[co-author: Mary Tonna]
OVERVIEW
The Shawangunk Ridge is a cluster of bedrock in upstate New York popular for its scenery and outdoor recreation. The Town of Gardiner’s (“Gardiner”) Shawangunk Ridge Protection District (“SRPD”) protects the scenic and ecological values of the Shawangunk Ridge and requires, among other things, a special use permit for development.
A property owner sought to subdivide and develop property situated within the SRPD; to wit: subdivide a 108-acre lot into two lots, maintain an existing dwelling on one lot, and construct a new dwelling on the second lot. The developer sought and obtained a special use permit and subdivision approval from the Gardiner Planning Board (“Planning Board”). Before the approval, the Planning Board issued a negative declaration pursuant to the N.Y. State Environmental Quality Review Act (“SEQRA”). Notably, the owner himself, a trained biologist and forestry professional, performed his own conservation analysis with respect to the Planning Board’s SEQRA review.
The Friends of the Shawangunks, an environmental conservation organization (“Friends”), commenced an Article 78 proceeding challenging the special use permit, subdivision approval, and negative declaration. The Supreme Court, Ulster County, dismissed the proceeding on the grounds that Friends lacked standing, and Friends appealed. On appeal, the Third Department reversed, held Friends had standing, and addressed the merits.
STANDING
The Third Department disagreed with the Supreme Court’s determination that Friends lacked standing. To challenge an administrative decision, an organization must show associational standing, which requires that (i) a member of the organization has individual standing, and (ii) the asserted interests are germane to the organization’s purpose. Individual standing requires showing (i) an injury-in-fact (ii) that falls within the zone of interests of the provision of law under which the administrative body acted and (ii) that is different in-kind or degree from the public at-large.
Here, the court held that Friends established associational standing. The court considered the members’ proximity and their personal histories with the area, and how the proposed development would impact them. The members’ aesthetic use and enjoyment of the Shawangunk Ridge fell within the zone of interests sought to be protected under Gardiner’s municipal code (“Code”) provision regarding the SRPD (Code § 220-16) and SEQRA.
The court also emphasized that standing rules should not be applied “heavy-handedly.” The project would greatly detract from the members use and enjoyment of the district, and therefore, the claims went beyond a mere interest in environmental conservation.
MERITS
- Alleged Code Violation
Gardiner adopted the SRPD to preserve the Gardiner’s “critical features” that enrich and benefit residents and visitors alike. The SRPD aims to appropriately limit development in the Shawangunk Ridge to conserve the area’s scenic and ecological integrity. The SRPD contains a graduated system of regulation based on elevation, i.e. “least restrictive,” “more restrictive,” and “most restrictive,” in subdistricts, SP-1 (lowest elevation), SP-2 (middle elevation), and SP-3 (highest elevation), respectively. More specifically, the Code provides:
- All development requiring a special permit within the [SRPD] that requires review by the Planning Board, Town Board, or Zoning Board of Appeals shall comply with the standards in Subsection (Code § 220-16[F][1][a]).
- The Planning Board shall insert conditions on any approval . . . as necessary to satisfy the requirements of this Subsection F . . . . Such conditions shall include the requirement that permitted construction occur at the lowest feasible elevation on the property (Code § 220-16[F][1][b]).
- Single-family dwellings are permitted as-of-right within the SP-1 subdistrict (Code § 220-10[B]).
- Single-family dwellings require a special permit within the SP-2 and SP-3 subdistricts (Code § 220-16[I]).
The owner’s proposed lot one (“Lot 1”) would consist of the existing dwelling on five acres situated entirely within the SP-1 subdistrict and proposed lot two (“Lot 2”) would consist of the new dwelling and include the remaining 103-acres (approximately 80% of which would be preserved as open space), spanning all three subdistricts. Notably, the applicant proposed constructing the new dwelling and accessory structures on Lot 2 within the SP-2 subdistrict – just several feet above the SP-1 subdistrict boundary line.
Friends argued that the Planning Board should have evaluated Lot 2 as a whole (i.e. spanning all three subdistricts), rather than evaluating only the subdistricts within which the applicant proposed construction. There were feasible build sites at lower elevations on Lot 2 within the SP-1 subdistrict, and the Planning Board’s determination violated the Code because it did not require that construction occur at the lowest feasible elevation.
In deciding whether the Gardiner Planning Board properly issued approvals, the court first noted that a local planning board’s interpretation will be given deference unless the issue raised is one of “pure legal interpretation.” The Court emphasized that the special permit condition requiring construction at the lowest feasible elevation only applied to applications requiring a special permit, i.e. single-family dwellings within the SP-2 and SP-3 subdistricts. There is no requirement to locate single-family dwellings within the SP-1 at the lowest feasible elevation. The Court concluded that the special permit criteria did not require the applicant to locate the new dwelling on Lot 2 at a lower elevation within the SP-1 subdistrict. Moreover, the Court noted that the applicant’s proposed Lot 2 build site was at the lowest elevation possible within the SP-2 subdistrict.
Accordingly, the court rejected Friend’s argument and found that the Planning Board properly issued the special use permit.
- Alleged SEQRA Violation
Under SEQRA, the administrative body must identify the pertinent areas of environmental concern, take a “hard look” at them, and provide a reasoned elaboration of the grounds for its determination (i.e. whether the proposed action may result in one or more significant adverse environmental impacts).
Here, Friends did not argue that the Planning Board overlooked or failed to address potential environmental impacts. Rather, Friends argued that the Planning Board should have required a third-party to conduct the conservation analysis because there was a potential conflict of interest in the property owner himself performing the analysis. Friends asserted that the Planning Board failed to take the requisite hard look by not taking steps to mitigate potential bias.
The court noted that it would not disturb a SEQRA determination as long as the administrative agency satisfies SEQRA’s requirements; the sole function of judicial review is to assure the agency satisfies SEQRA’s procedural and substantive mandates, and the court cannot, and will not, evaluate data de novo or substitute its judgment for the agency’s judgment. The court found that the Planning Board considered an extensive administrative record, which included objections over the developer conducting his own conservation analysis, as well as a consulting professional engineer’s review of that conservation analysis, and complied with SEQRA. Thus, possible expert “bias” is not a consideration under SEQRA’s hard look requirement.
TAKEAWAY
In addition to establishing how an organization can establish standing, this decision provides an insightful and clear overview regarding when it is appropriate for the courts to interpret a municipal zoning code and how the courts will review a planning board decision under SEQRA.
[View source.]
