This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 151
In the Matter of Sierra Club,
et al.,
            Appellants,
        v.
Village of Painted Post, et al.,
            Respondents.




          Richard Lippes, for appellants.
          Joseph D. Picciotti, for respondents.
          Railroads of New York; Gas Free Seneca et al.; New York
State Conference of Mayors and Municipal Officials, amici curiae.



ABDUS-SALAAM, J.:
          In Society of Plastics Indus. v County of Suffolk (77
NY2d 761 [1991]), this Court examined the law of standing, and
set forth a framework for deciding whether parties have standing
to challenge governmental action in land use matters generally,
and under the State Environmental Quality Review Act (ECL art 8
[SEQRA]), specifically.   We held that "the plaintiff, for
standing purposes, must show that it would suffer direct harm,
injury that is in some way different from that of the public at
large" (id. at 774).   This appeal gives us the opportunity to

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elucidate and further address the "special injury" requirement of
standing (id. at 778) .
                                 I.
          The Village of Painted Post (the Village), in Steuben
County, New York, is located at the confluence of the Cohocton,
Tioga and Chemung Rivers.    Underlying the confluence of these
rivers is the Corning aquifer, which is the principal drinking
water supply of several municipalities, including the Village.
In February 2012, the Board of Trustees of the Village adopted a
resolution to enter into a bulk water sale agreement with
respondent SWEPI, LP, a subsidiary of Shell Oil Co., which
operates gas wells in Tioga County, Pennsylvania.    The bulk water
sales agreement provided for the sale to SWEPI, LP of 314 million
gallons of water in increments of up to 1 million gallons per day
from the village water system with an option to increase the
amount by an additional 500,000 gallons per day.
          The Village determined that, pursuant to 6 NYCRR
617.5(c)(25),1 the sale of its water was a Type II action exempt
from review under SEQRA.    Another resolution approved a lease
agreement with respondent Wellsboro & Corning Railroad
(Wellsboro) for the construction of a water transloading facility


     1
      6 NYCRR 617.5 (c)(25) provides that actions for the
"purchase or sale of furnishings, equipment or supplies,
including surplus government property, other than the following:
land, radioactive material, pesticides, herbicides, or other
hazardous materials" are Type II actions that are not subject to
review under SEQRA.

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on 11.8 acres of land, previously used for industrial purposes,
to be used as a filling station upon which the water would be
withdrawn, loaded, and transported via rail line to Wellsboro,
Pennsylvania.   The Village determined that the lease agreement
was a Type I action under SEQRA2 and issued a negative
declaration, concluding that the lease will not result in any
potentially significant adverse impact on the environment based
on a review of a Full Environmental Assessment Form (EAF), a
report prepared by engineering consultants to the Village, the
site plan prepared for the railroad, and the 2005 deed to the
site.
          Construction of the water loading facility began in
April 2012, and in June 2012, petitioners commenced this CPLR
article 78 proceeding against the Village; Painted Post
Development, LLC; SWEPI, LLC; and Wellsboro seeking an order (1)
annulling the Village's Type II determination for the water sale
agreement; (2) annulling the Village's negative declaration for
the lease of the rail loading facility; (3) annulling the
Village's water sale agreement with SWEPI and the lease to


     2
      6 NYCRR 617.4 sets forth a non-exhaustive list of Type I
actions and provides that "the fact that an action or project has
been listed as a Type I action carries with it the presumption
that it is likely to have a significant adverse impact on the
environment and may require an [Environmental Impact Statement].
For all individual actions which are Type I or Unlisted, the
determination of significance must be made by comparing the
impacts which may be reasonably expected to result from the
proposed action with the criteria listed in section 617.7 (c) of
this Part."

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Wellsboro; (4) requiring the Village to issue a Positive
Declaration and complete an Environmental Impact Statement (EIS)
for the totality of the plan rather than segmenting the water
sale and the lease; (5) enjoining the Village from entering into
the water sale and lease agreements until the Village complied
with all federal and state laws; and (6) preliminarily enjoining
any water shipments or work at the rail loading facility site
until the Village complied with all federal and state laws.
Petitioners included the not-for-profit organizations The Sierra
Club, People for a Healthy Environment, Inc., and Coalition to
Protect New York, as well as various individual residents of the
Village.
           As relevant here, petitioners asserted that the Village
failed to comply with the strict procedural mandates of SEQRA,
particularly that it (1) failed to consider significant adverse
environmental impacts of the water withdrawals, (2) improperly
claimed a Type II Exemption for the water sale agreement, and (3)
impermissibly segmented its review of the water sale agreement
and the lease agreement.   With respect to petitioner John Marvin
(appellant here), the petition alleged that he is a longtime
resident of the Village and resides "less than a block from the
proposed rail loading facility, which is visible from his
doorstep" and that he and his wife would be "adversely affected
by the significant rail traffic and increased noise and air
contamination caused by the project."   Respondents answered and


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subsequently moved to dismiss the petition pursuant to CPLR 3211
(a) (3) and (7), asserting that petitioners lacked standing and
failed to state a cause of action, and alternatively, moved for
summary judgment pursuant to CPLR 3212.   Petitioners opposed the
motions, submitting, among other things, an affidavit of
petitioner Marvin,3 who stated that when the water trains began
running, he "heard train noises frequently, sometimes every
night" and that the "[t]he noise was so loud it woke [him] up and
kept [him] awake repeatedly."   Marvin further stated that the
"noise was much louder than the noise from other trains that run
through the [V]illage" and he was concerned that the "increased
train noise will adversely impact [his] quality of life and home
value."
           Supreme Court searched the record and, in pertinent
part, (1) granted summary judgment to petitioners insofar as it
annulled (a) the Village's resolutions designating the surplus
water agreement as a Type II action, (b) the negative declaration
as to the lease agreement, and (c) the Village Board's
resolutions approving the surplus water agreement and the lease
agreement; (2) granted petitioners an injunction enjoining
further water withdrawals pursuant to the surplus water agreement



     3
      While the petition alleged that Marvin lives less than a
block from the rail loading facility, he clarified in his
affidavit that he lives one-half block from the railroad line
that crosses his street, and a block and one-half from the rail
loading facility.

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pending the Village's compliance with SEQRA; and (3) denied
respondents' motion to dismiss for lack of standing.    With
respect to the standing of the organizations and individual
petitioners, the court determined that none of the individual
petitioners claimed that they were members of those
organizations, that the organizations alleged only generalized
environmental injuries that the public at large would suffer and
that such generalized claims were insufficient to confer
standing.
            With respect to the individual petitioners, excepting
Marvin, the court determined that they too alleged only general
harm (i.e. disrupted traffic patterns, noise levels, and water
quality) "no different than that experienced by the general
public."    However, regarding petitioner Marvin, the court noted
that he could see the water loading facility from his front
porch, and concluded that Marvin's allegation of "train noise
newly introduced into his neighborhood . . . is different than
the noise suffered by the public in general."    The court reasoned
that although Marvin did not "distinguish this noise from that of
the previous train noises associated with the existing rail line
or from the former industrial use of the area, nevertheless,
            "Marvin's undifferentiated complaint of train
            noise, however, may be considered in the
            context of an industrial and rail facility
            which fell into disuse for a considerable
            period of time prior to construction of the
            subject project, and thus his complaint of
            rail noise is availing to show harm distinct
            from that suffered by the general public."

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Because Marvin had standing, the court did not dismiss the
proceeding brought by the other petitioners who did not have
standing.    On the merits of the petition, the court held that the
Village's Type II designation of the water sale agreement was
arbitrary and capricious and that the Village had improperly
segmented the SEQRA review of the lease from the water sale
agreement.
            The Appellate Division (115 AD3d 1310 [2014]),
unanimously (1) reversed the judgment on the law, (2) granted the
Village's and SWEPI's motion, and (3) dismissed the petition as
against them on the ground that Marvin lacked standing.      The
court agreed with petitioners that "noise falls within the zone
of interests sought to be protected by SEQRA" (115 AD3d at 1312).
However, emphasizing that "Marvin raised no complaints concerning
noise from the transloading facility itself" (115 AD3d at 1311),
the court, citing Society of Plastics, reasoned that "[i]nasmuch
as we are dealing with the noise of a train that moves throughout
the entire Village, as opposed to the stationary noise of the
transloading facility, we conclude that Marvin will not suffer
noise impacts 'different in kind or degree from the public at
large'" (115 AD3d at 1312-1313).    Having dismissed the petition
for lack of standing, the Appellate Division did not reach the
merits of the SEQRA challenge.




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                                 II.
          We held in Society of Plastics that "[i]n land use
matters . . . the plaintiff, for standing purposes, must show
that it would suffer direct harm, injury that is in some way
different from that of the public at large" (77 NY2d at 774).
Applying that test in Matter of Save the Pine Bush, Inc. v Common
Council of City of Albany (13 NY3d 297 [2009]), this Court held
that petitioners, who alleged "repeated, not rare or isolated
use" of the Pine Barrens recreation area, had demonstrated
standing "by showing that the threatened harm of which
petitioners complain will affect them differently from 'the
public at large'" (13 NY3d at 305).
          The Appellate Division, in concluding that petitioner
Marvin lacked standing, applied an overly restrictive analysis of
the requirement to show harm "different from that of the public
at large," reasoning that because other Village residents also
lived along the train line, Marvin did not suffer noise impacts
different from his neighbors.   We said in Society of Plastics
that
          "[t]he doctrine grew out of a recognition
          that, while directly impacting particular
          sites, governmental action affecting land use
          in another sense may aggrieve a much broader
          community. The location of a gas station may,
          for example, directly affect its immediate
          neighbors but indirectly affect traffic
          patterns, noise levels, air quality and
          aesthetics throughout a wide area" (77 NY2d
          at 774-775).

This example is distinctly different from the situation here

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where more than one resident is directly impacted by the noise
created from increased train traffic.    That more than one person
may be harmed does not defeat standing, as we found in Save the
Pine Bush where we held that the nine individual petitioners who
alleged that they lived near the site of the proposed project and
"use[d] the Pine Bush for recreation and to study and enjoy the
unique habitat found there," have standing (13 NY3d at 305; see
generally United States v Students Challenging Regulatory Agency
Procedures (SCRAP), 412 US 669, 687-688 [1973]["[W]e have . . .
made it clear that standing is not to be denied simply because
many people suffer the same injury . . . To deny standing to
persons who are in fact injured simply because many others are
also injured, would mean that the most injurious and widespread
Government actions could be questioned by nobody."]).   The harm
that is alleged must be specific to the individuals who allege
it, and must be "different in kind or degree from the public at
large"(Society of Plastics at 778), but it need not be unique.
Here, petitioner Marvin is not alleging an indirect, collateral
effect from the increased train noise that will be experienced by
the public at large, but rather a particularized harm that may
also be inflicted upon others in the community who live near the
tracks.
          The number of people who are affected by the challenged
action is not dispositive of standing.   This Court recognized in
Matter of Association for a Better Long Is., Inc. v New York


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State Dept. of Envtl. Conservation     (23 NY3d 1 [2014]) that
standing rules should not be "heavy-handed," and declared that we
are "reluctant to apply [standing] principles in an overly
restrictive manner where the result would be to completely shield
a particular action from judicial review" (23 NY3d at 6 [internal
citation omitted]).   Applying the Appellate Division's reasoning,
because there are multiple residents who are directly impacted,
no resident of the Village would have standing to challenge the
actions of the Village, notwithstanding that the train noise fell
within the zone of interest of SEQRA.     That result would
effectively insulate the Village's actions from any review and
thereby run afoul of our pronouncement that the standing rule
should not be so restrictive as to avoid judicial review.
          Here, as in Save the Pine Bush, Marvin alleges injuries
that are "real and different from the injury most members of the
public face" (13 NY3d at 307).   Thus, his allegation about train
noise caused by the increased train traffic keeping him awake at
night, even without any express differentiation between the train
noise running along the tracks and the noise from the
transloading facility, would be sufficient to confer standing.4


     4
      Although Marvin's affidavit sets forth a generalized
complaint of train noise, we see no reason to conclude, as did
the Appellate Division, that he is only claiming noise from
trains running on the tracks, and not from the trains in the
loading facility. Given his proximity to the facility and his
allegations, we may conclude that he was hearing noise from the
facility, as well as the noise from the trains running along the
tracks. Additionally, the verified petition references an

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            Accordingly, the order should be reversed, with costs,
and the matter remitted to the Appellate Division, for
consideration of issues raised but not determined on the appeal
to that court.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order reversed, with costs, and matter remitted to the Appellate
Division, Fourth Department, for consideration of issues raised
but not determined on the appeal to that court. Opinion by Judge
Abdus-Salaam. Chief Judge Lippman and Judges Pigott, Rivera,
Stein and Fahey concur.

Decided November 19, 2015




engineer's report issued prior to the construction of the
facility that states that the loaded cars will be heavy, and that
moving cars loaded with more than 96 tons of weight on and off
sidings can be expected to result in significant noise from
coupling and uncoupling cars, running the diesel engines required
to move the railcars and squeaking wheels. In sum, Marvin's
allegations, read in the context of the petition, sufficiently
set forth harm caused not only by the noise of trains running
along the tracks, but the trains in the loading facility.


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