IN RE: CENTER SQUARE ASSOCIATION (2004)

Appeal from a judgment of the Supreme Court (Benza, J.), entered May 15, 2003 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint.

In 2001, respondent McLaughlin Limited Partnership (hereinafter the partnership) purchased properties at 57 Dove Street and 329 State Street in the City of Albany.   Those properties are located in an area of the city zoned for one and two-family row houses.   Respondent W.F. McLaughlin & Company, Inc. (hereinafter McLaughlin) sought a use variance for 57 Dove Street to allow three apartments.   After a hearing, respondent City of Albany Board of Zoning Appeals (hereinafter the Board) approved McLaughlin's application.   A CPLR article 78 proceeding challenging that decision resulted in Supreme Court remitting the matter to the Board to consider whether McLaughlin's hardship in requesting the variance was self-created, as well as to address the need for a parking variance.   On remittal, the Board found that the hardship was not self-created and approved both the use and parking variances.

In 2002, the partnership applied for a use variance for 329 State Street to allow 13 apartments.   After a hearing, the Board approved the partnership's application.   Petitioners thereafter commenced this combined CPLR article 78 proceeding and declaratory judgment action challenging both approvals.   Following respondents' separate preanswer motions to dismiss, each alleging that petitioners lacked standing, Supreme Court dismissed the petition.   Petitioners appeal.

 Supreme Court erred in finding that petitioner Center Square Association, Inc. (hereinafter the Association) lacked standing to challenge the issuance of the two variances.¹  To establish standing, a petitioner must show injury-in-fact, and such injury must fall within the zone of interests to be protected by the statutes or ordinances at issue (see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004];  Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 412, 515 N.Y.S.2d 418, 508 N.E.2d 130 [1987] ).  “While standing principles are broadly construed in matters involving zoning and land use development, it nevertheless remains incumbent upon the party challenging such an administrative determination to ‘show that it would suffer direct harm, injury that is in some way different from that of the public at large’ ” (Matter of Gallahan v. Planning Bd. of City of Ithaca, 307 A.D.2d 684, 685, 762 N.Y.S.2d 850 [2003], lv. denied 1 N.Y.3d 501, 775 N.Y.S.2d 238, 807 N.E.2d 288 [2003] [citations omitted], quoting 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 [1991] ).   That harm “may be presumptively established by a showing of close proximity to the subject property” (Matter of Emmett v. Town of Edmeston, 3 A.D.3d 816, 818, 771 N.Y.S.2d 568 [2004];  see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, supra at 413-414, 515 N.Y.S.2d 418, 508 N.E.2d 130).   It is necessary to determine, however, “ whether the neighbor is close enough to suffer some harm other than that experienced by the public generally” (Matter of Oates v. Village of Watkins Glen, 290 A.D.2d 758, 761, 736 N.Y.S.2d 478 [2002];  see Matter of Gallahan v. Planning Bd. of City of Ithaca, supra at 685, 762 N.Y.S.2d 850).   Here, the Association has members that own property abutting or within several homes of the properties at issue, close enough to establish standing without allegations of individual harm.   Additionally, the fact that the Association's members were entitled to receive mandatory notice of the Board's proceedings regarding the subject properties also gives rise to a presumption of injury for standing in this zoning matter (see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, supra at 413-414, 515 N.Y.S.2d 418, 508 N.E.2d 130).

Even if close proximity by itself did not obviate the necessity of showing individual harm, we find that the Association has demonstrated injury-in-fact.   Unlike those cases where increased traffic posed a generalized problem to the public over a wide area (see Matter of McGrath v. Town Bd. of Town of N. Greenbush, 254 A.D.2d 614, 616, 678 N.Y.S.2d 834 [1998], lv. denied 93 N.Y.2d 803, 688 N.Y.S.2d 493, 710 N.E.2d 1092 [1999];  Matter of Rosch v. Town of Milton Zoning Bd. of Appeals, 142 A.D.2d 765, 766, 767, 530 N.Y.S.2d 321 [1988];  cf. Matter of Gallahan v. Planning Bd. of City of Ithaca, supra at 685, 762 N.Y.S.2d 850), we view the parking congestion here as a legally recognizable injury to the residents of this already congested neighborhood given the close proximity between some members' homes and the two properties at issue and the circumstances that the members and tenants in the renovated buildings must all compete for limited on-street parking.

The Association's alleged injuries fall within the zone of interests to be protected by the Albany zoning ordinances.   The Association is mainly concerned with the effect more residents will have on parking congestion.   In addition, an Association member who lives near one of the properties expressed concern that the increased density on her block will reduce the value of her property (see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, supra at 415, 515 N.Y.S.2d 418, 508 N.E.2d 130).   These concerns fall within the zone of interests protected by zoning laws (see Matter of McGrath v. Town Bd. of Town of N. Greenbush, supra at 616, 678 N.Y.S.2d 834), including the Albany zoning laws here, which specifically address parking and density.   For these reasons, at least some of the Association's members have standing to sue.   Noting that the Association's mission is to protect the quality of life in the neighborhood, and seeing no need for individual members to participate in this proceeding, we conclude that the Association has standing to challenge the Board decisions at issue (see New York State Assn. of Nurse Anesthetists v. Novello, supra at 211, 778 N.Y.S.2d 123, 810 N.E.2d 405).

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as granted respondents' motions to dismiss the claims of petitioner Center Square Association, Inc.;   motions denied to that extent;  and, as so modified, affirmed.

FOOTNOTES

1.   As petitioners' brief solely challenges Supreme Court's determination that the Association lacked standing, we deem any issue regarding petitioner Harold Rubin's standing to be abandoned (see Matter of Leach, 3 A.D.3d 763, 764 n., 772 N.Y.S.2d 100 [2004] ).

KANE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.