The following numbered papers read on this petition to nullify a resolution and a local law, motion by respondents to dismiss the petition, and cross motion by petitioner for leave to file an amended complaint/petition, and file a notice of claim.PAPERS NUMBEREDNotice of Petition-Verified Petition-Exhibits EF 1-16Notice of Motion-Affidavits-Exhibits EF 17-22Notice of Cross-Motion-Affidavits-Exhibits EF 23-26Answering Affidavits-Exhibits EF 27-30Replying EF 31-32For a judgment pursuant to CPLR Article 78 Upon the foregoing cited papers, and after conference, it is ordered that this Article 78 petition to nullify a resolution and a local law, motion by respondents to dismiss the petition, and cross motion by petitioner for leave to amend the petition and file a notice of claim, are consolidated for disposition, and are determined as follows: Petitioner, Julianne W. Beckerman, is a resident and taxpayer of respondent, the Incorporated Village of Muttontown (Village), and served as its mayor for twelve years, ending on July 2, 2018. Respondents Sudha Prasad, Brian Fagen, Chris Economou, Susan Dasilva, Jeanine Todaro, and Mohinder Singh together comprise the Board of Trustees of the Village (collectively “Board”). Respondent Joe Russo is the Acting Clerk of the Village.Petitioner alleges that on August 27, 2018, the Board passed Resolution 18-10 (Resolution), authorizing respondent Russo, in his capacity as Acting Village Clerk, to transfer $501,548.00 from a dedicated capital reserve fund for the acquisition of parkland to a capital improvement fund. Petitioner alleges that the Resolution should be nullified on the following grounds: (1) it was introduced and adopted at an improper session as it excluded the public in violation of Public Officers Law; (2) the transfer violates the “public trust doctrine”; (3) the capital improvement fund was not established pursuant to a permissive referendum; (4) the transfer violates General Municipal Law §6-c; (5) the transfer is inconsistent with the Village’s Comprehensive Master Plan; and (6) the Board did not conduct an environmental review under the New York State Environmental Quality Review Act (SEQRA).On December 12, 2018, the Board adopted Local Law 2 of 2018 (Local Law) which provides in relevant part that the Village will indemnify its employees against judgments for punitive damages “provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties.” Petitioner alleges that the Local Law should be nullified on the following grounds: (1) it was discussed at a meeting from which the public was excluded in violation of Open Meetings Law; (2) indemnification of a Village employee with respect to punitive damages violates Public Officers Law §18(4)(c) and public policy; (3) it failed to identify the provisions of Public Officers Law §18 or other state law that would be superseded and otherwise violates New York Municipal Home Rule Law; and (4) the Board failed to conduct an environmental review under SEQRA.In opposition, respondents claim, among other things, that petitioner lacks standing to challenge the Resolution and Local Law. Standing is a threshold determination, and when challenged, it must be considered at the outset of any litigation (see Soc’y of Plastics Indus., Inc. v. Cty. of Suffolk, 77 NY2d 761, 769 [1991]). Where a petitioner lacks standing to assert the claims contained in their petition, dismissal is required (see CPLR 3211 [a][3]; Riverhead PGC, LLC v. Town of Riverhead, 73 AD3d 931, 934 [2010]). To establish standing, the plaintiff must demonstrate: (1) that he or she will suffer an “‘injury in fact,’ meaning that plaintiff will actually be harmed by the challenged [governmental] action”; and (2) that asserted injury falls “within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [municipal body] has acted” (New York State Ass’n of Nurse Anesthetists v. Novello, 2 NY3d 207, 211 [2004]). The requirement that petitioner establish an injury in fact ensures that a party seeking review has an interest in prosecuting the action, and that the court is not issuing an advisory opinion (see Soc’y at 761). The alleged injury must be non-speculative and real as opposed to merely conjectural, and petitioner must show that she will suffer direct injury different from that suffered by the public at large (see Id; Riverhead at 933). That an issue may be of public concern does not entitle a party to standing (see Soc’y at 769).Here, petitioner only alleges that she is a resident and taxpayer of the Village and previously served as its mayor for 12 years. Otherwise, the petition does not plead any facts showing that she is likely to be injured by the Resolution or Local Law, much less that any purported injury would be different than that suffered by the public at large. Petitioner fails to plead in any way how the transfer of monies from one fund to another, or the indemnification of municipal employees for actions taken within the scope of their employment, would cause her any injury, let alone a particularized one.Petitioner likewise fails to allege an environmental injury sufficient to give her standing to assert claims under SEQRA. “To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” (Matter of Bd. of Fire Commissioners of Fairview Fire Dist. v. Town of Poughkeepsie Planning Bd., 156 AD3d 621, 622 [2017] quoting Matter of Tuxedo Land Trust, Inc. v. Town Bd. of Town of Tuxedo, 112 AD3d 726, 727-728 [2013]). “The requirement that a petitioner’s injury fall within the concerns the Legislature sought to advance or protect by the statute…is particularly meaningful in SEQRA litigation, where challenges unrelated to environmental concerns can generate interminable delay and interference with crucial governmental projects” (Soc’y at 774). Only those who can demonstrate a legally cognizable injury from the impact of an agency action to the relationship between the citizens of this State and their environment can challenge administrative action under SEQRA (see Soc’y at 777).Although a party asserting a SEQRA challenge must generally allege a special harm, an exception exists where a party owns or leases the premises that is the subject of an agency’s action, or is in close proximity to such premises, where the party alleges that the proposed action will have an environmental effect on their property (see Har Enterprises v. Town of Brookhaven, 74 NY2d 524, 529 [1989]; Stephens v. Gordon, 202 AD2d 437, 438 [1994]). In such cases, there is a presumption that a SEQRA violation would harm the petitioner in a manner different from the public (see Id). Here, petitioner makes no such allegation.Instead, petitioner asserts that she has standing as a resident and taxpayer of the Village, since the Resolution and Local Law affect the community as a whole, and that if she does not have standing, the Village’s actions will be shielded from any judicial scrutiny. Although this exception was suggested in Soc’y in dicta, there is no authority holding that a petitioner has standing to raise a SEQRA challenge based on potential injury to the community at large in cases where only general harm would result from a proposed action (see Soc’y at 779). However, even if the Court were to entertain this exception, petitioner does not allege that such an exception would dispense with the requirement that she allege some harm resulting from the governmental action (see Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297, 301 [2009][a party that demonstrates that they use and enjoy a natural resource more than most other members of the public, has standing under SEQRA to challenge government actions that threaten that resource for the community as a whole]). Here, petitioner does not allege that she will suffer an environmental injury as a result of the Resolution or Local Law, or that either are likely to have any environmental consequences at all.As to the Local Law there is no allegation of any potential impact on the environment so as to establish a basis for SEQRA review. Likewise, the Resolution, which involves the transfer of monies between two Village funds, fails to fall under the purview of SEQRA, as a petitioner must demonstrate that she will suffer an injury that is environmental and not solely economic in nature (see Matter of Bd. of Fire Commissioners of Fairview Fire Dist. at 622 [increase in residents leading to increase in service calls and resulting financial burden insufficient to establish standing]; Stephens v. Gordon, 202 AD2d 437, 438 [1994] [claim by petitioners, Town Attorney and Town Supervisor, that they would have to pay additional taxes as a result of Town's action insufficient to raise a SEQRA challenge]). Nor is the petition bolstered merely because petitioner alleges numerous acts of claimed malfeasance and nonfeasance on respondents’ part as petitioner must assert an environmental harm (see Boyle v. Town of Woodstock, 257 AD2d 702, 704 [1999]). Thus, petitioner lacks standing to challenge the Resolution and Local Law.Lastly, petitioner’s cross motion to file an amended hybrid complaint/Article 78 petition and to file a notice of claim nunc pro tunc, is denied. In support, petitioner submits what she entitles an “Amended Verified Complaint/Petition” where she repeats the same allegations that she made in her original petition, and simply adds that she seeks a judgment a declaring that the Resolution and Local Law are null and void. Contrary to the petitioner’s contention, she also lacks standing to assert the declaratory judgment causes of action, as her standing is based on the same criteria required to institute a proceeding under Article 78 (see Riverhead at 934).Any request for relief not expressly granted herein is denied.Accordingly, it is ORDERED and ADJUDGED that this petition is denied and the proceeding is dismissed.Dated: June 10, 2019
