an understanding of the significance of the Ecosystem. Further, as an individual, Amper was the leading activist in the creation of the Pine Barrens Protection Act and Comprehensive Land Use Plan. The trial court denied the petition on the ground that the petitioners lacked standing and in the alternative, that the challenged determination was not arbitrary and capricious.

On appeal, the appellate court stated that contrary to JCJC’s initial contention, the petitioners’ notice of appeal, which recites that they appeal from a Judgment dismissing the Petition due to lack of standing,” did not limit their appeal solely to the issue of standing. CPLR 5515 provides that a notice of appeal “shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. This requirement was jurisdictional and by taking an appeal from only a part of a judgment, a party waives its right to appeal.

Here, the notice of appeal contained no words of limitation expressly or implicitly limiting the appeal to only a specific part of the judgment. Rather, the reference to a lack of standing in the notice of appeal simply constituted language describing the judgment, and did not limit the issues on the appeal.

With regard to standing, the trial court erred in holding that the petitioners lacked standing. The appellate court noted that the Court of Appeals has held that, in land-use and environmental cases, a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing to challenge government actions that threaten that resource. Here, it was established that Amper, in both his individual and professional capacities, used and enjoyed the Pine Barrens to a greater degree than most other members of the public. Further, the threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens fell within the zone of interests protected by the Long Island Pine Barrens Protection Act of 1993 (“Act”). Thus, the court held that Amper had standing to sue individually, and his standing satisfied the test for the Society’s organizational standing. The Society met the organizational standing test, namely that its interests were germane to its purposes, and that neither the asserted claim nor the appropriate relief required the participation of the individual members.

However, the court held that the petition was properly denied on the merits. The Act was adopted to protect the 100,000 acre area and created the Commission as a regional planning agency, and directed the creation of a Comprehensive Land Use Plan (“Comprehensive Plan”) to guide development. The Comprehensive Land Use Plan stated: “Allowable uses within the Core Preservation Area shall be limited to those operations or uses which do not constitute development, or for which hardship exemptions are granted by this Commission pursuant to the Act.” The court stated that there was no dispute in JCJC’s proposed use of the subject property constituted development since the proposed use constituted a material change in the use of the subject property. Thus, an extraordinary hardship waiver was required. The Commission may “waive strict compliance with the Comprehensive Plan or with any element or standard, for an application for development, upon finding that such waiver is necessary to alleviate hardship for proposed development according to the conditions and finding of extraordinary hardship or compelling public need and would not result in substantial impairment of the resources.

State statute requires that the applicant for an extraordinary hardship waiver establish that the hardship results from “unique circumstances peculiar to the subject property which are not the result of any action or inaction by the applicant or the owner or his or her predecessors in title. Here, the Commission’s determinations that JCJC established the existence of unique circumstances, and that any hardship was not self-created, was not arbitrary and capricious. Consequently, the hardship waiver was not legally prohibited by ECL 57-0121(10)(a)(iii), and the Commission’s determination to grant the extraordinary hardship at a less intensive level than that at which the previous user employed the property was not affected by an error of law or arbitrary and capricious.

Matter of Long Is. Pine Barrens Socy., Inc. v Central Pine Barrens Joint Planning & Policy Comm’n., 2014 WL 305244 (N.Y.A.D. 2 Dept. 1/29/2014)

The opinion can be accessed at:

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