Agenda - Planning Commission - 06/06/2013

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April 25, 2013 I Volume 7 I Issue 8 Zoning Bulletin New York. In furtherance of that proposed project, Wal-Mart submitted a SPPP to the state Depaitinent of Environmental Conservation ("DEC"). The DEC accepted the SPPP. Thereafter, the Clean Water Advocates of New York, Inc. ("CWA") filed a CPLR article 78 proceeding challenging DEC's determination. It alleged that "[s]tormwater discharges from construction activity contribute to the increase of pollutants" in the Tonawanda Creek, the Erie Canal, Lake Ontario and the Niagara River, which its members used for recreational purposes and as their potable water source. The Supreme Court, Albany County found that CWA lacked standing to maintain the proceeding. CWA appealed. DECISION: Affirmed. The Supreme Court, Appellate Division, Third Department, New York, also held that CWA lacked standing to challenge the DEC's decision to accept Wa1-Mart's SPPP. In so holding, the court explained that for an organization to have standing to bring a CPLR article 78 proceeding challenging administrative decision making, it must show that: "one or more of its members would have standing to sue[;] . . , that the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests . . . [;] [and] that neither the asserted claim nor the appropriate relief requires the participation of the individual members." For an individual to establish stand- ing, the individual "must demonstrate an injury -in -fact that falls within the zone of interests protected by the pertinent statute." Also, in matters involving land use development, the party challenging the administrative determination must show that he or she will "suffer direct harm, injury that is in some way different from that of the public at large." In matters alleging an impact upon a natural or cultural resource, the individual making the challenge must show that his or her use of a resource is more than that of the general public. Here, CWA had identified one member of its organization, Joanne Wood- house ("Woodhouse"), as a member that had standing to sue. Woodhouse had alleged that "[her] house [was] located within 900 feet of the [project site], 4 miles 'of the Tonawanda Creek, 1.5 miles of the Erie Canal, 14 miles of Lake [Ontario] and 22 miles of the Niagara River." The court found that the proximity of Woodhouse's property to the proposed project did not, without more, give rise to a presumption that she would be adversely affected in a way different from the public at large. The court found that Woodhouse had failed to give more; she had failed to articu- late any specific harm that she would suffer based on her proximity to the project. The court also found that CWA had failed to demonstrate that the approval of the SPPP would: directly harm any of its members in their use and enjoy- ment of natural resources in some way different in kind or degree from that of the public at large; or that any injuries that its members would suffer due to the alleged impacts to the water bodies would be different from that faced by the general public. The court concluded that those "generalized allegations did 8 ©2013 Thomson Reuters