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• Title: Matter Williamsville Southeast Amherst Homeowners Association
• Author : Supreme Court of New York
• Release Date : January 05, 1985
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 72 KB

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Order and judgment unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Defendants appeal from an order and judgment granting plaintiffs partial summary judgment, declaring an ordinance null and void for failure to comply with the State Environmental Quality Review Act (SEQRA; ECL 8-0101 -- 8-0117) and directing that an environmental impact statement (EIS) be filed. The ordinance rezoned an area of land from residential to light industrial. Contrary to the argument raised by plaintiffs, defendants have not waived the issue of plaintiffs' standing. We conclude, however, that Special Term was correct in finding that the two individual plaintiffs have standing to maintain the action based on the showing that one owns property located about 1,500 feet from the rezoned site and that the other has property abutting the site originally proposed (see, Matter of Reeder v Szmigel, 109 A.D.2d 1078; Matter of Friends of Pine Bush v Planning Bd., 71 A.D.2d 780, lv dismissed 49 N.Y.2d 860). Because we have determined that the individual plaintiffs have standing, we reach the merits. We conclude that Special Term correctly declared the ordinance null and void for failure to comply with SEQRA (see, Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd., 106 A.D.2d 868; Matter of City of Glens Falls v Board of Educ., 88 A.D.2d 233, 237). The court erred, however, in directing the town to prepare an EIS in the event it considered repassage of the zoning application. We cannot determine from this record whether an EIS is required (see, Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd., supra). So much of the order and judgment as directs the preparation of an EIS is stricken. (Appeal from order and judgment of Supreme Court, Erie County, Wolf, J. -- declaratory judgment.) Present -- Hancock, Jr., J.P., Callahan, Doerr, Denman and O'Donnell, JJ.

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