Wednesday, September 24, 2014

Presumptive Standing

Radow v Board of Appeals of Hempstead, 989 NYS 2d 914 (App Div 2, Aug. 6, 214)

In an interesting case involving standing from New York, several neighbors challenged variances issued by the zoning board to a beach club. The very short opinion summarized the law in New York as requiring a direct injury different from that suffered by the public at large, and that the injury asserted falls within a zone of interests sought to be promoted by the regulation. Most interesting, injury in fact may arise from the existence of a presumption established by allegations demonstrating close proximity to the subject property or, in the absence of such presumption, the existence of actual and specific injury.

In this case, the neighbors lived .69 miles away from the project and the court concluded that they were not therefore entitled to a presumption of proximity. Further, the allegations of injury in fact due to overcrowding and congestion were, from the court's perspective purely speculative and not specific to the challengers and were indistinguishable from those suffered by the public at large. As a result, these neighbors lacks standing to file the lawsuit.

In Tennessee, we also have something of a presumption of proximity; for my own purposes, I usually think about a property within a quarter of a mile of the project as having automatic standing. However in Citizens for a Collierville v Collierville, 977 SW 2d 321 (Tenn. App. 1998), the Tennessee Court of Appeals seemed indicate that anything within 2000 linear feet would be appropriate. The court did not speak in terms of a presumption, but once that proximity was established, there is not much more analysis of any injury in fact.
Many members of CFC have standing to bring the action based on their status as adjacent property owners. CFC has alleged sufficient facts to establish standing in its representative capacity to seek prospective relief for its members, many of whom own single family residential property within 2000 feet of the proposed planned development. Based on the foregoing, we conclude that CFC has standing to sue in its representational capacity.
That quote certainly seems to make clear that if a neighbor lives within 2000 feet in Tennessee, there is a presumption of standing based on proximity to the project.