Opposing Municipal Approvals– Proximity Matters

Land Use

Two recent decisions from the Appellate Division, Second Department have sent a clear message to individuals and organizations who seek to annul local municipal approvals: Proximity matters.

In Radow v. Board of Appeals of Town of Hempstead, the petitioners, who lived .69 miles away from the subject beach club, sought to annul a determination of the Board of Appeals issuing certain variances to the beach club owner Atlantic Beach Land Company LLC, arguing that the proposed construction would lead to overcrowding and congestion. 989 N.Y.S. 2d 914 (2d Dept. 2014). In Riverhead Neighborhood Preservation Coalition, Inc. v. Town of Riverhead Town Board, the petitioners, who resided at distances ranging from approximately .25 – .38 miles from the subject project, challenged the proposed construction of a regional shopping mall located in the Town of Riverhead based on traffic and environmental concerns stemming from the development. 2013 WL 801040 (2d Dept. 2013).

In both cases, the Second Department affirmed dismissal of the proceedings holding that the petitioners in each case lacked standing to challenge the approvals.  In order to establish standing, a petitioner must show that “he or she would suffer direct injury different from that suffered by the public at large”.  See Radow.  “Injury-in-fact” may be presumed by demonstrating close proximity to the subject property.  In the absence of such a showing, the petitioner must demonstrate the existence of an actual and specific injury which is distinguishable from the injury suffered by the community at large.

The petitioners in both cases failed to establish an “injury-in-fact” and the court found they lacked standing to challenge the municipal approvals.  In Radow, the petitioners were not entitled to a presumption of injury because they lived more than a half mile away from the subject property (which was not visible from their residence) and the court found their overcrowding and congestion concerns to be purely speculative and not specific or distinguishable from the concerns of the community at large.  In Riverhead Neighborhood Preservation Coalition, the individual petitioners resided slightly closer to the proposed development (.25 – .38 miles away), but the Second Department still held that they did not live close enough to be afforded a presumption of “injury-in-fact” since the proposed mall would not be visible from their homes.  Furthermore, the petitioners in both cases failed to prove that the traffic and environmental impacts from the proposed developments would cause them a specific injury distinguishable from those suffered by the community at large.

The question becomes, how can a petitioner satisfy the presumption of “injury-in-fact”, based on proximity alone?  The Second Department has held that living across the street from a proposed site is sufficient to grant the presumption, as is a 700 foot distance where the two lots border one another. Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 741 90 (2d Dept. 2007); Gaona v. Town of Huntington Zoning Board of Appeals, 106 A.D.2d 638, 638-39 (2d Dept. 1984).  The Third Department however has held that 530 feet is too remote to grant a presumption of “injury-in-fact”.  Oates v. Village of Watkins Glen, 290 A.D.2d 758, 760 (3d Dept. 2002).

Unfortunately, there is no bright-line rule or magical distance a petitioner must be located from a proposed development to have standing to challenge municipal approvals.  However, we do know that in Radow and Riverhead Neighborhood Prevention Coalition the Second Department was particularly concerned with the subject projects not being visible from the petitioners’ homes, as well as the absence of any injuries specific to the petitioners (e.g. safety, noise, traffic, pollution, or decreases in property value). Furthermore, even if a petitioner is able to establish an “injury-in-fact” and is found to have standing, this merely serves as “the admission ticket to judicial review” and does not guarantee success on the merits of petitioner’s claim.    Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead; Allen Avionics v. Universal Broadcasting Corp., 69 N.Y.2d 406, 416.  Thus, after a petitioner has cleared the standing hurdle, they must also be able to show that the approval granted by the agency was arbitrary, capricious, or is affected by some other legal infirmity in order to have it set aside.

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

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