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Pelham vs. Mount Vernon |
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(The following decision was obtained through Lexis-Nexis.)
In
the Matter of the PELHAM COUNCIL OF GOVERNING BOARDS, Constituting
the Village of Pelham et al., Petitioner, v CITY OF MOUNT VERNON
et al., Respondents.
Index
No. 2570-00
SUPREME
COURT OF NEW YORK, WESTCHESTER COUNTY
2000
N.Y. Misc. LEXIS 469
November 17, 2000, Decided
Respondents' third defense is granted and the petition is dismissed for lack of standing. THACHER PROFFITT & WOOD, White Plains, for petitioner. CUDDY & FEDER & WORBY L.L.P., White Plains, for respondents. PETER M. LEAVITT, Acting Justice of the Supreme Court. PETER M. LEAVITT In January, 2000, respondent, City Council of the City of Mount Vernon (hereafter, "the Council"), adopted a resolution rezoning a 14.55 acre site (hereafter, "the Site"), situated near the boundary between respondent, City of Mount Vernon, and the Town and Village of Pelham, the Village of Pelham Manor and Pelham Union Free School District. Allegedly, the change in zoning was a necessary step in the development of a large, multi-tenant retail shopping center, commonly described as the Sanford Boulevard Redevelopment Project, which had been proposed for the Site and had been under consideration for some years. In this special proceeding petitioner seeks of this Court an order "setting aside, reversing and annulling" the Council's resolution. Petitioner describes itself as, "an [*2] unincorporated entity comprised of the petitioners Village of Pelham, Town of Pelham, Village of Pelham Manor and the Pelham Union Free School District" (Verified Petition, p. 1, par. 1) (emphasis added). Respondents plead, inter alia, that the petition must be dismissed as the petitioner "entity" lacks standing. Actually, these four putative "petitioners" are more accurately described as members of the petitioner "entity" which is, in fact, the only entity in whose name this proceeding was instituted. The mere fact that said villages, town and school district are often referred to collectively in the petition as "petitioners" does not make of them parties, per se. Neither a village or a town has the capacity to institute a legal proceeding except upon a resolution of its legislative body [see, TownL. 65(1); Vill.L. 4-400(1)(d); Town of Thompson v Alleva, 76 A.D.2d 1022, 429 N.Y.S.2d 481 (3d Dept., 1980)], and a school district lacks such capacity except upon a resolution of its board of trustees or board of education [see Educ.L. 1604(30) and 3811(1)1. Moreover, the grant of such legislative authority should be alleged in the pleading to establish [*3] capacity. [See, e.g., Matter of Buffalo Softball League. Inc., 135 Misc. 2d 973, 517 N.Y.S.2d 378 (S.Ct., Erie Co., 1987)] No such allegations are made in the petition -- the only affirmatory paper submitted by Petitioner -- nor is there any evidence to be found anywhere in the record that the village boards of the Villages of Pelham or Pelham Manor, the Town Board of the Town of Pelham or the trustees of the Pelham Union Free School District, ever adopted a resolution authorizing the institution of this proceeding. None of them, therefore, is a party to this proceeding in its own name and right. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Indeed, serious questions could be raised as to the capacity of the Pelham Council of Governing Boards to institute this proceeding in its own name and right, since it is nowhere alleged that the proceeding is being maintained by its president or treasurer. (See Gen.Assoc.L. 12) However, as these questions have not been raised, the Court will not render a expositive determination based thereon. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*4] Furthermore, in the arguments concerning the standing issue advanced in its memoranda of law, the petitioner "entity" consistently contends that it has standing as an association based in part upon the standing that each of its members would have. Said "entity" (hereafter, "Petitioner") does not argue that any of its members is also a party and, therefore, that the question of its own vicarious standing is immaterial -as, of course, such question would be if this were the case. Instead, Petitioner contends that whatever standing it enjoys herein is derived entirely from that of one or more of its individual members. The appropriateness of, if not necessity for, so-called "associational" or "organizational" standing in actions and proceedings involvingland use and zoning was first articulated by the Court of Appeals in its seminal decision in Matter of Douglaston Civic Association v Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317 (1974). The Court sanctioned what it described as, this "broader rule of standing" (36 N.Y.2d at 6), because it was, "troubled by the apparent readiness of our courts in zoning litigation to dispose of disputes over [*5] land use on questions of standing without reaching the merits..." (id). In order to establish standing under this doctrine an association must show in its pleading that: one or more of its members would themselves have standing; the interests sought to be protected by the proceeding are germane to the association's purpose, and; the participation of none of the members is necessary to the relief requested. [ Matter of Dental Society of the State of New York v Carey, 61 N.Y.2d 330, 333-35, 474 N.Y.S.2d 262, 462 N.E.2d 362 (1984)] Three of Petitioner's four members would have standing in their own right to bring this proceeding under section 277.71 of the Westchester County Administrative Code (hereafter, "the Code") [ Matter of Town of Bedford v Village of Mount Kisco, 33 N.Y.2d 178, 351 N.Y.S.2d 129, 306 N.E.2d 155 (1973)]; the Pelham Union Free School District would not. Section 277.71 requires "each city, village or town in the county" to give notice of any hearing scheduled on certain proposed actions to "any abutting municipality in the county..." Standing, to seek judicial review of an act which is contrary to the position taken by such an "abutting [*6] municipality", is statutorily bestowed upon such an "abutting municipality" which had made its position known at a hearing on the proposal. Nowhere in the Code is the term "municipality" - as in "abutting municipality" - defined. Certainly, an abutting city, village or town falls within this term since, within section 277.71 itself, "each city, village or town" which is required to give notice is also described as "said municipality" (emphasis added). But, of course, the Pelham Union Free School District is neither a city, village or town. Nor can authority for the inclusion of a school district be found outside the Code. Section 277.71 of the Code is a "special law". [See Bloom v Town Board of the Town of Yorktown, 80 A.D.2d 823, 824, 436 N.Y.S.2d 355 (2d Dept., 1981) (construing section 451, the predecessor to section 277.71, of the Code and citing section 2(12) of the Municipal Home Rule Law)] Pursuant to the Municipal Home Rule Law, a "special law" is:
[sec. 2(12)] Ipso facto, a "special law" does not apply to school districts. Moreover, of the myriad state statutes dealing with local and regional planning, and land use regulation, none include school districts among the cities, towns, villages and counties which constitute "municipalities". [See, e.g., Gen. City L. 20-g(a)(3) ("Intermunicipal cooperation in comprehensive planning and land use regulation"); Gen. Mun. L. 2 (defining "municipal corporation"); Gen. Mun. L. 239-b(3) (defining "municipality"); Gen. Mun. L. 239-h(2) ("Regional planning councils")] Perhaps because, unlike school districts, such "municipalities" have planning and zoning powers concerning property within their own borders. There is authority for the proposition that an abutting municipality which asserts its standing under the Code - i.e., all of Petitioner's members except the school district - may seek judicial review of the act complained of for an alleged violation of article eight of the environmental conservation law (also known as the State Environmental Quality Review Act and referred to hereafter as "SEQRA"), as well. [See Matter of City of Rye v Korff, 249 A.D.2d 470, 671 N.Y.S.2d 526 [*8] (2nd Dept., 1998)] So the Court will not address the issue of whether the Villages of Pelham or Pelham Manor, or the Town of Pelham (hereafter, "the member municipalities"), would have standing under SEQRA but for the Code. The Pelham Union Free School District does not. A governmental subdivision may have standing under SEQRA but, absent some other basis therefor, its entitlement thereto is judged by the same criteria as apply to individual owners of private property. Petitioner has not demonstrated that the school district: would suffer any injury in fact different from that suffered by the public at large, or; is the owner of real property in such close proximity to the Site as to create the inference thereof. Nor is this an instance where the determination at issue purports to effect the use or regulation of property located within the geographical boundaries of the school district. At most the allegations in the petition might demonstrate a potential for injury to the residents of, and owners of private property located on or near the Mount Vernon border in, the school district. But governmental subdivisions lack the capacity to commence an action in pursuit of the individual [*9] interests of their citizenry. [See Incorporated Village of Northport v Town of Huntington, 199 A.D.2d 242, 604 N.Y.S.2d 587 (2d Dept., 1993); Matter of Esopus Property Holders Residing within the New Paltz Central School District v Potter, 60 A.D.2d 948, 401 N.Y.S.2d 320 (3d Dept., 1978); Town of Remsen v Albright, 82 Misc. 2d 470, 471, 370 N.Y.S.2d 287 (S. Ct., Oneida Co., 1974)] Consequently, the school district does not have such a stake in the outcome as is required to establish its standing, under SEQRA alone, to seek judicial review for an alleged injury to said individual interests. [C.f., Community Board 7 of the Borough of Manhattan v Schaffer, 84 N.Y.2d 148, 154-56, 639 N.E.2d 1, 615 N.Y.S.2d 644 (1994)] Petitioner argues that it is an appropriate representative to assert organizational standing in this proceeding because the interests which it pursues herein are germane to its purpose. While it is not alleged in the petition, Petitioner contends that such purpose, "is to protect its members from the harms that would result from the zoning amendment at issue in this action" (Supplemental Memorandum of Law in Support of Petitioners' Standing, p. 10). But [*10] Petitioner has not demonstrated what, if any, harm would be visited upon its member municipalities. Moreover, since the only injuries, or "harms", which are even arguably demonstrated in the pleadings would be suffered by residents of, and the owners of private property within, the member municipalities, the only "interests" actually pursued in this proceeding are those of such individuals rather than of the municipalities themselves. Yet, there is no indication that membership in the Pelham Council of Governing Boards is, or ever was, "open to all residents and property owners in the relevant neighborhood," so that it does not, "represent that segment of the public which stands to be most severely affected..." -- a factor which should also be considered. ( Matter of Douglastown Civic Association v Galvin, supra at 7) Also, according to Petitioner's counsel -- though here again there are no allegations of fact in support - Petitioner was formed at or following 'a meeting of trustees from each of its members' in July, 1999. (see Supplemental Memorandum of Law in Support of Petitioners' Standing, supra at p. 10-11). But Petitioner does not contend - much less aver [*11] - that the decision to form and join this "unincorporated entity" was made by resolution of the various village, town and school boards from which said trustees came; or, for that matter, that the number of trustees which purportedly decided that their respective governmental subdivisions would do so constituted a legally binding majority on each board. Governmental subdivisions are artificial creatures of statute whose powers and capacities are narrowly restricted by the statutes, or statutory provisions, pursuant to which they were created. [See Caruso v State of New York, 188 A.D.2d 874, 591 N.Y.S.2d 614 (3d Dept., 1992)] Neither villages, towns or school districts are statutorily empowered to institute legal proceedings except upon a resolution of their boards (see discussion, supra), and the individual trustees of such boards may not do so in the name of the governmental bodies which they serve [see Incorporated Village of Northport v Town of Huntington, supra; Village of Mount Morris v Pavilion Natural Gas Co., 183 N.Y.S. 792 (S. Ct., Monroe Co., 1920), aff'd. 196 A.D. 918, 187 N.Y.S. 957 (4th Dept., 1921)] [*12] It follows, therefore, that a decision made by one or more trustees - and not confirmed by resolution of the board - to form and join an "unincorporated entity" in the name of a governmental subdivision, cannot constitute legal authority for said entity to institute a legal proceeding in behalf of the governmental subdivision. Petitioner has, therefore, failed to demonstrate that it, "in fact represents the views of the municipalities and the interests it seeks to protect" [ Caruso v State of New York, supra at 875 (citing Douglastown Civic Association)]. However, even assuming arguendo that Petitioner had satisfied the tripartite test set out in Dental Society, it would not be entitled to assert organizational standing in the context of this action. "Organizational" standing represents an expansion of the traditional doctrine based upon relaxation, if not outright abandonment, of the precept that only one with a significant stake in the outcome qualifies as a real party in interest in a judicial resolution of the issue presented. The "organization" which asserts standing under this theory has no actual stake in the outcome and often, as here, can hardly [*13] be regarded as a "real party" at all. Consequently, organizational standing is not automatically granted merely upon a finding that the Dental Society test has been satisfied. [See, e.g., Henry v Isaac, 228 A.D.2d 558, 645 N.Y.S.2d 48 (2d Dept., 1996) (declining to expand organizational standing to suits for personal claims against private parties)] Rather, organizational standing is a doctrine of necessity. It is a means of insuring that matters of substantial public interest, and governmental action in particular, will not be insulated from judicial scrutiny. [See Rudder v Pataki, 93 N.Y.2d 273, 280, 689 N.Y.S.2d 701, 711 N.E.2d 978 (1999); Matter of Douglastown Civic Association v Galvin, supra; see also, Boryszewski v Brydges, 37 N.Y.2d 361, 364, 372 N.Y.S.2d 623, 334 N.E.2d 579 (1975) (expansion of the related, prestatutory, doctrine of "taxpayer standing" because the failure to do so would foreclose judicial scrutiny of legislative action)] It may be granted where an organization - which otherwise satisfies the Dental Society test - is an appropriate representative of individuals who are unable to [*14] seek judicial review on their own behalf due either to legal incapacity (e.g., minors, incompetents) or practical impossibility (e.g., illness, unfamiliarity with one's legal rights or the legal process, inadequate financial resources). [See Mixon v Grinker, 157 A.D.2d 423, 556 N.Y.S.2d 855 (1st Dept., 1990) (noncongregate housing for HIV-infected homeless persons)] In at least one instance use of the doctrine was implicitly sanctioned in an action brought by an association of municipalities. [ Caruso v State of New York, supra (organizational standing was, however, denied because plaintiff failed to satisfy the first and second prongs of the Dental Society test)] But this Court is unaware of any decision of a New York tribunal - and the parties have cited none - addressing the question of organizational standing to raise a land use or zoning issue for an association comprised entirely and exclusively of governmental subdivisions. In Douglastown Civic Association the Court recognized that individual property owners are often, if not always, at a prohibitive financial disadvantage when faced with the overwhelming resources which a developer [*15] can bring to bear in its efforts to effect changes in land use restrictions; which changes might well have a devastating consequence for such individual property owners. "By granting neighborhood and civic associations standing in such situations, the expense can be spread out over a number of property owners, putting them on an economic parity with the developer". (36 N.Y.2d at 6-7) The instant situation is, however, significantly different. Petitioner's members are not individual property owners, but governmental subdivisions; and it is not alleged that the members banded together out of financial necessity to achieve economic parity with the developer or respondents. Indeed, this Court can perceive no reason why, if one or more of Petitioner's member municipalities wished to pursue their interests under SEQRA or section 277.71 of the Code, they could not have done so in their own behalf - i.e., upon resolution of their respective boards. In sum, there is no necessity to expand the doctrine of organizational standing further by granting it to an organization of governmental subdivisions to challenge a determination by a neighboring, non-member, governmental subdivision [*16] concerning land use and zoning within the latter's own borders. As the Court of Appeals recently said, in another context, in Rudder v Pataki:
[ (93 N.Y.2d at 280) (each of several groups representing social workers denied organizational standing to challenge administrative actions of state agency) (citing Boryszewski v Brydges)] Accordingly, and for all of the foregoing reasons, respondents' third defense is granted and the petition is dismissed for lack of standing. Dated: White Plains, New York November 17, 2000 PETER M. LEAVITT Acting Justice of the Supreme Court
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