Opinion
368 CA 18–01139
07-31-2019
In the Matter of John SCHMIDT, Petitioner, and Terrence A. Robinson, Petitioner–Appellant, v. CITY OF BUFFALO PLANNING BOARD, City of Buffalo Preservation Board and Norstar Development USA, L.P., Respondents–Respondents.
TERRENCE A. ROBINSON, PETITIONER–APPELLANT PRO SE. TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF COUNSEL), FOR RESPONDENTS–RESPONDENTS CITY OF BUFFALO PLANNING BOARD AND CITY OF BUFFALO PRESERVATION BOARD. HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR RESPONDENT–RESPONDENT NORSTAR DEVELOPMENT USA, L.P.
TERRENCE A. ROBINSON, PETITIONER–APPELLANT PRO SE.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF COUNSEL), FOR RESPONDENTS–RESPONDENTS CITY OF BUFFALO PLANNING BOARD AND CITY OF BUFFALO PRESERVATION BOARD.
HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR RESPONDENT–RESPONDENT NORSTAR DEVELOPMENT USA, L.P.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul the negative declaration issued by respondent City of Buffalo Planning Board (Planning Board) under the State Environmental Quality Review Act ( [SEQRA] ECL art 8) with respect to the demolition and reconstruction of an apartment complex in the City of Buffalo. Respondents moved to dismiss the petition on the ground that, among other things, Terrence A. Robinson (petitioner) lacked standing. Supreme Court granted respondents' motions and dismissed the petition. Petitioner appeals, and we affirm.
As an initial matter, we note that petitioner does not raise any contention on appeal regarding the determination of respondent City of Buffalo Preservation Board's (Preservation Board) 2017 approval of the demolition application of respondent Norstar Development USA, L.P. Accordingly, petitioner has abandoned any challenge to that determination (see generally Jones v. Town of Carroll, 158 A.D.3d 1325, 1327, 72 N.Y.S.3d 657 [4th Dept. 2018], lv dismissed 31 N.Y.3d 1064, 77 N.Y.S.3d 332, 101 N.E.3d 974 [2018] ; Zazzaro v. HSBC Bank USA, N.A., 151 A.D.3d 1631, 1632, 57 N.Y.S.3d 573 [4th Dept. 2017] ). We further conclude that petitioner, who alone perfected the appeal in this case (see Matter of Ten Towns to Preserve Main St. v. Planning Bd. of Town of N.E. , 139 A.D.3d 740, 740, 29 N.Y.S.3d 189 [2d Dept. 2016] ), lacks standing to challenge the Planning Board's SEQRA determination. "Despite the responsibility of every citizen to contribute to the preservation and enhancement of the quality of the environment, there is a limit on those who may raise environmental challenges to governmental actions ... Those seeking to raise SEQRA challenges must establish both ‘an environmental injury that is in some way different from that of the public at large, and ... that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA’ " ( Matter of Turner v. County of Erie, 136 A.D.3d 1297, 1297, 24 N.Y.S.3d 812 [4th Dept. 2016], lv denied 27 N.Y.3d 906, 2016 WL 2637037 [2016] ; see Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d 301, 310–311, 22 N.Y.S.3d 388, 43 N.E.3d 745 [2015] ).
Contrary to petitioner's contention, he does not have standing arising from his interest in historic preservation, his interest in photographing the apartment complex, or his visits to the complex. "[I]nterest and injury are not synonymous ... A general—or even special—interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case" ( Matter of Niagara Preserv. Coalition, Inc. v. New York Power Auth., 121 A.D.3d 1507, 1510, 994 N.Y.S.2d 487 [4th Dept. 2014], lv denied 25 N.Y.3d 902, 2015 WL 1471786 [2015] [internal quotation marks omitted] ). Here, petitioner's "[a]ppreciation for historical and architectural [sites] does not rise to the level of injury different from that of the public at large for standing purposes" ( id. [internal quotation marks omitted] ). Petitioner likewise does not have standing to challenge the Planning Board's determination on behalf of those who reside in or have been displaced from the apartments (see generally Lyman Rice, Inc. v. Albion Mobile Homes, Inc., 89 A.D.3d 1488, 1488–1489, 933 N.Y.S.2d 471 [4th Dept. 2011] ). We further reject petitioner's contention that he has standing as a result of his position on the Preservation Board. In that respect, petitioner alleged at most a political impact of the alleged SEQRA violation, which does not establish environmental harm (see Turner, 136 A.D.3d at 1297–1298, 24 N.Y.S.3d 812 ). Petitioner's contention that he has standing as a member of a protected class is raised for the first time on appeal and thus is not properly before us (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
In light of our determination, we do not consider petitioner's remaining contentions.