Second Department Affirms Dismissal of Article 78 Proceeding for Lack of Standing
March 02, 2020
The City of New Rochelle adopted an ordinance in 2017, amending the zoning code to apply a senior citizen overlay district to certain real property comprised of approximately 3.4 acres at 121 Mill Road in New Rochelle. The City adopted a negative declaration pursuant to the New York State Environmental Quality Review Act for the amendment. The zoning code amendment allowed for the development of a 64-unit memory care facility for people with Alzheimer’s disease, dementia and other forms of memory loss, creating specialized housing for elderly residents. Petitioners challenged the adoption via an article 78 proceeding and declaratory judgment action. Petitioners alleged, in part, that the proposed assisted living complex was actually a medical care facility proposed to provide care and services to memory challenged senior citizens rather than senior housing.
The Supreme Court, in Matter of Vasser et al. v. City of New Rochelle et al, Anne E. Minihan, J., Index No. 57315-2017, Westchester County, dated September 14, 2017 dismissed the proceeding for lack of standing. The Court noted that petitioners live outside the 250 foot radius of property owners that are required to receive mailed hearing notices pursuant to the City Code. Additionally, the Court found petitioners’ concerns about noise, odor and traffic speculative, overbroad and unripe given that the proposed development was still subject to administrative review and approval before the Planning Board. The Supreme Court stated “petitioners’ arguments concerning standing merely based on proximity would essentially negate the element of a distinct injury, and such a strained interpretation of the requirement finds no support in the case law.” Petitioners appealed.
In Vasser v. City of New Rochelle, 2020 N.Y.Slip Op. 00868, Index No. 2017-11116, February 5, 2020, the Appellate Division, Second Department affirmed the Supreme Court’s determination. In its decision, the Court reiterated the law of standing as it relates to zoning amendments and land use decisions stating,
“Standing is, of course, a threshold requirement for a plaintiff seeking to challenge governmental action” (New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405). The petitioner “has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated” (Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 6, 988 N.Y.S.2d 115, 11 N.E.3d 188). Additionally, in land use matters, the petitioner “ ‘must show that it would suffer direct harm, injury that is in some way different from that of the public at large’ ” (Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d 301, 310, 22 N.Y.S.3d 388, 43 N.E.3d 745, quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034). Allegations of harm must not be conclusory or speculative (see e.g. Matter of Panevan Corp. v. Town of Greenburgh, 144 A.D.3d 806, 808, 40 N.Y.S.3d 530).”
The Court found that petitioners’ residences were approximately 1,200 to 1,800 feet from the proposed development, not adjacent to the subject property but several streets and building lots away, separated by another housing complex. Additionally, the court determined that petitioners’ claims were speculative and unsubstantiated and failed to establish that they would suffer any direct injury-in-fact different in kind or degree from that experienced by the public at large. Accordingly, the Court affirmed the Supreme Court’s determination to dismiss the proceeding for lack of standing.