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To: Members of Brunswick Smart Growth On July 17th Acting Supreme Court Justice Kimberly O'Connor issued her decision dismissing our second lawsuit on the basis that Brunswick Smart Growth did not have standing to bring this lawsuit. In an opinion that gives new meaning to the old expression 'you can't sue city hall', Acting Justice O'Connor said her reason for dismissing the lawsuit is because the members of BSG could not demonstrate specific injury that is, "different in kind and degree from that suffered by all other voters, residents, citizens and taxpayers of the Town of Brunswick". As explained below, you will see that if indeed this is the law of New York, that it is a classic "Catch 22" in that no citizen could ever qualify to bring this lawsuit despite the fact that it calls for the Town government to comply with existing State statutes. You may recall that on January 21, 2009 the Steering Committee sent out an e-mail memo that gave an update of the status of the second lawsuit. In the January 21 memo we reported that the Town was seeking to have the case dismissed for lack of standing. We also summarized the substance of the lawsuit. In order to understand the significance of Acting Justice O'Connor's decision we will reiterate the substance of the lawsuit. Note, that the substance of this lawsuit has not been addressed by the Court. While the lawsuit has a number of complex legal issues, it actually has three essential parts. 1. The Town's existing Comprehensive Plan for land use is legally deficient because it does not provide for periodic review and update as required by State statute. 2. The Town Board has failed to implement the planning ideas and principals outlined in the existing Comprehensive Plan by failing to update the Town's Zoning Ordinance and map. 3. Instead of updating the Zoning Ordinance and map in a comprehensive, planned manner as called for by the current Comprehensive Plan and by State statute, the Town Board is implementing a policy of ad hoc, piecemeal rezoning by adopting various developers' proposals through the use of "planned development districts. ” In addition to not complying with the planning that is called for by the Comprehensive Plan, this policy fails to consider the cumulative and growth inducing impacts of the various proposals. As you can see, the very nature of this lawsuit is that it applies to the public at large. However, the court has applied a standard that requires that the plaintiff(s) demonstrate that it will suffer a "demonstrable injury different form the public at large". It is particularly curious because regarding Issue 1 we have cited a specific, State Statute that is currently being violated by our Town Comprehensive Plan. "Town Law Section 272-a.10 Periodic Review. The town board shall provide, as a component of such proposed comprehensive plan, the maximum intervals at which the adopted plan shall be reviewed." Our Town Comprehensive Plan has no such requirement. BSG has asked that this legal defect be corrected. Clearly this is a matter that affects the public at large. Yet, by the reasoning of Acting Justice O'Connor, the very fact that the defect affects the public at large means that no one in the public has the right to ask the Court to require that the defect be corrected. If this is the law of standing then this is a situation where there is plainly a defect, the Town Board refuses to correct it and no one can do anything about it. Similarly in denying standing the court is also saying that we cannot ask the Court to look at the Comprehensive Plan to decide if as it is currently written, it calls for updating of the Town's Zoning Ordinance, before making individual changes for specific development proposals. Here again the essence of what BSG is saying is that the Town Comprehensive Plan itself requires that the Town's Zoning Ordinance be updated. This is something that affects everyone in the Town. Here again, because it affects everyone in the Town, the Court has said that no one can bring a lawsuit to attempt to make the Town Board do what the Comprehensive Plan says that it is supposed to do. Thus, another situation where because it affects everyone, no one can do anything about it. The rules that govern standing and are important. As was said in one famous case their purpose is to, "assure that groups whose interests are only marginally related or even inconsistent with the purposes of the statute cannot use the courts for their purpose at the expense of the statutory purposes." However, in our case BSG is a group of citizens who have come together for the purpose of advocating that its local government adopt and administer adequate and appropriate land use regulations. We believe that this purpose of BSG is specifically within the purposes of the statutes involved because these statutes are intended to protect the citizens from ill-considered and unplanned development and to give the citizens a voice in that planning process. The failure of the Town Board to update the Comprehensive Plan and the land use regulations constitutes a continuing and ongoing violation of these statutes because the updated land use regulations are to guide development of the Town. Instead, the process being followed by the Town Board puts private developers in the role of planning the development of the Town, which may or may not be in the best interests of all of the citizens of the Town. The result of Acting Justice O'Connor's decision that we do not have a right to have these issues heard is a situation where the government's actions are being insulated from legal scrutiny. Naturally, we believe that as citizens of the Town we have a right to ask these questions since we are the persons who are supposed to benefit from and be protected by these regulations. You probably signed our petition to the Town Board asking that the Comprehensive Plan be updated before any of the several proposed large development PDD's be approved. As you can see the lawsuit reflects the request made in our petition. Despite the request made by more than 2,000 Town residents who signed this petition, the Town Board proceeded without updating the Comprehensive Plan. Now we are told that because this is a matter of wide concern that affects us all, we do not have a legal right to ask the court to look to see if the failure to update the regulations is legally defective. It is truly ironic that at time when everyone is talking about greater transparency in government and more accountability to the citizens that when a group of citizens actually tries to obtain that they are told they are not allowed. It seems that the words are nothing more than empty rhetoric intended to mollify us at election time. |
