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Sierra Club v. Village of Painted Post

26 N.Y.3d 301 Court N.Y. Decision date 2015-11-19 English

Judges Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey concur.

Delivered by Abdus-Salaam, J.

Contents

Majority

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[43 NE3d 745, 22 NYS3d 388]
In the Matter of Sierra Club et al., Appellants, v Village of Painted Post et al., Respondents.
Argued October 13, 2015;
decided November 19, 2015
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POINTS OF COUNSEL
Lippes & Lippes, Buffalo (Richard J. Lippes of counsel), and. Rachel Treichler, Hammondsport, for appellants.
I. Petitioner John Marvin has standing. (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 ; Matter of McCartney v Dormitory Auth. of State of N.Y., 5 AD3d 1090 ; Matter of Save Our Main St. Bldgs, v Greene County Legislature, 293 AD2d 907 , 98 NY2d 609 ; Matter of Buerger v Town of Grafton, 235 AD2d 984 ; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 213 AD2d 484 ; Matter of Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce v Williams, 131 AD2d 205 , 72 NY2d 137 ; Matter of Dairylea Coop, v Walkley, 38 NY2d 6 ; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1 ; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406 ; Sierra Club v Morton, 405 US 727 .) II. There are merits issues presented by this case. (Matter of City of Buffalo v New York State Dept. of Envtl. Conservation, 184 Misc 2d 243 ; Matter of Town of Henrietta v Department of Envtl. Conservation of State of N.Y., 76 AD2d 215 ; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222 ; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474 ; Matter of Schenectady Chems. v Flacke, 83 AD2d 460 ; Matter of Coalition for Future of Stony Brook Vil. v Reilly, 299 AD2d 481 ; Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41 ; Akpan v Koch, 75 NY2d 561 ; Cross Westchester Dev. Corp. v Town Bd. of Town
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of Greenburgh, 141 AD2d 796 ; Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508 .)
Harris Beach PLLC, Pittsford (Joseph D. Picciotti, John A. Mancuso and A. Vincent Buzard of counsel), for respondents.
I. Petitioner John Marvin’s generalized complaint of train noise is insufficient to establish standing. (Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1 ; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 ; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 ; Matter of Oates v Village of Watkins Glen, 290 AD2d 758 ; Matter of Save Our Main St. Bldgs, v Greene County Legislature, 293 AD2d 907 ; Matter of Gallaban v Planning Bd. of City of Ithaca, 307 AD2d 684 ; Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95 AD3d 1420 ; Matter of Har Enters, v Town of Brookhaven, 74 NY2d 524 ; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406 .) II. The Basin Commission reviewed and approved the water withdrawals and the compact preempted the Village of Painted Post from undertaking an additional State Environmental Quality Review Act review of the withdrawals. (Virginia v Maryland, 540 US 56 ; American Sugar Ref. Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d 11 ; People ex rel. Hal D. v Nine Mile Canal Co., 828 F Supp 823 ; Alcorn v Wolfe, 827 F Supp 47 ; Balbuena v IDR Realty LLC, 6 NY3d 338 ; New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645 ; Cipollone v Liggett Group, Inc., 505 US 504 ; Ray v Atlantic Richfield Co., 435 US 151 ; Mitskovski v Buffalo & Fort Erie Pub. Bridge Auth., 689 F Supp 2d 483 ; Seattle Master Bldrs. Assn. v Pacific Northwest Elec. Power & Conservation Planning Council, 786 F2d 1359 .) III. This proceeding should be dismissed as moot and barred by the doctrine of laches. (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727 ; Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165 ; Matter of Weeks Woodlands Assn., Inc. v Dormitory Auth. of the State of N.Y., 95 AD3d 747 ; Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 86 AD2d 246 ; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 ; Matter of Save The Pine Bush v New York State Dept. of Envtl. Conservation, 289 AD2d 636 ; Matter of Save the Pine Bush v City Engr. of City of Albany, 220 AD2d 871 ; Matter of Caprari v Town of Colesville, 199 AD2d 705 .) IV. The Village of Painted Post completed the necessary State Environmental
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Quality Review Act review for the transloading facility and no additional review was required for the surplus water agreement. (M atter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 ; Akpan v Koch, 75 NY2d 561 ; Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306 ; Matter of Spitzer v Farrell, 100 NY2d 186 ; Borough of Morrisville v Delaware Riv. Basin Commn., 399 F Supp 469 ; White v Westage Dev. Group, 191 AD2d 687 , 82 NY2d 706 ; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn. of State of N.Y., 137 Misc 2d 235 , 138 AD2d 63 , 73 NY2d 702 ; Matter of Daimler Chrysler Corp. v Spitzer, 7 NY3d 653 ; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575 .)
Harter Secrest & Emery LLP, Rochester (John P. Bringewatt, Leslie M. Mauro and Jeffrey A. Wadsworth of counsel), for Railroads of New York, amicus curiae.
I. The Interstate Commerce Commission Termination Act of 1995 preempts any requirement under the State Environmental Quality Review Act that a municipality evaluate potential noise impacts resulting from a railroad transloading facility’s construction and operation pursuant to a lease agreement between the municipality and railroad. (CSX Transp., Inc. v Georgia Pub. Serv. Commn., 944 F Supp 1573 ; City of Auburn v United States Govt., 154 F3d 1025 ; Green Mtn. R.R. Corp. v Vermont, 404 F3d 638 ; Rushing v Kansas City S. Ry. Co., 194 F Supp 2d 493 ; Guckenberg v Wisconsin Cent. Ltd., 178 F Supp 2d 954 ; Matter of Power Auth. of State of N.Y. v Williams, 60 NY2d 315 ; Matter of Erie Blvd. Hydropower, L.P. v Stuyvesant Falls Hydro Corp., 30 AD3d 641 ; Fourth Branch Assoc. v Department of Envtl. Conservation, 146 Misc 2d 334 ; Norfolk S. Ry. Co. v City of Alexandria, 608 F3d 150 .) II. Petitioners lack standing because the Interstate Commerce Commission Termination Act of 1995 preempts state or local regulation of train noise, thereby eliminating train noise from the “zone of interests” protected by the State Environmental Quality Review Act. (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 ; Matter of Brighton Residents Against Violence to Children v MW Props., 304 AD2d 53 ; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 .)
Susan J. Kraham, Columbia Environmental Law Clinic, New York City, and Daniel Raichel, Natural Resources Defense Counsel, New York City, for Gas Free Seneca and others, amici
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curiae.
I. Citizen participation and review of government actions are fundamental to the operation of the State Environmental Quality Review Act. (Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508 ; Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373 ; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674 ; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359 ; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359 ; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 .) II. Requiring citizens to demonstrate a special harm to establish standing conflicts with the purpose and structure of the State Environmental Quality Review Act. (Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1 ; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 ; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 ; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of E. Hampton, 293 AD2d 616 ; Matter of Buerger v Town of Grafton, 235 AD2d 984 ; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 213 AD2d 484 ; Matter of Schulz v Warren County Bd. of Supervisors, 206 AD2d 672 ; Matter of Har Enters, v Town of Brookhaven, 74 NY2d 524 .) III. The special harm rule is not necessary to discourage or dispose of meritless State Environmental Quality Review Act litigation. (Society of Plastics Indus. v County of Suffolk, 11 NY2d 761 ; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297 ; Village of Euclid v Ambler Realty Co., 272 US 365 ; Udell v Haas, 21 NY2d 463 ; Matter of Leone v Brewer, 259 NY 386 ; Whitridge v Park, 100 Misc 367 , 179 App Div 884 ; Rice v Van Vranken, 132 Misc 82 .) IV. New York stands alone in imposing a special harm rule in the context of environmental review. (Ocean Advocates v United States Army Corps of Engrs., 402 F3d 846 ; Sierra Club v Morton, 405 US 727 ; Massachusetts v EPA, 549 US 497 ; United States v Students Challenging Regulatory Agency Procedures [SCRAP], 412 US 669 ; Federal Election Comm’n v Akins, 524 US 11 ; Arcia v Florida Secretary of State, 772 F3d 1335 ; Tourgeman v Collins Fin. Servs., Inc., 755 F3d 1109 ; Southern Utah Wilderness Alliance v Palma, 707 F3d 1143 ; Board of Educ. of Ottawa Twp. High School Dist. 140 v Spellings, 517 F3d 922 ; New World Radio, Inc. v Federal Communications Commn., 294 F3d 164 .)
Wade Beltramo, General Counsel, New York State Conference of Mayors & Municipal Officials, Albany, for New York State
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Conference of Mayors & Municipal Officials, amicus curiae.
I. The nature of local government actions and determinations in general, and land use matters in particular, demands that the principle of standing be clearly articulated and narrowly defined to avoid overburdening local governments and the courts, while at the same protecting aggrieved parties. II. Because duplicative State Environmental Quality Review Act (SEQRA) reviews must be avoided, the trial court’s decision to impose an additional, redundant SEQRA review must not be reinstated. (Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508 ; Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 .)

OPINION OF THE COURT

In Society of Plastics Indus. v County of Suffolk ( 77 NY2d 761 [1991]), this Court examined the law of standing, and set forth a framework for deciding whether parties have standing to challenge governmental action in land use matters generally, and under the State Environmental Quality Review Act (ECL art 8 [SEQRA]), specifically. We held that “the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large” ( 77 NY2d at 774 ). This appeal gives us the opportunity to elucidate and further address the “special injury” requirement of standing (id. at 778).

L

The Village of Painted Post, in Steuben County, New York, is located at the confluence of the Cohocton, Tioga and Chemung Rivers. Underlying the confluence of these rivers is the Corning aquifer, which is the principal drinking water supply of several municipalities, including the Village. In February 2012, the Board of Trustees of the Village adopted a resolution to enter into a surplus water sale agreement with respondent SWEPI, LP, a subsidiary of Shell Oil Co., which operates gas wells in Tioga County, Pennsylvania. The surplus water sale agreement provided for the sale to SWEPI, LP of 314,000,000 gallons of water in increments of up to one million gallons per day from the Village water system with an option to increase the amount by an additional 500,000 gallons per day.

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The Village determined that, pursuant to 6 NYCRR 617.5 (c) (25),[1] the sale of its water was a Type II action exempt from review under SEQRA. Another resolution approved a lease agreement with respondent Wellsboro & Corning Railroad (Wellsboro) for the construction of a water transloading facility on 11.8 acres of land, previously used for industrial purposes, to be used as a filling station upon which the water would be withdrawn, loaded, and transported via rail line to Wellsboro, Pennsylvania. The Village determined that the lease agreement was a Type I action under SEQRA[2] and issued a negative declaration, concluding that the lease will not result in any potentially significant adverse impact on the environment based on a review of a full environmental assessment form, a report prepared by engineering consultants to the Village, the site plan prepared for the railroad, and the 2005 deed to the site.

Construction of the water loading facility began in April 2012, and in June 2012, petitioners commenced this CPLR article 78 proceeding against the Village; Painted Post Development, LLC; SWEPI, LP; and Wellsboro seeking an order (1) annulling the Village’s Type II determination for the water sale agreement; (2) annulling the Village’s negative declaration for the lease of the rail loading facility; (3) annulling the Village’s water sale agreement with SWEPI and the lease to Wellsboro; (4) requiring the Village to issue a positive declaration and complete an environmental impact statement for the totality of the plan rather than segmenting the water sale and the lease; (5) enjoining the Village from entering into the water sale and lease agreements until the Village complied with all federal and state laws; and (6) preliminarily enjoining any water ship

1 6 NYCRR 617.5 (c) (25) provides that actions for the "purchase or sale of furnishings, equipment or supplies, including surplus government property, other than the following: land, radioactive material, pesticides, herbicides, or other hazardous materials” are Type II actions that are not subject to review under SEQRA.

2 6 NYCRR 617.4 sets forth a non-exhaustive list of Type I actions and provides that "the fact that an action or project has been listed as a Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an [environmental impact statement]. For all individual actions which are Type I or Unlisted, the determination of significance must be made by comparing the impacts which may be reasonably expected to result from the proposed action with the criteria listed in section 617.7(c) of this Part” (6 NYCRR 617.4 [a] [1]).

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ments or work at the rail loading facility site until the Village complied with all federal and state laws. Petitioners included the not-for-profit organizations the Sierra Club, People for a Healthy Environment, Inc., and Coalition to Protect New York, as well as various individual residents of the Village.

As relevant here, petitioners asserted that the Village failed to comply with the strict procedural mandates of SEQRA, particularly that it (1) failed to consider significant adverse environmental impacts of the water withdrawals, (2) improperly claimed a Type II exemption for the water sale agreement, and (3) impermissibly segmented its review of the water sale agreement and the lease agreement. With respect to petitioner John Marvin (appellant here), the petition alleged that he is a longtime resident of the Village and resides “less than a block from the proposed rail loading facility, which is visible from his doorstep” and that he and his wife would be “adversely affected by the significant rail traffic and the increased noise and air contamination caused by the project.” Respondents answered and subsequently moved to dismiss the petition pursuant to CPLR 3211 (a) (3) and (7), asserting that petitioners lacked standing and failed to state a cause of action, and alternatively, moved for summary judgment pursuant to CPLR 3212. Petitioners opposed the motions, submitting, among other things, an affidavit of petitioner Marvin,[3] who stated that when the water trains began running, he “heard train noises frequently, sometimes every night” and that “[t]he noise was so loud it woke [him] up and kept [him] awake repeatedly.” Marvin further stated that the “noise was much louder than the noise from other trains that run through the [Vlillage” and he was concerned that the “increased train noise will adversely impact [his] quality of life and home value.”

Supreme Court searched the record and, in pertinent part, (1) granted summary judgment to petitioners insofar as it annulled (a) the Village’s resolutions designating the surplus water agreement as a Type II action, (b) the negative declaration as to the lease agreement, and (c) the Village Board’s resolutions approving the surplus water agreement and the lease agreement; (2) granted petitioners an injunction enjoining further water withdrawals pursuant to the surplus water

3 While the petition alleged that Marvin lives less than a block from the rail loading facility, he clarified in his affidavit that he lives one-half block from the railroad line that crosses his street, and a block and one half from the rail loading facility.

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agreement pending the Village’s compliance with SEQRA; and (3) denied respondents’ motion to dismiss for lack of standing. With respect to the standing of the organizations and individual petitioners, the court determined that none of the individual petitioners claimed that they were members of those organizations, that the organizations alleged only generalized environmental injuries that the public at large would suffer and that such generalized claims were insufficient to confer standing.

With respect to the individual petitioners, excepting Marvin, the court determined that they too alleged only general harm (i.e., disrupted traffic patterns, noise levels, and water quality) “no different than that experienced by the general public.” However, regarding petitioner Marvin, the court noted that he could see the water loading facility from his front porch, and concluded that Marvin’s allegation of “train noise newly introduced into his neighborhood ... is different than the noise suffered by the public in general.” The court reasoned that although Marvin did not “distinguish this noise from that of the previous train noises associated with the existing rail line or from the former industrial use of the area,” nevertheless,

“Marvin’s undifferentiated complaint of train noise, however, may be considered in the context of an industrial and rail facility which fell into disuse for a considerable period of time prior to construction of the subject project, and thus his complaint of rail noise is availing to show harm distinct from that suffered by the general public.”

Because Marvin had standing, the court did not dismiss the proceeding brought by the other petitioners who did not have standing. On the merits of the petition, the court held that the Village’s Type II designation of the water sale agreement was arbitrary and capricious and that the Village had improperly segmented the SEQRA review of the lease from the water sale agreement.

The Appellate Division ( 115 AD3d 1310 [2014]), unanimously (1) reversed the judgment on the law, (2) granted the Village’s and SWEPI’s motion, and (3) dismissed the petition as against them on the ground that Marvin lacked standing. The Court agreed with petitioners that “noise falls within the zone of interests sought to be protected by SEQRA” ( 115 AD3d at 1312 ). However, emphasizing that “Marvin raised no complaints concerning noise from the transloading facility itself” ( 115

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AD3d at 1312 ), the Court, citing Society of Plastics, reasoned that “[inasmuch as we are dealing with the noise of a train that moves throughout the entire Village, as opposed to the stationary noise of the transloading facility, we conclude that Marvin will not suffer noise impacts ‘different in kind or degree from the public at large’ ” ( 115 AD3d at 1312-1313 ). Having dismissed the petition for lack of standing, the Appellate Division did not reach the merits of the SEQRA challenge.

IL

We held in Society of Plastics that “[i]n land use matters . . . the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large” ( 77 NY2d at 774 ). Applying that test in Matter of Save the Pine Bush, Inc. v Common Council of City of Albany ( 13 NY3d 297 [2009]), this Court held that petitioners, who alleged “repeated, not rare or isolated use” of the Pine Bush recreation area, had demonstrated standing “by showing that the threatened harm of which petitioners complain will affect them differently from ‘the public at large’ ” ( 13 NY3d at 305 ).

The Appellate Division, in concluding that petitioner Marvin lacked standing, applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large,” reasoning that because other Village residents also lived along the train line, Marvin did not suffer noise impacts different from his neighbors. We said in Society of Plastics that

“[t]he doctrine grew out of a recognition that, while directly impacting particular sites, governmental action affecting land use in another sense may aggrieve a much broader community. The location of a gas station may, for example, directly affect its immediate neighbors but indirectly affect traffic patterns, noise levels, air quality and aesthetics throughout a wide area” ( 77 NY2d at 774-775 ).

This example is distinctly different from the situation here where more than one resident is directly impacted by the noise created from increased train traffic. That more than one person may be harmed does not defeat standing, as we found in Save the Pine Bush where we held that the nine individual petitioners who alleged that they lived near the site of the proposed project and “use[d] the Pine Bush for recreation and to study

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and enjoy the unique habitat found there,” have standing ( 13 NY3d at 305 ; see generally United States v Students Challenging Regulatory Agency Procedures [SCRAP], 412 US 669 , 687-688 [1973] [“(W)e have . . . made it clear that standing is not to be denied simply because many people suffer the same injury ... To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody”]). The harm that is alleged must be specific to the individuals who allege it, and must be “different in kind or degree from the public at large” (Society of Plastics at 778), but it need not be unique. Here, petitioner Marvin is not alleging an indirect, collateral effect from the increased train noise that will be experienced by the public at large, but rather a particularized harm that may also be inflicted upon others in the community who live near the tracks.

The number of people who are affected by the challenged action is not dispositive of standing. This Court recognized in Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation ( 23 NY3d 1 [2014]) that standing rules should not be “heavy-handed,” and declared that we are “reluctant to apply [standing] principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” ( 23 NY3d at 6 [citation omitted]). Applying the Appellate Division’s reasoning, because there are multiple residents who are directly impacted, no resident of the Village would have standing to challenge the actions of the Village, notwithstanding that the train noise fell within the zone of interest of SEQRA. That result would effectively insulate the Village’s actions from any review and thereby run afoul of our pronouncement that the standing rule should not be so restrictive as to avoid judicial review.

Here, as in Save the Pine Bush, Marvin alleges injuries that are “real and different from the injury most members of the public face” ( 13 NY3d at 306 ). Thus, his allegation about train noise caused by the increased train traffic keeping him awake at night, even without any express differentiation between the train noise running along the tracks and the noise from the transloading facility, would be sufficient to confer standing.[4]

4 Although Marvin’s affidavit sets forth a generalized complaint of train noise, we see no reason to conclude, as did the Appellate Division, that he is *312 only claiming noise from trains running on the tracks, and not from the trains in the loading facility. Given his proximity to the facility and his allegations, we may conclude that he was hearing noise from the facility, as well as the noise from the trains running along the tracks. Additionally, the verified petition references an engineer’s report issued prior to the construction of the facility that states that the loaded cars will be heavy, and that moving cars loaded with more than 96 tons of weight on and off sidings can be expected to result in significant noise from coupling and uncoupling cars, running the diesel engines required to move the railcars and squealing wheels. In sum, Marvin’s allegations, read in the context of the petition, sufficiently set forth harm caused not only by the noise of trains running along the tracks, but the trains in the loading facility.

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Accordingly, the order should be reversed, with costs, and the matter remitted to the Appellate Division, for consideration of issues raised but not determined on the appeal to that Court.

Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey concur.

Order reversed, with costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of issues raised but not determined on the appeal to that Court.

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