Matter of Youngewirth v Town of Ramapo Town Bd.

[*1] Matter of Youngewirth v Town of Ramapo Town Bd. 2010 NY Slip Op 51916(U) [29 Misc 3d 1221(A)] Decided on October 18, 2010 Supreme Court, Rockland County Jamieson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2010
Supreme Court, Rockland County

In the Matter of Elizabeth Youngewirth, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

The Town of Ramapo Town Board, THE TOWN OF RAMAPO, and SCENIC DEVELOPMENT, LLC, Respondents,



5194/2010



Bruce M. Levine, Esq.

Attorney for Petitioner

9 Robin Hood Road

Montebello, NY 10901

Rice & Amon

Attorneys for Scenic

4 Executive Blvd., Suite 100

Suffern, NY 10901

Town of Ramapo

237 Route 59

Suffern, NY 10977

Linda S. Jamieson, J.

The following papers numbered 1 to 7 were read on the petition and cross-motions:

PaperNumber [*2]

Notice of Petition, Petition and Exhibits [FN1]1

Notice of Cross-Motion, Affirmation and Exhibits2

Affidavit and Exhibits3

Memorandum of Law4

Notice of Cross-Motion, Affirmation and Exhibit5

Affidavit and Affirmation in Opposition and Exhibits6

Reply Memorandum of Law7

Petitioner seeks to annul certain determinations made by the Town Board of the Town of Ramapo which (1) adopted Resolution 2010-98 and issued a Written Findings Statement dated January 25, 2010 with respect to the Final Environmental Impact Statement relating to an application for a zone change submitted by Scenic Development, LLC ("Scenic") to change the zoning district from R-40 to MR-8 for the property situated on the south side of Route 202 and the west side of Route 306 in the Town of Ramapo ("Ramapo"), designated on the Tax Map as Section 32.11-1-2, Section 32.11-1-3, Section 32.11-1-4, Section 32.11-1-12, Section 32.11-1-13, Section 32.11-1-14, Section 32.11-1-15, Section 32.11-1-16 and Section 32.14-2-3; (2) adopted Resolution No. 2010-99 amending the Ramapo Comprehensive Plan, which amendment applies only to the properties owned by Scenic and shown on the Tax Map as Section 32.11-1-2, Section 32.11-1-3, Section 32.11-1-4, Section 32.11-1-12, Section 32.11-1-13, Section 32.11-1-14, Section 32.11-1-15, Section 32.11-1-16 and Section 32.14-2-3; (3) adopted Resolution No. 2010-100 which incorporates Local Law No. 1 of 2010 to re-zone the properties shown on the Tax Map of Ramapo as Section 32.11-1-2, Section 32.11-1-3, Section 32.11-1-4, Section 32.11-1-123, Section 32.11-1-13, Section 32.11-1-14, Section 32.11-1-15, Section 32.11-1-16 and Section 32.14-2-3 from an R-40 Zoning District to an MR-8 Zoning District with conditions and amended the Town Zoning Map.

The cross-motion by Scenic seeks to dismiss the petition pursuant to CPLR §§ 3211(a)(7) and 7804(f). The cross-motion by Ramapo seeks to dismiss the petition pursuant to CPLR § 3211.

Petitioner Lacks Standing

The issue of standing in this action is nearly identical to that addressed by the Court in the related case of Shapiro v. Ramapo, Index No. 5195/2010. For the convenience of the parties, the Court repeats the analysis set forth in the decision in that case, modified to apply to this petitioner.

It is well-settled that "challenges to zoning determinations may only be made by [*3] aggrieved' persons." Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of Town of North Hempstead, 69 NY2d 406, 515 NYS2d 418 (1987). "Aggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants . . . or - put another way - that it has sustained special damage, different in kind and degree from the community generally. Traditionally, this has meant that injury in fact must be pleaded and proved." Id. That means that to establish standing in a CPLR article 78 proceeding, a petitioner must demonstrate "that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute." Legacy at Fairways, LLC v. McAdoo, 76 AD3d 786, 906 NYS2d 668 (4th Dept. 2010). See also Rediker v. Zoning Bd. of Appeals of Town of Philipstown, 280 AD2d 548, 721 NYS2d 77 (2d Dept. 2001) ("Where a claim of standing is based upon the adverse impact of challenged administrative action, a petitioner must show that he or she will suffer a harm that is in some way different from that suffered by the public at large and that the alleged injury falls within the zone of interest sought to be promoted or protected by the statute under which the government agency has acted."). The harmful effect on petitioners must be "direct injury different from that suffered by the public at large." Riverhead PGC, LLC v. Town of Riverhead, 73 AD3d 931, 905 NYS2d 595 (2d Dept. 2010).

The Rediker case, 280 AD2d 548, 721 NYS2d 77, is instructional. In that case, there were two petitioners challenging a zoning permit to allow a cell phone tower pole. One of them, who lived approximately a third of a mile from the exact site of the pole (or 1,760 feet) was found to live too far from the pole to be "entitled to an inference of injury." The other petitioner's property was literally adjacent to the site of the pole. The Court found that "[a]s an owner of adjacent land the intervenor-petitioner is entitled to a presumption that he will be adversely affected in a manner different from the public at large." Yet even with that presumption, the Court was "not persuaded that even the intervenor-petitioner truly will suffer any greater or different impacts than the public at large." The Court thus found that neither petitioner had standing, and dismissed the action.

The same result is appropriate here. Although petitioner's property is across the street from the edge of the land in question, her home is not adjacent to that portion of the property actually affected by the zoning change. Petitioner complains of the zoning change from R-40 to MR-8, which, significantly, affects only part of the site. As Ramapo, Scenic and the exhibits submitted by the parties make clear, the portion that was changed from R-40 to MR-8 is not at the edge of the parcel, but in the middle of it. The Findings Statement itself clearly states that the zoning change only affects "the central portion of the site." It further states that the "single family component would remain in the R-40 zone." Put another way, the land across the street from petitioner would not contain the re-zoned multi-family housing that forms the crux of petitioner's complaint, but would simply have single-family homes on one-acre lots. Moreover, although the distance between petitioner's property and the re-zoned portion, as the crow flies, is a little over 1,155 feet (which some courts have found to be too far away), significantly, there are no roadways between her parcel and the portion affected by the zoning change. That means that to reach the re-zoned portion of the property from petitioners' land would necessitate a journey of over one mile. The Court, thus finds that the distance between petitioner's home and the re-zoned land is too far and is " insufficient, without more, to confer standing; actual injury must be shown." Many v. Village of Sharon Springs Bd. of Trustees, 218 AD2d 845, 629 NYS2d 868 [*4](3d Dept. 1995) (although petitioner could not rely on the proximity argument to convey standing, court found that he did have standing because he would suffer actual injury, in that he had demonstrated that runoff water from the site would directly affect his well water).

Here, petitioner has shown no actual injury to her, different from any injury to the community at large. Harris v. Town Bd. of Town of Riverhead, 73 AD3d 922, 905 NYS2d 598 (2d Dept. 2010) (denying standing because "petitioners failed to demonstrate that the alleged increased traffic congestion and negative effects on the businesses along the Route 58 corridor are injuries specific to them and distinguishable from those suffered by the public at large."). Petitioner does argues that she faces actual injury different from other Ramapo residents for several reasons. First, she claims that she will suffer actual, unique, injury because her street has only one exit, to Route 306, and "the proposed Patrick Farm development will have only two entrances and exits and these are on the two major state roads that everyone in my development use[s] to get to work, to shopping, to major highways. . . ." Essentially, this argument boils down to a simple "increase in traffic," which is a harm suffered by everyone when new construction occurs. This is certainly not a harm specific to petitioner, or even confined only to those people who live on Scenic Drive. The map petitioner attaches to her opposition papers shows that there are many other streets in that section of town that exit only onto Route 306. It is, thus, a harm that would be suffered by many in the community.

Next, petitioner argues that because "parts of the property across the street are lower than [her] property but other parts are physically higher," she may "face the possibility of increased runoff and other drainage problems that could cause flooding on my street and icing in the winter." This is entirely speculative, as petitioner herself states that "[n]o one can know for sure how the development will be built . . . or what the impact will be from the huge earth moving operations proposed. . . ." Because there will be single-family homes across the street from petitioner which will back onto the bulk of the development, presumably those houses will suffer the worst of any water problems — but again, this is simply speculation. Finally, petitioner argues that she will suffer harm because she "face[s] the loss of [] wildlife or alternatively, too much of this wildlife. . . ." Again, this is entirely speculative, and not particular to petitioner.

Accordingly, the Court holds that as a matter of law, petitioner has not demonstrated that she will suffer any specific injury distinguishable from that suffered by the public at large, and dismisses the petition for lack of standing.

Moreover, the decision by Ramapo "is entitled to the strongest possible presumption of validity." Albright v. Town of Manlius, 34 AD2d 419, 312 NYS2d 13 (4th Dept. 1970) ("the Town Board [] is on the scene, knows the needs and wishes of the people and is charged by the electorate with the responsibility for legislating and conducting governmental affairs of the community in accordance with the best interests thereof; and the courts may not lightly overrule its legislative acts."). Put another way, a "zoning board's determination shall be upheld if it is

rational and not arbitrary and capricious." Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 886 NYS2d 442 (2d Dept. 2009). Given the extensive debate, analysis, and the requisite studies that occurred before the zoning change here, the Court finds that the decision here was rational and not arbitrary or capricious.

Petitioner Never Appeared At the Public Hearing [*5]

Petitioner claims that although she did not attend the public hearing, "there is no law or any cases that say that [she] must participate or even attend the public hearing to have standing to sue." However, Scenic's motion cites just such cases. For example, in Matter of Ass'n of Friends of Sagaponack v. Zoning Board of Appeals of the Town of Southampton, 8/20/99 NYLJ 26, (col. 2) (Sup. Ct. Suffolk Co. Aug. 20, 1999), the Court held that "[a]s a stranger to the administrative proceeding, a person or entity has no right to petition a court for a review of the decision rendered in that proceeding." See also Application of Jonas, 155 NYS2d 506 (Sup. Ct. West. Co. 1956) (no standing where petitioners "defaulted in that they did not appear before the Board at the hearing and litigate the issues they would now litigate in this court. They had the opportunity to appear and present evidence before the Board but were content merely to write to the Board a letter objecting to a hearing by it of the matter. They did not appear at all at the hearing."); Yensco v. Westchester County Dept. of Health, 87 AD2d 652, 448 NYS2d 520 (2d Dept. 1982) ("Petitioner lacked standing to bring the instant article 78 proceeding . . . since petitioner defaulted in the administrative proceeding.").

The Court need not address any other arguments raised by petitioner. The petition is dismissed.

The foregoing constitutes the decision and order of the Court.

Dated:New City, New York

October 18, 2010

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court Footnotes

Footnote 1:Exhibits must be tabbed. Counsel are directed to review the Part Rules. Voluminous untabbed exhibits are very difficult for the Court to sort through.