To Challenge Governmental Action in Land Use Matters, No Need for Unique Injury

— by Moira Ferguson

Source: In re Sierra Club v. Village of Painted Post, No. 151 (N.Y. Nov. 19, 2015)

Abstract: To have standing to challenge governmental action in land use matters, a party must show it would suffer a “special injury.” An injury is special where it is direct and in some way different from that of the public at large. However, the possibility that more than one person may be harmed by the governmental action does not defeat standing.


The Village of Painted Post is situated at the intersection of the Cohocton, Tioga and Chemung Rivers. Below these rivers sits the Corning aquifer. In February of 2012, the Village entered into a sales agreement with a subsidiary of Shell Oil Co. The sales agreement provided for the sale of 314 million gallons of water from the Corning aquifer, to the Shell Oil Co. subsidiary. The Village also entered into a lease agreement with Wellsboro & Corning Railroad. This lease agreement allowed for the construction of a water transloading facility in the Village. Water from the aquifer would be withdrawn, loaded, and transported via train at this facility.

Following the formation of these two agreements, petitioners commenced a proceeding against the Village. Petitioners included The Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and individual residents of the Village. Petitioners claimed by failing to take into consideration adverse environmental impacts of the agreements, the Village failed to comply with the State Environmental Quality Review Act (SEQRA). Due to this neglect, petitioners asked the court to preliminarily enjoin any effects of the agreements until the Village complied with SEQRA. In response, the Village moved to dismiss, insisting petitioners lacked standing to bring a claim.

In Society of Plastics Indus. v. Cty of Suffolk, the Court set forth a framework for deciding when parties have standing to challenge governmental action in land use matters generally, and under SEQRA specifically. The Court decided that for standing purposes, the plaintiff must have a “special injury.” To be special, the injury must be direct, and different from that of the injury suffered by the public at large.1

The Supreme Court applied this rationale to each of the petitioners in the present case. The court found the organizations only alleged indirect, generalized environmental injuries that the public at large would suffer. These did not equate to the special injuries needed to confer standing. However, the Supreme Court found one individual petitioner, John Marvin, did suffer direct harm, distinct from that suffered by the general public. This harm equated to the special injury required to confer standing to challenge a governmental action in land use matters.

Marvin was a longtime resident of the Village, and lived less than a block for the transloading facility. He stated that when the water trains began running, the noises were so loud that they kept him and his wife awake at night. Marvin worried the noises would degrade not only the value of his home, but the quality of his life.

The Appellate Division also applied the standing framework set out in Society of Plastics, but rendered an opposite holding. The Appellate Division focused on the fact that Marvin complained about the noise from the trains, but did not address the noise from the transloading facility. The court acknowledged that many other Village residents lived along the train tracks, were subject to the injurious noise of the trains, and therefore suffered the same injury as Marvin. For the Appellate Division, because many residents of the Village suffered the same injury as Marvin, Marvin’s injury was not direct or different from that of the public at large. Therefore, he did not establish the special injury required to confer standing.

The Court of Appeals found the Appellate Division applied an overly restrictive analysis of the requirement to show standing. The Court reiterated that to have standing to challenge a governmental action in land use matters generally, the petitioner must suffer a special injury, meaning the injury is direct and is different from that of the public at large. However, to be special, the injury need not be unique.

Here, Marvin did not assert the increased train noise would cause him an indirect, collateral harm, congruent to the burden felt by the public at large. Instead, Marvin alleged a particularized harm that may also be inflicted upon other residents of the Village who live near the train tracts. Standing is not to be denied simply because many people suffer the same injuries.

The Court found the Appellate Division’s restrictive analysis of standing has detrimental effects on the judiciary system. Specifically, to deny standing to persons who are injured, simply because others suffer the same injury, insulates the most injurious and widespread government action from judicial review.

Although other Village citizens residing along the tracks could hear the trains, for Marvin, the injurious noise was still direct and different from that of the public at large. Accordingly, the noise equated to a special injury, sufficient to confer standing to challenge the Village’s two agreements, the governmental action that lead to Marvin’s injuries.

Survey: 2011 Environmental Law

Mark Chertok and Jonathan Kalmuss-Katz overview developments in the state of New York in the area of Environmental Law.

This Article will discuss notable developments in the law relating to the New York State Environmental Quality Review Act (SEQRA) for the Survey period of 2010-2011.  While there have been no major SEQRA decisions from the Court of Appeals since 2009, a series of regulatory proposals, new legislative enactments, and appellate division and supreme court rulings have updated, clarified, and, in some instances, changed SEQRA practice in the interim.

In 2010, for the first time in two decades, the Department of Environmental Conservation (DEC) proposed revisions to its Full Environmental Assessment Form and Short Environmental Assessment Form, aimed at bringing those documents up to date with current SEQRA practice. Environmental Assessment Forms are widely used in SEQRA practice as they comprise the principal factual predicate upon which a government agency will determine whether a proposed action requires an Environmental Impact Statement (EIS), or whether the agency can issue a negative determination (i.e. that no EIS is required) and terminate the SEQRA process. DEC also published a new edition of its “SEQRA Handbook” in August 2010, providing an updated resource for practitioners and reviewing courts.

In June 2011, the New York State Legislature reauthorized Article X of the Public Service Law, establishing an alternate environmental review process for new and substantially modified power plants. Article X, which was previously in effect from 1992 through 2003, displaces SEQRA for covered projects, though the two regimes share many common elements.

Case law also continued to develop on key issues such as the supplementation of environmental review and the concomitant need for a supplemental EIS (SEIS), the “hard look” standard under which SEQRA challenges are judged, and private party standing to pursue a SEQRA claim. In Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Appellate Division, First Department, required an SEIS analyzing the maintenance and monitoring requirements within a Site Management Plan (SMP) prepared pursuant to the State Brownfield Cleanup Program (BCP). That decision marked a significant change to the SEQRA review for remedial projects and the procedure and standards for requiring an SEIS, and set the stage for the Court of Appeals’ next SEQRA ruling. A series of recent decisions in state and federal court addressed a lead agency’s obligations in determining the environmental significance of proposed actions, or lack thereof, under SEQRA.  Finally, in Rizzo v. Verizon CCC LLC, the Supreme Court, Niagara County, upheld a landowner’s standing to challenge the SEQRA review concerning a neighboring parcel of land, despite the petitioner’s lack of residence or physical presence on the property.

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Mark A. Chertok is a partner, and Jonathan Kalmuss-Katz an associate, at Sive, Paget & Riesel, P.C., in New York, NY (  Both authors practice environmental law at the firm.

Note: Green Technology: An Alternative Path to Accelerated Patent Examination

In the last quarter century, a particular problem facing humanity has become increasingly clear to innovators around the world: the consumption of immense quantities of natural resources of limited and shrinking availability.  Whether it is water, crude oil, natural gas, or trees, at some point, without finding sustainable solutions to overconsumption, we will exhaust the natural resources available on this planet.  As a leader in modern technology, our country should take a greater interest in the development of solutions to this crisis in the form of green technology that can be used to slow resource consumption.

The United States Patent and Trademark Office (PTO) can have an impact on the environmental crisis by adopting patent reform to specifically encourage innovators to develop and bring to market novel inventions in the green technology field.  The PTO has made an effort to encourage the development of environmental technology through the Green Technology Pilot Program (“Pilot Program”), designed to expedite the patent process for environmentally valuable technologies.1  This program will be analyzed in detail throughout this note and its foundation will form the basis for the reforms and initiatives suggested herein.

In addition to the Pilot Program, there are supplementary means by which the patent process for valuable green technology can be utilized to stimulate innovation.  By partnering with the Environmental Protection Agency (EPA), the PTO will be able to offer an effective alternative system to accelerate the patent process for environmentally beneficial technology.  This alliance would essentially weed out innovations that are insufficiently important to the environment, thereby ensuring that the PTO’s increased effort to expedite the patent process is not wasted.  In addition, such a joint initiative could uncover technologies that may have unforeseen environmental value and encourage their development with incentives in the patent office.

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Jay Hickey: Syracuse College of Law, J.D. 2012; State University of New York at Albany, B.S. in Biology 2009.  Thank you to Professor Lisa Dolak for going beyond the call of duty by sacrificing her time for the benefit of her students, and to the members of the Syracuse Law Review for the hard work that went into the editing process.  A special thanks to my mother and father and to all of my family and friends who have been invaluable throughout my academic career.

  1. See Pilot Program for Green Technologies Including Greenhouse Gas Reduction, 74 Fed. Reg. 64,666 (Dec. 8, 2009). []

Note: Let my People Go Fishing: Applying the Law of “Givings” to Private Fishing Preserves, Exclusive Fishing Rights, and State-Stocked Rivers

Most fishermen are probably not thinking about the law on a normal day on the water.  But perhaps they should if they are one of the anglers paying a fee to fish the private waters of the Douglaston Salmon Run (DSR) or Harmel’s Ranch Resort (“Harmel’s”), private fishing preserves where anglers pay an access fee to enjoy exclusive fishing rights on some of the nation’s most productive waters.  While all may be well for the paying angler seeking the idyllic—high populations of fish, low populations of people—a novel legal problem may be lurking in the deep.  And it is simply this: by charging anglers for exclusive fishing rights these private landowners receive a pecuniary gain from exploiting a public resource—fish.  The private landowner receives a substantial benefit from a public resource because the fish are raised and stocked by the state at the public’s expense.  Framing this issue in terms of equity and fairness, this Note applies the property concept of “givings,” the converse of takings, to suggest that this legal problem can be solved if such a landowner reimburses the state for the impermissible use and distribution of government property.

Part I of this Note frames the issue by providing two real-world examples of compensable givings.  Part II provides relevant background information and a discussion of the concept of givings and how it may be analyzed.  Part III examines and applies the givings framework to the factual scenarios set forth in the Introduction.  Finally, this Note concludes by suggesting that, in certain situations, a private fishing preserve that charges the public to fish for a state resource must compensate the state.

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Nathaniel H. Amendola: J.D. Candidate, Syracuse University College of Law, 2012; B.A., cum laude, St. Lawrence University, 2005; passionate fly fisherman. I would like to thank the biggest catch of my life, my future wife and current Syracuse Law Review Editor-in-Chief, Amanda Orcutt. I owe a debt of gratitude to my family, Professor Terry Turnipseed, and to my fishing mentors Lynn and Jeff Heyer of Cross Rip Outfitters.


Survey: 2010 Environmental Law

This Article will discuss notable developments in the law relating to the New York State Environmental Quality Review Act (SEQRA) for the survey period in 2010.  While early 2010 saw no major cases from the Court of Appeals or groundbreaking law from appellate division courts, it did see the potential emergence from lower court decisions of the practical contours of the Court of Appeals’ 2009 standing decision in Save the Pine Bush, Inc. v. Common Council of the City of Albany.  Two cases address the unusual issue of what types of agencies are subject to SEQRA, several deal with issues of ripeness, prematurity, and equitable remedies, and other decisions concern challenges to major New York City rezoning and developments. While no court addressed climate change/greenhouse gas emissions (GHG) analysis under SEQRA, early 2010 saw significant technical guidance issued by New York City on the issue that may shape future practice in that area, particularly within New York City, while raising significant questions regarding mitigation.

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Mark A. Chertok is a partner, and Ashley S. Miller an associate, at Sive, Paget & Riesel, P.C., in New York, NY ( Both authors practice environmental law at the firm.