| Matter of Association for a Better Long Is., Inc. v New York State Dept.of Envtl. Conservation |
| 2012 NY Slip Op 05781 [97 AD3d 1085] |
| July 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Association for a Better Long Island, Inc.,Petitioner, and Jan Burman et al., Appellants, v New York State Department of EnvironmentalConservation et al., Respondents. |
—[*1] Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead (Frank A. Isler ofcounsel), for Town of Riverhead and another, appellant. Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), forrespondents.
Rose, J. Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered December 7,[*2]2011 in Albany County, which, in a combined proceedingpursuant to CPLR article 78 and an action for declaratory judgment, granted respondents' motionto dismiss the petition.
Petitioners Town of Riverhead, Town of Riverhead Community Development Agency, JanBurman and M-GBC, LLC (hereinafter collectively referred to as petitioners) and anothercommenced combined CPLR article 78 proceedings and declaratory judgment actionschallenging, on various procedural and substantive grounds, regulations issued by respondentNew York State Department of Environmental Conservation that require "incidental take"permits for any activity likely to result in the "taking" of any endangered or threatened species(see 6 NYCRR part 182). As relevant here, the regulations define taking as "the pursuing,shooting, hunting, killing, capturing, trapping, snaring and netting of any species listed asendangered or threatened . . . and all lesser acts such as disturbing, harrying orworrying" (6 NYCCR 182.2 [x]), and an incidental take as one "that is incidental to, and not theintended purpose of, an otherwise lawful activity" (6 NYCCR 182.2 [j]). Petitioners based theirchallenges to the regulations on their ownership of property that contains or is in proximity toendangered and threatened species. After the proceedings were consolidated, respondents movedto dismiss on the grounds that petitioners lacked standing and the issues raised were not ripe forreview. Supreme Court granted the motion and petitioners appeal.
In order to have standing, petitioners must demonstrate "an actual legal stake in the matterbeing adjudicated," that is, an injury in fact "capable of judicial resolution" (Society ofPlastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991] [internal quotation marks andcitation omitted]; see Mittelmark vCounty of Saratoga, 85 AD3d 1359, 1360 [2011]; Aiardo v Town of E. Greenbush, 64 AD3d 849, 851 [2009]).Petitioners have no pending applications for a permit under the regulations, but claim that theirproperties "will be" affected by the amended regulations or that they "could be compelled" tocomply with them. Unlike property owners affected by a zoning reclassification (see Matterof Har Enters. v Town of Brookhaven, 74 NY2d 524, 529 [1989]; Matter of Rossi v Town Bd. of Town ofBallston, 49 AD3d 1138, 1142 [2008]), petitioners' allegations that they may be requiredto comply with the regulations is potential, speculative harm that is insufficient to conferstanding (see New York State Assn. ofNurse Anesthetists v Novello, 2 NY3d 207, 213-214 [2004]; Matter of Brunswick Smart Growth, Inc. vTown of Brunswick, 73 AD3d 1267, 1269 [2010]; Matter of Gerdts v State of NewYork, 210 AD2d 645, 647 [1994], appeal dismissed 85 NY2d 856 [1995], lvdenied 85 NY2d 810 [1995]).
Nor can Burman and M-GBC, LLC claim standing pursuant to State Finance Law §123-b. That statute is narrowly construed and authorizes taxpayers to challenge "a wrongfulexpenditure, misappropriation, misapplication, or any other illegal or unconstitutionaldisbursement of state funds or state property" (State Finance Law § 123-b [1]; seeSaratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 813 [2003], certdenied 540 US 1017 [2003]; Matterof Feminists Choosing Life of N.Y., Inc. v Empire State Stem Cell Bd., 87 AD3d 47, 50[2011], lv denied 18 NY3d 801 [2011]; Matter of Humane Socy. of U.S. v Empire State Dev. Corp., 53 AD3d1013, 1016 [2008], lv denied 12 NY3d 701 [2009]). Burman and M-GBC, LLC donot identify any expenditure by the state that they seek to challenge, and the claims [*3]raised in their petition do not have a sufficient nexus to fiscalactivities so as to allow for section 123-b standing (see Rudder v Pataki, 93 NY2d 273,281 [1999]). They do not qualify for common-law taxpayer standing either, as that remedy isavailable only to challenge important governmental actions where the failure to allow standingwould " 'erect an impenetrable barrier to any judicial scrutiny' " (Matter of Colella v Board ofAssessors of County of Nassau, 95 NY2d 401, 410 [2000], quoting Boryszewski vBrydges, 37 NY2d 361, 364 [1975]). No such barrier exists here as property ownerssubjected to the requirements of the regulations will be able to challenge them (see Matter ofTransactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 589 [1998];Matter of Feminists Choosing Life of N.Y., Inc. v Empire State Stem Cell Bd., 87 AD3dat 51).
Petitioners raise procedural challenges to the regulations that are ripe, but those challengesmust be dismissed in the absence of standing (see Matter of Widewaters Rte. 11 Potsdam Co., LLC v Town ofPotsdam, 51 AD3d 1292, 1294-1295 [2008]). As for petitioners' substantive challenges,they are not ripe because the burdens that petitioners claim will be imposed upon them may beameliorated by the application of the regulations to a specific development plan (see Matterof Hunt Bros. v Glennon, 81 NY2d 906, 910 [1993]; Church of St. Paul & St. Andrew vBarwick, 67 NY2d 510, 520 [1986], cert denied 479 US 985 [1986]; Matter of Adirondack Council, Inc. vAdirondack Park Agency, 92 AD3d 188, 191 [2012]). As Supreme Court correctly held,merely being subjected to administrative regulations is insufficient to constitute an injury (seeMatter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82,AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; Matter of New York Blue Line Council,Inc. v Adirondack Park Agency, 86 AD3d 756, 761 [2011], appeal dismissed 17NY3d 947 [2011], lv denied 18 NY3d 806 [2012]; Matter of Town of Riverhead v Central Pine Barrens Joint Planning &Policy Commn., 71 AD3d 679, 681 [2010]). In such situations, the " 'harm sought to beenjoined is contingent upon events which may not come to pass, [and] the claim is. . . nonjusiticiable as wholly speculative and abstract' " (Matter of Wal-MartStores v Campbell, 238 AD2d 831, 833 [1997], quoting Matter of New York StateInspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO vCuomo, 64 NY2d at 240).
Mercure, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs. [Prior Case History: 35 Misc 3d 786.]