James Hall Article 78 against Town of Cohocton Decision

Hon. John J. Ark
Supreme Court Justice

Supreme Court Chambers
State of New York
412 Hall of Justice
Rochester, New York 14614
(585) 428-3547

Facsimile 428-3570 Law Clerk 428-2488

July 21,2006

Patrick F. McAllister, Esq.
31 Main Street
P.O. Box 338
Wayland, New York 14572

Re: James Hall v. Jack Zigenfus, et al. Index No. 97580

Dear Counsel:

Enclosed is the original Decision and Order relative to the above-captioned matter; a copy of which is herein forwarded to Mr. Miller.
Kindly file same with the Ontario County Clerk's Office and forward time-stamped copies to counsel and the Court.

Honorable John J. Ark Supreme Court Justice

JJA/dac Enclosure
c: David P. Miller, Esq. (w/enclosure)


STATE OF NEW YORK SUPREME COURT

COUNTY OF ONTARIO

JAMES HALL,

Petitioners,

DECISION and ORDER Index No. 97580

JACK ZIGENFUS, JEFFREY WISE, JOSEPH DYCKMAN, MILTON LEVESQUE, and WAYNE HUNT, Constituting the TOWN BOARD OF THE TOWN OF COHOCTON, NEW YORK,
Respondents.

Petitioner, a resident of the Town of Cochocton, Steuben County, has brought an Article 78 Petition in Ontario County Supreme Court, seeking annulment of a local law. The Petition, brought against members of the Cohocton Town Board, asserts that Local Law No. 1 of the Year 2006 of the Town of Cohocton (also known as the "Windmill Local Law") was promulgated in violation of the State Environmental Quality Review Act ("SEQRA").

The law purports to restrict and regulate the use and operation of residential, commercial and industrial windmills. The law is applicable to five town zoning districts which comprise the entire town. Petitioner resides in the Agricultural-Residential (AG-R) zoning district of the Town of Cohocton.

Respondents have moved for dismissal of the Petition, alleging that petitioner lacks standing to attack the local law in question. The affidavit of Jack Zigenfus, Cohocton Town Supervisor (and Town Board member) enumerates the public hearings that were held prior to the law's passage on January 24, 2006 (see, Zigenfus affidavit, paragraph II.). It further states that, while the petitioner may have attended various Town Board meetings and the public hearings, he was never heard to object to the proposed law's impact on the use or enjoyment of his property (kL paragraph 12.).
In the alternative, respondents request a change of venue to Steuben County, since the petitioner resides in the Town of Cohocton, said town is located entirely within Steuben County, all underlying events took place in the Town of Cohocton and Steuben County, and the respondents should not be required to travel outside the county within which Cohocton was incorporated, in order to respond to the Petition, which they deem to be groundless.

Before addressing the question of standing, the Court wishes to restate the parties' respective positions. Petitioner maintains that the Town Board did not follow the dictates of SEQRA in formulating the local law. Respondents point out that SEQRA is invoked in the law as part of the approval process, under §§ I (A)(l) and II (A)(l). Petitioner asserts that the law allows construction of windmills where none has ever existed. Respondents reply that the law, far from permitting windmill construction, merely regulates it, which regulation is of first impression, and of necessity beneficial to the town's environmental quality.

The thrust of petitioner's argument (though not well particularized) is that the method of enactment was deficient, in light of SEQRA's mandates. Respondents point to petitioner's failure to claim any existing or imminent danger to his property. They therefore deem the Petition to be fatally defective.

On the threshold issue of petitioner's standing, respondents cite The Society of the Plastics Industry, Inc., et al. v. County of Suffolk, et al. (77 NY2d 761 [1991]). That case required, as a prerequisite to standing, that a petitioner demonstrate an "injury in fact," and that the interest asserted be arguably within the zone of interests protected by the law. Respondents also cite Society of Plastics far the proposition that rite subject injury must be "... in come way different in kind or degree from (hat of the general public" (Matter uf Brighton Residents Against Violence to CMdrtn. Inc v. Town of Brighton. 3(K AD2d 33 (200)], at page 36. ching AvrfeQ' of Plastics} Petitioner is of the belief that mere residence in an affected zoning district grams him automatic stmding to challenge the validity of the Windmill Local Law. The parties also differ over whether Qiis is actually Bland use case. Petitioner holda that it ii not. Respondents claim that it is in fact a land use case. The Court is cooctrained to agree with the respondents

While petitioner opines that his denial of standing would prevent anyone else from gaining standing to challenge this or any contemplated legislation on the subject, he is missing the point In order for a party to have standing, there must first be a justiciable controversy.

SEQRA is an aivironmentally-mutivated statute. The inleresta it seeks to protect arc the integrity and viability of the physical environment. Petitioner's interest (though not articulated by him) is at beiiieconomK; and at the leasi, aesthetic. These are not interests germane to an environmental monitoring vehicle such as SEQRA.
Petitioner has not been damaged by the mere bet of enactment of Local Law No. 1 of the Year 2006. Unless and until a special ose permit for corutruciion and operation of a windmill is granted, there exists no potential Tor environmental injury to his property.

Onty after die granting of an application could petitioner assert con-compliance with SEQRA *s procedural mandates. He would also then be required to allege environmental degradation, current or potential. to his property. Factors sucb as numbers and proximity to his land of any proposed windmills would enter into any judicial review or the Town Board's action.

However, since any such procedural errors or incidents/threats of damage are speculative and hypoihelicnl, Ilic IMilion ift preiimlme.

James Hall fails to allege any items of actual or potential environmental injury to his property that would convey .sltuuliug on him to challenge this Windmill Local Law of Cohocton, New York. He has not in fact specified injury of any kind, whether of a type that would affect the public at large, or of a nature specific to his property.

HONORABLE JOHN J. ARK, JSC
A motion to dismiss James Hall's Article 78 Petition is granted. The alternative request for a change of venue is moot.