In a decision that highlights how strictly trial courts are construing the standing of prospective plaintiffs or petitioners, a State Supreme Court justice in Westchester County recently held that because of a land conservation buffer between existing homes and a proposed development that the petitioners were fighting, individual residents could not establish the “proximity” necessary to confer standing, i.e., the status needed to permit them to sue. In particular, the petitioners could not establish, in the court’s view, that they were harmed in a manner different from that of the general public; in other words, they lacked the particularized injury necessary to be able to challenge the project. See Matter of Tuxedo Land Trust Inc. v. Town of Tuxedo, 2012 N.Y. Misc. LEXIS 938 (N.Y. Sup. Ct. Mar. 5, 2012).
Background
Matter of Tuxedo Land Trust Inc. v. Town of Tuxedo arose from a lengthy battle over plans to build a new housing development that would add almost 1,200 new homes and in effect create a new community, with its own commercial “downtown area,” over about 10 years.
The land conservation “buffer” that was so important to the judge’s decision was a significant one: much of the 2,400 acres of land in the Town owned by the development company, TRO, would be preserved as open space, buffering existing properties from new construction. Two non-profit organizations, the Tuxedo Land Trust and the Torne Valley Preservation Association, as well as several individual residents, challenged a series of amendments that the Town approved to expand the project and would allow construction in this buffer area. (There were no challenges to the initial plan, which may have played a role in the court’s decision.) The petitioners asserted a dozen claims, ranging from environmental and cultural impacts to purported violations of the State’s Open Meetings Law.
Standing to Sue
In order to bring a lawsuit, a plaintiff or petitioner must show that they have the legal right to bring the case; that right is known as “standing.” In general, in order to show standing, the petitioner “must show that the in-fact injury of which it complains . . . falls within the zone of interests, which [the law] seeks to promote or protect, and that it would suffer direct harm, injury that is in some way different from that of the public at large” (internal quotations omitted).
Specifically, in cases such as this that involve a challenge to a town’s decision as a violation of the State Environmental Quality Review Act (“SEQRA”), persons or entities whose properties are “in close proximity” to the challenged development would have “a presumption that they are adversely affected by the alleged SEQRA violation and, accordingly, need not allege a specific harm” (citations omitted).
How the Court Arrived at Its Decision
The court limited its review to the Town’s approval of the amendments to the proposed development plan, not the original environmental approvals by the Town. These amendments increased commercial development space in one part of the project, altering the mix of housing types, permitting construction on a 32-acre parcel that had originally been proposed for permanent open space, and made other changes to the original plan. The court held that any alleged injury to the petitioners had to arise from the amendments and not the initial proposal, since it was these amendments which the petitioners were claiming caused their injury.
The court said that both the individual and organizational petitioners lacked the “presumption of standing” because they did not own land affected by the development, as their property was sufficiently sheltered and remote from the new development. Also important to the court was that petitioners did not even allege that they enjoyed the potentially impacted natural resources – the proposed open space within the development – any more frequently or enthusiastically than did the public at large.
Thus, because the petitioners lacked the presumption of standing and failed to allege any particular injury caused to them by the Town’s approval of the amendments, the court dismissed their case.
What’s Different about This Decision
It is nothing new that courts in the last few years appear to have become more and more hostile to the concerns of project opponents about proposed developments, finding, for example, that if a plaintiff was on the same side of a street as a proposed development, it couldn’t suffer an injury because it wouldn’t be able to see the project. See Save Our Main St. Bldgs. v. Greene County Legislature, 293 A.D.2d 907 (N.Y. App. Div. 3d Dep’t 2002)
What is novel about this decision is that the court found the proximity of the petitioners to the proposed project relates to the development itself, rather than simply to the land on which the development is included. In this context, it is far more difficult for would-be petitioners to show actual injury. Thus, the existence of a conservation “buffer” not only separated the would-be harmed petitioners from the actual areas of development that would give rise to the claimed injuries; the buffer was sufficient to defeat petitioners’ standing to demonstrate that the buffer was insufficient to insulate them from any ill effects of the development.
