Second Department Issues Ruling in Standing Case

Land Use

Case: In the Matter of Riverhead Neighborhood Preservation Coalition, Inc., et al. v. Town of Riverhead Town Board, 112 A.D.3d 944 (2nd Dept., December 26, 2013)

In the recent decision of In the Matter of Riverhead Neighborhood Preservation Coalition, Inc., et al. v. Town of Riverhead Town Board, 112 A.D.3d 944 (2nd Dept., December 26, 2013), the Appellate Division, Second Department, reaffirmed the long standing legal principle that in order to possess proper standing to challenge a municipal land use decision, the petitioner must demonstrate that it has suffered injury in fact that is different than the injury allegedly sustained by the public community as a whole.

Standing is defined as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.” BLACK’S LAW DICTIONARY (9th ed. 2009). In order for a petitioner to establish standing, the party must “show that it would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted.” Riverhead PGC, LLC v. Town of Riverhead, 73 A.D.3d 931, 933 (2nd Dept. 2010), citing Society of Plastics Indus. V. County of Suffolk, 77 N.Y.2d 761, 773-74 (1991).

The decision in Riverhead Neighborhood Preservation Coalition resulted from the review of an Article 78 proceeding filed by the plaintiff-petitioners (a group of local residents and the Riverhead Neighborhood Preservation Coalition, Inc.) to contest the proposed construction of a regional shopping mall in Wading River. 112 A.D.3d at 944. According to the petitioners, the primary entrance to the mall was located across Sound Avenue from Fairway Drive, the only road leading to the petitioner’s cul-de-sac community just north of Sound Avenue. The petitioner’s homes on Fairway Drive were located anywhere from 1,300 to 2,000 feet away from the site of the proposed construction. After considering these facts, the Supreme Court of Suffolk County granted the defendant-respondent’s motion to dismiss on the basis that the petitioners lacked standing for failing to sufficiently establish an injury in fact different then the harm suffered by the general public (decision available here: RiverheadvNeighborhoodPresCoal). Id.

On review, the Second Department affirmed the decision after explaining that the Supreme Court was supported by substantial case law. The court started its analysis by setting forth the requirements for standing in land use matters: “ ‘ . . . the plaintiff[s] . . . must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large.’ ” Id. (quoting Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 304 (2009), quoting Society of Plastics Indus., 77 N.Y.2d at 774 (1991)). Beyond the presence of the mall’s entrance across the street from Fairway Drive and the general proximity of the site, the petitioners had failed to assert any arguments to establish injury at all. Id. at 945.

According to the facts on record, the Second Department found that the petitioners had failed to establish anything more than a generalized complaint, noting in particular that Fairway Drive was also used for entrance and egress from a local golf course. Id. at 945. Furthermore, the court noted that none of the petitioners could actually see the mall or its entrance from their home, nor were they within close enough proximity to the project, therefore, denying petitioners a presumption of injury in fact. Id.; see Matter of Harris v. Town Bd. of Town of Riverhead, 73 A.D.3d 922, 924 (2nd Dept. 2010) (“The individual petitioners do not live close enough to the site to be afforded any presumption of injury-in-fact on the basis of proximity alone.”); see Matter of Oates v. Village of Watkins Glen, 290 A.D.2d 758, 761 (3rd Dept. 2002) (“The test is whether the neighbor is close enough to suffer some harm other than that experienced by the public generally . . . ”); c.f. Matter of Barret v. Dutchess County Legislature, 38 A.D.3d 651, 654 (2nd Dept. 2007) (standing established where petitioner’s property directly abutted the planned site and the petitioners had a direct view of the planned construction from 1,200 feet). The lack of standing for the individual petitioners, as determined by the court, was, therefore, fatal to the Riverhead Neighborhood Preservation Coalition. 112 A.D.3d at 945; see Society of Plastics Indus., 77 N.Y.2d at 775.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz

Posted by admin