Village of Chestnut Ridge v. Town of RamapoVillage of Chestnut Ridge v. Town of Ramapo
[841 NYS2d 321]
In the Matter of VILLAGE OF CHESTNUT RIDGE et al., Appellants, et al., Petitioners/Plaintiffs, v TOWN OF RAMAPO et al., Respondents.
Second Department, August 14, 2007
APPEARANCES OF COUNSEL
Zarin & Steinmetz, White Plains (Michael D. Zarin and Jody T. Cross of counsel), for appellants.
Holland & Knight, LLP, New York City (Robert Bergen and Leah Griggs Pauly of counsel), for Town of Ramapo and others, respondents.
Feerick Lynch MacCartney, PLLC, South Nyack (Dennis E. A. Lynch of counsel), for Yeshiva Chofetz Chaim of Radin, respondent.
Rice & Amon, Suffern (Terry Rice of counsel), for Scenic Development, LLC, respondent.
OPINION OF THE COURT
Spolzino, J.P.
The appellants, four villages located within the Town of Ram
The events leading to this litigation began in the spring of 2004, when the Town Board of the Town of Ramapo (hereinafter the Town Board) proposed to enact a local law amending the Town’s zoning code to permit, as a conditional use, the construction and operation of “adult student living facilities” in certain residential zones. The proposed law defined an “adult student living facility” as “[h]ousing designated to be used only for adult married students, faculty, spouses and minor children while the adult student is pursuing full time post secondary education at an educational institution.” The term “adult student” was further defined to encompass “[f]ull time married students attending a post secondary level educational institution whether for general or religious instruction.”
The combined petition/complaint (hereinafter the petition) alleged that the proposed law was intended to address a finding in the Town’s recently adopted comprehensive plan that such facilities were necessary to accommodate the growing number of married students attending Orthodox Jewish religious educational institutions in the Town. By virtue of the lot size requirements articulated in the proposed local law, the proposed permitted use was anticipated to be applicable initially only to four sites in the unincorporated area of the Town. Each of those sites is located adjacent to or near the border of one or more of the four villages, and all of those sites are located within two miles of each other.
The Town forwarded the proposed local law to the County of Rockland for its review and recommendations, in accordance with the requirements of
In October 2004 the Village of Chestnut Ridge, the Village of Montebello, the Village of Pomona, and the Village of Wesley Hills, all of which are located within the Town of Ramapo, together with, among others, Milton B. Shapiro and Sonya Shapiro, who are residents of the Town, commenced this hybrid
Subsequent to the adoption of the adult student housing law, but prior to the commencement of this proceeding, the Town initiated a process leading to the adoption of a comprehensive revision of its zoning law. The local law that was proposed to accomplish that revision included the provisions permitting adult student housing facilities that had been enacted by the adult student housing law, with minor changes. After conducting an environmental review that did not include additional study of the potential impacts resulting from the adoption of the adult student housing law, the Town Board enacted the revised comprehensive zoning law in November 2004. During the same period, Chofetz Chaim applied to the Planning Board for site plan approval to permit the construction of adult student housing on one of the four sites. The Planning Board issued a nega-
The amended petition asserts thirteen causes of action. The first four causes of action allege that, in adopting the adult student housing law, the Town failed, in four different respects, to comply with the requirements of SEQRA. The fifth and sixth causes of action make similar assertions with respect to the subsequent adoption of the revised comprehensive zoning law. The seventh cause of action alleges that the adult student housing law is inconsistent with the Town’s comprehensive plan and thus constitutes impermissible spot zoning. The eighth and ninth causes of action complain of procedural infirmities in the adoption of the adult student housing law under the
Prior to answering the amended petition, the Town, the Town Board, the Planning Board, and the Board of Appeals cross-moved to dismiss the amended petition, asserting, inter alia, that the four villages (hereinafter the Villages) did not have
The first issue presented is the Villages’ legal capacity to prosecute this proceeding.
“Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing. As a general matter, capacity ‘concerns a litigant’s power to appear and bring its grievance before the court‘” (Silver v Pataki, 96 NY2d 532, 537 [2001], quoting Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155 [1994]; see Matter of Graziano v County of Albany, 3 NY3d 475, 478-479 [2004]).
Capacity to sue can be derived from an express statutory grant, as in the case of a business corporation or unincorporated association (see Community Bd. 7 of Borough of Manhattan v Schaffer, supra at 155), or can be inferred, even in the absence of statutory authority, where the power to sue and be sued is a necessary incident of the party’s responsibilities (see Silver v Pataki, supra at 537-538; Matter of Graziano v County of Albany, supra at 480-482). Where there is no statutory authority to sue, and such authority is not necessarily implied from the entity’s other powers, however, there is no capacity, and a petition or complaint must be dismissed (see Community Bd. 7 of Borough of Manhattan v Schaffer, supra at 157; Matter of Pooler v Public Serv. Commn., 43 NY2d 750 [1977]).
“Being artificial creatures of statute, [governmental] entities have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate” (Community Bd. 7 of Borough of Manhattan v Schaffer, supra at 155-156; see Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., 5 NY3d 36, 41; Matter of Graziano v County of Albany, supra at 478-479). Here, the necessary statutory predicate is provided by
The defendants’ argument that some more specific authority is required in order to establish the Villages’ capacity to sue rests on two inapposite premises. The first is that the Villages’ capacity to sue is somehow limited by the principle that a municipality may not sue the State (see City of New York v State of New York, 86 NY2d 286, 293 [1995]). While it is true that a village is a creature of the State and, as such, cannot sue its creator (id.), the Villages are not attempting to do so here. The rule does not bar an action by one creature of the State against another. The defendants’ assertion that the Villages’ ability to sue is limited in the same manner as that of a governmental agency (see Community Bd. 7 of Borough of Manhattan v Schaffer, supra; Matter of Pooler v Public Serv. Commn., supra) is similarly misplaced. Unlike the plaintiffs in those cases, the Villages here can point to enabling legislation directly empowering them to sue. That is sufficient to overcome the defendants’ argument that the Villages lack capacity.
Our holding in Village of Port Chester v City of Rye (234 AD2d 453 [1996]) is similarly not implicated here. The issue in that case was whether a village could challenge a traffic regulation adopted by an adjoining city with respect to a street wholly within that city, albeit one that provided access to the village. Although we addressed the city’s argument in terms of the authority of the village to sue, the city’s motion to dismiss was actually predicated on its assertion that the village lacked standing to sue. The focus of our analysis in that case, which was on the issue that the village sought to raise, rather than on its general corporate powers, makes it clear that the complaint was dismissed there for lack of standing, not the absence of capacity to sue. While Village of Port Chester v City of Rye (supra) thus arguably has some relevance to the discussion of the Villages’ standing here, it does not stand for the proposition that specific legislation is required before a village may commence a lawsuit.
The defendants are correct in asserting, however, that even where the Legislature has conferred capacity to sue, it may take it away. A general power to sue necessarily yields to a “clear legislative intent negating review” (Community Bd. 7 of Borough of Manhattan v Schaffer, supra at 156; see Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., supra at 42-43). Here, the defendants identify what appears to be such a limitation in
The legislative history of
Based upon this legislative history, there can be no real dispute that the Legislature’s intent in adopting
The issue that is presented here, however, differs significantly from that which was decided by the Court of Appeals in Town of N. Hempstead v Village of N. Hills, since the zoning change at issue here is not a product of the Town’s authority under
Despite its otherwise expansive reading of
In 1963, almost eight years after the Legislature adopted the language of
The case for refusing to extend the effect of
SEQRA, in fact, permits just such a challenge. By defining the term “agency” to include the governing body of any political subdivision of the State (
The DEC’s SEQRA regulations developed the distinction between an involved agency, which is “an agency that has jurisdiction by law to fund, approve or directly undertake an action” (
The issue presented by the doctrine of standing is whether the litigants “should be allowed access to the courts to adjudicate the merits of [the] dispute” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991]). The inquiry is twofold. “Generally, standing to challenge an administrative action turns on a showing that the action will have a harmful effect on the challenger and that the interest to be asserted is within the zone of interest to be protected by the statute” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687 [1996]; see Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 10 [1975]). Applying these principles here, we conclude that the Villages have standing to assert the claims that they raise under SEQRA and
The Shapiros have a similar interest assuring that the Town did not act beyond its zoning authority by adopting a zoning law that is not consistent with the Town’s comprehensive plan. Zoning laws operate to impose mutual benefits and restrictions on the parties within the community (see Topanga Assn. for a Scenic Community v County of Los Angeles, 11 Cal 3d 506, 517 [1974]; Benner v Tribbitt, 190 Md 6, 20 [1948]; Bogert v Washington Twp., 45 NJ Super 13, 31 [1957], affd 25 NJ 57 [1957]). This mutuality is maintained by enforcement of the requirement that zoning decisions be made in accordance with the community’s comprehensive plan (see Udell v Haas, 21 NY2d 463, 469 [1968]). The Shapiros own and reside upon property affected by the mutual benefits and restrictions that are enforced by the comprehensive plan requirement. They thus have an interest that is intended to be protected by the comprehensive plan requirement, and they would be harmed by the Town’s failure to act consistently with its comprehensive plan. The Shapiros, therefore, have standing to raise such claims (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410 [1987]) and, accordingly, the dismissal of the seventh and twelfth causes of action insofar as asserted by the Shapiros was in error.
The Villages, by contrast, have no interest in the Town Board’s compliance with either its comprehensive plan or the procedural requirements of
The causes of action alleging a violation of
The appellants’ constitutional claims, however, were properly dismissed, since none of the appellants have standing to raise them. Whether a municipality is or is not a person for the purpose of asserting a violation of the
The appellants’ remaining causes of action center upon the Town’s alleged failure to comply with the requirements of SEQRA. “To establish standing under SEQRA, the petitioners must show (1) that they will suffer an environmental ‘injury that is in some way different from that of the public at large,’ and (2) that the alleged injury falls within the zone of interest
The Shapiros live immediately across the street from the Patrick Farm site, which is one of the four sites identified in the course of the Town’s review processes as subject to development in accordance with the adult student housing law. Such proximity alone permits an inference that the Shapiros possess the requisite interest in the dispute (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, supra at 687; Matter of Barrett v Dutchess County Legislature, supra; Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590, 594-595 [2005]; Matter of Rediker v Zoning Bd. of Appeals of Town of Philipstown, supra at 550). The Shapiros thus have standing to challenge the adoption of the adult student housing law as violative of SEQRA because it is inferred from their proximity to the site that they will suffer environmental injury (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 413-414; Golden v Steam Heat, 216 AD2d 440 [1995]; Matter of Prudco Realty Corp. v Palermo, 93 AD2d 837 [1983], affd on other grounds 60 NY2d 656 [1983]; Matter of Marasco v Luney, 99 AD2d 492 [1984]). The Shapiros do not allege, however, that they reside in close proximity to the Nike site, one of the four sites to which the adult student housing law applies, and the one on which Chofetz Chaim applied for site plan approval in order to construct adult student housing. Since the Shapiros have not alleged any other basis upon which they have suffered injury with respect to that site plan application, therefore, the thirteenth cause of action was properly dismissed insofar as asserted by the Shapiros.
The inference from proximity that supports the standing of an individual or nongovernmental entity, however, does not operate in the same way to confer standing on a municipality. That presumption rests on the unremarkable conclusion that environmental injury is the ordinary consequence of proximity to the source of a significant environmental impact (see Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428 [1990]; Akpan v Koch, 75 NY2d 561, 569 [1990]; Vinnie Montes Waste Sys. v Town of Oyster Bay, 199 AD2d 493 [1993]; Matter of Valhalla Union Free School Dist. v Board of Legislators of County of Westchester, 183 AD2d 771 [1992]). The residents near a road that will receive substantial additional traffic from a significant development, or the neighbors of an industrial facility that will give rise to smoke or noise, are clearly affected directly by those impacts in a way that others are not (see Matter of Barrett v Dutchess County Legislature, supra; Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d 26, 32-33 [1999]; Matter of Parisella v Town of Fishkill, 209 AD2d 850, 851-852 [1994]).
A municipality, however, does not suffer from that traffic or noise in the same way. A municipality, as such, neither breathes foul air, nor hears loud noises, nor waits in traffic. As a result, since a municipality is limited to asserting rights that are its own (see Town of Scarsdale v County of Westchester, 192 AD2d 517, 518 [1993]), and is not permitted to assert the collective individual rights of its residents (see Gulotta v State of New York, 228 AD2d 555, 557 [1996]; Incorporated Vil. of Northport v Town of Huntington, 199 AD2d 242, 243-244 [1993]), it cannot be presumed to have suffered environmental injury by reason of its proximity to the source of the impacts. A municipality thus cannot establish its standing merely on that basis.
To say that a municipality is not presumed to suffer environmental injury in the same way as an individual, however, does not mean that a municipality can never suffer cognizable environmental injury. We have held that “villages may have standing to sue in appropriate cases” (Incorporated Vil. of Northport v Town of Huntington, supra at 243), where they have “a demonstrated interest in the potential environmental impacts of the project” (Matter of Town of Babylon v New York State Dept. of Transp., 33 AD3d 617, 618-619 [2006]). Thus, although we have denied standing to a municipality where it could not demonstrate that it was aggrieved by the determination in issue (see Village of Port Chester v City of Rye, supra; Village of East Hills v Siegel, 83 AD2d 849 [1981]), we have found a municipality to have standing where a specific municipal interest was articulated (see Town of Riverhead v Long Is. Light. Co., 258 AD2d 643, 644 [1999]).
A municipality’s “demonstrated interest in the potential environmental impacts of the project” can be established in several ways. A municipality that has been identified as an involved agency, i.e., an agency with some approval authority with respect to the project (see
The unique nature of a municipality’s environmental interests, however, requires that the inquiry into its environmental standing not be a mechanical one, particularly in light of the established preference that the issues presented by land use disputes be decided on the merits (see Matter of Barrett v Dutchess County Legislature, supra), rather than by a “heavy-handed” approach to standing (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, supra at 413; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, 6 [1974]). Applying those principles here, and assuming, as we must for the purpose of this motion, that the allegations set forth in the complaint and in opposition to the motion are true (see Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590, 594 [2005]), the Villages have established a “demonstrated interest in the potential environmental impacts” of the adult student housing law sufficient to give them SEQRA standing.
The amended petition alleges that land use in the Villages is mostly low to medium density residential, and that significant parcels of land that could be developed under the adult student housing law adjoin the Villages, including the 200-acre Patrick Farm site and the 4.7-acre Nike site, both of which are surrounded by low density residential uses. The amended petition
These assertions establish a basis for legitimate concern on the part of the Villages that the development permitted by the adult student housing law will have a substantial detrimental effect on the roads in their community, their shared water supply and sewer systems, and the character of their neighborhoods. They fall short, however, of establishing the property interest that provided the basis for the standing of the municipalities in Town of Riverhead, and Town of Coeymans, since there is no claim that the Villages themselves own or otherwise have responsibility for these facilities.
Nevertheless, a municipality is more than the collection of pavement, pipes, and other improvements that make up its infrastructure. Rather, a village is a local governmental unit with broad powers, conferred not just by legislative grant, but as a matter of constitutional entitlement (see Town of Black Brook v State of New York, 41 NY2d 486, 489 [1977];
In the furtherance of this authority, municipal officials exercise a broad array of powers with respect to the nature of the community, including the powers to protect and enhance the “physical and visual environment” (see
Community character is specifically protected by SEQRA. SEQRA requires the preparation of an environmental impact statement with respect to any action that “may have a significant effect on the environment” (
The power to define the community character is a unique prerogative of a municipality acting in its governmental capacity. All of the other incidents of local government, including its electoral and legislative processes, management policies, and fiscal decisions, are ultimately aimed at determining and maintaining the community that its residents desire. It is the right to continue to exercise that authority which the Villages assert here, in the face of the potential threat posed by the Town‘s action with respect to the property along the Villages’ borders. Substantial development in an adjoining municipality can have a significant detrimental impact on the character of a com
Finally, the harms alleged by the appellants are not speculative and the interposition of their causes of action are not premature. The appellants suffered actual and concrete harm, and thus became aggrieved, when the adult student housing law was enacted, at which point the Town Board committed itself to a definite course of future action, notwithstanding the fact that no site plan for the development of any particular site had by then been, or has yet to be, approved (see Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 317 [2006]; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 848-849 [1996]; Matter of Save the Pine Bush v City of Albany, 117 AD2d 267, 269-270 [1986], affd 70 NY2d 193, 201-203 [1987]; Matter of J.B. Realty Enter. Corp. v City of Saratoga Springs, 270 AD2d 771, 773 [2000]; Matter of Price v County of Westchester, 225 AD2d 217, 220 [1996]; Matter of Wing v Coyne, 129 AD2d 213, 216-217 [1987]; Avy v Town of Amenia, 4 Misc 3d 1020[A], 2004 NY Slip Op 50972[U] [2004], affd 27 AD3d 557 [2006]).
Accordingly, the Supreme Court correctly dismissed the appellants’ tenth cause of action, as well as the seventh, eighth, eleventh, and twelfth causes of action insofar as asserted by the Villages, but incorrectly dismissed the first through sixth and ninth causes of action insofar as asserted by the Villages. The
Thus, the order and judgment is modified, on the law, by deleting the provisions thereof granting those branches of the defendants’ cross motions which were to dismiss the first, second, third, fourth, fifth, sixth, and ninth causes of action insofar as asserted by the Villages and substituting therefor provisions denying those branches of the cross motions, by deleting the provisions thereof granting those branches of the defendants’ cross motions which were to dismiss the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, and twelfth causes of action insofar as asserted by the Shapiros and substituting therefor provisions denying those branches of the cross motions, and by deleting the provisions thereof granting those branches of the defendants’ cross motions which were to dismiss the thirteenth cause of action insofar as asserted by the Village of Wesley Hills, and substituting therefor provisions denying those branches of the cross motions; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, and the first, second, third, fourth, fifth, sixth, and ninth causes of action insofar as asserted by the Villages, the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, and twelfth causes of action insofar as asserted by the Shapiros, and the thirteenth cause of action insofar as asserted by the Village of Wesley Hills are reinstated, and the matter is remitted to the Supreme Court, Westchester County, for a determination, on the merits, of the first, second, third, fourth, fifth, sixth, eighth, ninth, and thirteenth causes of action pursuant to
The parties’ remaining contentions are without merit.
RITTER, COVELLO and BALKIN, JJ., concur.
Ordered that the order and judgment is modified, on the law, (1) by deleting the provisions thereof granting those branches of the respondents/defendants’ cross motions which were to dismiss the first, second, third, fourth, fifth, sixth, and ninth