Opinion
2012-07-26
In the Matter of the ASSOCIATION FOR A BETTER LONG ISLAND, INC., Petitioner, and Jan Burman et al., Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.
Germano & Cahill, PC, Holbrook (Michael J. Cahill of counsel), for Jan Burman and another, appellants. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead (Frank A. Isler of counsel), for Town of Riverhead and another, appellant.
Germano & Cahill, PC, Holbrook (Michael J. Cahill of counsel), for Jan Burman and another, appellants. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead (Frank A. Isler of counsel), for Town of Riverhead and another, appellant.
Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), for respondents.
Before: MERCURE, J.P., ROSE, LAHTINEN, STEIN and McCARTHY, JJ.
ROSE, J.
Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered December 7, 2011 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and an action for declaratory judgment, granted respondents' motion to dismiss the petition.
Petitioners Town of Riverhead, Town of Riverhead Community Development Agency, Jan Burman and M–GBC, LLC (hereinafter collectively referred to as petitioners) and another commenced combined CPLR article 78 proceedings and declaratory judgment actions challenging, on various procedural and substantive grounds, regulations issued by respondent New York State Department of Environmental Conservation that require “incidental take” permits for any activity likely to result in the “taking” of any endangered or threatened species ( see 6 NYCRR part 182). As relevant here, the regulations define taking as “the pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting of any species listed as endangered or threatened ... and all lesser acts such as disturbing, harrying or worrying” (6 NYCCR 182.2[x] ), and an incidental take as one “that is incidental to, and not the intended purpose of, an otherwise lawful activity” (6 NYCCR 182.2[j] ). Petitioners based their challenges to the regulations on their ownership of property that contains or is in proximity to endangered and threatened species. After the proceedings were consolidated, respondents moved to dismiss on the grounds that petitioners lacked standing and the issues raised were not ripe for review. Supreme Court granted the motion and petitioners appeal.
In order to have standing, petitioners must demonstrate “an actual legal stake in the matter being adjudicated,” that is, an injury in fact “capable of judicial resolution” ( Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] [internal quotation marks and citation omitted]; see Mittelmark v. County of Saratoga, 85 A.D.3d 1359, 1360, 925 N.Y.S.2d 235 [2011]; Aiardo v. Town of E. Greenbush, 64 A.D.3d 849, 851, 881 N.Y.S.2d 698 [2009] ). Petitioners have no pending applications for a permit under the regulations, but claim that their properties “will be” affected by the amended regulations or that they “could be compelled” to comply with them. Unlike property owners affected by a zoning reclassification ( see Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d 524, 529, 549 N.Y.S.2d 638, 548 N.E.2d 1289 [1989]; Matter of Rossi v. Town Bd. of Town of Ballston, 49 A.D.3d 1138, 1142, 854 N.Y.S.2d 573 [2008] ), petitioners' allegations that they may be required to comply with the regulations is potential, speculative harm that is insufficient to confer standing ( see New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 213–214, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004];Matter of Brunswick Smart Growth, Inc. v. Town of Brunswick, 73 A.D.3d 1267, 1269, 901 N.Y.S.2d 387 [2010];Matter of Gerdts v. State of New York, 210 A.D.2d 645, 647, 620 N.Y.S.2d 512 [1994],appeal dismissed85 N.Y.2d 856, 624 N.Y.S.2d 374, 648 N.E.2d 794 [1995],lv. denied85 N.Y.2d 810, 629 N.Y.S.2d 724, 653 N.E.2d 620 [1995] ).
Nor can Burman and M–GBC, LLC claim standing pursuant to State Finance Law § 123–b. That statute is narrowly construed and authorizes taxpayers to challenge “a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property” (State Finance Law § 123–b[1]; see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 813, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003],cert. denied540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003];Matter of Feminists Choosing Life of N.Y., Inc. v. Empire State Stem Cell Bd., 87 A.D.3d 47, 50, 926 N.Y.S.2d 671 [2011],lv. denied18 N.Y.3d 801, 2011 WL 6153728 [2011];Matter of Humane Socy. of U.S. v. Empire State Dev. Corp., 53 A.D.3d 1013, 1016, 863 N.Y.S.2d 107 [2008],lv. denied12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009] ). Burman and M–GBC, LLC do not identify any expenditure by the state that they seek to challenge, and the claims raised in their petition do not have a sufficient nexus to fiscal activities so as to allow for section 123–b standing ( see Rudder v. Pataki, 93 N.Y.2d 273, 281, 689 N.Y.S.2d 701, 711 N.E.2d 978 [1999] ). They do not qualify for common-law taxpayer standing either, as that remedy is available only to challenge important governmental actions where the failure to allow standing would “ ‘erect an impenetrable barrier to any judicial scrutiny’ ” (Matter of Colella v. Board of Assessors of County of Nassau, 95 N.Y.2d 401, 410, 718 N.Y.S.2d 268, 741 N.E.2d 113 [2000], quoting Boryszewski v. Brydges, 37 N.Y.2d 361, 364, 372 N.Y.S.2d 623, 334 N.E.2d 579 [1975] ). No such barrier exists here as property owners subjected to the requirements of the regulations will be able to challenge them ( see Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 589, 684 N.Y.S.2d 156, 706 N.E.2d 1180 [1998];Matter of Feminists Choosing Life of N.Y., Inc. v. Empire State Stem Cell Bd., 87 A.D.3d at 51, 926 N.Y.S.2d 671).
Petitioners raise procedural challenges to the regulations that are ripe, but those challenges must be dismissed in the absence of standing ( see Matter of Widewaters Rte. 11 Potsdam Co., LLC v. Town of Potsdam, 51 A.D.3d 1292, 1294–1295, 858 N.Y.S.2d 820 [2008] ). As for petitioners' substantive challenges, they are not ripe because the burdens that petitioners claim will be imposed upon them may be ameliorated by the application of the regulations to a specific development plan ( see Matter of Hunt Bros. v. Glennon, 81 N.Y.2d 906, 910, 597 N.Y.S.2d 643, 613 N.E.2d 549 [1993];Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 520, 505 N.Y.S.2d 24, 496 N.E.2d 183 [1986],cert. denied479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578 [1986];Matter of Adirondack Council, Inc. v. Adirondack Park Agency, 92 A.D.3d 188, 191, 936 N.Y.S.2d 766 [2012] ). As Supreme Court correctly held, merely being subjected to administrative regulations is insufficient to constitute an injury ( see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL–CIO v. Cuomo, 64 N.Y.2d 233, 240, 485 N.Y.S.2d 719, 475 N.E.2d 90 [1984];Matter of New York Blue Line Council, Inc. v. Adirondack Park Agency, 86 A.D.3d 756, 761, 927 N.Y.S.2d 432 [2011],appeal dismissed17 N.Y.3d 947, 936 N.Y.S.2d 71, 959 N.E.2d 1019 [2011],lv. denied18 N.Y.3d 806, 2012 WL 445934 [2012];Matter of Town of Riverhead v. Central Pine Barrens Joint Planning & Policy Commn., 71 A.D.3d 679, 681, 896 N.Y.S.2d 382 [2010] ). In such situations, the “ ‘harm sought to be enjoined is contingent upon events which may not come to pass, [and] the claim is ... nonjusticiable as wholly speculative and abstract’ ” (Matter of Wal–Mart Stores v. Campbell, 238 A.D.2d 831, 833, 656 N.Y.S.2d 536 [1997], quoting Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL–CIO v. Cuomo, 64 N.Y.2d at 240, 485 N.Y.S.2d 719, 475 N.E.2d 90).
ORDERED that the judgment is affirmed, without costs.