| Matter of Widewaters Rte. 11 Potsdam Co., LLC v Town ofPotsdam |
| 2008 NY Slip Op 04577 [51 AD3d 1292] |
| May 22, 2008 |
| Appellate Division, Third Department |
| In the Matter of Widewaters Route 11 Potsdam Company, LLC,Appellant, v Town of Potsdam et al., Respondents. |
—[*1] Hiscock & Barclay, L.L.P., Syracuse (Andrew J. Leja of counsel), for Town of Potsdam andanother, respondents. Sonneborn, Spring & O'Sullivan, Syracuse (James L. Sonneborn of counsel), for PatienceRealty, L.L.C., respondent.
Spain, J. Appeals (1) from a judgment of the Supreme Court (Demarest, J.), entered July 19,2007 in St. Lawrence County, which, in a proceeding pursuant to CPLR article 78, among otherthings, granted respondents' motions to dismiss the petition, and (2) from a judgment of saidcourt, entered October 10, 2007 in St. Lawrence County, which, in a proceeding pursuant toCPLR article 78, among other things, denied petitioner's motion for a preliminary injunction.
In May 2006, respondent Patience Realty, LLC submitted an application for site planapproval and a special use permit in order to construct retail space on its real property located inthe Town of Potsdam, St. Lawrence County, which has frontage on US Route 11 (hereinafter thePatience parcel). Petitioner's real property, which is contiguous to and in back of the Patienceparcel, has frontage on Morley-Potsdam Road, but no frontage on US Route 11. RespondentTown of Potsdam Planning Board held a public hearing on the application in June 2006. Over thecourse of the following months, the Board worked with Patience to conform the plans to townrequirements concerning, among other things, traffic, water, drainage and wetland delineationand, at one point, the Board indicated its intent to require, as a condition of approval, thatPatience grant an easement over its property to petitioner's parcel. However, at a February [*2]2007 special meeting of the Board for which public notice wasgiven, the Board again indicated its preference that Patience negotiate with petitioner to grantpetitioner an easement, so as to keep traffic off of Morley-Potsdam Road, but did not make suchan easement a condition of approval. The Board then issued a negative declaration ofenvironmental significance, conditionally approved Patience's site plan, and granted a special usepermit.
In April 2007, petitioner commenced this CPLR article 78 proceeding to challenge theissuance of the site plan approval and special use permit by the Board to Patience, claiming thatthe Board failed to comply with the requirements of the State Environmental Quality Review Act(hereinafter SEQRA) (see ECL art 8) and the Town Law. In lieu of filing an answer,respondents moved to dismiss the petition for lack of standing. Petitioner cross-moved for leaveto file an amended petition. Following oral argument, Supreme Court denied petitioner's crossmotion and granted respondents' motions to dismiss the petition for want of standing. Petitionermoved to reargue and for issuance of a preliminary injunction, which motion was denied inOctober 2007. Petitioner now appeals from both the July and October 2007 judgments. Weaffirm.
Initially, we concur with Supreme Court's conclusion that petitioner lacks standing to assertits SEQRA claims. To meet its burden of demonstrating its entitlement to standing (seeSociety of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991]; Matter ofO'Donnell v Town of Schoharie, 291 AD2d 739, 740 [2002]), petitioner had to "demonstratethat it will suffer an injury that is environmental and not solely economic in nature" (Matterof Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433 [1990]; seeMatter of McGrath v Town Bd. of Town of N. Greenbush, 254 AD2d 614, 615 [1998], lvdenied 93 NY2d 803 [1999]; see also ECL 8-0103; Matter of O'Donnell v Townof Schoharie, 291 AD2d at 740). Here, the harm alleged is that the Town's approval of theproposed development of the Patience parcel without requiring an easement to providepetitioner's parcel with direct access to US Route 11 will negatively impact petitioner's ability todevelop its parcel in the future. Although petitioner alleges that the proposed construction wouldimpact traffic patterns, the cited potential negative implication of such changes is only thealleged economic impact on petitioner's parcel. Accordingly, we fully agree with Supreme Courtthat petitioner's claims are economic rather than environmental in nature and, because "economicinjury [alone] does not confer standing to sue under SEQRA" (Society of Plastics Indus. vCounty of Suffolk, 77 NY2d at 777; see Matter of McGrath v Town Bd. of Town of N.Greenbush, 254 AD2d at 615), petitioner lacks standing to bring its SEQRA claims (seeMatter of Nature's Trees v County of Nassau, 293 AD2d 544, 546 [2002], lv denied98 NY2d 608 [2002]).
Petitioner's sole remaining cause of action alleges a violation of the public hearingrequirements set forth in Town Law § 274-b. To challenge governmental action in a landuse matter, a petitioner must demonstrate direct harm, different from that suffered by the publicat large (see Matter of Ziemba v City ofTroy, 37 AD3d 68, 70-71 [2006], lv denied 8 NY3d 806 [2007]; Matter of Center Sq. Assn., Inc. v City ofAlbany Bd. of Zoning Appeals, 9 AD3d 651, 652 [2004]). Petitioner must alsodemonstrate that its interest is "within the zone of interests or concerns sought to be promoted orprotected by the statutory provision under which the agency has acted" (New York State Assn. of NurseAnesthetists v Novello, 2 NY3d 207, 211 [2004]; see Matter of Graziano v County of Albany, 3 NY3d 475, 479[2004]).
Where, as here, a petitioner's property is immediately adjacent to the subject property, aninference arises of harm or injury different from that of the public at large (see Matter of[*3]Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d668, 687 [1996]; Matter of Mack vBoard of Appeals, Town of Homer, 25 AD3d 977, 978 [2006]; see also Matter ofZiemba v City of Troy, 37 AD3d at 71). The injuries alleged by petitioner, however, do notflow from the proposed construction, but from the Town's failure to condition their approval ofthe project on the creation of an easement that does not currently exist. This is not a mitigationmeasure designed to lessen some claimed negative environmental impact, but a proactivemeasure proposed by petitioner to enhance the value of its property. Further, no indication existsthat petitioner has actual plans to develop the parcel or that it has explored the option ofobtaining access to US Route 11 over other adjacent property. At this juncture, any alleged harmis purely speculative (see New York State Assn. of Nurse Anesthetists v Novello, 2NY3d at 213). Inasmuch as the claimed injuries are speculative and petitioner's own descriptionof the injury negates the presumption of direct harm, as opposed to mere dissatisfaction with thestatus quo, we find that it lacks standing to assert its ultimate cause of action as well. Becausepetitioner would also lack standing to assert those claims alleged in the amended petition, wehold that Supreme Court also correctly denied its cross motion for leave to file the amendedpetition (see U.W. Marx, Inc. v Mountbatten Sur. Co., 290 AD2d 621, 623 [2002]).
Likewise, based on petitioner's want of standing, Supreme Court appropriately refused toissue a preliminary injunction because petitioner cannot demonstrate "a likelihood of success onthe merits" (Battenkill VeterinaryEquine v Cangelosi, 1 AD3d 856, 857 [2003]; see Marietta Corp. v Fairhurst,301 AD2d 734, 736 [2003]).
Cardona, P.J., Mercure, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgments areaffirmed, without costs.