No Standing to Protect the Pine Barrens

February 07, 2022

Before adjudication, a court must determine whether a plaintiff has standing. Standing means that the party has a right to access the courts for a particular dispute. A petitioner bears the burden to show an actual injury and that the violated statute was meant to prevent this type of injury. In land use matters specifically, a petitioner “must show that it would suffer direct harm, injury that is in some way different from the public at large” (Thiele v. Town of Southampton Zoning Board of Appeals, internal citations and quotes omitted).

In Thiele, individual petitioners, as well as the Long Island Pine Barrens Society, Inc. and other environmental groups, challenged the Town of Southampton Zoning Board of Appeals’ determination that a private golf course was a permitted accessory use to a proposed residential development. The DLV Quogue respondents want to develop a residential subdivision and a private, 18-hole golf course, and maintain and operate other buildings and structures. In an opinion from November 4, 2021, the Suffolk County Supreme Court held that all of the petitioners lacked standing because they did not show any injuries that were individualized. When considering injury implied by distance to the project site, the court explained that close proximity may be an important consideration, but is never enough on its own. Further, the relevant distance must be measured from the structure or development at issue, not just from property line to property line. Here, the distance of the petitioners’ properties did not help their case. Although there is no specific standard for distance, the closest petitioners had over 700 feet of a forested buffer zone separating their residences from the golf course, and the court did not consider that proximate.

When discussing the requirement that an individual petitioner has an “actual and specific injury that is different in kind of degree from that alleged to be suffered by the general public, and that is not too speculative,” the court specified that groundwater pollution on its own does not suffice. The court cited a 1995 case from the Appellate Division, Second Department, Long Island Pine Barrens Society v. Planning Board of the Town of Brookhaven, which held that “generalized allegations that project will have adverse impact on underlying aquifer” were not enough to establish standing (internal citation omitted). Therefore, the court in Thiele had to follow and expand on the long-standing proposition that a Long Island resident cannot challenge a project to protect the sole source aquifer that spans most of the island unless there is a more particularized accusation. For example, the court in Thiele mentioned that there was no evidence that any of the petitioners have a private or on-site well, implying that if there could be a showing that such a well would be polluted, that could be enough of an individualized injury to establish standing. By extension, this means that there is no general standing to keep Pine Barrens areas undeveloped, even though the sandy soil means that the underlying aquifer is susceptible to pollution. Here, the court also stated that there was no sufficient evidence of harm to the aquifer, and that there was no evidence that the individual petitioners would be “prevented from using or enjoying the Pine Barrens.” Therefore, petitioners should show these kinds of injuries to meet the standing requirements.

Regarding standing for the environmental organizations, the court distinguished cases where petitioners were successful. Unlike in Thiele, in Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning & Policy Commission, an Appellate Division, Second Department case from 2016, petitioners sought to protect a portion of the Pine Barrens that was in the “core preservation area.” Additionally, this area was within the “zone of interests sought to be protected by the Pine Barrens Act of 1993,” so organizational standing was granted (internal citation omitted). In order for organizations to have standing, the most important consideration is that at least one member would have standing to sue. Further, the interest an organization asserts must be relevant to its purpose. Last, neither the claim nor the relief sought must require the involvement of individual members. Therefore, though the Long Island Pine Barrens Society was also a petitioner in Thiele, whether the area is in the “core preservation area” makes the difference because of the protection afforded by the Pine Barrens Act.