| Matter of Ontario Hgts. Homeowners Assn. v Town of Oswego PlanningBd. |
| 2010 NY Slip Op 07213 [77 AD3d 1465] |
| October 8, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Ontario Heights Homeowners Association et al.,Appellants, v Town of Oswego Planning Board et al., Respondents. |
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Appeal from a judgment (denominated judgment and order) of the Supreme Court, OswegoCounty (Norman W. Seiter, Jr., J.), entered September 24, 2009 in a proceeding pursuant to CPLRarticle 78. The judgment, insofar as appealed from, dismissed the petition.
It is hereby ordered that the judgment insofar as appealed from is unanimously reversed on the lawwithout costs, the petition with respect to petitioner William Dunsmoor is reinstated, and the matter isremitted to Supreme Court, Oswego County, for further proceedings in accordance with the followingmemorandum: Petitioner William Dunsmoor filed a pro se notice of appeal from a judgment that, interalia, determined that petitioners lacked standing to challenge the determination of respondent Town ofOswego Planning Board (Planning Board) with respect to a proposed development on County Route 7in Oswego. We note at the outset that, although Dunsmoor's notice of appeal purports to be on behalfof all three petitioners, Dunsmoor was without authority to take an appeal on behalf of the remainingtwo petitioners because he is not an attorney admitted to practice law in the State of New York(see Matter of Schulz v New York State Dept. of Envtl. Conservation, 186 AD2d 941, 942 n[1992], lv denied 81 NY2d 707 [1993]; see also Whitehead v Town House Equities,Ltd., 8 AD3d 369 [2004]). We further note that the motion of the Planning Board seeking todismiss this appeal as moot was denied by this Court, with leave to renew the motion at oral argumentof the appeal. The Planning Board in fact renewed the motion at oral argument, and we again deny it.
On the merits of the standing issue, we agree with Dunsmoor that Supreme Court erred indetermining that he lacks standing to bring this proceeding. Dunsmoor, who resides across the streetfrom the proposed development, has alleged that he may suffer environmental harm as a result of thePlanning Board's decision to permit the developer to utilize a private sewage treatment plant on theproposed development, rather than utilizing the City of Oswego's public sewer system. The recordestablishes that Dunsmoor owns property that is 697 feet from the property line of the proposeddevelopment and 1,242 feet from the edge of the development. Thus, he is " 'arguably within the zoneof interest to be protected by [article 8 of the Environmental Conservation Law]' . . . and[has] standing to seek judicial review 'without pleading and proving special damage, because adverseeffect or aggrievement can be inferred from the proximity' " (Matter of Michalak v Zoning Bd. ofAppeals of Town of Pomfret, 286 AD2d 906, 906-907 [2001]). We therefore reverse thejudgment insofar as appealed from, reinstate the petition with respect to Dunsmoor, and remit thematter to Supreme Court for further proceedings thereon. Present—Smith, J.P., Carni, Lindley,Sconiers and Pine, JJ.