A public project goes unchallenged.

Story from the magazine by Elizabeth Benjamin / Aug. 30, 2002

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Downtown Catskill, N.Y. (Preservation League of New York State)

When Greene County proposed last year to demolish 10 buildings to make way for a $14.7 million county office building in the historic district of Catskill, N.Y., David Seamon rallied his neighbors to join a lawsuit challenging the plan, which they considered an assault on the character of their village. Two lower state courts ruled that because Seamon and company wouldn't see the proposed demolition and construction from their homes, the project wouldn't directly affect them, voiding their so-called standing, or right to sue. The state appeals court refused to hear the case in July, leaving the litigants out of legal options and weakening the voice New York residents have in shaping their communities.

The members of Seamon's group, called Save Our Main Street Buildings, wondered how they could not have standing in a village of 4,392. Wouldn't even the most minor change affect every resident in some way? What about their member who owns a business on the same side of Main Street as the proposed county building? He can see the site if he steps out onto the sidewalk and turns his head.

"We do our business on Main Street," says Bob Jacobson, cochairman of Save Our Main Street Buildings. "We vote, we pay taxes. We surely feel standing for us should not be relegated to whether you live next door and could have a brick fall on your head if they tear a building down."

The Catskill lawsuit accused Greene County of failing to thoroughly study the impact that razing the buildings would have on the community. That oversight, according to the suit, violated the State Environmental Quality Review Act, which requires environmental assessment of all discretionary zoning actions. New York enacted the law in 1975, 10 years after becoming the first state in which a conservation group was permitted to sue to protect the public interest. Environmentalists and preservationists have used the law to make sure their opinions were heard, but the Catskill outcome is evidence to some of an increasing suppression of public input into development projects in New York. Organizations including Scenic Hudson, the National Trust, and the Preservation League of New York State filed a joint legal brief in support of the Catskill lawsuit.

"The definition of who has standing has been clouded over the years by separate cases around the state," says Deborah Meyer DeWan of Scenic Hudson, an environmental advocacy group. "The law really needs clarification on a broader scale."

David Sampson, an attorney for the coalition of groups, says the problem dates to a 1991 appeals court ruling that upheld a ban on certain types of plastic packaging in Suffolk County, Long Island. The court ruled that a national trade association did not have the standing to challenge the local law, a decision viewed at the time as a victory for environmentalists. But over the next decade, New York courts used the ruling to limit the number of challenges they would hear.

"The door that was once wide open" for state residents to challenge discretionary zoning "is now almost shut," Sampson says.

The situation isn't uniform throughout the state. State Attorney General Eliot Spitzer, who sided with the Catskill residents, says some courts are defining standing more narrowly than others, so residents in one part of the state—like New York City—have a better chance of airing their views in court than people who live elsewhere.

The Catskill case could lead to two adverse trends, says Philip Weinberg, a professor of environmental and constitutional law at St. John's University Law School. If people perceive fighting city hall as an exercise in futility, there will be a chilling effect on citizen participation. And developers that don't expect resistance could get sloppy with environmental reviews.

"It really subverts the purpose of the statute, which was designed to eliminate the proverbial smoke-filled room and allow people to have access to the decision-making process before the boom is lowered," Weinberg says.

Within a few days of the appeals court's decision on the Catskill case, Greene County began acquiring Main Street properties, which include a former church designed by painter Thomas Cole, the founder of the Hudson River School. County officials have agreed to hear the group's appeal to save at least some of the historic buildings from demolition. A private developer named Frank Cuthbert recently expressed interest in buying as many as seven of the buildings.

And if the office building moves ahead? "The character of Main Street will change if this building goes in, surrounded by parking lots," Seamon says. "You lose the connectedness of the whole street."

Elizabeth Benjamin, a staff writer for the Times Union in Albany, is a frequent contributor to Preservation.

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