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Appellate Division Affirms Dismissal of Challenge to Tuxedo Reserve

By: Steven Barshov

On November 11, 2013, in a unanimous decision, the New York State Supreme Court Appellate Division, Second Department, affirmed the dismissal of an Article 78 Special Proceeding which had challenged the approvals for Tuxedo Reserve, a large scale mixed-use development of more than 1,000 residential units and in excess of 100,000 square feet of non-residential uses in Orange County, New York.  Sive, Paget & Riesel represented the developer through both the development review process and the litigation, with Steven Barshov serving as lead counsel.

In May 2012, the New York State Supreme Court, Westchester County dismissed the challenge to the project’s environmental review and local land use approvals, finding that the Petitioners lacked standing and failed to state a claim on which relief can be granted.  On appeal, Petitioners argued that their proximity to the project’s boundaries supported a presumption of standing.  The Appellate Division rejected this argument,  holding that the presumption of standing based on proximity must be predicated on distance to the structures or areas being developed, not merely to the closest point on the perimeter of the 2400-acre Tuxedo Reserve property.

The decision clarifies an important limitation on presumptive standing that is especially significant in relation to large scale developments, especially those, like Tuxedo Reserve, with substantial conservation buffers around the perimeter of the project.  For more information on the project and the Court’s latest decision, contact Steven Barshov.

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