| Matter of Long Is. Pine Barrens Socy., Inc. v Central PineBarrens Joint Planning & Policy Commn. |
| 2014 NY Slip Op 00511 [113 AD3d 853] |
| January 29, 2014 |
| Appellate Division, Second Department |
| In the Matter of Long Island Pine Barrens Society, Inc., etal., Appellants, v Central Pine Barrens Joint Planning & Policy Commission etal., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing andLeslie B. Dubeck of counsel), for respondent Central Pine Barrens Joint Planning &Policy Commission. MacLachlan & Eagan, East Hampton, N.Y. (David E. Eagan and Brian E. Matthewsof counsel), for respondent JCJC Holding Company, Inc.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination ofthe Central Pine Barrens Joint Planning and Policy Commission dated June 15, 2011,which, after a hearing, inter alia, granted the application of JCJC Holding Company, Inc.,for an extraordinary hardship waiver pursuant to ECL 57-0121 (10) and 57-0123 (3) (a),the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Leis III,J.), entered May 7, 2012, which denied the petition and, in effect, dismissed theproceeding.
Ordered that the judgment is affirmed, with one bill of costs.
This matter involves a parcel of real property located within the "core preservationarea" of the Long Island Central Pine Barrens. The property is also located within aresidentially zoned area of the Town of Southampton. A predecessor in interest of therespondent JCJC Holding Company, Inc. (hereinafter JCJC), purchased the property in1970 and constructed a 3,354-square-foot brick building on it, which it leased to the NewYork State Police (hereinafter the State Police) for use as barracks. The area surroundingthe property primarily consists of wooded, public, open space managed by the SuffolkCounty Department of Parks, Recreation and Conservation. JCJC purchased the propertyin 2003 and continued leasing it to the State Police until 2008, at which point the StatePolice vacated the building and JCJC began using the property to operate a commerciallandscaping and horticultural services business. At some subsequent time, JCJC wasnotified that this use was not consistent with the underlying zoning and, in November2010, it applied to the Town of Southampton Zoning Board of Appeals (hereinafter theZBA) for a variance to continue utilizing the property for a commercial use. Since theproperty was located within the Central Pine Barrens "core preservation area," the ZBAreferred the matter to the respondent Central Pine Barrens Joint Planning and PolicyCommission (hereinafter the Commission) as an "involved agency" [*2]pursuant to the State Environmental Quality Review Act(ECL art 8; hereinafter SEQRA). The Commission assumed lead agency status forpurposes of SEQRA.
In March 2011, JCJC applied to the Commission for an extraordinary hardshipwaiver pursuant to ECL 57-0121 (10) and 57-0123 (3) (a) to permit it to continue to usethe existing facility to operate its business. In its extraordinary hardship waiverapplication, JCJC argued that its proposed utilization of the parcel constituted a reductionin intensity of use from the former round-the-clock use of the property for State Policebarracks, since JCJC would store a limited number of vehicles on the property, therewould be no expansion of the existing building or parking lot, and the enterprise wouldonly operate during normal business hours. The Commission held a public hearing on theissue of JCJC's waiver application, at which Richard Amper, appearing in his capacity asExecutive Director of the petitioner Long Island Pine Barrens Society, Inc. (hereinafterthe Society), argued that the hardship sought to be alleviated by JCJC was self-createdand, therefore, the hardship waiver application should be denied. In a determinationdated June 15, 2011, the Commission granted JCJC the waiver.
The Society and Amper, in his capacity as the Society's Executive Director and in hisindividual capacity (hereinafter together the petitioners), commenced this proceedingpursuant to CPLR article 78 to review the Commission's determination. In their verifiedpetition, the petitioners averred that the Society is a not-for-profit corporation, whosemission, among other things, is to support research of the Pine Barrens, to disseminateinformation to the general public regarding the Pine Barrens, and to support thepreservation of the Pine Barrens "on a forever-wild basis." The Society hasapproximately 3,000 members and is a voting member of the Central Pine BarrensAdvisory Committee, which was created by ECL 57-0119 (9). According to the petitionand Amper's accompanying affidavit, "[i]n his professional capacity, [Amper] takesresidents and policy makers through the Core Preservation Area of the Pine Barrens toafford an understanding of the significance of the Pine Barrens Ecosystem." Further,"[a]s an individual, [Amper] was the leading activist in the creation of the Pine BarrensProtection Act and Comprehensive Land Use Plan."
The Supreme Court denied the CPLR article 78 petition on the ground that thepetitioners lacked standing to maintain the proceeding. The court further held, in thealternative, that the challenged determination was not arbitrary and capricious. Thisappeal ensued.
Contrary to JCJC's initial contention, the petitioners' notice of appeal, which recitesthat they appeal "from a Judgment . . . dismissing [the] Petition due to lackof standing," does not limit their appeal solely to the issue of standing. CPLR 5515provides that a notice of appeal "shall designate the party taking the appeal, the judgmentor order or specific part of the judgment or order appealed from and the court to whichthe appeal is taken" (CPLR 5515 [1]). This requirement is jurisdictional (see Rich vManhattan Ry. Co., 150 NY 542, 546 [1896]), and "[b]y taking an appeal from onlya part of a judgment or order, a party waives its right to appeal from the remainderthereof" (City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516,517 [1997]). Here, however, the notice of appeal contains no words of limitation or otherlanguage expressly or implicitly limiting the appeal to only a specific part of thejudgment appealed from (cf. id.; cf. also Levitt v Levitt, 97 AD3d 543, 545 [2012]; Boyle v Boyle, 44 AD3d885, 885-886 [2007]). Rather, the reference to a lack of standing in the notice ofappeal simply constitutes language describing the judgment, and does not limit the issueson the appeal.
With regard to the issue of standing, the Supreme Court erred in holding that thepetitioners lacked standing to challenge the determination. Whether an organization orassociation has standing involves the application of the three-pronged test set forth inSociety of Plastics Indus. v County of Suffolk (77 NY2d 761 [1991]). Aspertinent to this appeal, the first prong of that test requires that the organization orassociation demonstrate that "one or more of its members would have standing to sue" asan individual (id. at 775). An individual has standing where he or she "wouldsuffer direct harm, injury that is in some way different from that of the public at large"(id. at 774) and "the in-fact injury of which [he or she] complains. . . falls within the 'zone of interests,' or concerns, sought to be promoted orprotected by the statutory provision under which the agency has acted" (id. at773, quoting Lujan v National Wildlife Federation, 497 US 871,883 [1990]; see Roulan v [*3]County of Onondaga, 21 NY3d 902 [2013]). In Matter of Save the Pine Bush, Inc.v Common Council of City of Albany (13 NY3d 297 [2009]), the Court ofAppeals held that, in land-use and environmental cases, "a person who can prove that heor she uses and enjoys a natural resource more than most other members of the public hasstanding . . . to challenge government actions that threaten that resource"(id. at 301). Here, the petitioners established that Amper, in both his individualand professional capacities, uses and enjoys the Pine Barrens to a greater degree thanmost other members of the public. The fact that Amper lives some distance from theproperty in question is not dispositive (see id. at 305; see also Matter of Shepherd vMaddaloni, 103 AD3d 901, 903 [2013]; Matter of Brunswick Smart Growth, Inc. v Town of Brunswick,73 AD3d 1267, 1268 [2010]). Further, the petitioners established that the threatenedinjury to Amper caused by development within the core preservation area of the CentralPine Barrens falls within the zone of interests sought to be protected by the Long IslandPine Barrens Protection Act of 1993 (L 1993, ch 262 [hereinafter the Act]) (seeSociety of Plastics Indus. v County of Suffolk, 77 NY2d at 773). Thus, Amper hasstanding to sue individually, and his standing satisfied the first prong of the test for theSociety's organizational standing. The Society meets the second and third prongs of theorganizational standing test, namely that its interests in the instant proceeding aregermane to its purposes, and that "neither the asserted claim nor the appropriate reliefrequires the participation of the individual members." Therefore, the Society also hasstanding to challenge the Commission's determination (id. at 775).
However, the petition was properly denied on the merits. The Act was adopted toprotect "[t]he Central Pine Barrens, a 100,000 acre area of scrubby pine trees and poroussoil" which "sits atop and is an integral part of Long Island's aquifer—the solenatural source of drinking water for over 2.5 million Long Islanders" (Governor'sApproval Mem, reprinted in 1993 McKinney's Session Laws of NY at 2888). The Act,inter alia, created the Commission as a regional planning agency, and directed thecreation of a comprehensive land use plan to guide development in the Pine Barrens area(see id.). Further, the Act divides all land within the Pine Barrens into two legallysignificant areas: (1) the "core preservation area," in which development is generallyprohibited, and (2) the "compatible growth area," in which development is generallymore permissible, but must take place in a responsible and ecologically sound manner(see ECL 57-0107 [11], [12]; see 57-0109, 57-0121 [4]). The CentralPine Barrens Comprehensive Land Use Plan (hereinafter Comprehensive Plan) states:"Allowable uses within the Core Preservation Area shall be limited to those operations oruses which do not constitute development, or [for which] hardship exemptions [are]granted by this Commission pursuant to the Act" (Comprehensive Plan § 5.2)."Development" is broadly defined by the Act to mean "the performance of any buildingactivity or mining operation, the making of any material change in the use or intensityof use of any structure or land and the creation or termination of rights of access orriparian rights" (ECL 57-0107 [13] [emphasis added]). There is no dispute in the instantmatter that JCJC's proposed use of the subject property, located in the "core preservationarea," though more limited than the use for barracks, nevertheless constitutesdevelopment since the proposed use constituted a material change in the use of thesubject property. Thus, an extraordinary hardship waiver was required (seeComprehensive Plan § 5.2).
Pursuant to ECL 57-0123 (3) (a), the Commission may "waive strict compliance with[the Comprehensive Plan] or with any element or standard contained therein, for anapplication for development of any person, upon finding that such waiver is necessary toalleviate hardship for proposed development in the core preservation area according tothe conditions and finding of extraordinary hardship or compelling public need pursuantto [ECL 57-0121 (10)]" and where the "application is consistent with the purposes andprovisions of this article and would not result in substantial impairment of the resourcesof the Central Pine Barrens area." An application for a waiver on the ground ofextraordinary hardship may be approved only if the application satisfies the requirementsof ECL 57-0121 (10) (a) and (c).
Here, the petitioners contend that JCJC's application did not satisfy ECL 57-0121(10) (a) because the statute prohibits the granting of a waiver to an applicant whosehardship was self-created, and that JCJC acquired the property in 2003 with constructivenotice of the restrictions on development imposed by the Act. ECL 57-0121 (10) (a) (iii)requires that the applicant for an extraordinary hardship waiver establish that thehardship results from "unique circumstances peculiar to the subject property which. . . [a]re not the result of any action or inaction by the applicant [*4]or the owner or his or her predecessors in title includingany transfer of contiguous lands which were in common ownership on or after June 1,1993." Under the circumstances presented here, the Commission's determinations thatJCJC established the existence of unique circumstances, and that any hardship was notself-created, were not arbitrary and capricious. Consequently, the hardship waiver wasnot legally prohibited by ECL 57-0121 (10) (a) (iii), and the Commission's determinationto grant the extraordinary hardship variance to permit the beneficial use of the property ata less intensive level than that at which the previous user employed the property was notaffected by an error of law or arbitrary and capricious (see CPLR 7803 [3]).Accordingly, the Supreme Court correctly denied the petition and, in effect, dismissedthe proceeding. Mastro, J.P., Chambers, Lott and Miller, JJ., concur.