Matter of Save Pine Bush Inc., v Common Council of City of Albany

Matter of Save the Pine Bush, Inc., v Common Council of City of Albany 2008 NY Slip Op 07703 [56 AD3d 32] October 9, 2008 Kavanagh, J. Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 25, 2009

[*1] In the Matter of Save the Pine Bush, Inc., et al., Respondents-Appellants,
v
Common Council of the City of Albany et al., Appellants-Respondents.

Third Department, October 9, 2008

APPEARANCES OF COUNSEL

John J. Reilly, Corporation Counsel, Albany (Jeffrey V. Jamison of counsel), for Common Council of the City of Albany, appellant-respondent.

Whiteman, Osterman & Hanna, Albany (Thomas A. Shepardson of counsel), for Tharaldson Development Company, appellant-respondent.

Stephen F. Downs, Selkirk, for respondents-appellants.

{**56 AD3d at 34} OPINION OF THE COURT

Kavanagh, J.

Petitioner Save the Pine Bush, Inc. is an organization that lists as its purpose, among other things, the protection and preservation of the Karner blue butterflywhich is listed on the federal and state endangered species listsand its habitat, as well as other species that live in the Pine Bush in Albany County. The Pine Bush Preserve is an area of land, several thousand acres [*2]large, set aside by the City of Albany for the protection of the Karner blue butterfly, its habitat and other rare species.[FN1] The long-term goal of the Preserve is to induce Karner blue butterflies to spread from an area east of the Preserve, known as Butterfly Hilllocated approximately 1,000 meters outside the Preserveto the Preserve.

In September 2003, respondent Tharaldson Development Company (hereinafter the developer) submitted an application to the City of Albany to rezone 3.6 acres of property located in Albany County from a R1-B single family residential district to a C-2 highway commercial district for the construction of a 124{**56 AD3d at 35}-unit hotel. The property is located near Butterfly Hill.[FN2] Pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), respondent Common Council of the City of Albany assumed lead agency status (see 6 NYCRR 617.6 [b] [1] [i]) and designated the project as a type I action (see 6 NYCRR 617.4 [b] [6] [i]). The Common Council issued a positive declaration of environmental significance as to the property and, after a public scoping[FN3] session, a draft environmental impact statement (hereinafter DEIS) was prepared. The DEIS was accepted by the Common Council in March 2005 and numerous public hearings were held and written comments received during this process. A final environmental impact statement (hereinafter FEIS) was then prepared and accepted by the Common Council in November 2005. One month later, the Common Council accepted the SEQRA findings statement and rezoned the property.

Petitioners commenced this CPLR article 78 proceeding seeking relief under nine causes of action challenging the SEQRA process that the Common Council followed. Claiming that petitioners lacked standing, respondents moved to dismiss the petition and petitioners cross-moved to amend the petition. Supreme Court (Ferradino, J.) granted the cross motion to amend the petition, found that petitioners had standing and denied the motion to dismiss. As to the merits of the petition, Supreme Court (McNamara, J.) found that the Common Council took the required hard look at whether the site was an occupied habitat for the Karner blue butterfly. [*3]However, the court also concluded that the Common Council failed to take the required hard look at whether the proposed development would have an impact on other rare plant and animal species in the Pine Bush. Based on this finding, the court granted the petition and annulled the Common Council's decision approving the developer's rezoning application. Respondents now appeal the court's order which found that petitioners had standing,[FN4] as well as the amended judgment which granted the petition. Petitioners{**56 AD3d at 36} cross-appeal, arguing that the court erred to the extent that it concluded that the Common Council took a hard look at whether the development site was an occupied Karner blue butterfly habitat and whether there would be a resulting taking of the Karner blue butterfly.[FN5] We now affirm Supreme Court's judgment and amended judgment.

First addressing the question of standing, petitioners were required to establish that they have sustained an injury-in-fact that is in some way different from that of the public at large and one that falls within the zone of interest protected by SEQRA (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 777 [1991]). An "[i]njury-in-fact may arise from the existence of a presumption established by the allegations demonstrating close proximity to the subject property or, in the absence of such a presumption, the existence of an actual or specific injury" (Matter of Powers v De Groodt, 43 AD3d 509, 513 [2007] [citation omitted]; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town{**56 AD3d at 37} of N. Hempstead, 69 NY2d 406, 413-414 [1987]). Moreover, as an organization seeking standing, Save the Pine Bush "must demonstrate that at least one of its members would have standing to sue individually, that the interests it asserts are germane to its purpose and that the resolution of the claim does not require the participation of its individual members" (Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d 979, 982 [2007], lv denied 10 NY3d 706 [2008]; see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 775).

Initially, we agree with Supreme Court that none of the individual petitioners resides close enough to the proposed project so as to presumptively demonstrate that they have sustained demonstrable injury different from the public at large (see Matter of Sun-Brite Car Wash v Board [*4]of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406 [1987]; Matter of McGrath v Town Bd. of Town of N. Greenbush, 254 AD2d 614, 615 [1998], lv denied 93 NY2d 803 [1999]). The closest that any of the individual petitioners lives to the site is 2,628 feet, and none lives adjacent to it (see Matter of Oates v Village of Watkins Glen, 290 AD2d 758, 761 [2002]; Matter of Save Our Main St. Bldgs. v Greene County Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609 [2002]).

The individual petitioners have, however, demonstrated the existence of an actual injury different from that of the public at large. Petitioners have presented competent evidence not only that they regularly use the Preserve, but that at least one of them resides in sufficient proximity to the Preserve to facilitate that use and that the proposed development could have a substantial impact upon the migration of the Karner blue butterfly from Butterfly Hill to the Preserve.[FN6] As such, petitioners have identified an injury-in-fact that falls within the zone of interest sought to be protected by SEQRA by presenting proof that "agency action will directly harm association members in their use and enjoyment of the affected natural resources" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 776; see Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Council of City of N.Y., 214 AD2d 335, 336 [1995], lv denied 87 NY2d 802 [1995]).

We respectfully disagree with the conclusion of the dissent that the individual petitioners' use and enjoyment of the Preserve is not sufficient to establish an interest different from that of the public at large. As alleged in the amended petition, petitioners Rezsin Adams, John Wolcott, Lynne Jackson, Lucy Clark, Anne Sombor, Russell Ziemba, Sandra Camp, Dave Camp and Larry Lessner (hereinafter the individual petitioners), all "use the Pine Bush for recreation and to study and enjoy the unique habitat found there" and have made efforts "over the years to protect the Pine Bush by speaking out at hearings, reviewing documents and development plans, organizing fund raisers to fund law suits and in many other ways advocating on behalf of the Pine Bush." According to the amended petition,{**56 AD3d at 38} the individual petitioners have actively pursued the protection of the Karner blue butterfly species and, in our view, have adequately alleged that the butterflies' habitat and the butterflies' survival in the Preserveand the individual petitioners' regular and consistent enjoyment of samecould be adversely impacted by the developer's proposed actions in a manner sufficient to confer standing to bring this proceeding.[FN7] When compared to other members of the public, we view the individual [*5]petitioners' interests in the preservation and protection of the Preserve to be distinct and unique. Their individual use of this property, coupled with their historic involvement in the creation of the Preserve and the protection of this habitat, give them a stake in this proceeding and standing to maintain this action.

While the dissent challenges our decision as a departure from Society of Plastics Indus. and a variety of cases that followed, we note that this is not the first instance where the use and enjoyment of a public resource by an individual member of an organization was sufficient to establish a distinct, injury-in-fact. In Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y. (259 AD2d at 31-32) (hereinafter Brighton Beach), it was determined that the four individual petitioners' allegations that the challenged development would "interfere with their use and enjoyment of the park" constituted an injury-in-fact (id. at 32). In describing{**56 AD3d at 39} the four individual petitioners, the Court noted that three of them owned cooperative apartments in a building that overlooked the park from across a parkway. The fourth individual petitioner was described as a person who "use[d] the park for recreational purposes" (id. at 29) and was not one of the three who owned a nearby apartment. The Court went on to conclude that "since three of the individual petitioners live in close proximity to the park, and one uses it regularly, it is obvious that many of the alleged injuries would affect the petitioners in a manner wholly distinct from that of the public at large" (id. at 32 [emphasis added]), and it found that all of the four individual petitioners had standing. The Court clearly concluded that the fourth individual petitioner's use of the parkeven in the absence of a finding that he or she lived in close proximity to the parkwas sufficient to confer standing to this individual petitioner.

In Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs (46 AD3d 979 [2007]), this Court found that the president of the Saratoga Lake Association had presumptive standing because of the proximity of her property to the challenged project (within 1,000 feet) and, as in Brighton Beach, recognized an injury-in-fact existed based upon the combined effects of her residing near the lake and the impact the project would have on her use of it. Specifically, the Court noted that "[a]lthough the restrictions that [she] cites will result in the same kind of harm as suffered by the public at large, the proximity of [her] property to the proposed site will result in her suffering that harm to a greater degree" (id. at 983).

Moreover, the question of standing here as it relates to the Preserve involves unique circumstances not present in any of the cases cited by the dissent. Undoubtedly, the individual petitioners, as affiliated with Save the Pine Bush, have played an important, if not indispensable, role in the creation of the Preserve and the ongoing effort to protect and preserve it. In our view, the amended petition adequately alleged that their use and enjoyment of the Preserve, coupled with their historic involvement in its creation, protection and preservation, is so significant as to establish an injury greater than that suffered by the public at large. As a result, as at least one of its individual members has standing, Save the Pine Bush has standing that flows therefrom.

Furthermore, while we find that petitioners have standing based on the individual petitioners' distinct injury, we find it important to note that Save the Pine Bush has long been{**56 AD3d at 40} recognized as "a not-for-profit corporation whose purpose is to 'promote the preservation of Albany's unique and beautiful pine barrens' " (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 201 [1987). In furtherance of that purpose, Save the Pine Bush and many of its individual members have, for more than 25 years, brought a myriad of legal proceedings challenging development in the area surrounding the Preserve and its potential affect thereon (see Matter of Save the Pine Bush v New York State Dept. of Envtl. Conservation, 289 AD2d 636 [2001], lv denied 97 NY2d 611 [2002]; Matter of Save the Pine Bush v City of Albany, 281 AD2d 832 [2001]; Matter of Save the Pine Bush v Common Council of City of Albany, 225 AD2d 187 [1996]; Matter of Save the Pine Bush v City Engr. of City of Albany, 220 AD2d 871 [1995], lv denied 87 NY2d 807 [1996]; Matter of Save the Pine Bush v Zoning Bd. of Appeals of Town of Guilderland, 220 AD2d 90 [1996], lv denied 88 NY2d 815 [1996]; Matter of Save the Pine Bush v Planning Bd. of Town of Guilderland, 217 AD2d 767 [1995], lv denied 87 NY2d 803 [1995]; Matter of Save the Pine Bush v Cuomo, 200 AD2d 859 [1994], lv dismissed 83 NY2d 884 [1994]; Matter of Save the Pine Bush v Common Council of City of Albany, 188 AD2d 969 [1992]; Matter of Save the Pine Bush v City of Albany, 141 AD2d 949 [1988], lv denied 73 NY2d 701 [1988]; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 130 AD2d 1 [1987], lv denied 70 NY2d 610 [1987], cert denied sub nom. Benacquista, Polsinelli & Serafini Mgt. Corp. v Save the Pine Bush, 486 US 1032 [1988]; Matter of Save the Pine Bush v City of Albany, 117 AD2d 267 [1986], affd 70 NY2d 193 [1987]; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 96 AD2d 986 [1983], appeal dismissed and lv denied 61 NY2d 668 [1983], lv denied 61 NY2d 602 [1983]; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 83 AD2d 741 [1981]). In fact, Save the Pine Bush's earliest legal proceedings were instrumental in the creation and designation of the Preserve (see Matter of Save the Pine Bush v City of Albany, 70 NY2d at 193; Matter of Save the Pine Bush v Common Council of City of Albany, 188 AD2d at 969), and in some later proceedings successfully challenged various [*6]SEQRA determinations that affected development in that area.[FN8]

Simply stated, Save the Pine Bush and its membership have a long and distinguished history of involvement with the Preserve.{**56 AD3d at 41} They were instrumental in its creation and have been actively involved in ongoing efforts to insure its long-term protection and preservation. Save the Pine Bush's membership, some of whom live near the Preserve, and most, if not all, of whom use and enjoy it on a regular basis, claim in their petition that this development poses a serious threat to the Preserve and the species that live in it. The nature of that claim and the intimate involvement of petitioners in the preservation of this environmental asset give them a stake in this proceeding and the standing to maintain it.

We now turn to Supreme Court's decision regarding the merits of the petition. The Common Council's obligations as lead agency are to "identif[y] the relevant areas of environmental concern, [take] a 'hard look' at them, and [make] a 'reasoned elaboration' of the basis for its determination" (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986], quoting Aldrich v Pattison, 107 AD2d 258, 265 [1985]; see Matter of Eadie v Town Bd. of Town of N. Greenbush, 47 AD3d 1021, 1024 [2008]). Where these obligations have been met, "it is not the role of this Court to second-guess [the Common Council's] determination and/or substitute our judgment for the conclusions it has reached" (Matter of Anderson v Lenz, 27 AD3d 942, 944 [2006], lv denied 7 NY3d 702 [2006]; see Matter of Merson v McNally, 90 NY2d 742, 752 [1997]). Rather, our review is limited to "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" (CPLR 7803 [3]; see Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 416; Matter of MLB, LLC v Schmidt, 50 AD3d 1433, 1434 [2008]).

Here, Supreme Court granted the third cause of action, finding that the Common [*7]Council failed to take a hard look at{**56 AD3d at 42} whether any of the other rare plant and animal species in the Pine Bushaside from the Karner blue butterflywere adversely impacted by implementation of this project. During the scoping process, the Department of Environmental Conservation advised the Common Council that the Karner blue butterfly is but "one species in a rare habitat that is known to support numerous rare [and] unusual species," and that other threatened speciessuch as the frosted elfin butterfly and species of special concern such as the hognosed snake, worm snake and eastern spadefoot toadmight be affected by this project. The Department of Environmental Conservation requested that an evaluation of the project's potential impact on these species be conducted. Then, after publication of the DEISwhich did not address the project's potential impact on these other speciesthe United States Fish and Wildlife Service (hereinafter USFWS) advised the Common Council that the frosted elfin butterfly is present in the area adjacent to the project site and requested that the developer ascertain (1) whether any other threatened or endangered species are present there, and (2) the project's potential impact on them.

The Albany Pine Bush Preserve Commission also advised the Common Council that it would not support a rezoning of the project site unless an evaluation was conducted of the project's potential impact on "rare and listed plant and animal species," including the frosted elfin butterfly. Thereafter, the FEIS responded to these comments by stating that Richard Futymathe expert retained by the developer to study the project site"confirm[ed] that there are no plants or animals on the [p]roject [s]ite that are listed as rare, threatened or endangered by [this s]tate or the [f]ederal government." However, Futyma by his own admission, focused his investigation of the project site on the Karner blue butterfly, and expressly stated that "[his] observations of animals on the site were confined to butterflies." In fact, the record belies any contention that Futyma investigated the presence of any other animal species on the project site other than the Karner blue butterfly, let alone how the project could potentially impact them. Further, although Futyma prepared a list of the plants present on the project site, he concluded that they were neither rare, threatened nor endangered. He did not determine whether any such plant species exists near the site and, if so, whether they would be adversely impacted by the project. Under these circumstances, we agree with Supreme Court that the Common Council did not{**56 AD3d at 43} fulfill its obligation to take a hard look at the potential impact of the project on other rare plant and animal species in the Pine Bush and, consequently, its SEQRA determination was arbitrary, capricious and properly vacated.

With regard to petitioners' cross appeal, we perceive no error in Supreme Court's dismissal of the remaining causes of action in the petition. Both the FEIS and the findings statement considered, among other things, the conclusions reached by Futyma following his several visits to the project site in 2000, 2004 and 2005namely, that there are no Karner blue butterflies on the site and that the site does not contain blue lupine plantsto support his finding that the project will not impact upon the Karner blue butterfly. Consequently, we reject petitioners' contention that the Common Council did not take a hard look at the potential impact of the project on the Karner blue butterfly or set forth in sufficient detail the basis for its determination.

Similarly unavailing is petitioners' contention that the Common Council improperly adopted the FEIS before the USFWS determined whether the project would result in a taking of the Karner blue butterfly under the Federal Endangered Species Act (see 16 USC § 1532 [19]) and, if so, would require the developer to obtain an incidental take permit (see 16 USC § 1539 [a] [1] [B]). "Though the SEQRA process and individual agency permitting processes are [*8]intertwined, they are two distinct avenues of environmental review," and where "a lead agency sufficiently considers the environmental concerns addressed by particular permits, [it] need not await another agency's permitting decision before exercising its independent judgment on that issue" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 234 [2007]). Here, the USFWS advised the Common Council in April 2005 of its intention to visit the project site to determine whether Karner blue butterflies are present. Then, after having heard nothing for more than seven months from USFWS, the Common Council adopted the FEIS, which determined that the project would not result in a taking of the Karner blue butterfly because, based upon the information provided, it concluded that there are no butterflies present at the site. Although the USFWS subsequently visited the site in June 2006 and then in September 2006 and notified the developer that it may be required to obtain an incidental take permit, the Common Council, given the consideration it paid to the environmental concerns raised by the USFWS, was not{**56 AD3d at 44} required to await the permitting decision of the USFWS before adopting the FEIS and issuing its findings statement.

Mercure, J.P. (dissenting). We respectfully dissent. It is our view that petitioners have failed to establish standing under Society of Plastics Indus. v County of Suffolk (77 NY2d 761 [1991])the Court of Appeals case that the parties agree is controlling hereto challenge the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) determination of respondent Common Council of the City of Albany and the grant of the application by respondent Tharaldson Development Company to rezone the site at issue. Thus, while it is indisputable that the Pine Bush Preserve has "distinct environmental characteristics worthy of protecting" (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 200 [1987]) and that petitioners have shown a dedication and commitment to preserving this important public resource that is both remarkable and admirable, we would reverse and dismiss the petition on constraint of Society of Plastics Indus.

In that case, the Court of Appeals emphasized that "[i]n land use matters especially," including challenges based upon SEQRA violations, "the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 774 [emphasis added]). Particularly relevant here, with regard to organizations or associations, such as petitioner Save the Pine Bush, Inc., "the key determination to be made is whether one or more of its members would have standing to sue; standing cannot be achieved merely by multiplying the persons a group purports to represent" (id. at 775).[FN1] Indeed, the majority correctly acknowledges that, in [*9]order to establish organizational standing, Save the Pine Bush{**56 AD3d at 45} "must demonstrate that at least one of its members would have standing to sue individually" (Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d 979, 982 [2007], lv denied 10 NY3d 706 [2008]; see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211-212 [2004]). It then goes on to employ an analysis, however, that turns the well-settled concept of organizational standing on its head.

The majority first sets forth the interest of the organization in protecting and preserving the Pine Bush and then concludes that the individual members have standing primarily based upon activities they have performed on behalf of the organization. In so holding, the majority misconstrues the concept of organizational standing as explained in Society of Plastics Indus. Organizational or associational standing flows from the individual members to the organization (see e.g. Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d at 982-983; Matter of Save Our Main St. Bldgs. v Greene County Legislature, 293 AD2d 907, 909 [2002], lv denied 98 NY2d 609 [2002]), not the other way around, as the majority in this case concludes. It is for that reason that "the key determination to be made is whether one or more of [the organization's] members would have standing to sue" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 775).

In our view, the majority's analysis is both entirely circular and represents a clear departure from Society of Plastics Indus. The majority bases its finding of individual standing on a demonstration that an organization's members have acted to advance its environmental protection goals, rather than a showing of special harm to the members' rights as individuals, and then relies upon the individual members' standing to establish standing of the organization itself. Therefore, while the majority purports to find individual standing here, it has in actuality rendered meaningless the rule set forth in Society of Plastics Indus.. That is, the majority essentially concludes that the only showing required is that an organization has members who have acted in furtherance of its organizational purpose; there is really no need to show that the individual members have any distinct injury in fact. This rationale is directly contrary to the statement in Society of Plastics Indus. that "standing cannot be achieved merely by multiplying the persons a group purports to represent" (id. at 775).{**56 AD3d at 46}

If this Court is now refusing to follow Society of Plastics Indus., it should at the very least acknowledge and explain its disregard of that case, as well as the line of cases that, following Society of Plastics Indus., have required individual petitioners to demonstrate special harm to their own individual rights despite their membership in organizations that have shown similar commitment to the protection and preservation of the natural and cultural resources listed [*10]in SEQRA (see ECL 8-0105 [6]; see e.g. Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d at 981-983; Matter of Ziemba v City of Troy, 37 AD3d 68, 71 [2006], lv denied 8 NY3d 806 [2007]; Matter of Coalition for Future of Stony Brook Vil. v Reilly, 299 AD2d 481, 484 [2002]; Matter of Save Our Main St. Bldgs. v Greene County Legislature, 293 AD2d at 908-909; Matter of Long Is. Pine Barrens Socy. v Town of Islip, 261 AD2d 474, 475 [1999]; Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d 26, 31-32 [1999]; Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Council of City of N.Y., 214 AD2d 335, 336 [1995], lv denied 87 NY2d 802 [1995]; see also Matter of Save the Pine Bush, Inc. v Planning Bd. of Town of Clifton Park, 50 AD3d 1296, 1297-1298 [2008], lv denied 10 NY3d 716 [2008]).[FN2] "[W]e note that standing may indeed be a complicated subject, posing close and difficult issues that divide the Court. Our jurisprudence, however, represents not a black box from which we conjure a desired result" but, rather, an articulation and application of sound logical principles, assuring that our decisions are both consistent and predictable (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d at 214 n 2).

Here, petitioners concede that they have suffered no special injury and that their interest is no different from that of the public at large. Specifically, they expressly maintain that "[w]here, as here, [p]etitioners seek to . . . protect public interest in public lands and in wild species, the [p]etitioners' interest, by definition, cannot be different from that of the public at large." Indeed, they insistand the majority evidently agreesthat standing may be based solely on the organization's goal of{**56 AD3d at 47} "protecting the public interest in the Albany Pine Bush Preserve, and the right of all members of the public to use and enjoy public resources and the wild species of the Pine Bush." Again, while this goal is laudable, it is not sufficient to confer standing under the Court of Appeals decision in Society of Plastics Indus. Absent a showing of special harm to the individual petitioners, the fact "[t]hat an issue may be one of 'vital public concern' does not entitle a party to standing" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 769). Thus, even where a proposed project will harm the petitioners' use and enjoyment of public resourcessuch as lakes or public parksthe petitioners must demonstrate that an alleged SEQRA violation "will result in [their] suffering that harm to a greater degree" than the rest of the public due to, for example, the proximity of their property to the affected site (Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 AD3d at 983; see Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d at 31-32; see also Matter of Long Is. Pine Barrens Socy. v Town of Islip, 261 AD2d at 475; Matter of Buerger v Town of Grafton, 235 AD2d 984, 984-985 [1997], lv denied 89 NY2d 816 [1997]). Only then will a petitioner be deemed to have alleged a "cognizable injury it would suffer, different in kind or degree from the public at large" and sufficient to confer standing (Society of Plastics Indus. v [*11]County of Suffolk, 77 NY2d at 778).[FN3]

The majority further errs, therefore, in finding that petitioners are asserting a claim of direct personal harm based on use sufficient to establish standing here, particularly in light of petitioners' repeated insistence that they "are not suing to protect a personal or private right different from the public at large to view a butterfly." That is, the harm to petitioners' use and enjoyment of the Pine Bush Preserve is "no different than the interest enjoyed by the public at large" (Matter of Save the{**56 AD3d at 48} Pine Bush, Inc. v Planning Bd. of Town of Clifton Park, 50 AD3d at 1297), and will not confer standing. Furthermore, while petitioner Larry Lessner resides directly in the corridor through which the Karner blue butterflies must migrate from Butterfly Hill to the Pine Bush Preserve and, thus, would suffer a special impact greater in degree than that experienced by the public at large if the butterflies are extirpated by construction of the hotel, petitioners expressly disavow any attempt to assert Lessner's interest. Petitioners acknowledge the injury to Lessnerwhich very well may be sufficient to confer standingbut decline to assert his interests in this regard on the ground that he does not "own the butterfly" and, thus, its absence from his property and nearby areas "is not a geographic harm to him or to his property, or to his economic interests or his health or to anything else that is geographically focused."

In short, petitioners expressly refuse to assert any personal rights of Lessner as a basis for standing and insist that they have no other direct, personal injury that is different in kind and degree from that of the community in general. Accordingly, inasmuch as petitioners have the burden of establishing standing (see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 769), "the core requirement [is] that a court can act only when the rights of the party requesting relief are affected" (id. at 772), and it is well settled that "parties to a civil dispute are free to chart their own litigation course" (Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]), the individual petitioners lack standing. Because the well-settled test for organizational standing set forth in Society of Plastics Indus. requires that an organization demonstrate that one or more of its individual members would have standing to sue (see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 775), we similarly conclude that Save the Pine Bush also lacks standing and, therefore, the petition should be dismissed.

Rose and Stein, JJ., concur with Kavanagh, J.; Mercure, J.P., and Spain, J., dissent in a separate opinion by Mercure, J.P. [*12]

Ordered that the appeal from the order entered September 7, 2006 is dismissed, without costs.

Ordered that the judgment and amended judgment are affirmed, without costs.

Footnotes

Footnote 1: In 1987, the Court of Appeals described the Pine Bush as follows:"The Pine Bush, partially within the City of Albany, contains the only remaining large pine barrens on inland sand dunes in the United States. Its unusual inland sand dune composition is the home of rare plant and animal species such as the endangered Karner [b]lue [b]utterfly (ECL 11-0535) which survives on the blue lupine, a plant indigenous only to the pine barren. The record establishes that the Pine Bush has a number of distinct environmental characteristics worthy of protecting" (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 200 [1987]).

Footnote 2: At the time the petition was brought, a majority of the property was a vacant parking lot located near local shopping centers and commercial office buildings.

Footnote 3: Scoping is the process by which the lead agency identifies and focuses on the potentially significant adverse impacts related to the proposed project that are to be addressed in a draft environmental impact statement (see 6 NYCRR 617.8).

Footnote 4: The Common Council's appeal from the September 2006 order denying respondents' motions to dismiss the petition must be dismissed "as no appeal as of right lies from a nonfinal order in a CPLR article 78 proceeding" (Matter of Hebel v West, 25 AD3d 172, 175 n 1 [2005], lv denied 7 NY3d 706 [2006]; see CPLR 5701 [b]). "However, the appeal from the final judgment brings this order up for review" (Matter of Hebel v West, 25 AD3d at 175 n 1 [citation omitted]).

Footnote 5: We note that petitioners cross-appeal only from Supreme Court's judgment entered in February 2007 and not from the amended judgment entered in July 2007. While no appeal lies from a judgment that has been superseded by an amended judgment, the amended judgment was merely technical and, in any event, we will exercise our discretion and treat the cross appeal as taken from the amended judgment (see CPLR 5520 [c]; Van Scooter v 450 Trabold Rd., 206 AD2d 865, 866 [1994]).

Footnote 6: We agree with respondents that Supreme Court erred by finding that the proposed actions could diminish the individual petitioners' "use and enjoyment of the area the respondents propose to develop," as the development site is private property and petitioners have no right to use and enjoy that area (see Matter of Save the Pine Bush, Inc. v Planning Bd. of Town of Clifton Park, 50 AD3d 1296 [2008], lv denied 10 NY3d 716 [2008]). We assume, however, that Supreme Court merely misspoke in this regard.

Footnote 7: We recognize that a different conclusion was reached in Matter of Save the Pine Bush, Inc. v Planning Bd. of Town of Clifton Park (50 AD3d at 1297) (hereinafter Clifton Park). In that case, petitioners challenged the development of private property where, they alleged, the Karner blue butterfly had been seen. Unlike the situation here, the petitioners in Clifton Park could not establish that their right to view and enjoy the Karner blue butterfly would be affected by the challenged development (id. at 1297). This Court found not only that none of the individual petitioners lived in close proximity to the site, but also that none suffered an injury-in-fact different from the general public (id. at 1297). A significant distinction in the two cases is the fact that the petitioners in Clifton Park had no protected interest in the use and enjoyment of viewing Karner blue butterflies on private property and, more importantly, the evidence in the record indicated that no Karner blue butterflies had been seen on the property since 2001, and only three had been seen since 1997 (id. at 1297 n 1). In addition, the developer in Clifton Park had designated, as a preserve on the site, an area where a small amount of blue lupine plants were found to exist (id. at 1297 n 2). Unlike the situation in Clifton Park, petitioners here have challenged that the proposed development could lead to the possible destruction of the Karner blue butterfly habitat in the Preserve, and possibly prevent the butterflies from migrating from Butterfly Hill to the Preserve, whichif establishedwould have a direct result and adverse impact on the individual petitioners' ability to use and enjoy the Preserve.

Footnote 8: We recognize that petitioners urge this Court to find that this is a case which focuses on an indiscriminate, nongeocentric harm and, therefore, based on their interpretation of Society of Plastics Indus. v County of Suffolk (77 NY2d at 776), a showing of an injury distinct from the public at large is not required. However, we do not agree with the dissent that this urging precludes us from finding that petitioners have, in fact, suffered a distinct injury so as to give them standing. In addition to arguing that this case focuses on an indiscriminate, nongeocentric harm, petitioners also advanced the argument that they "use and enjoy the public resources of the Pine Bush, and have shown by their remarkable dedication, advocacy, and commitment to the Pine Bush, that they would also have an interest greater than the public as a whole to the loss of the Karner blue butterfly" (emphasis added). Petitioners' counsel also remarkedin reference to Save the Pine Bushthat "it would [be] hard to conceive of a plaintiff with greater interest [in the Preserve]." Accordingly, it is our view thatdespite petitioners' attempt to persuade us to reach standing on a different basiswe are not precluded from deciding as we do.

Footnote 1: While the Court declined to reach the question of "whether, in instances where solely general [or indiscriminate] harm would result from a proposed action, a plaintiff would have standing to raise a SEQRA challenge based on potential injury to the community at large" (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 779), it clarified that when a governmental action "could in any sense be deemed geographically centered in its aim and effect, . . . we all agree that special harm has long been required" (id. at 780 [emphasis added]). Here, the aim of the governmental action was the rezoning of a particular parcel to permit the construction of a hotel, and the potential impact of that action involves the flora and fauna that live on or near that parcel. Thus, the challenged action is geographically centered in its aim and effect and, pursuant to Society of Plastics Indus., a showing of special harmi.e., harm that differs from that suffered by the public at largeis required herein.

Footnote 2: None of the numerous cases involving Save the Pine Bush that the majority cites is dispositive here on the issue of standing. The issue was simply not addressed in any of those cases except one, and the case that did address standing, Matter of Save the Pine Bush v Planning Bd. of City of Albany (83 AD2d 741 [1981]), predates Society of Plastics Indus.the dispositive case hereby 10 years.

Footnote 3: The majority misreads Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y. (259 AD2d 26 [1999], supra) as holding that use of a public resource by a member of an organization is, in itself, sufficient to establish an injury in fact distinct from any harm to the public at large. As explained by the Appellate Division, First Department, the "threshold question on [that] appeal [was] whether individuals living in close proximity to a public park, and an organization dedicated to preserving and improving the neighborhood, have standing" (id. at 28 [emphasis added]). In any event, as noted above, petitioners have conceded that their interest is no different from that of the public at large.