| Matter of Save the Pine Bush, Inc. v Planning Bd. of Town of CliftonPark |
| 2008 NY Slip Op 03283 [50 AD3d 1296] |
| April 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Save the Pine Bush, Inc., et al., Appellants, vPlanning Board of the Town of Clifton Park et al., Respondents. |
—[*1] Thomas R. McCarthy, Clifton Park, for Planning Board of the Town of Clifton Park,respondent. Whiteman, Osterman & Hanna, L.L.P., Albany (John J. Henry of counsel), for DCGDevelopment Company, respondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Kramer, J.), entered February1, 2007 in Schenectady County, which, in a proceeding pursuant to CPLR article 78, grantedrespondents' motions to dismiss the petition.
Donald C. Greene, through his company, respondent DCG Development Company,submitted a site plan to respondent Planning Board of the Town of Clifton Park seeking toconstruct seven light industrial buildings on a 36.68-acre parcel of undeveloped land locatedwithin the town. A portion of this property has been identified as a potential habitat for anendangered species known as the Karner Blue Butterfly (Lycaeides melissa samuelis). When thePlanning Board, in its capacity as lead agency for the project (see ECL art 8), issued anegative declaration as to the impact this project would have on the surrounding environment andgranted site plan approval, petitioner Save the Pine Bush, Inc. (hereinafter petitioner) and severalof its individual members commenced this CPLR article 78 proceeding challenging thisdetermination and seeking to set it aside. Respondents moved to dismiss the petition pursuant toCPLR 7804 (e) asserting, among other things, that petitioners lacked standing. Supreme Courtgranted the motions and this appeal ensued. Because we agree that petitioners lack standing tomaintain this proceeding, we now affirm.
To establish standing, petitioner must show that it "would suffer direct harm, injury that is insome way different from that of the public at large" (Society of Plastics Indus. v County ofSuffolk, 77 NY2d 761, 774 [1991]) and that such injury falls within the zone of interests, or"concerns[ ] sought to be promoted or protected by the statutory provision under which theagency has acted" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 773; see Matter of Saratoga Lake Protection &Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d979, 981 [2007]). Moreover, as an organization seeking standing, petitioner "mustdemonstrate that at least one of its members would have standing to sue individually, that theinterests it asserts are germane to its purpose and that the resolution of the claim does not requirethe participation of its individual members" (Matter of Saratoga Lake Protection &Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d at982; see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 775).
In its petition, petitioner claims that it has standing to maintain this action because it is anenvironmental organization dedicated in part to the preservation and protection of the KarnerBlue Butterfly, and that the proposed development, if implemented, would result in thedestruction of this creature's habitat.[FN1] The petition also alleges that 10 of petitioner's individual members have a special interest in thepreservation of this species because they regularly engage in recreational activities in the "KarnerBlue Butterfly habitat areas and have either seen these butterflies or have actively looked forthem." Essentially, it is argued that because the members enjoy observing the Karner BlueButterfly as part of their recreational activities, they have a special interest in insuring that theproperty is not used in a way that would interfere with this activity. While the membersundoubtedly engage in this activity, and routinely seek to observe this creature in its habitat, theinterest that they seek to protect (i.e., the viewing of a portion of private property from a publicbyway) is no different than the interest enjoyed by the public at large.[FN2] Such an activity—and the impact on it as the result of the proposed development of thisproperty—does not establish the " 'specific environmental injury' " that confers standingunder the State Environmental Quality Review Act (Matter of Save Our Main St. Bldgs. vGreene County Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609[2002], quoting Matter of Boyle v Town of Woodstock, 257 AD2d 702, 704 [1999]; see Matter of Powers v De Groodt, 43AD3d 509, 513 [2007]).
While the property to be developed is private, and not directly available to any of [*2]petitioner's members for engaging in this activity, standing may stillbe found to exist if petitioner or one of its members resides in close proximity to it (seeMatter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69NY2d 406, 414 [1987]). However, while three of petitioner's members actually live within theTown of Clifton Park, it has not been established that any of them lives in sufficient proximity tothis property so as to distinguish any of them as having a "legally protectable interest so as toconfer standing" (id. at 414; see Matter of Oates v Village of Watkins Glen, 290AD2d 758, 761 [2002]). In fact, not only does it appear that none of the members owns propertyin close proximity to the site, but petitioner has failed to submit affidavits from any individualswho will be adversely affected by the development of this property in a manner that is differentin kind or degree from that of the public at large (see Matter of Wyman v Braman, 298AD2d 787, 788 [2002], appeal dismissed 99 NY2d 578 [2003]; Matter of Otsego2000 v Planning Bd. of Town of Otsego, 171 AD2d 258, 261 [1991], lv denied 79NY2d 753 [1992]).
As petitioner has not established that any of its individual members will sustain an injury thatis different from that of the public at large as a result of the development of this property or thatany of its members resides in close proximity to the proposed site, it has failed to demonstratethat it has standing to maintain this action, and Supreme Court properly dismissed the petition.We have considered petitioners' remaining claims and find them lacking in merit.
Cardona, P.J., Carpinello, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: In reports submitted inconnection with this proceeding, two butterflies were observed on the site in 1998, one in 1997and one on two separate occasions in the summer of 2001.
Footnote 2: It should be noted thatrespondent DCG Development Company—the developer of this site—has submitteda management plan which proposes to set aside .91 acres of the site as a Karner Blue Butterflypreserve.