| Matter of Harris v Town Bd. of Town of Riverhead |
| 2010 NY Slip Op 04191 [73 AD3d 922] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of James Harris et al.,Respondents-Appellants, v Town Board of Town of Riverhead et al.,Appellants-Respondents, et al., Defendant/Respondent. |
—[*1] Bracken & Margolin, LLP, Islandia, N.Y. (Linda U. Margolin of counsel), forappellant-respondent Headriver, LLC. James F. Gaughran, Huntington, N.Y. (James F. Matthews of counsel), forrespondents-appellants.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review so much of adetermination of the Town Board of the Town of Riverhead dated June 5, 2007, adoptingresolution No. 557, as granted the application of Headriver, LLC, for site plan approval, andaction for, among other things, a judgment declaring that Code of Town of Riverhead §108-332, Local Law No. 47-2005 of Town of Riverhead, and Local Law No. 14-2007 of Townof Riverhead are null and void, the Town Board of Town of Riverhead and the Town ofRiverhead appeal, and Headriver, LLC, separately appeals, as limited by their respective briefs,from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County(Whelan, J.) dated October 6, 2008, as converted their respective motions pursuant to CPLR3211 (a) (1), (3), (5) and (7), and 7804 (f) to dismiss the petition/complaint insofar as assertedagainst each of them into motions for summary judgment, among other things, dismissing thepetition/complaint insofar as asserted against each of them on the ground that thepetitioners/plaintiffs lacked standing or, in the alternative, in effect, declaring that Code of Townof Riverhead § 108-332, Local Law No. 47-2005 of Town of Riverhead, and Local LawNo. 14-2007 of Town of Riverhead are valid, thereupon denied their motions for summaryjudgment, granted the petitioners/plaintiffs' cross motion for summary judgment declaring thatthose laws are null and void, declared that those laws are null and void, granted the petition tothe extent of annulling the determination adopting resolution No. 557, and dismissed, asacademic, the remainder of the proceeding, and the petitioners/plaintiffs cross appeal from thesame order and judgment.
Ordered that the cross appeal is dismissed as abandoned; and it is further,
Ordered that the order and judgment is reversed insofar as appealed from, on the law, [*2]those branches of the respective motions of the Town Board ofTown of Riverhead and the Town of Riverhead, and Headriver, LLC, which were pursuant toCPLR 3211 (a) (3) and 7804 (f) to dismiss the petition/complaint insofar as asserted against eachof them are granted, the motions are otherwise denied as academic, and the petitioners/plaintiffs'cross motion for summary judgment is denied as academic, and the proceeding/action isdismissed insofar as asserted against the Town Board of Town of Riverhead, Town ofRiverhead, and Headriver, LLC; and it is further,
Ordered that one bill of costs is awarded to the appellants-respondents appearing separatelyand filing separate briefs.
The petitioner/plaintiff United Food and Commercial Workers Union Local 1500(hereinafter the union), and six individual petitioners/plaintiffs, who are residential propertyowners in the Town of Riverhead and members of the union (hereinafter collectively thepetitioners), commenced this hybrid proceeding and action to challenge the proposedconstruction of a Wal-Mart Supercenter on property (hereinafter the project site) owned byHeadriver, LLC (hereinafter Headriver), on Suffolk County Route 58 in Riverhead (seeRiverhead PGC, LLC v Town of Riverhead, 73 AD3d 931 [2010] [decided herewith]). Theindividual petitioners, who live at distances ranging from 1.36 to 4.09 miles from the project site,claim that they have standing to challenge the Town's approval of a site plan for the project site,as well as two local laws and the provision of the Code of the Town of Riverhead upon whichthat approval was based, on the ground that they frequently drive on Route 58 for work orpersonal reasons and, consequently, will be injured by increased traffic congestion generated bythe new Wal-Mart. One of the individual petitioners lives on a side street, which he claims willreceive increased traffic flow from motorists attempting to avoid the congestion on Route 58.The union asserts injury based upon alleged negative environmental and socio-economic impactson the businesses along the Route 58 corridor which employ its members.
Contrary to these contentions, the petitioners failed to establish standing. The individualpetitioners do not live close enough to the site to be afforded any presumption of injury-in-facton the basis of proximity alone (seeMatter of East End Prop. Co. #1, LLC v Town Bd. of Town of Brookhaven, 56 AD3d773, 777-778 [2008]; Matter of Rediker v Zoning Bd. of Appeals of Town ofPhilipstown, 280 AD2d 548, 549 [2001]; cf. Matter of Duke & Benedict v Town ofSoutheast, 253 AD2d 877, 878 [1998]). In any event, while proximity to the project site isnot dispositive in establishing actual injury, the petitioners are required to show that they willsuffer a direct injury different from that suffered by the public at large (see Matter of Save the Pine Bush, Inc. vCommon Council of City of Albany, 13 NY3d 297, 304 [2009]; Society of PlasticsIndus. v County of Suffolk, 77 NY2d 761, 773-774 [1991]). In opposition to the separatemotions of Headriver, and the Town and Town Board of Town of Riverhead (hereinaftercollectively the respondents), the petitioners failed to demonstrate that the alleged increasedtraffic congestion and negative effects on the businesses along the Route 58 corridor are injuriesspecific to them and distinguishable from those suffered by the public at large (see Matter ofEast End Prop. Co. #1, LLC v Town Bd. of Town of Brookhaven, 56 AD3d at 777-778;Matter of Oates v Village of Watkins Glen, 290 AD2d 758, 760-761 [2002]).Accordingly, the Supreme Court should have granted those branches of the respondents'respective motions which were pursuant to CPLR 3211 (a) (3) to dismiss the petition, and theproceeding should have been dismissed for lack of standing.
Moreover, as the criteria regarding standing in a proceeding commenced pursuant to CPLRarticle 78 to challenge a land-use approval are the same as those that govern an action for ajudgment declaring that a zoning ordinance is invalid (see Riverhead PGC, LLC v Town ofRiverhead, 73 AD3d 931 [2010] [decided herewith]; Matter of Haber v Board ofEstimate of City of N.Y., 33 AD2d 571, 572 [1969]), the petitioners failed to establishstanding to assert their declaratory judgment causes of action. Accordingly, the Supreme Courtshould have dismissed the action for lack of standing as well.
The cross appeal must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611, 614 [2009]; Bibas v Bibas, 58 AD3d 586[2009]), as the brief submitted by the petitioners does not seek reversal or modification of anyportion of the order and judgment. Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.