OPINION OF THE COURT
The dispositive issue presented in this appeal is whether petitioner, Brighton Residents Against Violence to Children, Inc., has standing to bring this proceeding seeking to annul administrative approval of construction of a berm on property located in the Town of Brighton (Town). For the reasons that follow, we conclude that petitioner lacks standing, and thus we conclude that Supreme Court should have granted the motion of the Town of Brighton, the Zoning Board of Appeals of the Town of Brighton and the Planning Board of the Town of Brighton (respondents) to dismiss the petition on that ground.
The underlying facts are essentially undisputed. In September 1998 the developer of the subject property applied for site plan approval to demolish an existing structure and build a medical office. A berm was not included in the original application. After a public hearing on the application, respondent Town Planning Board (Planning Board) granted final site plan approval and issued a negative declaration pursuant to the State Environmental Quality Review Act ([SEQRA] ECL art 8). On December 17, 1998, the Planning Board’s determination was filed with the Town Clerk, and the medical office subsequently was built.
In April 1999 the owners of a day-care center adjacent to the subject property requested the construction of a berm because
After receiving a letter of protest from a Town resident regarding the berm, the Planner informed her that the berm complied with all applicable Town regulations. Petitioner was incorporated on July 19, 1999 and, on July 28, 1999, petitioner appealed the Planner’s determination to respondent Town Zoning Board of Appeals (ZBA). In upholding the Planner’s determination, the ZBA concluded that the determination was reasonable and appropriate because the berm was not a significant modification of the site plan so as to require further approval.
Virtually simultaneously with its appeal to the ZBA, petitioner commenced an action in Supreme Court and thereafter served an amended complaint containing the following four causes of action: (1) the ZBA’s decision was illegal, arbitrary and capricious; (2) the Planning Board arbitrarily and capriciously failed to reconsider its initial site plan approval and the negative SEQRA declaration based on fraud and/or mistake; (3) Dr. Wortman’s use and occupancy of the premises should be enjoined because the berm was constructed in violation of Town regulations; and (4) Dr. Wortman’s use and occupancy of the premises should be enjoined pursuant to Town Law § 268 (2), which allows town authorities to institute any appropriate proceeding to prevent the unlawful construction of a building or structure or the unlawful use of land.
On July 6, 2000, the parties entered into a “Stipulated Consent Order” that, inter alia, severed and converted the first two causes of action in the amended complaint into a CPLR article 78 proceeding and reserved to the parties their rights with respect to the third and fourth causes of action. Subsequently, petitioner served a notice of petition, and respondents answered and moved to dismiss the proceeding on several grounds, including petitioner’s lack of standing.
In denying respondents’ motion to dismiss the petition, the court concluded that petitioner has standing because it consists of “nearby residential owners, and nearby commercial tenants or owners. The closest member owner owns a plaza which
“Many of the other petitioner’s members, although not adjoining owners, are still close enough to the subject property that their safety, property and business values will be impacted and genuinely affected by the use made of the subject property.
“Due to the proximity of the adjoining owner, the petitioner group shows ‘direct known * * * injury that is somewhat different in kind and degree from that of the public at large’ sufficient to constitute standing. * * * Also, the proximity of the other members, although not adjoining, meet standing requirements to challenge the Planning Board and [ZBA] determinations.”
By its judgment (denominated order and judgment) entered November 13, 2001, the court denied respondents’ motion, granted the petition, annulled the ZBA’s decision and ordered removal of the berm. The court also annulled the Planning Board’s determination and remitted the matter to the Planning Board to conduct a de novo review of the application for site plan approval. In addition, the court ordered the Town to enforce the restricted use of the property, thereby restricting Dr. Wortman from using the property as an abortion facility.
On appeal, respondents contend, inter alia, that the court erred in determining that petitioner has standing. We agree, and we therefore conclude that the court erred in denying respondents’ motion to dismiss the petition.
It is well settled that a court may act only when the rights of the party requesting relief are affected (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]). Thus, in deciding this standing issue, we must first determine whether petitioner, the party seeking relief, has sustained an injury (see Mahoney v Pataki, 98 NY2d 45, 52 [2002]; see also Society of Plastics Indus., 77 NY2d at 772-773). “The existence of an injury in fact — an actual legal stake in the matter being adjudicated — ensures that the party seeking review has some concrete interest in prosecuting the action” (Society of Plastics Indus., 77 NY2d at 772). Furthermore, because this is a land use matter, we must determine whether petitioner has shown that it would suffer an injury that is in some way different in kind or degree from that of the general public (see id. at 774).
To this essential principle of standing, courts have added another element, i.e., the requirement that the injury asserted
“Simply stated, a party must show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id.).
Although an allegation of proximity alone may give rise to an inference of damage or injury that enables a nearby owner to challenge a zoning board decision without proof of actual injury (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 [1987]), the allegedly aggrieved party must also satisfy the other half of the test for standing by establishing that the interest asserted is arguably within the zone of interests to be protected by the statute (see id.).
Petitioner herein alleges several distinct injuries. First, petitioner alleges that the berm is a “locally undesirable land use” and, as such, has a negative aesthetic impact on adjacent landowners. Second, according to petitioner, the berm could collapse and harm adjacent landowners and/or persons on their property. Contrary to petitioner’s contention, those alleged injuries do not provide petitioner with standing in this matter. Although petitioner refers to the “unsightly” nature of the berm and alleges that it lowers the property value of an adjacent plaza owned by certain members of petitioner corporation, petitioner offered no evidence to support that conclusory allegation. Moreover, petitioner’s alleged “safety” injury also is conclusory and thus fails to provide a basis for standing. Nowhere in the record does petitioner establish how its members have suffered or will suffer an injury in fact as a result of the allegedly unsafe berm. Thus, petitioner’s aesthetic and safety injuries are insufficient as a matter of law to provide petitioner with standing because it has not established that any of its members suffered any injury in fact, let alone an injury different from that of the general public (see Matter of Battenkill Assn. of Concerned Citizens v Town of Greenwich Planning Bd., 156 AD2d 863, 865-866 [1989]).
Third, petitioner alleges that the adjacent landowners and their customers are threatened by the potential violence
Petitioner contended, and the court agreed, that its members are presumptively aggrieved because of their proximity to the berm. The status of neighbor, however, does not automatically provide the “admission ticket” to judicial review (Sun-Brite Car Wash, 69 NY2d at 414). Petitioner’s alleged interest to “preserve and protect the environment and neighborhoods from development activity that threatens children, born and unborn” is belied by the fact that the owners of the adjacent day-care center actually requested construction of the berm, and the clients of the day-care center have overwhelmingly supported the construction of the berm. Accordingly, we conclude that the judgment should be reversed, respondents’ motion granted, and the petition dismissed.
Green, Scudder, Gorski and Lawton, JJ., concur.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law, without costs, the motion is granted and the petition is dismissed.