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

16 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

26 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

3While 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

4Although 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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