| Matter of Brunswick Smart Growth, Inc. v Town ofBrunswick |
| 2010 NY Slip Op 03824 [73 AD3d 1267] |
| May 6, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brunswick Smart Growth, Inc., et al., Appellants,v Town of Brunswick, Respondent. |
—[*1] Tuczinski, Cavalier, Burstein & Collura, P.C., Albany (Andrew W. Gilchrist of counsel), forrespondent. Stephen A. Downs, Selkirk, for Save the Pine Bush, Inc., amicus curiae.
Lahtinen, J. Appeal from a judgment of the Supreme Court (O'Connor, J.), entered July 30,2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, grantedrespondent's motion to dismiss the amended petition.
Petitioner Brunswick Smart Growth, Inc., a citizen action group, and two individuals whoreside in the Town of Brunswick, Rensselaer County, commenced this CPLR article 78proceeding challenging the procedures that respondent has adopted for approving developmentprojects. They contend that those procedures are defective in that respondent's 2001comprehensive plan fails to comply with Town Law § 272-a (10) because it does notspecifically provide for periodic review, respondent neglected to properly update its zoningregulations, respondent implemented a practice of approving projects that are inconsistent withits comprehensive plan, and respondent did not consider the cumulative environmental impact ofprojects. Supreme Court granted respondent's motion to dismiss upon the ground that petitionerslacked standing. Petitioners appeal.
The dual showing typically required for standing includes establishing an injury-in-fact anddemonstrating that such injury falls within the zone of interests protected by the pertinent [*2]statute or regulation (see Matter of Colella v Board ofAssessors of County of Nassau, 95 NY2d 401, 409-410 [2000]). In land use cases, the test isframed in terms of " 'direct harm,' " which " 'is in some way different from that of the public atlarge' " (Matter of Save the Pine Bush,Inc. v Common Council of City of Albany, 13 NY3d 297, 304 [2009], quotingSociety of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]). Whilegeographical proximity provides one potential avenue to standing in land use cases, it is not anindispensable element (see Matter of Save the Pine Bush, Inc. v Common Council of City ofAlbany, 13 NY3d at 305).
Here, petitioners acknowledge that they are not contesting any particular developmentproject that has been approved by respondent. They set forth in their brief that they are "seekingto enjoin the practices and procedures that [respondent] uses to approve [development] projects,rather than the projects themselves." Petitioners summarize in the conclusion of their brief thatthey seek "standing to challenge a 'general' action of a governmental body" without showing anyspecial harm. Similarly, the entity appearing amicus curiae urges standing should be available to"challenge potential general harm."
Potential general harm does not constitute direct harm. The Court of Appeals has recentlyreiterated that standing in environmental cases is not automatic, and the people or entitiespursuing such cases must establish that "their injury is real and different from the injury mostmembers of the public face" (id. at 306; see generally 4 Rathkopf, Zoning andPlanning §§ 63:3, 63:13 [4th ed]). Several speculative scenarios are currentlyfeasible in this case, including that respondent simply may not act in the fashion that petitionerspredict or, if it does, at least one of Smart Growth's many members may be sufficiently affectedto provide organizational standing (seegenerally Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals, 9 AD3d651, 652-653 [2004]; 4 Rathkopf, Zoning and Planning § 63:17 [4th ed]). "'[T]enuous' and 'ephemeral' harm . . . is insufficient to trigger judicial intervention"(Rudder v Pataki, 93 NY2d 273, 279 [1999]; see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d207, 214 [2004]).
In addition, it merits noting that the speculative nature of petitioners' claim at this time notonly fails to satisfy the elements of standing, but also, as urged alternatively by respondent,raises serious issues regarding whether the claim is justiciable (see American Ins. Assn. vChu, 64 NY2d 379, 383 [1985], appeal dismissed and cert denied 474 US 803[1985]).
The remaining arguments are unavailing.
Peters, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.