This opinion is uncorrected and subject to revision before
publication in the New York Reports.
In the Matter of Save the Pine
Bush, Inc., et al.,
Common Council of the City of
Jeffrey V. Jamison, for appellant.
Stephen F. Downs, for respondents.
Andrew B. Ayers, for New York State Department of
Environmental Conservation, amicus curiae.
Sierra Club Atlantic Chapter et al., amici curiae.
We hold that a person who can prove that he or she uses
and enjoys a natural resource more than most other members of the
public has standing under the State Environmental Quality Review
Act (SEQRA) to challenge government actions that threaten that
Applying that rule to this case, we hold that the
individual petitioners who are members of petitioner Save the
Pine Bush, Inc., and the organization itself, have standing to
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challenge an action alleged to threaten endangered species in the
Pine Bush area.
We also conclude, however, that petitioners' challenge
fails on the merits.
The City of Albany did not violate SEQRA
when, in examining the environmental impact of a zoning change
for property located near the Pine Bush, it focused its attention
on the areas of major environmental concern.
It was not required
to scrutinize every possible environmental issue, and the failure
of the City's environmental impact statement (EIS) to discuss the
possible impact of rezoning on certain rare species was therefore
not a fatal flaw.
In September 2003, Tharaldson Development Company, the
owner of a 3.6 acre parcel of land located on Washington Avenue
Extension in Albany, applied for a rezoning of the parcel to
allow for construction of a hotel.
Though zoned for residential
use, the property was at that time a parking lot.
properties were occupied by shopping malls and commercial office
Tharaldson's property is not part of the area protected
by the Albany Pine Bush Preserve Commission, but it is near to
protected areas, including Butterfly Hill, a habitat of the
endangered Karner Blue butterfly.
Butterfly Hill is said by
petitioners to contain "[t]he largest population of Karner Blue
butterflies south of the [New York State] Thruway", and, thanks
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in part to petitioners' efforts, significant Pine Bush acreage
has long been set aside for the preservation of Karner Blues (see
Save the Pine Bush, Inc. v Common Council of the City of Albany,
188 AD2d 969 [3d Dept 1992]).
The effect of the hotel
construction, if any, on Karner Blues was recognized from the
outset as the principal environmental issue raised by the
Tharaldson also acknowledged that there would be some
impact on existing drainage patterns, and on traffic.
The Common Council of the City of Albany (the City)
determined that the proposed rezoning required the preparation of
In August 2004, the City circulated to interested
parties a "Draft Scoping Checklist" for the EIS, listing a number
of environmental aspects of the project that it planned to
examine, including water resources; transportation and traffic;
terrestrial and aquatic ecology; and "Pine Bush."
Under each of
the latter two headings, the checklist said that the impact on
the Karner Blue butterfly's habitat would be analyzed.
plant or animal species was mentioned in the checklist.
A letter sent by the Department of Environmental
Conservation (DEC) in response to the draft checklist contains
the first mention in this record -- and the last, before the
bringing of this lawsuit -- of species that are now central to
The DEC said "it is important, and indeed essential,
that this project include a detailed evaluation of potential site
use by Karner blue butterflies," but it added "that the Karner
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blue butterfly is one species in a rare habitat that is known to
support numerous rare or unusual species."
It named four other
of these species -- the Frosted Elfin butterfly, the Hognosed
Snake, the Worm Snake, and the Eastern Spadefoot Toad -- and
asked that the City's biological investigation encompass them.
Having received comments on the checklist, the City and
Tharaldson completed the preparation of a draft environmental
impact statement (DEIS).
This document, as accepted by the City
in March 2005, contained more than 500 pages, including 68 of
text and 12 appendices.
The executive summary identified two
"Significant Items": the proximity of the project to the Karner
Blue butterfly habitat and an increase in traffic.
subjects, including water resources, air quality, and the
potential for an increase in exposure to tick-borne and mosquitoborne diseases, were discussed in the text.
Among the appendices
was a report by a biologist, Dr. Richard Futyma, who had
repeatedly visited the site of the proposed hotel, had been able
to find no Karner Blues, and had concluded that the site "does
not constitute a significant resource for the Karner blue
Nothing was said in the DEIS of the other species
that DEC had identified in its earlier letter.
The DEIS, like the checklist, was made available for
Among the commenters were the United States Fish and
Wildlife Service (FWS), the Albany Pine Bush Preserve Commission
(APBC) and DEC.
All three discussed Karner Blue butterflies in
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None of these agencies' comments, and no other
comments on the DEIS that the parties have called to our
attention, made any specific reference to the Hognosed Snake, the
Worm Snake or the Eastern Spadefoot Toad.
The FWS and DEC
comments mentioned the Frosted Elfin briefly, and APBC's comments
referred with equal brevity to a species that had not,
apparently, come up before: the Adder's Mouth Orchid.
and APBC comments also referred generally to possible impacts on
In July 2005, Dr. Futyma supplemented his report to
address comments on the DEIS.
As to the Frosted Elfin butterfly
he said that it is "likely to occur in the same places as Karner
blue butterflies"; that the plants on which it is known to feed
"are absent or rare in the Albany Pine Bush"; and that he
observed no Frosted Elfins on the proposed hotel site.
listed all the plants he observed growing on the site; the
Adder's Mouth Orchid was not among them.
Like the commenters on
the DEIS, he said nothing about the Hognosed Snake, the Worm
Snake or the Eastern Spadefoot Toad.
The City accepted the final EIS in November 2005 and
approved the zoning change in December 2005.
In March 2006, Save
the Pine Bush, Inc. and nine of its members began this proceeding
challenging the City's action under SEQRA.
petitioners alleged that they "live near the site of the hotel
project" and that they "use the Pine Bush for recreation and to
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study and enjoy the unique habitat found there."
petition contained nine causes of action, most of them based, at
least in part, on alleged failures to consider adequately the
need to protect the Karner Blue butterfly.
All these causes of
action have now been dismissed, and petitioners do not challenge
third, in which
The only surviving cause of action is the
petitioners asserted that the EIS was deficient
for failing to evaluate possible threats to the "Frosted Elfin
Butterfly or any other listed species."
The third cause of
action named four other species: the Adder's Mouth Orchid, the
Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad.
Supreme Court denied a motion to dismiss the proceeding
for lack of standing, and in a later opinion upheld the third
cause of action, vacated the City's SEQRA determination and
annulled the rezoning.
Supreme Court acknowledged that the EIS
gave "considerable attention . . . to the impact the project may
have on the off-site Karner blue butterfly population, and to a
lesser extent the Frosted elfin butterfly," but found it flawed
because it did not contain "a hard look" at the potential impact
of the action on other rare plants and animals.
The Appellate Division affirmed, with two Justices
dissenting (Save the Pine Bush, Inc. v Common Council of the City
of Albany, 56 AD3d 32 [3d Dept 2008]).
While concluding "that
none of the individual petitioners resides close enough to the
proposed project so as to presumptively demonstrate that they
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have sustained demonstrable injury different from the public at
large" (id. at 36-37) the majority held that evidence "that they
regularly use the Preserve" and that "at least one of them
resides in sufficient proximity to the Preserve to facilitate
that use" was enough to establish standing (id. at 37).
merits, the Appellate Division majority agreed with Supreme Court
that the EIS did not address adequately the project's potential
impact on species other than the Karner Blue butterfly.
dissenters would have dismissed the petition for lack of
standing, and did not reach the merits.
The City appeals to this
Court as of right, pursuant to CPLR 5601 (a).
The City, relying on Society of Plastics Industry, Inc.
v County of Suffolk (77 NY2d 761 ), argues that petitioners
lack standing because none of the individual petitioners, and no
member of petitioner Save the Pine Bush, Inc., is a near neighbor
of the site of the proposed hotel development.
approximately half a mile away.
The closest lives
Petitioners argue that they have
standing under Society of Plastics, but ask us in the alternative
to "reform" or abandon the holding of that case.
We see no
reason to depart from Society of Plastics, but we agree with
petitioners that they have standing under the principles that
case laid down.
In Society of Plastics, we held that "[i]n land use
matters . . . the plaintiff, for standing purposes, must show
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that it would suffer direct harm, injury that is in some way
different from that of the public at large" (77 NY2d at 774).
More specifically, we said that in cases involving environmental
harm, the standing of an organization could be "established by
proof that agency action will directly harm association members
in their use and enjoyment of the affected natural resources"
(id. at 775).
We observed that in the Society of Plastics case
itself, involving allegations of environmental harm from the
manufacture of paper, "it would be residents close to those
facilities" -- i.e., landfills and paper manufacturing plants -"that would directly suffer the alleged harms" (id. at 779).
However, Society of Plastics does not hold, or suggest, that
residence close to a challenged project is an indispensable
element of standing in every environmental case.
Here, petitioners allege that they "use the Pine Bush
for recreation and to study and enjoy the unique habitat found
It is clear in context that they allege repeated, not
rare or isolated use.
This meets the Society of Plastics test by
showing that the threatened harm of which petitioners complain
will affect them differently from "the public at large."
people who visit the Pine Bush, though they come from some
distance away, seem much more likely to suffer adverse impact
from a threat to wildlife in the Pine Bush than the actual
neighbors of the proposed hotel development -- the owners and
occupants of the nearby office buildings and shopping malls.
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neighbors may care little or nothing about whether butterflies,
orchids, snakes and toads will continue to exist on or near the
The City asks us to adopt a rule that environmental harm
can be alleged only by those who own or inhabit property adjacent
to, or across the street from, a project site; that rule would be
arbitrary, and would mean in many cases that there would be no
plaintiff with standing to sue, while there might be many who
suffered real injury.
In recognizing that injury of the kind petitioners here
allege can confer standing, we adopt a rule similar to one long
established in the federal courts.
In Sierra Club v Morton (405
US 727, 734 ), the United States Supreme Court held that a
generalized "interest" in the environment could not confer
standing to challenge environmental injury, but that injury to a
particular plaintiff's "[a]esthetic and environmental well-being"
would be enough (see also, Lujan v Defenders of Wildlife, 504 US
555, 562-563  ["the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a
cognizable interest for purpose of standing"]; Friends of the
Earth, Inc. v Laidlaw Environmental Services (TOC), Inc., 528 US
167, 183 ).
Indeed, the Sierra Club Court noted that the
plaintiff there "failed to allege that it or its members would be
affected in any of their activities or pastimes" by the
development it challenged (id. at 735).
Petitioners here make
the allegation that was missing in Sierra Club.
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In recognizing that petitioners' alleged injuries are a
sufficient basis for standing, we do not suggest that standing in
environmental cases is automatic, or can be met by perfunctory
allegations of harm.
Plaintiffs must not only allege, but if the
issue is disputed must prove, that their injury is real and
different from the injury most members of the public face.
Standing requirements "are not mere pleading requirements but
rather an indispensable part of the plaintiff's case" and
therefore "each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof"
(Lujan, 497 US at 561).
Here, the City does not challenge the
reality of the injuries petitioners assert -- understandably so,
since it seems highly likely that many members of an organization
called Save the Pine Bush, Inc. are people who frequently visit
and enjoy the Pine Bush.
But in other cases, including those
brought by organizations devoted to less specific environmental
interests -- the plaintiff in Sierra Club, for example -plaintiffs may be put to their proof on the issue of injury, and
if they cannot prove injury their cases will fail.
Thus, while we decline to erect standing barriers that
will often be insuperable, we are also conscious of the danger of
making these barriers too low.
It remains true, as it was when
Society of Plastics was decided, that SEQRA litigation "can
generate interminable delay and interference with crucial
governmental projects" (77 NY2d at 774).
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In Society of Plastics,
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we said that such delay could come from "challenges unrelated to
environmental concerns" (id.); but even good-faith environmental
challenges, like the one brought by these petitioners, can be
Striking the right balance in these cases will
often be difficult, but we believe that our rule -- requiring a
demonstration that a plaintiff's use of a resource is more than
that of the general public -- will accomplish that task better
In evaluating the merits of the case, the courts below
concluded that the City had not met its obligation under SEQRA
(Environmental Conservation Law § 8-0101 et seq.) to identify
"the relevant areas of environmental concern," to take a "hard
look" at them and to make a "reasoned elaboration" of the basis
for its determination (Jackson v New York State Urban Development
Corp., 67 NY2d 400, 417 ).
Specifically, they held that
the City had failed in its duty by not investigating threats the
proposed rezoning might pose to plant and animal species other
than the Karner Blue butterfly -- including the Frosted Elfin
butterfly, the Hognosed Snake, the Worm Snake, the Eastern
Spadefoot Toad and the Adder's Mouth Orchid.
The courts below
implicitly assumed that the "relevant areas of environmental
concern" that the City was required to examine included all
environmental problems that were brought to the City's attention.
This assumption is wrong.
An agency complying with SEQRA need
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not investigate every conceivable environmental problem; it may,
within reasonable limits, use its discretion in selecting which
ones are relevant (see Jackson, 67 NY2d at 417).
Here, in addition to investigating such subjects as
traffic and storm water drainage, the City concerned itself with
the ecology of the Pine Bush, but focused on the species that was
generally considered of most importance, the Karner Blue
It is apparent from this record, and from previous
litigation (see Save the Pine Bush, Inc. v Common Council of the
City of Albany, 188 AD2d 969, 970-971 [3d Dept 1992]), that the
preservation of the Karner Blue has long been a major objective
of those interested in the Pine Bush.
Supreme Court held, and
petitioners do not now dispute, that the City's scrutiny of
possible threats to the Karner Blue complied with SEQRA.
we are satisfied that the EIS -- specifically, Futyma's
supplemental report responding to comments on the DEIS -contains an adequate evaluation of any threat to the Frosted
Elfin butterfly and the Adder's Mouth Orchid.
It is true that the record shows no investigation
relating to the Hognosed Snake, the Worm Snake or the Eastern
We do not suggest that these species are
unimportant, but we think that the City did not act arbitrarily
in omitting them from its investigations.
While DEC did identify
them in a letter commenting on the scoping checklist, it offered
no particular reason to believe that the project would threaten
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them, and no other commenter in the SEQRA process mentioned them
When they were omitted from the DEIS neither DEC nor
anyone else called attention to the omission.
It would, it
seems, have been a formidable task to determine whether these
species even existed on the site; petitioners' brief informs us
that two of them, the Worm Snake and the Eastern Spadefoot Toad,
"are very difficult to locate and identify" because "they spend
much of their time underground and generally emerge only after
While it is essential that public agencies comply with
their duties under SEQRA, some common sense in determining the
extent of those duties is essential too.
We quoted above our
warning in Society of Plastics that SEQRA proceedings "can
generate interminable delay."
This case illustrates the point.
It does not involve a project of mammoth size or obvious
destructive potential, but simply the building of a hotel on a 3½
acre site, on a thoroughfare already in commercial use.
developer first sought rezoning more than six years ago.
those years, the City has identified several relevant
environmental concerns, taken the required hard look at them, and
explained in a detailed report the result of its investigations.
That it chose not to investigate some matters of doubtful
relevance is an insufficient reason for prolonging the process
further, and for adding to the expense.
A "rule of reason"
(Matter of Jackson v New York State Urban Development Corp., 67
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NY2d at 417) is applicable not only to an agency's judgments
about the environmental concerns it investigates, but to its
decisions about which matters require investigation.
Accordingly, the order of the Appellate Division should
be reversed, with costs, and the petition dismissed.
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In the Matter of Save the Pine Bush, Inc., et al. v
Council of the City of Albany, et al.
The majority's holding, in my view, reinterprets much
too broadly the special harm requirement that has been the
cornerstone of our standing jurisprudence in land use cases.
Therefore, while I agree with the majority on the merits, I am
compelled to disagree on the issue of standing.
For the last 18 years, SEQRA cases involving standing
issues have been decided under rules set down by this Court in
Society of Plastics Industry, Inc. v County of Suffolk (77 NY2d
In that case, we recognized that the Legislature
did not intend every person or citizen to have the right to sue
to compel SEQRA compliance (id. at 770).
Rather, in order to
have standing, a party must demonstrate an "injury in fact" - an actual legal stake in the matter being adjudicated - - which
falls within the "zone of interests, or concerns, sought to be
promoted or protected by the statutory provision under which the
agency has acted" (id. at 772-773 [citations omitted]).
particular reference to land use cases, we held that the injury
must constitute a "special harm" such that the party would
"suffer direct harm, injury that in some way is different that of
the public at large" (id. at 774).
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In other words, the plaintiff
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must show a "direct interest in the administrative action
challenged, different in kind or degree from the public at large"
(id.) This doctrine "grew out of a recognition that, while
directly impacting particular sites, governmental action
affecting land use in another sense may aggrieve a much broader
An exception to the "special harm" requirement has been
recognized where a presumption of standing will exist to a
landowner or resident who is either adjacent, or in close
proximity, to the challenged project.
These challengers are
"presumptively harmed" in a manner different than the public at
Under this exception, courts have held landowners or
those who reside within 500 feet of a challenged project are
close enough to remove the burden of pleading a special harm (see
Michalak v Zoning Bd. of Appeals of Town of Pomfret, 286 AD2d
906, 906-907 [4th Dept 2001] [plaintiff who owned property within
200 feet of a cellular tower had standing to challenge the
replacement of an antenna on the tower]; but see Oates v Village
of Watkins Glen, 290 AD2d 758 [3d Dept 2002] [plaintiffs residing
530 feet away had no standing]; Buerger v Town of Grafton, 235
AD2d 984 [3d Dept 1997] [plaintiff 600 feet away lacked
No such presumption can be found here as it is
undisputed that no one from the petitioning corporation lives
within a half mile of the proposed site.
Contrary to the majority's conclusion, the City does
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not ask the Court to adopt a rule that environmental harm can be
alleged only by those who live in close proximity to the project
site (Maj. Opn. at 9).1
It simply argues that petitioners are
far beyond the acceptable limits to confer standing based on the
close proximity exception.
Further, I agree with the City's contention that
petitioners' alleged harm constitutes a concern to the community
as a whole as opposed to one specific to petitioners and,
therefore, does not fall within the "special harm" requirement
under Society of Plastics.
Petitioners claim they are injured by
way of loss of recreation and use and enjoyment of the Pine
The Pine Bush and all of its natural resources,
however, can be used and enjoyed by the public at large.
concerns of the petitioners amount to the same general concerns
of the community as a whole and are not specific to the
In short, because petitioners fail to specify any
direct injury that is any different from that of the general
public, they lack standing under our precedent.
Indeed, our courts have consistently and correctly
applied the standard set forth in Society of Plastics,
recognizing that standing based on an organization's mere
Indeed, it is the petitioners that ask for a departure from
the rule set out in Society of Plastics. Rather than arguing to
this Court how they met the standing threshold, petitioners argue
that the special harm requirement does not advance any policy
goals of SEQRA, is too broad, and should not be applied in SEQRA
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dedication to environmental preservation or a member's use and
recreation is not enough for standing.
For example, in Long
Island Pine Barrens Soc., Inc. v Planning Bd. of Town of
Brookhaven (213 AD2d 484 [2d Dept 1995]), the petitioners, an
association representing the interests of the Long Island Pine
Barrens, challenged the approval of a 121-unit residential real
estate project on Long Island.
The petitioners argued that the
project would have a "deleterious impact upon the aquifer lying
beneath the South Setauket Pine Barrens."
This, the court noted,
was not an environmental injury that was in any way "different in
kind and degree from [that of] the community generally" (id. at
In Save the Pine Bush, Inc. v Planning Bd. of Town of
Clifton Park (50 AD3d 1296 [3d Dept 2008], the petitioner was
found to have lacked standing to challenge a determination
permitting development of a parcel that had been identified as a
potential home of the same Karner Blue Butterfly at issue here.
In that case, the court rejected petitioner's claim of standing
based on the fact that its members enjoy observing the Karner
Blue Butterfly as part of their recreational activities.
court found that this interest is "no different than the interest
enjoyed by the public at large" (id.).
Such an activity --and
the impact on it as the result of the proposed development on
this property-- did not, the court found, establish the "specific
environmental injury" that confers standing under SEQRA (id. at
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Further, the court noted that none of the petitioners
established that they lived in close proximity to the property so
as to distinguish any of them as having a "legally protectable
interest so as to confer standing" (id.).
The federal cases cited by the majority, Sierra Club v
Morton (405 US 727, 734 ) and Lujan v Defenders of the
Wildlife, 504 US 555, 562-563 ) are inapposite. Those cases
did not involve New York's "special harm" requirement, and invoke
a different view of the relation between personal and public
injury from what has consistently been stated in land use cases
in New York2 (see Sierra Club, 405 US at 734-735 ["Aesthetic and
environmental well-being, like economic well-being, are important
ingredients of the quality of life in our society, and the fact
that particular environmental interests are shared by the many
rather than the few does not make them less deserving of legal
protection through the legal process"]; Lujan v Defenders of the
Wildlife, 504 US at 560-561).
Those courts applied the traditional federal test to
ascertain whether the plaintiffs had standing under the "case or
controversy" jurisdictional limitation contained in article III
of the U.S. Constitution. They analyzed whether the plaintiffs
could demonstrate (1) an "injury in fact"; (2) that is "fairly
traceable to the challenged action of the defendant; and (3) that
it is likely that any injury would be redressed by a favorable
judicial decision (Friends of the Earth, Inc. v Laidlaw Envtl.
Servs. (TOC), Inc., 528 US 167, 180-181 ; see also Lujan v
Defenders Wildlife, 504 US 555, 560-561 ; Sierra Club v
Morton, 405 US 727, 732-733 ). Unlike here, no SEQRA
statute was involved nor was any proof of a special harm required
by the courts.
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Moreover, to the extent that those federal cases can be
viewed as supporting standing in situations where petitioners
allege an injury to use or recreation or "aesthetic interests,"
they do not apply in this case.
Here, the project site is not
within the Pine Bush preserve, but rather is private property
located in a heavy commercial corridor.
Unlike the Pine Bush
preserve, the project site is not used by petitioners - - or the
general public - - for any purpose and it possesses no
The harm asserted by petitioners is a
general harm that the project site may have on a completely
different, recreational site, the Pine Bush preserve.
majority's holding, taken to its logical conclusion, results in
Save the Pine Bush and its members having standing to sue
whenever a project site, no matter where its location, may have a
potential impact on animals and plants that happen to live on the
It is important to remember that petitioners have not
been prevented from voicing their concerns about the project
during the SEQRA process.
Indeed, petitioners did just that.
Early on, the Pine Bush Commission sent correspondence to the
Common Council Zoning Committee identifying several points to be
addressed by the Environmental Impact Statement, as well as
several recommendations and potential impacts on the Pine Bush.
The members of the Pine Bush also had an opportunity to attend
the public hearings and make public comment.
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the courts' role in reviewing the actions taken is a legal one- deciding whether the
determination was made in violation of
lawful procedure, was affected by an error of law or was
arbitrary and capricious or an abuse of discretion(see Jackson v
New York State Urban Development Corp., 67 NY2d 400 )- the appropriate place for petitioner is in the proceedings before
the lead agency and not, in all instances, before the court,
where little is accomplished except delay.
Consequently, I would hold that because petitioners
assert only generalized claims of harm, no different than the
public at large, they lack standing to challenge the City's
determination and therefore, I would dismiss this proceeding on
Order reversed, with costs, and petition dismissed. Opinion by
Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo
and Jones concur. Judge Pigott concurs in result in an opinion
in which Judge Read concurs.
Decided October 27, 2009
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