IN RE: Janet BUERGER

Reset A A Font size: Print

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

IN RE: Janet BUERGER, Appellant, v. TOWN OF GRAFTON et al., Respondents.

Decided: January 30, 1997

Before WHITE, J.P., and CASEY, PETERS, SPAIN and CARPINELLO, JJ. Carl G. Dworkin, Albany, for appellant. Featherstonhaugh, Conway, Wiley & Clyne LLP (Stephen J. Wiley, of counsel), Albany, for First Grafton Corporation, respondent.

Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered March 13, 1996 in Rensselaer County, which, inter alia, in a proceeding pursuant to CPLR article 78, dismissed the petition due to petitioner's lack of standing.

In November 1994, respondent First Grafton Corporation filed with respondent Town of Grafton Planning Board (hereinafter the Board) a site plan application to subdivide a 626-acre parcel of undeveloped land located in the Towns of Grafton and Berlin, Rensselaer County, into 20 lots and construct approximately 7,400 feet of roadway.   Accompanying the application was a full environmental assessment form.   Thereafter, the Board classified the subdivision as an unlisted action under the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) and designated itself the lead agency.   It also retained a professional engineering consultant to advise it regarding the SEQRA process.   Following two public hearings, the Board issued a negative declaration, principally because the subdivision leaves 95% of the forest undisturbed and a month later granted preliminary approval of the application subject to certain conditions.   Whereupon, petitioner commenced this CPLR article 78 proceeding challenging the Board's action, contending that it failed to comply with SEQRA.   Supreme Court, finding that petitioner lacked standing and that, in any event, the Board did comply with SEQRA, dismissed the petition.   This appeal ensued.

 Unless the SEQRA review was undertaken as part of a zoning enactment, standing will be conferred upon a party seeking to raise a SEQRA challenge only if it can demonstrate that it will suffer a specific environmental injury rather than one that is solely economic in nature (see, Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 687, 642 N.Y.S.2d 164, 664 N.E.2d 1226;  Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 433, 559 N.Y.S.2d 947, 559 N.E.2d 641).   We have applied this rule to grant standing where it was shown that the proposed action might affect the party's water supply (see, Matter of Many v. Village of Sharon Springs Bd. of Trustees, 218 A.D.2d 845, 629 N.Y.S.2d 868;  Chase v. Board of Educ. of Roxbury Cent. School Dist., 188 A.D.2d 192, 199, 593 N.Y.S.2d 603) but have denied standing where a party merely raised generalized concerns (see, Matter of Gerdts v. State of New York, 210 A.D.2d 645, 647, 620 N.Y.S.2d 512, lv denied 85 N.Y.2d 810, 629 N.Y.S.2d 724, 653 N.E.2d 620, appeal dismissed 85 N.Y.2d 856, 624 N.Y.S.2d 374, 648 N.E.2d 794;  Matter of Schulz v. Warren County Bd. of Supervisors, 206 A.D.2d 672, 674, 614 N.Y.S.2d 809, lv denied 85 N.Y.2d 805, 626 N.Y.S.2d 756, 650 N.E.2d 415).

 In this instance, the record shows that petitioner owns property on Taconic Lake which, while not abutting First Grafton's property, is within 600 feet of the subdivision's proposed access road.   Petitioner is also a member of the Taconic Lake Association (hereinafter TLA), a not-for-profit corporation that owns approximately 400 acres of land contiguous to First Grafton's.   Petitioner claims that if the access road is built she can expect flood damage because the construction activity will interrupt the water flow.   She further envisions forest habitat degradation since the construction of the road will create an “edge” that will result in “forest fragmentation”.   She further points out that when there was construction activity in 1991 and 1994, the waters of Taconic Lake became murky.   She also notes that TLA's well is within 1/4 mile of the road construction.   While these are serious concerns, they are not specific to petitioner but are general concerns shared by all the residents of the area (see, Matter of Schulz v. New York State Dept. of Envtl. Conservation, 186 A.D.2d 941, 942, 589 N.Y.S.2d 370, lv denied 81 N.Y.2d 704, 595 N.Y.S.2d 398, 611 N.E.2d 299).   Moreover, petitioner's claims of environmental injury to TLA are unavailing as she has not shown that she has authority to represent its interests in this matter (see, Spanos v. Boschen, 61 A.D.2d 837, 838, 402 N.Y.S.2d 423).   Accordingly, we agree with Supreme Court that petitioner lacked standing to maintain this proceeding.

 Assuming that petitioner had standing, our inquiry would be limited to determining whether the Board “identified the relevant areas of environmental concern, took a ‘hard look’ at them and made a ‘reasoned elaboration’ of the basis for its determination” (Matter of King v. Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 349-350, 653 N.Y.S.2d 233, 675 N.E.2d 1185, quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429).   The record evidence shows that the Board had the assistance of a professional engineer, solicited comments from interested governmental agencies and held two public hearings.   Predicated upon the information generated by this process, the Board determined that the proposed subdivision would not have a significant adverse impact on the land, water quality, the State and Federally regulated wetlands existing on the property, the aesthetic resources including noise pollution, the flora and fauna and the community.   As part of its determination it pointed out that it had induced First Grafton to undertake numerous mitigation measures that, in its view, would eliminate all of the potential threats to the environment associated with this project.   While petitioner disagrees with the Board's analysis and conclusions supporting its determination, it is clear to us that it fully performed its obligations under SEQRA and did not abuse its discretion in issuing a negative declaration for this project (see, Matter of Byer v. Town of Poestenkill, 232 A.D.2d 851, 854-855, 648 N.Y.S.2d 768, 772;  Matter of Save the Pine Bush v. Planning Bd. of Town of Guilderland, 217 A.D.2d 767, 770, 629 N.Y.S.2d 124, lv denied 87 N.Y.2d 803, 639 N.Y.S.2d 310, 662 N.E.2d 791;  Matter of Balsam Lake Anglers Club v. Department of Envtl. Conservation, 199 A.D.2d 852, 855, 605 N.Y.S.2d 795;  Matter of Heritage Co. of Massena v. Belanger, 191 A.D.2d 790, 792, 594 N.Y.S.2d 388).

 Lastly, we reject petitioner's argument that the Board improperly segmented the review process as there is no indication that the proposed subdivision is the first phase of a larger plan to further subdivide the property (compare, Matter of Teich v. Buchheit, 221 A.D.2d 452, 454, 633 N.Y.S.2d 805;  Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 47, 625 N.Y.S.2d 371, appeal dismissed 86 N.Y.2d 776, 631 N.Y.S.2d 603, 655 N.E.2d 700;  Matter of Farrington Close Condominium Bd. of Mgrs. v. Incorporated Vil. of Southampton, 205 A.D.2d 623, 626, 613 N.Y.S.2d 257).

ORDERED that the judgment is affirmed, without costs.

WHITE, Justice Presiding.

CASEY, PETERS, SPAIN and CARPINELLO, JJ., concur.

Copied to clipboard