Opinion
907550-18
11-30-2020
In the Matter of the Application of ROGER REALTY CO., Petitioner, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Inwood Realty Associates, Inc., d/b/a Russo's Tip N Tug, Whip Realty Corp. d/b/a Russo Recycling Company, Galli Engineering P.C., and the Town of Hempstead, Respondents.
Minerva & D'Agostino, P.C., Attorneys for Petitioner, Albert A. D'Agostino, Esq., of counsel, 107 South Central Avenue, Valley Stream, New York 11580 Hon. Letitia James, Attorney General of the State of New York, Attorney for Respondent Department of Environmental Conservation, Elizabeth Morgan, Esq., of counsel, 28 Liberty Street, New York, New York 10005 Weber Law Group LLP, Attorneys for Respondent Galli Engineering, P.C., Inwood Realty Associates., d/b/a Russo's Tip n Tug, and Whip Realty Corp., d/b/a Russo Recycling Company, Jason A, Stern, Esq., of Counsel, 290 Broadhollow Road, Suite 200E Melville, New York 11747 Bee Ready Fishbein Hatter & Donovan, LLP, Attorneys for Respondent, Town of Hempstead, Andrew K. Preston, Esq., of counsel, 170 Old Country Road, Mineola, New York 11501
Minerva & D'Agostino, P.C., Attorneys for Petitioner, Albert A. D'Agostino, Esq., of counsel, 107 South Central Avenue, Valley Stream, New York 11580
Hon. Letitia James, Attorney General of the State of New York, Attorney for Respondent Department of Environmental Conservation, Elizabeth Morgan, Esq., of counsel, 28 Liberty Street, New York, New York 10005
Weber Law Group LLP, Attorneys for Respondent Galli Engineering, P.C., Inwood Realty Associates., d/b/a Russo's Tip n Tug, and Whip Realty Corp., d/b/a Russo Recycling Company, Jason A, Stern, Esq., of Counsel, 290 Broadhollow Road, Suite 200E Melville, New York 11747
Bee Ready Fishbein Hatter & Donovan, LLP, Attorneys for Respondent, Town of Hempstead, Andrew K. Preston, Esq., of counsel, 170 Old Country Road, Mineola, New York 11501
Henry F. Zwack, J.
In this Article 78 proceeding, the petitioner Roger Realty Co. ("Roger Realty") seeks several forms of relief stemming from the August 17, 2018 approval by the respondent New York State Department of Environmental Conservation ("DEC") of a Consent Order Barge Plan between DEC and the respondent Inwood Realty Associates ("Inwood").
Towards understanding the Verified Amended Petition, which is the subject of this Decision and Order, and the motions made by the respondents in response to that petition, a discussion of the underlying facts is appropriate.
On March 5, 2018, DEC entered into a Consent Order with Inwood, the owner of a parcel of real property located at 180 Roger Avenue ("180 Roger Avenue"), in the Town of Hempstead, to resolve violations of the Environmental Conservation Law ("ECL") arising from demolition and construction debris ("C & D") abandoned on Inwood's property by a prior owner, Etgar Realty Corp ("Etgar"). 180 Roger Avenue is upshore of Jamaica Bay, bordered on the north by a foreshore which abuts Jamaica Bay and which is owned by the respondent Town of Hempstead, and bordered by Roger Avenue to the south. The proposed location of the barge area is owned by the Town of Hempstead. Across the street, at 175 Roger Avenue, is a DEC designated Superfund site. On December 16, 2017, and after it had conveyed title to 180 Roger Avenue to Roger Realty on May 4, 2017, Etgar had entered into a similar consent order with DEC to remediate the area after its tenant, New York Recycling & Materials, LLC, vacated the site without performing proper site closure. Etgar had failed to perform proper site closure as well, and transferred its title to 180 Roger Avenue, along with its violation, to Inwood. Upon inspection of the property by DEC on May 31, 2017, it noted that the solid waste that had been abandoned on the property continued to remain there. A Notice of Violation was issued to Inwood dated June 2, 2017. In response to that Notice, Inwood contacted the DEC and proposed removing the debris by barge. The March 2018 Consent Order contained a provision that the C & D materials, processed and unprocessed, consisting of 31,985 cubic yards, were to be removed from the site by barge, and that Inwood was to submit a Barge Plan for DEC's consent. By the Consent Order Barge Plan dated August 17, 2018, DEC approved Inwood's barge plan ("Inwood's Barge Plan") dated July 23, 2018, and as set forth in an engineering report prepared by Galli Engineering, P.C. Inwood's Barge Plan included the removal by barge of the 31,985 cubic yards of C & D materials and "trap rock and stone " — with the Consent Order Barge Plan indicating it was prepared for Inwood, doing business as Russo's Tip N Tug ("Russo"). Among the items noted in Inwood's Barge Plan is an acknowledgment that the C & D that had been on the 180 Roger Avenue site had already been transported offsite by truck, where it was screened and processed at Russo Recycling, and would be transported back to 180 Roger Avenue by truck. Inwood has already removed the materials by truck to Russo Recycling where it was processed and separated, and the materials have not been returned to the 180 Roger Avenue site.
The Consent Order Barge Plan further provided that Russo would perform operations between 6 am until 6 pm, materials manifests would be filed and reported to DEC on a bi-weekly period and until the 31,985 cubic feet of materials has been taken care of and... "From then on Russo's Tip and Tug will only accept DOT Grade Type I materials both of which do not fall under DEC jurisdiction and do not require manifesting." The Consent Order Barge Plan includes language at 2.0, Barge Materials, as follows: There will be several different types of Part 360 materials that will be transported inbound and outbound via barge and truck. No materials defined as solid waste in Part 360 will be transported inbound until such time that the NYCRR Part 360 report is submitted and approved by NYSDEC".
The Amended Verified Petition
The petitioner filed its Verified Petition on December 14, 2018, solely challenging the determination of the respondent DEC. The Town of Hempstead filed a motion to dismiss because no relief was sought against the Town. On February 7, 2019 the petitioner filed its Amended Verified Petition, containing fourteen causes of action. The first cause of action seeks a determination that the Consent Order Barge Plan should be vacated as null and void because it is illegal, as well as arbitrary and capricious. The second cause of action seeks a judgment declaring that DEC is in violation of the requirements of State Environmental Quality Review Act ("SEQRA") Regulations, and that the subsequent approval of the purported Consent Order Barge Plan should be declared null and void, or in the alternative, a judgment that the approval is void because it was done in an arbitrary and capricious manner. The third cause of action requests a judgment declaring that DEC should have applied for SEQRA review mandated by 6 NYCRR Part 617, which would have resulted in a determination that the Consent Order Barge Plan constituted a Type I or Unlisted action, requiring the completion of a full Environmental Assessment "(EAF"), and thereafter and upon review the DEC should have issued a positive declaration, and should have required Inwood to prepare an Environmental Impact Statement ("EIS") in compliance with SEQRA, and DEC's failure to require the same invalidates the approval of the Consent Order Barge Plan as arbitrary and capricious and an abuse of discretion.
The Amended Petition's fourth cause of action seeks a judgment declaring that DEC has conspired with Inwood to segment obviously significant environmental impacts which would result from Inwood's activities, including on-site soil separating and implementing the environmentally non-vetted barge plan. Roger Realty further argues that DEC's approval of the Consent Order Barge Plan on August 17, 2018 should be annulled, vacated and set aside as arbitrary and capricious.
The fifth cause of action argues that the approval of Inwood's Consent Order Barge Plan should be annulled, vacated, and set aside as arbitrary and capricious and an abuse of discretion because DEC failed to take into account any of the environmental impacts of the plan in contravention of the requirements of SEQRA and its implementing regulations, and in contravention of the legislative purpose of the creation of DEC and the enactment of SEQRA.
The sixth cause of action seeks a declaration, since DEC has violated SEQRA by segmenting its environmental review of both the Consent Order Barge Plan and the Part 360 Application that Inwood intends to file, that the DEC approval was improperly issued, and the granting of the Consent Order Barge Plan should be annulled, vacated and set aside as arbitrary, capricious and an abuse of discretion.
The seventh cause of action requests a judgment declaring that DEC failed to take a "hard look" at the environmental implications of the Consent Order Barge Plan, and it therefore should be annulled, vacated and set aside as arbitrary, capricious and an abuse of discretion.
The eighth cause of action seeks a judgment declaring that Inwood needed a permit or registration from DEC to use recycled concrete aggregate ("RCA") to elevate and regrade its property and that DEC violated its own regulation by not requiring a permit. The ninth cause of action seeks a judgment declaring that the Consent Order Barge Plan must be annulled because Inwood has failed and/or refused to comply with the 2018 Consent Order (reporting to DEC), and DEC's consent to it must be annulled. The ninth cause of Action also seeks a permanent injunction requiring DEC to fully comply with its obligations to enforce the terms, conditions and obligations of the Consent Order Barge Plan and the attached compliance schedule, including disposal receipts and evidencing the volume of all material removed from the site and returned to the site be filed with the DEC, and that DEC test the soil at the site and make the results of the testing available to insure that all of the C & D materials were completely removed from the site and there is no contamination. It also seeks an injunction requiring Inwood to remove the additional materials which increased the grade of the site by two feet.
Causes ten through fourteen are against the Town of Hempstead. The tenth cause of action seeks to enjoin the Town from entering into a boundary line agreement with Inwood, in furtherance of the Consent Order Barge Plan, or the use proposed by Inwood in its variance application (presently) pending before the Town's Board of Zoning Appeals ("BZA"). The eleventh cause of action also seeks to enjoin the Town from entering into a boundary agreement with Inwood to utilize the Town's premises in furtherance of the Consent Order Barge Plan, as set out in the variance presently pending before the Town'S BZA. The twelfth cause of action again seeks to enjoin the Town from entering into a boundary agreement with Inwood to utilize the Town premises in conjunction with its variance application and in furtherance of the Consent Order Barge Plan. The thirteenth cause of action is a duplication of Cause of Action twelve. The fourteenth cause of action also seeks to enjoin the Town from entering into a boundary agreement with Inwood to utilize the Town's property, and requiring the Town to require Inwood to submit an application for approval of the barging and tug boat operation with the Army Corp of Engineers.
The Opposition by the Town of Hempstead
On April 1, 2019, in Lieu of an Answer, the Town of Hempstead moved to dismiss the Tenth, Twelfth, Thirteenth and Fourteen Causes of action in the Amended Verified Petition — which was denied by the Court. The Court directed that an Answer and Record be provided, which the Town has done. According to the Town, the causes of action seek an injunction against the Town to prevent it from entering into a boundary line agreement with Inwood, but as no final determination has been made by the Town, the petition against it must be dismissed. This was the case when the motion to dismiss was denied, and remains the case today. Any such boundary line agreement and sale would be subject to Town Board approval, and the Court is without authority to usurp the Town Board's authority in this area. The Town also argues that the petition must be dismissed as it is not timely, the Consent Order being made on February 13, 2018 and petitioner having notice of the Barge Plan Consent Order no later than July 20, 2018.
According to an e-mail from Ross Gerber to Susan Schindler, the barge plan was not among the documents she supplied with respect to his FOIL request.
The Opposition by the Department of Environmental Conservation
DEC also cross-moved to dismiss the petition, which was likewise denied by the Court. An Answer and Record were subsequently provided. In its opposition, DEC argues that no environmental review of the Consent Order Barge Plan was necessary because, as a remedial plan, it represents prosecutorial discretion, and the petition therefore fails to state a cause of action. DEC also argues that the petition is untimely.
The Opposition By Inwood and Whip Realty
An Answer with Objections in Point of Law was filed by Inwood and Whip Realty Corp. Those objections include that the matter is time-barred, the Consent Order Barge Plan and Inwood's Barge Plan are exempt from SEQRA review, and the petitioner lacks standing. Inwood further argues that the Amended Petition does not set forth a sufficient basis for SEQRA review, and that its Barge Plan has been approved only for the removal of the pre-existing dirt pile. Inwood also argues that the petition must fail because Roger Realty will have the opportunity to participate in SEQRA review during the process by which Inwood will seek a use variance from the Town of Hempstead's Zoning Board of Appeals. Inwood also asserts that the Town has granted it permission to use of the foreshore, and no permanent injunction can be sought because the Town has made no final determination on Inwood's bid to purchase the foreshore. These respondents also argue that this Court cannot issue an injunction against the sale the subject foreshore because it would unlawfully usurp a power given to the Town Board. Finally, Inwood argues that it has riparian rights to the foreshore, and petitioner does not.
The Court granted the motion to dismiss by Galli Engineering, as there are no allegations in the Amended Verified Petition against it.
Roger Realty in Reply to the Verified Answers and Returns
The petitioner argues that this Article 78 is timely, as it was filed within the four-month period from DEC's approval of the Consent Order Barge Plan, although all respondents argue that the commencement of the running of the statute dates back to the original March 5, 2018 Consent Order. The petitioner argues that the actual Consent Order Barge Plan goes beyond any "prosecutorial discretion" — in that it has actually provided a Barge Plan to serve Inwood's proposed soil separation facility. It is also argued that a fair reading of Consent Order Barge Plan reveals that it is not limited to removing the remaining materials at 180 Roger Avenue, but rather it is forward looking to a time when barges will bring in materials to the site.
Following the Return from the NYSDEC, it is clear that the Consent Order Barge Plan does not contain a permit for Inwood, doing business as Russo's Tin N Tug.
The petitioner argues that Inwood does not own the foreshore from which its Barge Plan will be orchestrated, and that neither Inwood nor DEC received permission from the Town of Hempstead to use the foreshore to access the bay. The petitioner argues that the Consent Order Barge Plan itself is not exempt from SEQRA, pursuant to ECL 8-105(5)(I), contending that it will have significant environmental impacts. If properly considered, those impacts, petitioner argues, would have required DEC to issue a positive declaration, thereby requiring Inwood file an EIS. Further, that DEC knew or should have known that Inwood had a use variance pending with the Town of Hempstead to operate a soil separation facility, as well as the intention to apply for a Part 360 solid waste authority permit, and failure to comply with SEQRA on the Barge Plan which is clearly an attendant part of the soil separation operation, each constitutes impermissible segmentation. As the Consent Order Barge Plan is a component of the Inwood's entire business plan, a coordinated review was required by DEC, including coordinating its review with the Town of Hempstead's Zoning Board of Appeals. DEC and the Town should have taken a "hard look" at the environmental implications of the Inwood's Barge Plan. Further, this review is required under Part 360.16(h) because Inwood is within 150 feet from a designated Superfund site.
The Town acknowledges it owns the foreshore, according to its record, and that a Boundary Agreement and sale of the property will be necessary in order for the variance to be granted.
The Consent Order Barge Order specifically references these intentions by Inwood and Russo's Tip N' Tug.
Respondents Motion to Dismiss the Article 78 as Moot
On October 15, 2020, and after the Article 78 was fully submitted, Counsel for Inwood advised that Inwood had filed a closure report for 180 Roger Avenue, which had been accepted by DEC — in sum, arguing that the proceeding was moot as Inwood had fully complied with its obligation under the 2018 Consent Order to remove the regulated solid waste that had remained at 180 Roger Avenue without DEC authorization. On October 27, 2020 Inwood moved to dismiss, advancing the argument that DEC's approval of Inwood's closure report rendered this proceeding moot, an application that was made and joined by all respondents.
Inwood's present claim of mootness is viewed with a bit of scepticism. The Article 78 proceeding was commenced on December 14, 2018. Inwood submitted to DEC a Final Solid Waste Facility Closure Report dated August 26, 2020, which recites an inspection by Frank Gehrling of Galli Engineering, taking place at 180 Roger Avenue on March 16, 2018, and that "the stockpile of fill was completely removed from the site...the facility is presently closed and no additional operations have been performed at the site...(a)ll fill materials were removed by trucks in lieu of a proposed barge handling facility...the site has been properly remediated, and can achieve a certified closure report to resolve" the Consent Order. To be clear, if Inwood had remediated 180 Roger Avenue by March 16, 2018, and its Barge Plan was no longer required to complete the March 5, 2018 Consent Order, the same should have stated much earlier in these proceedings. For example, in Inwood's April 1, 2019 Verified Answer. All said, this lack of sooner candor by Inwood gives greater support to Roger Realty's argument that Inwood's Barge Plan was less about remediation of C & D at 180 Roger Avenue and more about Inwood's business plans for a barge facility sans compliance with SEQRA, or a proper permit by DEC.
Here, the Court is mindful, if "during the pendency of a proceeding to review an agency determination, there has been a subsequent action taken which has resolved the issue in dispute, the proceeding should be dismissed as moot" (Matter of Mehta v. New York City Dept. of Consumer Affairs , 162 AD2d 236, 237 [1st Dept 1990] ). This said, "an exception to the (mootness) doctrine discloses three common factors" (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e. substantial and novel issues" (Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715 [1980] ). Stated differently, a matter is not moot where it "presents a live controversy and enduring consequences potentially flow" from the determinations complained of (Matter of Spence v. Shah , 136 AD3d 1242, 1244 [3d Dept 2016] ; Matter of Veronica P. v. Radcliff A. , 24 NY3d 668 [2015] ). Further, in the case of an agency, the Court must also answer the question of whether the agency's determination will have the potential to affect the petitioner's future rights (Matter of Rubenstein v. McGowan , 273 AD2d 21, 22 [1st Dept 2000] ).
For the reasons that follow, the Court denies the respondents' motion to dismiss on grounds of mootness.
The Court finds, based upon the Record provide by the Town of Hempstead, that an application by Inwood for a use variance of the disputed foreshore is still pending before the Town, which is being considered by the Town simultaneously with a proposed Boundary Line Agreement, and that Inwood would purchase the foreshore — clearly owned by the Town — from the Town for $130,000. The Record also shows that Inwood has not moved to modify its Application for a Use Permit for a "proposed clean fill forwarding business", which expressly includes the use of barges. Further, the motion to dismiss on behalf of all the respondents does not in any manner address the actions pending in the Town of Hempstead. However viewed, the Town's Record illustrates the type of segmentation that is clearly prohibited by SEQRA. The Record also contains a proposed negative declaration, authored by the Town Attorney, which was provided to Inwood's counsel, in spite of an EAF that contains numerous in-opposite findings, including that Inwood's proposed activity is adjacent to a Superfund site. Also noteworthy in the Record are comments by neighbors of the foreshore, which validate what appears in the photographs provided by the Town, namely that significant activities have already occurred on the foreshore in furtherance of Inwood's development, including the construction of concrete walls, soil leveling, and work on the barge pilings and docks.
Also, in the Court's view, the issue of DEC avoiding its responsibilities for SEQRA review, for whatever reason, and by putting a clearly environmentally sensitive Barge Plan into a remediation consent order, is a matter that will likely recur. As demonstrated here, it is also likely that DEC's determination to place Inwood's Barge Plan into an remediation order, namely the Consent Order Barge Plan, is also an issue that will likely evade judicial review. Further, the Court views what has occurred here as substantial and novel. All said, the Court declines to dismiss the petition as moot, and will therefore fully consider the instant Article 78 application.
Analysis on Standing and the Statute of Limitations
Courts have identified two requirements for fixing the time when an agency action is final and binding upon a 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" ( Matter of Best Payphones, Inc. v. Department of Info. Tech & Telecom. of the City of NY, 5 NY3d 30, 34 [2005] ). Where, as here, a consent order contains only part of the remediation plan, and the specific actions are reserved for further review by DEC, any harm alleged by petitioners with respect to the 2018 Consent Order "would be purely speculative" until DEC's approval of the Consent Order Barge Plan ( Matter of 101CO, LLC v. New York State Dept. of Envtl. Conservation , 169 AD3d 1307, 1309 [3d Dept 2019] ) — which thus fixed the time when DEC's action became final and binding.
Standing by a petitioner is demonstrated when there is the possibility of "both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated" ( Matter of Association for Better Long Is., Inc v. New York State Dept. of Envtl. Conservation , 23 NY3d 1,6 [2014] ). So while injury-in-fact must be more than speculation or conjecture, standing rules should not be "applied in an overly restricted manner that will completely shield a particular action from judicial review" (Matter of Village of Woodbury v. Seggos , 154 AD3d 1256, 1258 [3d Dept 2017], quotations and citation omitted)). Here, the Court is also mindful that "allegations in a petition are deemed to be true and are construed in the light most favorable to the petitioner" (Matter of Town of Coeymans v. City of Albany, 284 AD2d 830, 833 [3d Dept 2001] ).
Roger Realty has standing. The petitioner has alleged a number of harms and injuries it will suffer when and if Inwood's proposed barge operations commence. For example, the Consent Order Barge Plan calls for water to be used to control dust at the site, and the petitioner alleges there are insufficient dry wells to hold this run-off, which will migrate across his property and into the McCafferty Creek, where it has riparian rights and through which it has access to Jamaica Bay. Inwood's property sits next to a Superfund site. The petitioner asserts air emissions from dust and truck; that the trucks and heavy equipment will be a disturbance of an existing underground petroleum hydrocarbon and VOC plume at the site; and numerous other adverse effects, in sum, sufficient to confer standing. The petitioner also points out that the effects of barges in this part of Jamaica Bay has not been sufficiently studied, and that a 9717 ton barge will create turbidity and dislodge known contaminants which sit at the bottom of the bay.
Only an upland owner has riparian rights to the "waters in front of that owners' property and (they (do not extend to the frontage of the adjoing parcel" (Kearns v. Thilburg, 76 AD3d 705 707 [2d Dept 2010] ). With or without riparian rights to the disputed foreshore, petitioner still has standing.
The Court is mindful of the four-month statute of limitations for the filing of Article 78 petitions challenging agency determinations. On this record, the Court finds that the petitioner has certainly alleged sufficient facts by which it can determine that the final, definitive action by DEC caused, or is immediately poised to cause, actual harm to Roger Realty — all of which occurred on August 17, 2018 when DEC approved the Consent Order Barge Plan. Under these circumstances, the petitioner could not have appreciated the effect of the 2018 Consent Order until DEC approved the Consent Order Barge Plan on August 17, 2018 — it was not until then that the petitioner was advised of the scope of Inwood's Barge Plan, and particularly that it would provide for the continued use of barges in connection with Russo's Tip N Tug's business venture, including that "the facility will also outbound materials brought in by barge such as trap stone (varying sizes) and pipe sand by truck."
Although the respondents argued that SEQRA review will eventually happen in conjunction with Inwood's application for a variance to run the soil separation business, according to the Town's own Record, that did not occur. Further, it appears that it then could be too late to ameliorate the effects of these barges in Jamaica Bay and McGafferty's Creek as Inwood is moving ahead with its planned use of the foreshore. In concert with the arbitrary and capricious determination of DEC to approve a Consent Order Barge Plan, Inwood and the Town have improperly segmented approval of Inwood's use variance. From the Court's review of the Town's Record, the EAF did not specifically address the use of barges.
With respect to the Town of Hempstead, while it argues that no final determination has been made with respect to Inwood's proposal to buy the foreshore, it has also argued that the Court should accept that permission was granted by it to Inwood to utilize the foreshore for implementing Inwood's Barge Plan. The Town has provided no written or other documentary evidence in the Record that this is the case.
Although Counsel for Inwood argues that a ZBA meeting that the Town had issued permits for work to commence on the dock and for Russo to store equipment there, no such permits appear in the Town's Record.
The Article 78 Proceeding Determination
The instant Article 78 seeks to vacate the Consent Order Barge Plan, and to enjoin the Town from taking any further steps in granting a variance which will allow Inwood to purchase the foreshore, operate its soil separating business, and transport soil from its facility by barge down river to processing plants. By engaging with Inwood through its counsel, DEC has placed itself at the forefront of this controversy, because, although it has withdrawn its consent to the use of barges to haul away the waste materials which were at the site as part of a remediation plan for 180 Roger Avenue, implicit in that order was the DEC's approval of the use of barges without a SEQRA review. In its Reply affidavit to the motion to dismiss, respondents produced affidavits attesting to the fact that "Inwood..will undertake no barging pursuant to the 2018 Consent Order Barge Plan" (Salvatore Russo Affidavit) and "To be clear, there are no current applications under review for the SIte (sic), either by the Town or the DEC." (Richard Galli Affidavit). It remains unclear whether Inwood has withdrawn its application for a use variance, and the documents which accompany it, such as the EAF. What is clear is that Inwood's attempts to purchase the foreshore will be ongoing, as with its desire to use barges in its soil separating business. Therefore, what happened with the approval of the Consent Order Barge Plan remains a live controversy, and one which must be reviewed for the clarity of the project as it moves forward. This review is also necessary to prevent a scenario where the environmental review for activities similar to Inwood's are totally by-passed through impermissible segmentation.
New claims may not be raised in a Reply to the Article 78, and so the Court will not consider the General Municipal Law § 51 claim.
The Court finds that DEC's approval of the Consent Order Barge Plan was an action described in ECL 8-0105 (4) and 6 NYCRR 617, in that it involved a project or activity involving the issuance of a "lease, permit, license, certificate or other entitlement for use or permission to act...". ( Matter of City Council of City of Watervliet v. Town Bd. of Town of Colonie , 3 NY3d 508, 517-518 [2004] ). Once DEC began reviewing a remediation plan that would contain an activity which would require its own separate and distinct permit, without complying with those statutory and regulatory requirements, it overstepped its statutory authority. An administrative agency has only those powers expressly conferred by statute ( Saratoga County Chamber of Commerce, Inc. v. Pataki , 100 NY2d 801, 823 [2003] ). Here, DEC's approval of the Consent Order Barge Plan (which included a new and continuing use of barges after remediation of 180 Roger Avenue) went far beyond the statutes establishing the goals for a remedial program, namely the elimination of the significant threat and of the imminent danger of irreversible or irreparable damage to the environment — which was to clean up 180 Roger Avenue by elimination of the C & D material abandoned by Etgar, thereby containing, alleviating and ending the threat to the environment caused by the abandoned C & D ( Matter of New York State Superfund Coalition, Inc. v. New York State Dept. of Envtl. Conservation, 68 AD3d 1588, 1589 [3d Dept 2009] ). Further, albeit the Consent Order Barge Plan required a Part 360 application, Inwood never obtained a 360 permit, and a permit belonging to another entity was attached to the Consent Order.
In order for the Court to determine that an agency has met the requirements of SEQRA, the record must show that the agency identified relevant areas of concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis (Matter of Save the Pine Bush Planning Bd. of City of Albany, 96 AD2d 986, 987 [3d Dept 1983] ).
When the issue before the Court concerns the exercise of discretion by an administrative agency, it "cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious" (Matter of Pell v. Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 231 [1974] ). Stated differently, an agency's determinations are entitled to substantial deference and must be affirmed unless they lack "any reasonable support in the record for the action taken" (Matter of Campo Corp. v. Feinberg , 279 AD 302, 307 [3d Dept 1952]. "[A] court, in dealing with a determination which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency" ( Matter of National Fuel Gas Distrib. Corp. v. Public Serv. Commn. of the State of NY, 16 NY3d 360, 368 [2011], quoting Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753,758 [1991] ). "[A]n agency's order must be upheld, if at all, on the same basis articulated in the order by the agency itself" ( Fed. Power Comm'n v. Texaco , 417 US 380, 397 [1974] ) and not by the agency's post order actions.
The Court requested DEC's Record of its interactions with Inwood and the remediation/Consent Order Barge Plan. In the Court's view, the Record provided was wholly lacking, and in a word, dismal. There was no "hard look" or "reasoned elaboration" for the failure to require an EIS. The Record contained no documentation or correspondence, reports or evaluations, or discussions of the reason for the barge plan. The Record contained no discussion or review of the environmental impacts of allowing Inwood's proposed Barge Plan. DEC has simply provided the Court with no basis to credit that Inwood's Barge Plan was in any way necessary to remediate 180 Roger Avenue. The Record contained no logs of materials removed by Inwood, no testing, or any final environmental review of 180 Roger Avenue. Roughly one-half of the Record was photographs of a map of the site, copies upon copies of the Consent Order Barge Plan, and descriptions and photographs of the heavy equipment which was to be utilized. One meeting with officials from the DEC and Inwood's counsel was noted, but were no minutes of that meeting nor any record of what was discussed at the meeting. The Record provided no substantiation for the need to use barges in Jamaica Bay in order to remove the waste identified at 180 Roger Avenue. The Record did contain a map which indicated that Inwood did not own the foreshore, but that issue was never noted by DEC. Similarly stripping away any credibility to DEC's review of Inwood's Barge Plan, the Court notes DEC soliciting a letter from Inwood's counsel as to whether permits were required from the Town for the barge plan — documentation that DEC should have included in the Record and are not are not contained in the Record. For all of these reasons, the Court finds the Consent Order Barge Plan null and void, arbitrary and capricious and made by DEC without a sound basis in reason and without regard to the facts.
Counsel for Inwood has moved to supplement its Answer to provide for a cross-claim against Petitioners for Abuse of Process, openly accusing Petitioner of interfering with its client's ongoing business, by interfering with the variance hearing process. For the first time in the Reply, respondents aver that there is no "ongoing business" on the foreshore at this time. However viewed, these are two diametrically opposed representations. The petitioner cannot be faulted for wanting a written assurance that DEC's now offered Final Solid Waste Closure Report, dated October 20, 2020, nullified every aspect of the Consent Order Barge Plan, including the express provision that "materials brought to the site will be leaving by barge." Further, the motion to dismiss, prior to the affidavits submitted in Reply, did not in any manner address the actions pending in the Town of Hempstead. So while the DEC has issued its Final Closure Report, because the "requirements for removal all unprocessed and processed C & D material have been satisfied", it is not clear if that part of the Consent Order Barge Plan that allows for the transfer of materials by Inwood by barge of materials that are not waste from the Inwood site by barge was also nullified. Certainly, whether transfer of material that is "not waste" from 180 Roger Avenue by barge might survive the nullification of the Consent Order Barge Plan is unlikely, but on this record (including the actions by Inwood, DEC and the Town), the Court is not so assured.
The Town's Record contains a proposed negative declaration authored by the Town Attorney, which was provided to Inwood's counsel, in spite of an EAF that contains numerous worrisome findings, including that the proposed activity is adjacent to a Superfund site. The EAF determined that the proposed action may result in new or additional use of groundwater, or may have the potential to introduce contaminants to ground water or acquifer. The report also indicated that the project may have an impact on historical or archaeological resources, and there may be an impact on noise, odor and light. Inwood itself identified the project as one that may "be obnoxious or offensive by reason of the emission of odor, dust, fumes, smoke, gas, vibration and noise."
Accordingly, the Court vacates the Consent Order Barge Plan in all it's iterations, and for all purposes, as arbitrary and capricious, lacking any SEQRA review, and wholly without substantiation in the record. The vacatur of the Consent Order Barge Plan includes its approval for barging non-waste materials by Inwood from the foreshore or from 180 Roger Avenue.
The petitioner also seek a preliminary injunction in this matter against the Town of Hempstead. Here, the Court is mindful that a preliminary injunction is a drastic remedy that will not be granted "unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden is on the movant ( First Natl. Bank of Downsville v. Highland Hardwoods, 98 AD2d 924, 926 [3d Dept 1983] ). The petitioner "must show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of equities in their favor" ( Aetna Ins. Co v. Capasso , 75 NY2d 860, 862 [1990] ). The ordinary purpose of a preliminary injunction is "to maintain the status quo and to prevent any conduct which impair the ability of the court to render final judgment" ( St. Paul Fire & Mar. Ins. Co. v. York Claims Ser. , 308 AD2d 347, 349 [1st Dept 2003] ). A reviewing court cannot interfere with the exercise of discretion by the Town unless it finds there is no rational basis or the actions complained of are "arbitrary and capricious" (Matter of Pell, 34 NY2d, at 231 ). Respondents are correct that the Town simply has taken no action on the variance. This said, the Court cannot preliminarily enjoin the Town, in advance of it exercising its legislative and statutory right to interpret its own zoning law, taking such actions that it clearly entitled to ( Putter v. City of New York , 27 AD3d 250, 253 [1st Dept, 2006] ). Until such time as the Town takes some affirmative action on Inwood's variance application, there is nothing to enjoin. Further, based upon this record, the Court cannot say that the balance of the equities are clearly in the petitioner's favor.
In declining the petitioner's application for a preliminary injunction, the Court is also mindful of the petitioner's continuing right to challenge Inwood's application for a use variance, any subsequent barge plan, and any referendum to sell the foreshore property to Inwood before the Town Board, and by a subsequent Article 78 — if and when approvals are granted — and on that record seek a determination of compliance with the requirements of Town Law § 267-b, § 64(2), and with an actual SEQRA review of the entire project, including the environmental impact of barges in Jamaica Bay.
Accordingly, it is
ORDERED, that the respondent Inwood's Motion to Dismiss for mootness is denied, and it is further
ORDERED, that the petitioner's Article 78 is granted in part, to the extent that the DEC's Consent Order Barge Plan is declared null and void as arbitrary and capricious, and it is further
ORDERED, that the petitioner's Article 78 is denied in part, to the extent that the petitioner is not entitled to any injunctive or equitable relief against Inwood and the Town of Hempstead at this time, and it is further
ORDERED, that the respondent Inwood's request to supplement it's Verified Answer is denied.
This constitutes the Decision and Order of the Court. The Original Decision and Order is filed by the Court with NYSCEF, which shall not constitute entry or filing under CPLR 2220. Counsel for the Petitioner is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.