Respondents Steven and Jennifer Kitchen (“the Kitchens”) sought to build a residence on real property they owned near Lake George in the Town of Queensbury. The Kitchens applied to Town Zoning Board of Appeals for area variances from requirements for the removal of vegetation and from setbacks for stormwater infiltration devices.  The ZBA granted the Kitchens' variance requests.  Petitioner David M. Klein (“Klein”), a professional engineer who claimed to be representing neighbors opposed to the Kitchens' project, requested determinations from the Town's zoning administrator on several issues related to the project.  He then appealed to the ZBA, which dismissed the appeal for lack of standing. Petitioners commenced a CPLR Article 78 proceeding seeking review of the ZBA's determinations to grant the area variances and of the ZBA’s dismissal of Klein's appeal.  The Supreme Court dismissed the petition, and Petitioners appealed.

The Appellate Division, Third Department noted that the notice of appeal to the ZBA listed Klein's engineering firm as the appellant and Klein as the appellant's agent. As neither Klein nor his firm showed any specialized harm or owned property near the Kitchens' property, the court held that Klein lacked standing in his individual capacity and as an agent of his firm. Accordingly, the Court affirmed the ZBA’s dismissal due to lack of standing.  As to the area variances, the ZBA members acknowledged that there were potential problems from clearing so much vegetation from the property, but stated they were impressed by the Kitchens' extensive efforts to mitigate the impact by including stormwater mitigation measures absent from neighboring properties. Thus, considering the evidence presented at the hearing, which was continued over several months, and giving due deference to the ZBA’s determinations and underlying findings of fact, the Court held that the ZBA's determination to grant the area variances was rational and not arbitrary.  Accordingly, the Supreme Court’s decision to dismiss the petition as affirmed.

The case was Fund for Lake George, Inc. v Town of Queensbury Zoning Board of Appeals, 126 A.D.3d 1152 (3d Dep’t 2015).