| Matter of Shelter Is. Assn. v Zoning Bd. of Appeals of Town of ShelterIs. |
| 2008 NY Slip Op 10170 [57 AD3d 907] |
| December 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of Shelter Island Association et al.,Appellants, v Zoning Board of Appeals of Town of Shelter Island et al.,Respondents. |
—[*1] Laury L. Dowd, Town Attorney, Shelter Island, N.Y., for respondents.
In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the respondentZoning Board of Appeals of the Town of Shelter Island dated May 24, 2006 which, after a hearing,granted the respondent John Peter Meister's application for an accessory apartment variance, theappeal is from an order and judgment (one paper) of the Supreme Court, Suffolk County (Whelan, J.),dated January 2, 2007, which, among other things, denied the petitioners' cross motion, inter alia, forleave to amend the petition to add additional petitioners, granted the respondents' motion to dismiss theproceeding on the ground that the petitioners lacked standing to bring the proceeding, and dismissedthe proceeding.
Ordered that the order and judgment is affirmed, with costs.
As the Supreme Court correctly found, the originally-named petitioners, three individuals and anassociation of homeowners, lacked standing to commence the instant proceeding because they failed toestablish that any of the individual petitioners or any member of the petitioner association would sufferany environmental "injury that is in some way different from that of the public at large" or that the allegedinjury "falls within the 'zone of interests,' or concerns, sought to be promoted or protected by thestatutory provision" (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-774[1991]; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N.Hempstead, 69 NY2d 406, 414 [1987]; Matter of Barrett v Dutchess County Legislature,38 AD3d 651, 653 [2007]; Matter of Long Is. Contractors' Assn. v Town of Riverhead,17 AD3d 590, 595 [2005]).[*2]
The petitioners cross moved, inter alia, for leave to amend thepetition to add additional petitioners, at least one of whom met one of the criteria for standing. Addingadditional petitioners would not have resulted in surprise or prejudice to the respondents, who had priorknowledge of the claims and an opportunity to prepare a proper defense (see Fulgum v Town ofCortlandt Manor, 19 AD3d 444 [2005]; JCD Farms v Juul-Nielsen, 300 AD2d 446[2002]; New York State Thruway Auth. v CBE Contr. Corp., 280 AD2d 390 [2001];MK W. St. Co. v Meridien Hotels, 184 AD2d 312, 313-314 [1992]). Moreover, the crossmotion, among other things, for leave to amend the petition was not barred by the applicable statute oflimitations. The amendment relates back to the original petition, since the substance of the claims arevirtually identical, the relief sought is essentially the same, and the new petitioners, like the originalpetitioners, are residents of the respondent Town of Shelter Island (see CPLR 203 [f];Fulgum v Town of Cortlandt Manor, 19 AD3d at 444; Key Intl. Mfg. v Morse/Diesel,Inc., 142 AD2d 448, 458 [1988]; see also Bellini v Gersalle Realty Corp., 120 AD2d345, 347 [1986]).
Nonetheless, the Supreme Court did not err in denying that branch of the petitioner's cross motionwhich was for leave to amend the petition and in dismissing the proceeding, as none of the petitioners,including the four additional petitioners that the original petitioners sought to add, had standing. Thepetitioners established that at least one of the new petitioners, William Packard, resided about 250 feetaway from, and thereby in close proximity to, the subject property. While they were not required toallege a specific harm for him to have standing (see Matter of Sun-Brite Car Wash v Board ofZoning & Appeals of Town of N. Hempstead, 69 NY2d at 414; see Matter of Har Enters. vTown of Brookhaven, 74 NY2d 524, 528 [1989]; Matter of Long Is. Pine Barrens Socy. vPlanning Bd. of Town of Brookhaven, 213 AD2d 484, 485 [1995]), they were still required toestablish that his interests were arguably within the "zone of interests" to be protected by the statute(Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69NY2d at 414; see Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9 [1975]; Matter ofBrighton Residents Against Violence to Children v MW Props., 304 AD2d 53, 57 [2003]). Thepetitioners' generalized allegations of increased traffic and the effect on the water table resulting from theaddition of one or two tenants to the subject property are insufficient to establish such standing; thepetitioners have not demonstrated any "alleged environmental harm that is different from that suffered bythe public at large and that comes within the zone of interest protected by SEQRA" (Matter ofBarrett v Dutchess County Legislature, 38 AD3d 651, 654 [2007]; see Society of PlasticsIndus. v County of Suffolk, 77 NY2d at 775; Matter of Mobil Oil Corp. v Syracuse Indus.Dev. Agency, 76 NY2d 428, 433 [1990]). Thus, since neither the original petitioners nor thosesought to have been added had standing, the Supreme Court properly granted the respondents' motionand denied the petitioners' cross motion, inter alia, for leave to amend the petition, denied the petition,and dismissed the proceeding without considering the merits of the petition (see Society of PlasticsIndus. v County of Suffolk, 77 NY2d at 780). In light of this disposition, the petitioners' remainingcontentions either have been rendered academic or are without merit. Skelos, J.P., Lifson, Santucci andBalkin, JJ., concur.