Posted On: August 26, 2012

Neighbors Have Standing to Challenge SEQRA Determination

The Appellate Division reversed a lower court holding that neighbors of the controversial Patrick Farm development in the Town of Ramapo lacked standing to challenge the approval of changes to the Town's comprehensive plan and zoning ordinance. In Matter of Shapiro v. Town of Ramapo, the Appellate Division Upheld dismissal of the challenge to the Town's transfer of the site to a developer but reinstated the causes of action challenging the zoning amendments and the SEQRA review.

Holding the claim that the Town illegally transferred park land to the developer is time barred the Court noted the action was commenced in 2010 to challenge the 2001 transfer of the property, well outside the six year statute of limitations. However, the Court found the lower court erred when it held that the Petitioners, who live "across the street" from the proposed development, lacked standing.

The Court stated:

"the petitioners live in close proximity to the portion of the site that is the subject of the challenged determinations, they did not need to show actual injury or special damage to establish standing (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410, 413-414; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74, 89-90; Matter of Ontario Hgts. Homeowners Assn. v Town of Oswego Planning Bd., 77 AD3d 1465, 1466). Further, the injuries alleged by the petitioners fell within the zone of interests to be protected by SEQRA (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d at 687; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-775; Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 621; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 94)."

The Court also reversed the finding by the lower court on the motion to dismiss that there was no merit to the Petitioners' claims. Noting that the decision was made on a pre-answer motion, before either an answer or record of proceedings had been submitted to the court below, the Appellate Division held:

"Moreover, it was error for the Supreme Court to reach the merits of the petitioners' SEQRA claims prior to service of the respondents' answers and the filing of the full administrative record (see CPLR 7804[e], [f]). On the appellate record before us, it cannot be said that "the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer" (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 101..."

-Steven Silverberg

Posted On: August 11, 2012

Completion of Construction Precludes Challenge When No Preliminary Injunction Sought

The Appellate Division restated the rule that when challenging a land use approval the challenger must seek a preliminary injunction in order to maintain the status quo. In Matter of Papert v. Zoning Board of Appeals of the Incorporated Village of Quogue, the Court upheld dismissal of the petition challenging the zoning board's issuance of a coastal zone erosion permit to reconstruct an existing house as academic. The motion to dismiss was made claiming substantial completion of the project and the lower court granted the motion after construction was completed and a certificate of occupancy was issued.

Holding that "the petitioner failed to move in the Supreme Court for a preliminary injunction to preserve the status quo during the pendency of this litigation, he did not timely do all he could have done to safeguard his interests, and thus, he failed to preserve his rights pending judicial review," the Court noted that as a result the property owner "would suffer substantial prejudice if the petitioner prevailed...."

However, the Court also indicated that this rule is not without exception when, in upholding the dismissal, it also found that the property owner "did not proceed with the construction in bad faith or without authority" and further, "this proceeding did not present 'novel issues or public interests such as environmental concerns' that warranted retention of jurisdiction (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173)."

-Steven M. Silverberg