IN RE: Robert OAKS (2008)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Robert OAKS, Petitioner-Appellant, et al., Petitioners, v. TOWN OF PHELPS, Town of Phelps Zoning Board of Appeals, Gary J. Palone and Scott Fremouw, in his Capacity as Member of Town of Phelps Zoning Board of Appeals, Respondents-Respondents.

Decided: October 03, 2008

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

Michaels & Smolak, P.C., Auburn (Michael G. Bersani of Counsel), for Petitioner-Appellant. Michael J. Roulan, Geneva, for Respondents-Respondents Town of Phelps and Town of Phelps Zoning Board of Appeals. Fix Spindelman Brovitz & Goldman P.C., Fairport (James J. Bonsignore of Counsel), for Respondent-Respondent Gary J. Palone.

Robert Oaks (petitioner), the owner of property located approximately one-half mile from a speedway owned by respondent Gary J. Palone, appeals from a judgment dismissing a CPLR article 78 petition seeking to annul the determination of respondent Zoning Board of Appeals granting Palone's application for a use variance. Pursuant to that variance, Palone was permitted to use a portion of his property, located in an Agricultural-Residential District, as a pit area for the track. We conclude that Supreme Court properly dismissed the petition with respect to petitioner. He failed to allege any “injury that is in some way different from that of the public at large” and thus lacks standing to bring this proceeding (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM:

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