Over the past several years, this blog has presented several posts on the topic of standing. It is a frequent topic because it is often raised as a threshold issue in zoning and land use cases. If a challenger to an administrative decision fails to establish it has standing, the challenge will be dismissed even before the Court reaches the merits.
A decision from the Appellate Division, Second Department, issued on February 20, 2019, involved an interesting take on standing. In Matter of City of Rye v Westchester County Board of Legislators, the City of Rye (City) tried to upend a negative declaration issued by the Westchester County Board of Legislators (County) under the State Environmental Quality Review Act (SEQRA) in connection with several proposed projects at Playland Park (Park), an amusement park. The Park is owned by the County and is located entirely within the City’s boundaries.
The facts are set forth in the Trial Court Decision, Order and Judgment, issued March 20, 2017. In August 2010, the County sought proposals to reinvent the “iconic and historic Playland Park to thrive in the 21st century” through private redevelopment, “in a way that maximizes its resources and location, while reducing the financial burden to taxpayers of operating Playland Park.” In July 2013, the County entered into an agreement with Sustainable Rye Playland, Inc., to be the manager and operator of the Park.
A dispute arose between the County and the City as to which would act as lead agency for the proposed projects. The City requested that the New York State Department of Environmental Conservation (NYSDEC) determine which governmental entity should be the lead agency, but the NYSDEC never made that determination, as the agreement with Sustainable Rye Playland, Inc. was terminated and the City thereafter withdrew its lead agency dispute.
In August 2015, Standard Amusements LLC entered into an agreement with the County to operate and manage the Park and to undertake certain redevelopment projects at the Park. In January 2016, the County Director of Planning prepared a Full Environmental Assessment Form for projects to renovate the parking, plaza and games structures at the Park. After several public meetings were held, the County, in May 2016, adopted a negative declaration resolution for the projects.
Two months later, in July 2016, the City advised the County that it objected to the County declaring itself the lead agency, and contended that the County failed to give appropriate notice of the May 2016 meeting. Later in July, the County issued a notice of the negative declaration to “Involved/Interested Agencies,” including the City. The City and the two individual petitioners sued.
As to the two individual petitioners, the trial court recited the requirements to establish standing. A petitioner that is challenging an administrative decision has to show that it “sustained or will sustain an injury-in-fact, which injury is within the zone of interests promoted or protected by the statutory provision under which the administrative officer has acted, and that the harm the petitioner suffered from such injury is different in some way from that suffered by the public at large” (citing the landmark case of Matter of Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 ). The trial court noted that in SEQRA cases, the injury-in-fact must be environmental in nature. The trial court also noted that when standing is raised, “perfunctory allegations of harm” are not sufficient, and petitioners “must prove that their injury is real and different from the injury most members of the public face” (citing to Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 ). The trial court determined that neither individual petitioner met this burden of proof and also rejected their claims that their properties were in close proximity to the project site to raise a presumption of injury. One of the properties was within 150 feet from the boundary line of the Park site, the other was about a mile away. Neither petitioner got the presumption because, as the trial court noted, proximity is measured from the petitioner’s property to the actual site of the project at issue, and not from the nearest boundary line of the entire parcel it is located on. As to the alleged injury, complaints about being able to see the lights of the rides, or park visitors parking illegally along the streets of a petitioner’s neighborhood, already existed and were not related to, or a consequence of, the proposed projects.
Turning to the City’s standing, the trial court noted that the entire Park is located within the borders of the City, but the proximity inference does not operate the same way for a municipal entity. Rather, a municipal entity has to “articulate a specific municipal interest in the potential environmental impacts of the action being challenged” from the County’s alleged failure to comply with SEQRA. For example, standing has been conferred when the lead agency failed to consider the impact on a municipality’s community character in connection with the approval, or when the action is inconsistent with the surrounding density zones in adjacent villages and could lead to substantial residential development in an adjoining town or adversely affects the municipality’s water supply. The trial court concluded the City did not have standing under this theory.
The trial court then evaluated the City’s claim of standing due to its role as an “involved agency.” The trial court noted that an “involved agency” “has jurisdiction by law to fund, approve or directly undertake an action.” The trial court noted that the City did not directly allege it was an “involved agency” in the petition. Instead, the City contended the County’s “actions have materially diminished Rye’s ability to promote, protect and improve the quality of life for its residents and to protect and, where possible, enhance the environment” or “violated Rye’s city code and undermined Rye’s efforts and plans to enhance and promote its status as a coastal city on Long Island Sound by protecting natural resources.”
The trial court applied a balancing test to determine if the County’s actions were or were not exempt from the City’s zoning code and other local laws. The factors it used included (1) the nature and scope of the entity seeking immunity from the local laws, (2) the land use involved with the project; (3) the extent of the public interest served by the project, (4) the effect the local laws have on the project, and (5) the impact on legitimate local interests. The trial court found that balancing the public interests favored the County. It noted that the Park had been in existence for almost a century, prior to the City’s existence; the City did not identify any state law that gives it express authority to permit, approve or regulate the County’s use of the Park; and the County’s action, although exempt from City oversight, was subject to oversight, in particular via the various public hearings involved in the approval process. The trial court, therefore, concluded the City lacked standing as an “involved agency.”
The Second Department affirmed the determination of the trial court, dismissing the proceeding because the City lacked standing. First, the appellate court discussed and rejected the City’s assertion that it had standing because it was an “involved agency” under 6 NYCRR 617.2[t], because it found that the proposed development projects are immune from local zoning and land use laws. The appellate court then discussed and rejected the City’s assertion it had standing based on its “interest in the potential environmental impacts of the development projects on the City of Rye’s community character.” The appellate court also affirmed the lack of standing of the two individual petitioners, noting that both had failed to demonstrate that they suffered an injury-in-fact that fell within the zone of interests protected by SEQRA.
So, what’s the takeaway? When confronted with a challenge to an administrative decision, a municipality should always evaluate whether or not a petitioner has standing, regardless of whether the challenge is from a governmental entity, non-governmental entity or person.