Comfort Stations May Be Permitted Uses of Public Streets

by Farrell Fritz, P.C.
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After Hurricane Sandy devastated Long Beach and its boardwalk in 2012, officials sought to reconstruct the city’s iconic esplanade. As part of the rebuild, the Long Beach City Council determined to award contracts for the construction of comfort stations along the wooden promenade, including a comfort station at Lincoln Boulevard which would be installed as a “bump-out,” extending northwardly approximately 23 feet from the boardwalk into the street’s dead-end. However, boardwalk residents living in the adjacent condominium complex were dissatisfied with the proposal and opposed construction. Their opposition culminated in the Article 78 litigation captioned Shapiro v. Torres__ A.D.3d __, Docket No. 2015-09420 (2d Dep’t 2017).

The condominium residents, as Plaintiffs-Petitioners, commenced a hybrid proceeding/action seeking review of the Council’s March 2015 determination and a judgment declaring construction of the comfort stations is a prohibited use of a public street, together with related injunctive relief. In their lawsuit, Petitioners-Plaintiffs alleged the Council violated the State Environmental Quality Review Act (SEQRA) and the Long Beach City Charter and that the comfort station at Lincoln Boulevard would interfere with their easement of light, air and access.

The Supreme Court, Nassau County, denied Plaintiffs-Petitioners’ motion for a preliminary injunction, effectively determined that the construction of the structure is not a prohibited use of a public street, denied the petition and dismissed the hybrid proceeding/action. On appeal, the Appellate Division affirmed and modified. In its decision, the Second Department analyzed two distinct issues: (1) whether the Petitioners-Plaintiffs had standing to proffer their SEQRA challenge and (2) whether the construction of the comfort station was a permissible use of Lincoln Boulevard.

With respect to SEQRA standing, the Second Department reasoned that the alleged environmental injuries were too “speculative and conjectural to demonstrate an actual and specific injury-in-fact.” The Petitioners-Plaintiffs failed to show an environmental injury different from that of the public at-large and that the alleged injury fell within the zone of interests protected by SEQRA. The Court noted “[c]lose proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice.” Moreover, a party must also demonstrate it will suffer an injury that is environmental and not solely economic in nature.

With respect to the permissible use of Lincoln Boulevard, the Court treated this issue vis-à-vis Petitioners-Plaintiffs’ claims of an interference with their easement of light, air and access.   An owner of land abutting a highway or street has such an easement incident to ownership; however, when fee title of the roadway is transferred to the State, the State may use the roadway for any public purpose not inconsistent with or prejudicial to its use as a roadway. The mere disturbance of light, air and access to abutting owners by imposition of a new use consistent with roadway purposes must be tolerated and does not necessarily create a cause of action for interference with use and enjoyment of the premises.

At the Lincoln Boulevard site, the comfort station “bump-out” will not completely block Petitioners-Plaintiffs ocean view, will not prevent use of the public street, will not substantially affect the turn-around area in the dead-end and does not impact access to the condominium complex. The mere fact that the construction area is proximate to the Petitioners-Plaintiffs’ condominium complex does not signify that an easement of light, air and access creates a cause of action.

Accordingly, the Appellate Division affirmed the Supreme Court, with a minor modification to sufficiently address and resolve the declaratory judgment action.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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