        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

877
CA 13-01025
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


IN THE MATTER OF NIAGARA PRESERVATION
COALITION, INC., PETITIONER-PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

NEW YORK POWER AUTHORITY, GIL C. QUINIONES,
PRESIDENT AND CHIEF EXECUTIVE OFFICER OF NEW
YORK POWER AUTHORITY, NEW YORK STATE OFFICE
OF PARKS, RECREATION AND HISTORIC PRESERVATION,
ROSE HARVEY, COMMISSIONER, NEW YORK STATE
OFFICE OF PARKS, RECREATION AND HISTORIC
PRESERVATION AND MAID OF THE MIST CORPORATION,
RESPONDENTS-DEFENDANTS-RESPONDENTS.


KNAUF SHAW LLP, ROCHESTER (LINDA R. SHAW OF COUNSEL), FOR
PETITIONER-PLAINTIFF-APPELLANT.

WHITEMAN OSTERMAN & HANNA LLP, ALBANY (JOHN J. HENRY OF COUNSEL), FOR
RESPONDENTS-DEFENDANTS-RESPONDENTS NEW YORK POWER AUTHORITY AND GIL C.
QUINIONES, PRESIDENT AND CHIEF EXECUTIVE OFFICER OF NEW YORK POWER
AUTHORITY.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS NEW YORK STATE OFFICE
OF PARKS, RECREATION AND HISTORIC PRESERVATION AND ROSE HARVEY,
COMMISSIONER, NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC
PRESERVATION.

DAMON MOREY LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR
RESPONDENT-DEFENDANT-RESPONDENT MAID OF THE MIST CORPORATION.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Niagara County (Catherine R. Nugent Panepinto, J.),
entered April 25, 2013 in a CPLR article 78 proceeding and declaratory
judgment action. The judgment dismissed the petition/complaint,
vacated a temporary restraining order and denied the application of
petitioner-plaintiff for injunctive relief.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner-plaintiff (petitioner) commenced this
hybrid CPLR article 78 proceeding/declaratory judgment action
(proceeding) seeking relief with respect to the development and
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                                                         CA 13-01025

construction of a storage facility for boats owned by respondent-
defendant Maid of the Mist Corporation (MOTM), located on property
owned by respondent-defendant New York Power Authority (NYPA), and
operated by respondent-defendant New York State Office of Parks,
Recreation and Historic Preservation (Parks) as part of Niagara Falls
State Park. MOTM and its predecessors in interest have operated boat
excursions at the base of Niagara Falls since 1846. Consistent with
MOTM’s 40-year lease with Parks and 25-year lease with the Ontario
(Canada) Niagara Parks Commission (NPC), the boats were dry-docked
during the winter in a facility on the Canadian side of the Niagara
River. NPC, however, rescinded its lease with MOTM and, in February
2012, awarded the Canadian license to Hornblower Canada (Hornblower),
a California-based cruise company, thereby giving Hornblower exclusive
rights to the Canadian dock facility as of January 1, 2014. On
November 30, 2012, Parks, MOTM and NYPA entered into a memorandum of
understanding concerning the development and construction of a storage
facility for the MOTM boats, which would be located next to and over
part of the former Schoellkopf Power Station No. 3, the ruins of which
are listed in the National Register of Historic Places. Pursuant to
the agreement, the facility would include a vertical marine lift to
hoist boats out of the water, two platforms to serve as winter dry
docks, and a 3,500-square-foot maintenance building, which would be
built at MOTM’s expense. Ownership of the facility would be
subsequently transferred to Parks (cf. Union Sq. Park Community
Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d
648, 652). NYPA, with the consent of Parks, assumed lead agency
status for purposes of environmental review of the project pursuant to
the State Environmental Quality Review Act (SEQRA). Following the
completion of a full assessment form prepared by MOTM and NYPA,
together with a supporting analysis prepared by an engineering firm,
NYPA issued a negative declaration of significant adverse impact on
the environment on February 19, 2013. Petitioner was formed on
February 20, 2013 for the purpose of challenging the project, and it
is undisputed that petitioner received assistance from Hornblower in
establishing organizational status.

     Petitioner commenced this proceeding on April 4, 2013, seeking
annulment of the SEQRA determination and certain declaratory relief.
Petitioners alleged, inter alia, that respondents-defendants
(hereafter, respondents) violated SEQRA insofar as the negative
declaration was arbitrary and capricious; that respondents’ actions
constitute parkland alienation; and that respondents violated zoning
ordinances of the City of Niagara Falls by eliminating historic
resources. Petitioner, by order to show cause filed April 5, 2013,
sought a preliminary injunction to prohibit construction, which
respondents opposed, and obtained a temporary restraining order.
Following oral argument on April 11, 2013, Supreme Court vacated the
temporary restraining order, denied the application for a preliminary
injunction, and, sua sponte, effectively dismissed the
petition/complaint (petition) on the ground that, inter alia,
petitioner lacked standing to commence the proceeding. We affirm.

     As an initial matter, we deny respondents’ motion to dismiss the
appeal as moot or barred by laches (see Matter of Camardo v City of
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                                                         CA 13-01025

Auburn, 96 AD3d 1437, 1438).

     Contrary to petitioner’s contention, the court properly dismissed
the first cause of action on the ground that petitioner lacked
standing to commence the proceeding challenging the SEQRA
determination. Although respondents did not move to dismiss the
petition, or interpose an answer alleging lack of standing, we reject
petitioner’s contention that respondents waived that defense (see
generally Pataki v New York State Assembly, 4 NY3d 75, 88). The issue
of standing was properly before the court in connection with the
application for a preliminary injunction. It is well established
that, “[w]hether a [petitioner] seeking relief is a proper party to
request an adjudication is an aspect of justiciability which, when
challenged, must be considered at the outset of any litigation”
(Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769
[emphasis added]). Indeed, “[w]hen a party seeks an injunction, [it]
‘opens the record and gives the court authority to pass upon the
sufficiency of the underlying pleading’ ” (Clark v New York State Off.
of Parks, Recreation & Historic Preserv., 288 AD2d 934, 935, quoting
Guggenheimer v Ginzburg, 43 NY2d 268, 272). Parks, in opposition to
the application for a preliminary injunction, asserted that petitioner
had not alleged sufficient facts to establish standing to challenge
the SEQRA determination; that petitioner had not alleged that it pays
taxes and thus failed to establish standing as a taxpayer; and that
petitioner had failed to state a basis for common-law standing.

     “[S]tanding requirements are not mere pleading requirements but
[instead are] an indispensable part of the [petitioner’s] case[,] and
therefore each element must be supported in the same way as any other
matter on which the [petitioner] bears the burden of proof” (Matter of
Sierra Club v Village of Painted Post, 115 AD3d 1310, 1311 [internal
quotation marks omitted]; see Matter of Save the Pine Bush, Inc. v
Common Council of City of Albany, 13 NY3d 297, 306). The court
properly determined that neither the petition itself nor the
supplemental affidavits, which petitioner submitted in response to
Parks’ opposition to the petition based on lack of standing, establish
petitioner’s standing to challenge the SEQRA determination. It is
axiomatic that, in land use matters, petitioner must demonstrate “that
it would suffer direct harm, [an] injury that is in some way different
from the public at large . . . [i.e.], that [it has] a direct interest
in the administrative action being challenged, different in kind or
degree from that of the public at large” (Society of Plastics Indus.,
77 NY2d at 774-775; see Matter of Kindred v Monroe County, 119 AD3d
1347, 1348). Where, as here, a petitioner claims associational or
organizational standing to challenge a governmental action, it must
meet three requirements to establish such standing: that one or more
of its members would have standing to sue; that the interests it
asserts are germane to its purpose to such a degree as to satisfy the
court that it is the appropriate representative of those interests;
and “that neither the asserted claim nor the appropriate relief
requires the participation of the individual members. These
requirements ensure that the requisite injury is established and that
the organization is the proper party to seek redress” (Society of
Plastics Indus., 77 NY2d at 775; see Matter of Clean Water Advocates
                                 -4-                           877
                                                         CA 13-01025

of N.Y., Inc. v New York State Dept. of Envtl. Conservation, 103 AD3d
1006, 1007, lv denied 21 NY3d 862).

     We conclude that petitioner failed to establish either an injury,
or that it is the proper party to seek redress. Although petitioner
submitted a supplemental affidavit of one of its members stating that
he has a longtime personal and professional interest in the gorge
trail and the ruins of the former hydroelectric plant, “ ‘interest’
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 Citizens Emergency Comm. to
Preserve Preserv. v Tierney, 70 AD3d 576, 576, lv denied 15 NY3d 710;
see Clean Water Advocates of N.Y., Inc., 103 AD3d at 1008).
“Appreciation for historical and architectural [artifacts] does not
rise to the level of injury different from that of the public at large
for standing purposes” (Matter of Heritage Coalition v City of Ithaca
Planning & Dev. Bd., 228 AD2d 862, 864, lv denied 88 NY2d 809). Here,
petitioner failed to establish an injury distinct from members of the
public who use the gorge trail to access the ruins of the former
hydroelectric plant (cf. Save the Pine Bush, Inc., 13 NY3d at 305-
306), and thus it lacks standing to contest the SEQRA determination.

     With respect to petitioner’s fourth cause of action alleging a
violation of unspecified provisions of the City of Niagara Falls
Zoning Ordinance, petitioner contends that its members “have been in
Niagara Falls for years” and that they “use and enjoy the recreational
benefits of the Niagara Reservation Park.” Petitioner therefore seeks
a declaration that, unless the City of Niagara Falls conducts the
balancing test as set forth in Matter of Monroe County v City of
Rochester, (72 NY2d 338) to determine whether the public interest will
be served by the improvements, the project should be enjoined. “[T]o
maintain a private action at common law to enjoin a[n alleged] zoning
violation, [petitioner] must establish that [it] has standing to do so
by demonstrating that special damages were sustained due to
[respondents’] activities” (Zupa v Paradise Point Assn., Inc., 22 AD3d
843, 843). Although a property owner may have standing to seek
judicial review of an alleged zoning violation without pleading and
proving special damages because adverse effect can be inferred from
proximity (see Stumpo v DeMartino, 283 AD2d 954, 954), here,
petitioner failed to allege that it, or any of its members, owns
property in proximity to the site (cf. Clean Water Advocates of N.Y.,
Inc., 103 AD3d at 1007-1008; Nemeth v K-Tooling, 100 AD3d 1271, 1273-
1274; Zupa, 22 AD3d at 843-844).

     Even assuming, arguendo, that petitioner has standing to allege
alienation of parkland (see generally Matter of Committee to Preserve
Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y.,
259 AD2d 26, 31-32), as it alleges in its third cause of action, we
conclude that the court properly refused to issue a declaration that
respondents Parks and NYPA were required to obtain legislative
approval for the construction of the facility within the confines of
Niagara Falls State Park. It is well established “that parkland is
impressed with a public trust, requiring legislative approval before
                                 -5-                           877
                                                         CA 13-01025

it can be alienated or used for an extended period for non-park
purposes” (Friends of Van Cortlandt Park v City of New York, 95 NY2d
623, 630). It is undisputed, however, that there is no case law in
New York applying the “public trust” principle to state parks. The
cases apply only to municipal parks (see e.g. Capruso v Village of
Kings Point, 23 NY3d 631, 636; Union Sq. Park Community Coalition,
Inc., 22 NY3d at 652; Friends of Van Cortlandt Park, 95 NY2d at 627;
Matter of Mansour v County of Monroe, 1 AD3d 976, 976, lv denied 1
NY3d 508; Committee to Preserve Brighton Beach & Manhattan Beach, 259
AD2d at 28). Even assuming, arguendo, that parks operated by Parks
are governed by the “ ‘public trust doctrine’ ” (Capruso, 23 NY3d at
637), which respondents dispute (see Handbook on the Alienation and
Conversion of Municipal Parkland in New York, 20, available at
http://www.nysparks.com/publications/documents/AlienationHandbook.pdf
[accessed Sept. 23, 2014]), “what [petitioner] show[s here] is a
dispute with public authorities about what is desirable for the
park[,] . . . not a demonstration of illegality” (795 Fifth Ave. Corp.
v City of New York, 15 NY2d 221, 225; see Mansour, 1 AD3d at 976-977;
cf. Friends of Van Cortlandt Park, 95 NY2d at 630). As we note above
with respect to the first cause of action, because petitioner sought a
preliminary injunction, it gave the court “authority to pass upon the
sufficiency of the underlying pleading” (Clark, 288 AD2d at 935).
Even accepting the allegations in the third cause of action as true
(see generally Guggenheimer, 43 NY2d at 275), i.e., that the
alterations to improve accessibility to the lower gorge and the
construction of the winter storage facility for excursion boats
constituted non-park purposes, we nevertheless conclude that
petitioner failed to state a cause of action (see CPLR 3211 [a] [7];
cf. Capruso, 23 NY3d at 638; Friends of Van Cortlandt Park, 95 NY2d at
630). Thus the court properly denied the request for declaratory
relief.

     Petitioner has abandoned on appeal its contentions with respect
to the remaining causes of action in the petition (see generally
Ciesinski v Town of Aurora, 202 AD2d 984, 984).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
