Second Department Upholds Finding That Addition Of Comfort Stations During Post-Sandy Boardwalk Reconstruction Was Not Prohibited Use Of A Public Street

Petitioners are the owners of a condominium adjacent to the boardwalk in the City of Long Beach (“City”). After the destruction of the boardwalk and restroom facilities by Superstorm Sandy, the City awarded contracts for construction of comfort stations along the boardwalk as part of its reconstruction plan. The comfort station at issue would be installed adjacent to Petitioners’ condominium complex. Petitioners filed a hybrid Article 78 proceeding / declaratory judgment action to challenge the contract awards, alleging that the City had violated the State Environmental Quality Review Act (“SEQRA”), Article 17 of The Charter of the City of Long Beach, and interfered with Petitioners’ easement of light, air, and access. The Supreme Court, in denying the petitioners' motion for a preliminary injunction, in effect determined that the construction is not a prohibited use of a public street. The Court then denied the petition and dismissed the case. Petitioners appealed.

As a preliminary matter, the Second Department found that Petitioners lacked standing under SEQRA. To establish standing under SEQRA, “a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.” Here, the Court found Petitioners' alleged environmentally related injuries too speculative and conjectural to show an actual and specific injury.

Turning to Petitioners’ easement claim, the Court found that the proposed construction would neither completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. The construction would only shorten the length of the dead-end street, and remove several public parking spaces. In addition, the turnaround on the street would still be intact (albeit moved 23 feet to the north), and access to the petitioners’ driveway and building’s entrance would not be impeded. Accordingly, the Supreme Court’s determination that the construction was not a prohibited use of a public street, was upheld, with the modification that it include a declaration that the construction is a permitted use of a public street.

The case was Shapiro v Torres, 153 A.D.3d 835 (2d Dep’t 2017).

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