| Matter of Quigley v Town of Ulster |
| 2009 NY Slip Op 07722 [66 AD3d 1295] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of James E. Quigley III et al., Appellants, v Town ofUlster et al., Respondents. |
—[*1] Warner, Koplovitz & Futerfas, P.L.L.C., Kingston (Rod Futerfas of counsel), for Town ofUlster, respondent. Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for Chambers SeniorHousing Limited Partnership, respondent.
Stein, J. Appeal from a judgment of the Supreme Court (O'Connor, J.), entered January 20,2009 in Ulster County, which, in a proceeding pursuant to CPLR article 78, dismissed thepetition.
In 2003, respondent Chambers Senior Housing Limited Partnership, organized pursuant toPrivate Housing Finance Law § 103 (2-a), entered into an agreement with respondentTown of Ulster for the construction of a senior living facility for senior citizens with incomesequal to or less than 60% of the area's median income. In connection with this project, Chambersand the Town also entered into a payment in lieu of taxes (hereinafter PILOT) agreement.Pursuant to the PILOT agreement, Chambers was entitled to, among other things, an exemptionfrom real property taxes in exchange for a specified monetary payment to the Town based uponthe facility's gross revenue.
In or about 2006, the Town and Chambers entered into negotiations with a view towardexpanding the number of available housing units at the subject facility. Thereafter, the Townauthorized an amendment to the 2003 PILOT agreement. The final amended agreement providedthat the payment to the Town was to be calculated on a per unit basis, rather than on gross [*2]revenue. Petitioners—as residents of thetown—commenced this CPLR article 78 proceeding seeking a determination that theTown's resolution adopting the amended PILOT agreement was invalid and must be annulled.Supreme Court dismissed petitioners' application, finding that petitioners lacked standing.Petitioners now appeal.
As the parties seeking review, petitioners have the burden of establishing that they havestanding to raise their claim (see Society of Plastics Indus. v County of Suffolk, 77NY2d 761, 769 [1991]). Here, inasmuch as the alleged harm to petitioners from the amendedPILOT agreement is that they will have to share with other taxpayers in the resulting loss ofannual tax revenues to the Town, they have not alleged an injury distinct from other members ofthe general public (see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 774).Nor have they established that they are within the zone of interest sought to be promoted orprotected by the Private Housing Finance Law, which relates to ensuring the availability ofadequate living accommodations for low and moderate income families (see PrivateHousing Finance Law § 101; see generally Matter of Cromwell TowersRedevelopment Co. v City of Yonkers, 41 NY2d 1, 6 [1976]). Thus, petitioners have notdemonstrated an injury in fact sufficient to confer standing (see Society of Plastics Indus. vCounty of Suffolk, 77 NY2d at 773).
We also reject petitioners' contention that they are entitled to common-law taxpayerstanding, as they have not demonstrated that this matter is of appreciable public significancebeyond the immediately affected parties (see Matter of Colella v Board of Assessors ofCounty of Nassau, 95 NY2d 401, 410-411 [2000]; Matter of Humane Socy. of U.S. v Empire State Dev. Corp., 53 AD3d1013, 1016-1017 [2008], lv denied 12 NY3d 701 [2009]; cf. Saratoga CountyChamber of Commerce v Pataki, 100 NY2d 801, 813-814 [2003], cert denied 540US 1017 [2003] [challenge to the use of state funds and regulatory personnel for a casino foundto be of fundamental and immense public significance]). Petitioners also lack standing to bringthis claim pursuant to State Finance Law § 123-b (1) since they do not assert that statefunds have been unlawfully expended (see State Finance Law § 123-b [1];Saratoga County Chamber of Commerce v Pataki, 100 NY2d at 813).
Notwithstanding petitioners' contention to the contrary, Supreme Court clearly dismissed thepetition on the basis that petitioners lacked standing to challenge the Town's resolution and noton the merits of their General Municipal Law § 801 claim. Therefore, in view of ourdetermination herein, petitioners' remaining arguments are academic.
Rose, J.P., Kane, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.