Posted by: Patricia Salkin | August 7, 2022

NY Appellate Court Dismisses Challenge to ZBA’s Grant of Special Use Permit for Assisted Living Facility  for Lack of Standing and Res Judicata

This post was authored by Tyler Doan, JD

Shelbourne, the prospective purchaser of certain property in the Town of Greenburgh, applied to the Town Board for a special permit in relation to its proposed construction of an assisted living facility on the property they intended to purchase. The local zoning ordinance authorizes the Town Board to issue special permits for the development of said facilities within the zoning district so long as the project complies with conditions set forth in the Greenburgh Code. The Town Board ultimately approved the special permit. Petitioners commenced the lawsuit pursuant to CPLR article 78 to review the Town Board’s determination as well as a conditioned negative declaration pursuant to the New York State Environmental Quality Review Act (SEQRA). Respondents moved to dismiss the petition. The Supreme Court granted the motions to dismiss the petition based on the petitioners’ lack of standing and on the alternative ground that the proceeding was barred by the doctrine of res judicata.

The Appellate Court stated that “Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” and that the rule applies not only to claims actually litigated but claims that could have been raised during said litigation. The Court determined that the branch of the petition which was to review the SEQRA determination was properly barred due to a previous proceeding involving the same petitioners as well as the ZBA where the Supreme Court had determined that the petitioner’s challenge to the SEQRA determination was time-barred.

The Appellate Court further reasoned that the petitioners lacked standing. The petitioners “did not allege any legally cognizable injury with respect to an anticipated increase in the number of emergency calls due to the construction of the proposed assisted living facility . . .” The Court determined that those concerns were outside the zone of interests that the Greenburgh Code sought to protect. Additionally, the Court reasoned that the petitioners’ generalized allegations that the Town Board’s determination may result in a road safety hazard for its emergency vehicle were conclusory and speculative, and unable to sustain standing.

The Appellate Court affirmed the Supreme Court’s decision and dismissed the petition.

Greenville Fire District v. Town of Greenburgh, 2022 WL 468413 (NYAD 2 Dept. 2022)

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