Oaks v. Town of Phelps

Appeal from a judgment (denominated order) of the Supreme Court, Ontario County (John J. Ark, J.), entered June 11, 2007 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition seeking to annul the determination of respondent Town of Phelps Zoning Board of Appeals granting the application of respondent Gary J. Palone for a use variance.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Robert Oaks (petitioner), the owner of property located approximately one-half mile from a speedway owned by respondent Gary J. Palone, appeals from a judgment dismissing a CPLR article 78 petition seeking to annul the determination of respondent Zoning Board of Appeals granting Palone’s application for a use variance. Pursuant to that variance, Palone was permitted to use a portion of his property, located in an agricultural-residential district, as a pit area for the track. We conclude that Supreme Court properly dismissed the petition with respect to petitioner. He failed to allege any “injury that is in some way different from that of the public at large” and thus lacks standing to bring this proceeding (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]). Present— Smith, J.P, Centra, Fahey, Peradotto and Pine, JJ.