| Matter of Riverhead PGC, LLC v Town of Riverhead |
| 2010 NY Slip Op 04203 [73 AD3d 931] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of Riverhead PGC, LLC,Respondent, v Town of Riverhead et al. Appellants, et al.,Respondent/Defendant. |
—[*1] Bracken & Margolin, LLP, Islandia, N.Y. (Linda U. Margolin of counsel), for appellantHeadriver, LLC. Lazer, Aptheker, Rosella & Yedid, P.C., Melville, N.Y. (Russell L. Penzer of counsel), forpetitioner/plaintiff-respondent.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination ofthe Town Board of the Town of Riverhead dated June 5, 2007, which adopted resolution No.557, granting the application of Headriver, LLC, for site plan approval and an area variance, andaction for, among other things, a judgment declaring that Code of Town of Riverhead§§ 108-332, 108-326 and 108-327, Local Law No. 47-2005 of Town of Riverhead,and Local Law No. 14-2007 of Town of Riverhead are null and void, the Town of Riverhead,Phil Cardinale, George Bartunek, Barbara Blass, Ed Densieski, and John Dunleavy, constitutingand as the Town Board of the Town of Riverhead, appeal, and Headriver, LLC, separatelyappeals, 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 theirrespective motions pursuant to CPLR 3211 (a) (1), (3), (5) and (7) and 7804 (f) to dismiss thepetition/complaint insofar as asserted against each of them into motions for summary judgment,among other things, dismissing the petition/complaint insofar as asserted against each of them onthe ground that the petitioner/plaintiff lacked standing or, in the alternative, in effect, declaringthat Code of Town of Riverhead §§ 108-332, 108-326 and 108-327, Local Law No.47-2005 of Town of Riverhead, and Local Law No. 14-2007 of Town of Riverhead are valid,and thereupon denied their motions for summary judgment, and granted the petitioner/plaintiff'scross motion for summary judgment declaring that those laws are null and void, declared thatthose laws are null and void, granted the petition to the extent of annulling the determinationadopting resolution No. 557, and dismissed, as academic, the remainder of the proceeding.
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 of Riverhead,Phil Cardinale, George Bartunek, Barbara Blass, Ed Densieski, and John Dunleavy, constitutingand as the Town Board of 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, the petitioner/plaintiff'smotion for summary judgment is denied as academic, and the proceeding/action is dismissedinsofar as asserted against the Town of Riverhead, Phil Cardinale, George Bartunek, BarbaraBlass, Ed Densieski, and John Dunleavy, constituting and as the Town Board of the Town ofRiverhead, and Headriver, LLC; and it is further,
Ordered that one bill of costs is awarded to the appellants appearing separately and filingseparate briefs.
The petitioner/plaintiff (hereinafter the petitioner) owns a shopping center known asRiverhead Plaza on Suffolk County Route 58 in Riverhead, in which Wal-Mart is currently atenant. The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 anddeclaratory judgment action to challenge a resolution of the Town Board of the Town ofRiverhead (hereinafter the Town Board), which approved site plan and variance applications forthe construction of a Wal-Mart Supercenter "big box" store on property owned by the appellantHeadriver, LLC (hereinafter Headriver), and to declare null and void the local laws andprovisions of the Code of the Town of Riverhead (hereinafter the Town Code) pursuant to whichthe resolution was made. Headriver's property is located on Route 58, more than two miles to thewest of Riverhead Plaza, and Wal-Mart intends to vacate its store in the Riverhead Plaza andmove to Headriver's property upon completion of the new Wal-Mart Supercenter.
The petitioner contends that it will be injured by the proposed development of Headriver'sparcel due to increased traffic congestion to the west of Riverhead Plaza on Route 58, causingmotorists to avoid Route 58 and use local roads, diverting them away from the petitioner'sproperty and, thus, decreasing its value by adversely impacting the petitioner's ability to maintainits present customer level. The petitioner acknowledged in its submissions to the Supreme Courtthat it cannot control Wal-Mart's relocation, "nor does it need Wal-Mart in its center to survive,"but "if it is unable to acquire a suitable replacement tenant for its shopping center because thetraffic patterns are so disrupted that no suitable tenant would be interested, the property isharmed, and [the petitioner] is damaged."
The Town and the members of the Town Board (hereinafter collectively the Town) contendthat the petitioner lacks standing to challenge the resolution, and we agree. To establish standing,the petitioner must show that it would suffer direct injury different from that suffered by thepublic at large, and that the injury asserted falls within the zone of interests or concerns sought tobe promoted or protected by the statutory provision under which the agency has acted (seeSociety of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773-774 [1991]; Matter of Friedman v Town Clerk of Townof Hempstead, 62 AD3d 699, 700 [2009]). Here, in the first instance, the petitioner maynot avail itself of any presumption of injury-in-fact since its property does not lie in sufficientlyclose proximity to the proposed project site (see Matter of East End Prop. Co. #1, LLC v Town Bd. of Town ofBrookhaven, 56 AD3d 773, 777-778 [2008]; Matter of Rediker v Zoning Bd. ofAppeals of Town of Philipstown, 280 AD2d 548, 549 [2001]; cf. Matter of Duke &Benedict v Town of Southeast, 253 AD2d 877, 878 [1998]). Moreover, and perhaps morecrucially, the injury asserted by the petitioner does not implicate an interest protected by thelocal laws and town code provisions at issue. Economic harm caused by business competition isnot an interest protected by the zoning laws (see Matter of Sun-Brite Car Wash v Board ofZoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 415 [1987]; Matter ofFriedman v Town Clerk of Town of Hempstead, 62 AD3d at 700). In any event, the petitionerhas not adequately demonstrated actual injury-in-fact with its speculation that increased trafficcongestion to the west of its property will significantly damage its customer base, includingcustomers who travel from other directions.
Accordingly, upon the record presented, the petitioner failed to establish standing tochallenge resolution No. 557 pursuant CPLR article 78 (see Matter of Tappan Cleaners v Zoning Bd. of Appeals of Vil. ofIrvington, 57 AD3d 683, 684 [2008]; Matter of McGrath v Town Bd. of Town of N.Greenbush, 254 AD2d 614, 615-616 [1998]).[*3]
Moreover, contrary to the petitioner's contention, it alsolacks standing to assert the declaratory judgment causes of action which seek to invalidatecertain Town Code provisions and local laws. The "standing required to maintain an actiondeclaring a zoning ordinance to be invalid is based on the same criteria required to institute aproceeding under article 78 of the CPLR" (Matter of Haber v Board of Estimate of City ofN.Y., 33 AD2d 571, 572 [1969]). Accordingly, those branches of the appellants' motionswhich were pursuant to CPLR 3211 (a) (3) to dismiss the petition/complaint insofar as assertedagainst each of them should have been granted, and the Supreme Court should have dismissedthe proceeding and action insofar as asserted against them.
In light of our determination, it is unnecessary to reach the parties' remaining contentions.Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.
Motion by the petitioner/plaintiff-respondent to strike the reply brief of the appellantHeadriver, LLC, on an appeal from an order and judgment (one paper) of the Supreme Court,Suffolk County, dated October 6, 2008. By decision and order on motion of this Court datedFebruary 4, 2010, the motion was held in abeyance and referred to the panel of Justices hearingthe appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is denied. Skelos, J.P., Angiolillo, Leventhal and Roman, JJ.,concur.