| Citizens for St. Patrick's v City of Watervliet CityCouncil |
| 2015 NY Slip Op 02034 [126 AD3d 1159] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| Citizens for St. Patrick's et al., Appellants, v City ofWatervliet City Council et al., Respondents. |
McMahon, Kublick & Smith, PC, Syracuse (Rosemary Nichols, Watervliet, ofcounsel), for appellants.
Goldman Attorneys, PLLC, Albany (Paul J. Goldman of counsel), for City ofWatervliet City Council, respondent.
Whiteman, Osterman & Hanna, LLP, Albany (Robert L. Sweeney of counsel),for Nigro Companies, Inc. and another, respondents.
Rose, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered July 22,2013 in Albany County, which granted defendants' motions for summary judgmentdismissing the amended complaint.
In 2012, defendant PCP Watervliet, LLC, a subsidiary of defendant NigroCompanies (hereinafter collectively referred to as Nigro), purchased a parcel of propertyin the City of Watervliet, Albany County from the Roman Catholic Diocese of AlbanyCounty. The parcel contained a church, school and rectory that were no longer in useand, as part of its plan to demolish the buildings and replace them with a 40,000square-foot grocery store and two additional retail commercial buildings, Nigropetitioned defendant City of Watervliet City Council to rezone the parcel from residentialto commercial. After a series of public meetings and an environmental review pursuant tothe State Environmental Quality Review Act (see ECL art 8 [hereinafterSEQRA]), the City issued a negative declaration and amended its zoning map asrequested. The individual plaintiffs, who reside in the City, and plaintiff Citizens for St.Patrick's, an unincorporated advocacy group opposed to the demolition of the churchbuildings, commenced this action challenging the [*2]negative declaration and rezoning of the property byalleging that the City failed to comply with SEQRA requirements, engaged in illegal spotzoning and violated the Open Meetings Law. Supreme Court denied plaintiffs' motionfor a preliminary injunction in March 2013 and thereafter granted motions by the Cityand Nigro for summary judgment dismissing the action on the ground that none of theplaintiffs have standing. Eight of the individual plaintiffs and Citizens for St. Patrick's(hereinafter collectively referred to as plaintiffs) appeal.[FN1]
The burden is on plaintiffs to establish the threshold determination of standing (see Matter of Association for aBetter Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d1, 6 [2014]). In our view, plaintiffs Carol Falaro and Patrick Falaro havepresumptively established their standing to challenge the City's determinations becausetheir residence is located immediately across the street from Nigro's parcel and,accordingly, they will suffer direct harm different from the general public, even withoutallegations of individual harm (see Matter of Sun-Brite Car Wash v Board of Zoning& Appeals of Town of N. Hempstead, 69 NY2d 406, 413-414 [1987]; Matter of Cade v Stapf, 91AD3d 1229, 1230 [2012]; Matter of Center Sq. Assn., Inc. v City of Albany Bd. of ZoningAppeals, 9 AD3d 651, 652 [2004]).[FN2]
Nevertheless, plaintiffs' challenges to the SEQRA and rezoning determinations aremoot because they did not seek any injunctive relief from this Court during the pendencyof this appeal, the church buildings have been demolished and the grocery store is nowfully constructed and operational (see Matter of Citineighbors Coalition of Historic Carnegie Hill vNew York City Landmarks Preserv. Commn., 2 NY3d 727, 729 [2004];Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d165, 172-173 [2002]; Matter ofKowalczyk v Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d 1475, 1477[2012]; Matter of Stockdale v Hughes, 189 AD2d 1065, 1068 [1993]).[FN3] Moreover, the rezoningdetermination has been [*3]superseded by the City'sSeptember 2013 adoption of a new zoning code in which Nigro's use of the parcel ispermitted as a right, and plaintiffs have not raised any challenge to that code (see Matter of Orsi v Board ofAppeals of Town of Bethlehem, 3 AD3d 698, 701 [2004]; East ClintonDevelopers v Town of Clinton, 88 AD2d 581, 581 [1982]). Accordingly, plaintiffs'request that the rezoning determination be voided based on alleged violations of theOpen Meetings Law (see Public Officers Law §§ 103, 104,105, 107) is also moot. Even assuming that issues of fact exist as to the City's compliancewith the Open Meetings Law, plaintiffs' claim that they are entitled to costs and counselfees for the alleged violations is meritless inasmuch as they may not recover for "purelytechnical and nonprejudicial infractions" (Matter of Gordon v Village ofMonticello, 87 NY2d 124, 127-128 [1995]). Finally, plaintiffs have not alleged thatany of their claims fall within the exception to the mootness doctrine (see Matter ofHearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Schaffer v Zoning Bd. of Appeals of Town/Vil. ofHarrison, 22 AD3d 501, 501 [2005]; Matter of Fallati v Town ofColonie, 222 AD2d 811, 813 [1995]).
Lahtinen, J.P., Garry and Devine, JJ., concur. Ordered that the appeal is dismissed, asmoot, without costs.
Footnote 1:Twelve of the 20individual plaintiffs have withdrawn from the action and are not parties to the appeal.
Footnote 2:The remainingindividual plaintiffs do not make any allegations that would support a finding that theyhave standing, nor does Citizens for St. Patrick's make any allegation that any of itsindividual members have any injury different from the general public so as to give itorganizational standing (seeMatter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95 AD3d 1420,1421 [2012], lv denied 19 NY3d 811 [2012]).
Footnote 3:In a related proceedingpursuant to CPLR article 78, the petitioners—who are some of the plaintiffs in thiscase—sought to suspend the demolition permits issued by the City to Nigro. Thepetitioners therein moved for a preliminary injunction, which Supreme Court denied. Thepetitioners then appealed to this Court and moved for a temporary restraining order andpreliminary injunction pending appeal; the temporary restraining order was granted aftera $10,000 bond was posted, but we ultimately denied the preliminary injunction (seeMatter of Citizens for St. Patrick's v City of Watervliet Zoning Bd. of Appeals, 2013NY Slip Op 71041[U] [2013]). For unexplained reasons, the petitioners thereinapparently failed to perfect their appeal in that proceeding.