Opinion
15468/2010.
Decided February 4, 2011.
Sive, Paget Riesel, P.C., by Daniel Riesel and Elizabeth Knauer, New York, New York, for the Petitioner.
Hon. Eric T. Schneiderman, Attorney General of the State of New York, by Yueh-ru Chu, Esq., New York, New York, for the Respondent.
The following papers numbered 1 to 12 read on this Article 78 proceeding by petitioner Grahel Associates for a judgment setting aside the jurisdictional determination of respondent New York State Department of Environmental Conservation (DEC), dated May 10, 2010, with respect to the real property known as 151-21 Sixth Road, Queens, New York; and for a declaration that the subject site is neither a "tidal wetland" or "adjacent area"; ordering the DEC to issue a jurisdictional determination that the site is not subject to its Tidal Wetlands Act jurisdiction; and ordering the DEC to cease and desist from pursuing any enforcement action concerning violations of the Tidal Wetlands Act with respect to activities on the site. The DEC separately moves for an order dismissing the petition, on the grounds of lack of subject matter jurisdiction, and, in the alternative, if its motion is denied, granting respondent 30 days from notice of entry in which to serve and file an answer, the administrative record, and papers in opposition to the petition.
Papers Numbered
Notice of Petition-Verified Petition-Exhibits (A-L) ........................... 1-4 Notice of Motion-Affirmation-Exhibit (A) ...................................... 5-7 Reply Affidavits .............................................................. 8-10 Reply Affirmation ............................................................. 11-12Upon the foregoing papers, the petition and motion are consolidated for the purposes of a single decision and are determined as follows:
Petitioner Grahel Associates LLC ("Grahel") is the owner of a 4.6 acre parcel known as 151-21 Sixth Road, in Queens County, New York. This site resembles a rectangle jutting into the East River, east of the Whitestone Bridge. It is boarded on the southerly side by public streets and, on the other three sides, there is a stone rip-rap bulkhead. The site is presently vacant with the exception of a few small one-story structures in the southeastern corner, some small sheds on the western side, and some stored recyclable materials.
Sometime in 2009, Grahel filed plans which were approved by the City of New York to subdivide the site into ten separate parcels. Grahel seeks to market the property for industrial use by multiple owners or tenants.
On June 1, 2009, staff from the New York State Department of Environmental Conservation's ("DEC") Marine Habitat Program inspected the subject site and determined that the owner was conducting activities in a regulated area without the necessary permit from the DEC. The DEC mailed a notice of violation ("NOV"), dated June 17, 2009, to Grahel, stating that it had
violated the New York State Environmental Conservation Law (ECL), the State Regulations promulgated pursuant to the ECL, and/or an Order of the DEC Commissioner, in that you caused or permitted the following to occur: Filling of Tidal wetlands and adjacent area. Subdivision of property without a permit to do so. This activity violates the following Environmental Conservation Laws(ECL): Article 25, Tidal Wetlands Act § 25-0401, Part 661 and Article 15, Protection of Waters Act § 15-0501, 0503, 0505, Part 608.
The NOV states that these violations are "punishable by administrative and criminal penalties, injunctive relief and the imposition of appropriate remedial or corrective actions," and lists the maximum penalties as "ARTICLE 25:$10,000/VIOLATION/DAY" and "ARTICLE 15:$5,000/VIOLATION," and ordered Grahel to cease and desist from violating the ECL, and directed it to contact the DEC to discuss a possible administrative settlement. Finally, the NOV stated that the failure to respond to the notice within two weeks of its date "will result in formal civil enforcement proceedings, as well as criminal prosecutions, where appropriate."
Grahel and its consultants and counsel met with the DEC staff on September 15, 2009, but no resolution was reached.
In a letter dated February 11, 2010, Grahel applied for a jurisdictional determination pursuant to 6 NYCCR section 661.18(a) and (b), and submitted various documents in support of its application. Grahel asserted that the site is not subject to the DEC's regulation as either a tidal wetland or tidal wetland adjacent area, based upon the continuous presence, since August 30, 1977, of a lawful, substantial, fabricated and functional bulkhead that is at least 100 feet in length. Grahel asserted that, under 6 NYCRR section 661.4(b)(1)(ii), the continuous existence of such a structure since August 30, 1977, removes an otherwise regulated site from the DEC's jurisdiction.
The DEC's Regional Permit Administrator John F. Cryan, in a letter dated May 18, 2010, stated that the subject real property "is within the jurisdiction of the DEC under the Tidal Wetlands Act (Article 25 of the Environmental Conservation Law). Therefore, a DEC tidal wetlands permit is required to alter or develop this property." Mr. Cryan further stated that the property was not within the DEC's jurisdiction under the Freshwater Wetlands Act, and, therefore, a freshwater wetlands permit was not required to develop the property.
Grahel also received a letter dated May 20, 2010 from the DEC's Assistant Regional Attorney, Udo Drescher, regarding the history of the site, which is referred to in the petition, but not attached to the moving papers.
Grahel thereafter commenced the within Article 78 proceeding, on June 17, 2010, and asserts in its petition that the DEC's determination that the site falls within the regulatory jurisdiction of the Tidal Wetlands Act is arbitrary and capricious and contrary to the facts; and that the DEC is precluded from arguing that the site is an adjacent area, as the site's creation and existence for the last half-century has been open and obvious to the public and within the knowledge of the DEC and other agencies. Petitioner seeks an order setting aside the May 18, 2010 jurisdictional determination; declaring that the site is neither a "tidal wetland" or "adjacent area"; ordering the DEC to issue a jurisdictional determination that the site is not subject to its Tidal Wetlands Act jurisdiction; and ordering the DEC to cease and desist from pursuing any enforcement action concerning violations of the Tidal Wetlands Act with respect to activities on the site.
The Court notes that, although the petition seeks declaratory relief, the petition does not state a claim for declaratory judgment.
Respondent DEC separately moves for an order dismissing the petition on the grounds of lack of subject matter jurisdiction. Respondent asserts that the May 18, 2010 jurisdictional determination is not a final administrative action and, therefore, is not ripe for judicial review, as it has not rendered a definitive determination that inflicts actual concrete harm on Grahel. Respondent states that while it served Grahel with a NOV, it has not taken any enforcement action, had not served a complaint and notice of hearing, motion for an order without a hearing, a summary abatement order, or a summary suspension order. It has made no determination to initiate such enforcement proceedings and counsel states that the DEC's staff remains willing to meet with Grahel to discuss a possible resolution of the matter.
An article 78 proceeding must be brought "within four months after the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217). The Court of Appeals
has identified two requirements for fixing the time when agency action is final and binding upon the petitioner.' First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party ( see, e.g., Stop-the-Barge v Cahill, 1 NY3d 218, 223; Matter of Essex County v Zagata, 91 NY2d 447, 453; see also, Church of St. Paul St. Andrew v Barwick, 67 NY2d 510, 519, 521, cert denied 479 US 985 [ripeness for review])
( Best Payphones, Inc. v Dep't of Info. Tech. Telecomms. , 5 NY3d 30 , 34; see also, Matter of Town of Riverhead v Central Pine Barrens Joint Planning Policy Commission , 71 AD3d 679 ). If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered "definitive" or the injury "actual" or "concrete" ( Matter of Essex County v Zagata, 91 NY2d 447, supra; Matter of Town of Riverhead v Central Pine Barrens Joint Planning Policy Commission , 71 AD3d 679 , supra).
Here, although the DEC's assertion of jurisdiction may constitute a definitive agency determination, it did not inflict the type of "concrete injury" required for a finding of finality. "Indeed, an agency's erroneous assertion of jurisdiction may ultimately never cause any real injury" and "to allow immediate article 78 review of such jurisdictional challenges, therefore, would unnecessarily interfere with the agency process and waste judicial resources. Accordingly, they should be reviewed by a court only after a final determination — which might effectively render the dispute academic — is reached by the agency." ( Essex County v Zagata, supra at 455-456; see also, Matter of Hunt Bros. Inc., v Glennon, 81 NY2d 906; Matter of Town of Riverhead v Central Pine Barrens Joint Planning Policy Commission , 71 AD3d 679 , supra).
Petitioner's claim that it incurred an actual concrete injury as a result of the DEC's jurisdictional determination is rejected, as it is purely speculative. Although the DEC served a NOV, no fines have been imposed, nor have any enforcement proceedings been initiated, and the DEC remains willing to meet with petitioner to possibly resolve the matter.
Therefore, as the within proceeding is premature, respondent's motion to dismiss the petition is granted.