Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo: Take Your Top Hat and Tails and Leave!

In Matter of Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo, 2013 N.Y. App. Div. LEXIS 8163 (2d Dep’t 2013).

The New York appeals court recently held that for the purpose of benefiting from a presumption of environmental injury-in-fact pursuant to the State Environmental Quality Review Act (“SEQRA”), “close proximity” is the distance between the petitioner’s property and the actual structure or development itself, not the distance between the petitioner’s property and the property line of the site at issue.

By way of background, in 2004, the Tuxedo Town Board issued a special permit for a mixed-use development of 1194 dwellings and approximately 266,000 square feet of nonresidential space on a 2,376-acre site located on three non-contiguous parcels of land located wholly in the Town. The special permit was issued after a protracted review, which began in 1988 with the submission of the original application for 2400 dwellings units. The environmental review began in earnest in 1991, when the Town Board declared lead agency.

The 2004 special permit encompassed the entire 2376-acre site and placed the entire residential development and approximately 35,000 square feet of commercial space in the “village center” on approximately 400 acres of the 1250-acre “southern tract”; the remaining nonresidential development was located on the “northern tract.” Portions of the southern tract and the northern tract boundaries were contiguous with the Village of Tuxedo Park, as was the third tract, known as “Fox Hill.” In total, 70% of the applicant’s land was preserved as open space under the 2004 special permit, including the entirety of the Fox Hill tract. In mid-2005, the Village of Tuxedo Park executed an agreement with the applicant that gifted 31 acres of “buffer” land from the applicant to the Village, essentially creating a “green donut” of protected land surrounding the Village. In return, the “members of the Village Board” promised not to “oppose future development of the project.”

The 2004 special permit was not challenged, nor were amendments to the special permit granted in 2007 and 2008. In 2010, the Town Board granted a third amendment to the special permit after a 2-year environmental review, including a supplemental environmental impact statement (“SEIS”) to study particular proposed amendments. No additional dwelling units were proposed, although 26 house sites were moved from one location in the development to a lake-front location (reduced from the proposed 49 house sites to be moved). In addition, the “village center” commercial space was increased by approximately 65,000 square feet.

The 2010 amendment was challenged by petitioners living in Tuxedo Park, in both their individual capacities and as members of the Tuxedo Land Trust (a not-for-profit conservation organization). The Tuxedo Park petitioners were joined by a person living in a neighboring municipality, both in her individual capacity and as chairperson on behalf of the Torne Valley Preservation Association. The petitioners argued, among other things, that the SEQRA Findings and negative declaration should be annulled because the Town Board failed to take the requisite “hard look.”

The case was heard by Judge Lefkowitz, Supreme Court Environmental Claims Part. In a scathing decision issued March 5, 2012 (Westchester County Index No. 13675/10), Judge Lefkowitz dismissed the SEQRA claims for lack of standing and all the other claims for failure to state a cause of action. As a threshold issue, Judge Lefkowitz determined that petitioners could not rely on injuries they allegedly sustained as a consequence of alleged deficiencies in the environmental review that culminated in the 2004 special permit or the 2007 and 2008 amendments because they were time-barred long before the petition was filed in December 2010.

Nor could petitioners benefit from a presumption of special harm where the two closest Village petitioners had property located “across the street” from the southern tract (the “street” was a private road wholly within the Village of Tuxedo Park, inaccessible by residents of the development because Tuxedo Park is a gated community) and 660 feet from the boundary of the southern tract. The court found neither proximity argument convincing where each property was located approximately one-half mile from the edge of the residential development and protected not only by the “green donut” but also a large swath of additional preserved land. Finally, the non-Tuxedo Park petitioner’s standing arguments were even less convincing, since her property was located 4.5 miles from the project and “buffered” by Interstate Highway 87, a four-lane State Highway (Rt. 17), and a good deal of commercial and industrial development. Thus, none of the petitioners had standing to challenge the Town’s SEQRA decision. Because the individual petitioners failed to establish standing, so did their respective organizations.

Judge Lefkowitz measured the “proximity” of petitioners’ properties from the edge of the challenged development, not from the boundary of the project site, relying on an unchallenged proximity map developed by the Town of Tuxedo Planner. The Second Department agreed, finding:

An injury in fact may be inferred from a showing of close proximity of the petitioner’s property to the proposed development. Generally, the relevant distance is the distance between the petitioner’s property and the actual structure or development itself, not the distance between the petitioner’s property and the property line of the site. Here, the individual petitioners’ properties were not located in sufficient proximity to the proposed development to give rise to standing.

The proximity map was a key piece of evidence in the proceeding before the courts, as was the “green donut” agreement, which offered special protection to all Tuxedo Park residents from the alleged environmental impacts. If not for the map and, arguably, the agreement, it is conceivable that the court may have, as an initial matter, found that the petitioners who owed property “across the street” and 660 feet from the boundary of the project site had standing to bring the case. Even so, the court also found that petitioners failed to prove that the injuries they alleged would be greater than or different from those of the public at large.