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Failure to Bring Timely Article 78 Proceedings to Contest Town Planning Board Decisions Approving Construction of a Condominium Cannot Be Circumvented by Bringing an Action for a Declaratory Judgment

The Fourth Department affirmed Supreme Court’s finding that the statute of limitations for an Article 78 proceeding contesting the determination(s) of a town planning board cannot be circumvented by bringing an action for a declaratory judgment.  The dispute concerned whether “substantial work” had been commenced on a condominium construction project such that the approval of the project did not terminate automatically due to the passage of time. The planning board had concluded that “substantial work” included efforts to finance the project and was not limited to physical construction:

We reject plaintiff’s contention that the action was timely and properly brought as a declaratory judgment action pursuant to CPLR 3001. Although a six-year limitations period governs declaratory judgment actions (see CPLR 213 [1]), it is well settled that if such claim could have been brought in another form, then the shorter limitations period applies … . Here, Town Law § 274-a (11) provides for a 30-day limitations period for challenging “a decision of the [planning] board or any officer, department, board or bureau of the town” under CPLR article 78. Thus, plaintiff’s challenge to the Town Code Enforcement Officer’s determination of the meaning of “significant work” under Code § 170-94 (J) could have been brought in a CPLR article 78 proceeding under Town Law § 274-a (11). Assuming arguendo, as plaintiff contends, that no administrative appeal from such determination was required or available, the action was not commenced within the 30-day limitations period set forth in section 274-a (11), and the court therefore properly granted defendants’ motions to dismiss on that ground … . Likewise, any challenge to the 2005, 2009 or 2012 Planning Board’s actions could have been brought in a CPLR article 78 proceeding, and thus the instant action, even though denominated as one for a declaratory judgment, also was not timely commenced within the 30-day limitations period applicable to each such action of the Planning Board (see Town Law § 274-a [11]; see also Town Law §§ 267-c [1]; 282).

We reject plaintiff’s further contention that, with respect to the Town Code Enforcement Officer’s determination, there was no administrative action and thus “nothing to appeal.” Contrary to plaintiff’s contention, Code § 170-92 (B) specifically provides for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code … . Thus, plaintiff failed to pursue the available administrative appeal …, and the 30-day period of limitations applicable to judicial review therefrom cannot be circumvented by “the simple expedient of denominating the action one for declaratory relief” … . Bristol Homeowners Envtl Preserv Assoc LLC v Town of Bristol, 2014 NY Slip Op 07790, 4th Dept 11-14-14

 

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Transmission Line from Hydroelectric Power Facility in Canada to Queens Properly Approved

The Third Department determined that the NYS Public Service Commission properly issued a certificate of environmental compatibility and public need (EC & PN) for an electric power transmission line running from a hydroelectric power facility in Canada to Queens.  After the issuance of the EC & PN, the petitioners sought a rehearing pursuant to Public Service Law 22.  The Commission denied the petition on the ground it had been filed and served one day late.  The Third Department held that the failure to timely file was nonprejudicial “law office failure” which should have been excused pursuant to CPLR 2005 and went on to review the Commission’s grant of the EC & PN on the merits, including the economic feasibility of the plan, the public need for the hydropower-produced electricity (reduced carbon emissions),  and the effects of the transmission line on the environment:

We begin by recognizing that, as parties to the proceedings at the agency level, petitioners have standing … . The criteria for authorizing the construction and operation of a major utility transmission facility are set forth in Public Service Law § 126. Under this statute, the Commission may not grant a certificate approving an electric transmission project unless it finds and determines (1) the need for the facility, (2) whether the facility will achieve the minimum adverse environmental impacts, (3) whether the facility will be located underground and comport with the state’s long-range plan to expand the electric power grid, (4) that there has been conformance with applicable state and local laws and regulations, and (5) that the facility promotes the public interest, convenience and necessity (see Public Service Law § 126 [1] [a]-[d], [f], [g]). This project involves the placement of a high voltage, direct current transmission line extending from the Canadian border to a converter station in Queens and, from there, a high voltage, alternating current transmission line to the Rainey Substation. The line will be placed underwater in Lake Champlain and the Hudson River and underground in the upland segments. * * *

Petitioners contend that the Commission failed to adequately consider the potential harm to aquatic species, including the endangered shortnose and atlantic sturgeon, posed by the placement of cables underwater. The plan requires the underwater cables to be buried at least six feet beneath the lake/river bottom, except in areas of utility crossings and hard rock. In these areas, the cable will be covered by concrete mats. The specific risks emanate from the use of the concrete mats as well as magnetic and electromagnetic field impact. The record supports the Commission’s determination that any risk has been minimized by the placement of the cable route utilizing existing habitat information designed to avoid significant coastal fish and wildlife habitat areas designated by the Department of State (see 19 NYCRR part 602) and the exclusion zones identified by the parties in the joint proposal. There is also expert record evidence supporting the Commission’s conclusion that the magnetic fields’ impact on sturgeon and other aquatic species would be minimal. Further, we agree with the Commission’s observation that the July 5, 2011 letter from the Army Corps of Engineers addressing the cable route under Lake Champlain and the Hudson River was a preliminary assessment. Moreover, the certificate is conditioned on the applicants’ procurement of a construction permit from the Army Corps of Engineers, which has jurisdiction over these navigable waterways, prior to commencing construction.  Matter of Entergy Nuclear Power Mktg LLC v New York State Pub Serv Comm, 2014 NY Slip Op 07711, 3rd Dept 11-13-14

 

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Four-Month Statute of Limitations Started When Petitioner’s Attorney Received the Order, Not When the Order Was Served on Petitioner

With respect to an Article 78 proceeding to contest a determination of the Commissioner of the Department of Environmental Conservation, the four-month statute of limitations began when petitioner’s attorney received the Commissioner’s order, not when the order was served on petitioner.  Matter of Sutherland v New York State Dept of Envtl Conservation, 2014 NY Slip Op 07674, 2nd Dept 11-12-14

 

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Criteria for “Substantial Evidence” Review of an Administrative Determination After a Hearing Explained

In annulling the ruling of the Housing Authority because it was not supported by substantial evidence, the Second Department explained its role in reviewing an administrative ruling after a hearing:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence” … . Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… . While the level of proof is less than a preponderance of the evidence, substantial evidence does not arise from bare surmise, conjecture, speculation, or rumor …, or from the absence of evidence supporting a contrary conclusion … .

Here, the Housing Authority’s determination that the petitioner allowed her father to reside with her without notice to or approval from the Housing Authority in violation of the rules and regulations of the Section 8 Housing Choice Voucher Program was not supported by substantial evidence. Matter of Harrison v Palumbo, 2014 NY Slip OP 07510, 2nd Dept 11-5-14

 

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Criteria for Court Review of Agency Action Explained

In affirming the town’s approval of a subdivision plan, the Third Department explained its review powers:

…”[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” … . Moreover, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives” … . Matter of Dugan v Liggan, 2014 NY Slip Op 07404, 3rd Dept 10-30-14

 

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Appeal Board Was Bound by Arbitrator’s Findings of Fact Re: Employee’s Serious Safety-Rule Violations

The Third Department reversed the Unemployment Insurance Appeal Board after the Board determined petitioner should not have been terminated for rule violations.  Pursuant to arbitration under a collective bargaining agreement, the arbitrator had made factual findings re: serious rule violations.  The Third Department explained that the Board was bound by those factual findings:

[“While the Board was free to make ‘independent additional factual findings’ and draw its own independent conclusion as to whether claimant’s behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator’s] ‘factual findings regarding claimant’s conduct and [her] conclusion’ that claimant had” committed serious violations of safety rules … . The arbitrator here found that claimant had committed grave violations of the employer’s policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct. The Board, in contrast, inexplicably found that claimant had “substantially complied with” the employer’s policies and made no effort to consider claimant’s behavior within the context of his prior disciplinary history. Thus, as the Board improperly contradicted factual findings of the arbitrator, remittal is necessary for it to “reconsider[] upon appropriate findings” … . Matter of Boretsky …, 2014 NY Slip Op 07414, 3rd Dept 10-30-14

 

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The Prevailing Wage Statute Applies To All Work Reasonably Interpreted to Be Covered by the Statute—The Fact that the Application of the Statute Is Unsettled At the Time the Public Works Contract Is Entered Does Not Allow the Employer to Escape Its Reach Once the Law Is Settled

The Court of Appeals, in an opinion by Judge Smith, answered two certified questions posed by the Second Circuit about the application of the prevailing wage statute to workers engaged in the testing and inspection of fire protection equipment.  The statute requires employees doing construction, maintenance or repair on public works be paid not less than the prevailing rate of wages. The Second Circuit was asked to review the Labor Department Commissioner's ruling that the statute applied to the testing and inspection of fire protection equipment, but only prospectively.  The Second Circuit asked the Court of Appeals whether deference to the Labor Department's prospective application should be accorded, and further asked whether an employer who agrees to be bound to pay prevailing wages pursuant to section 220 has agreed to pay such wages for all work covered by the statute as the statute is reasonably interpreted, as opposed to only the types of work about which the law is settled at the time of the agreement.  The Court of Appeals determined the law should apply as it is correctly understood, not as the parties may have misunderstood it.  Ramos v SimplexGrinnell LP, 2014 NY Slip Op 07198, CtApp 10-23-14

 

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Denial of Property Tax Refunds by Director of Tax Commission Was Not Final—Article 78 Claims Not Ripe for Judicial Review

The Second Department determined the Article 78 proceedings seeking property tax refunds were not ripe for judicial review because the denial of the refunds by the Director of the county Tax Commission was not final:

…[T]he Supreme Court properly determined that his claims seeking CPLR article 78 relief relating to his tax refund applications were not ripe for judicial review. Administrative determinations may only be challenged via CPLR article 78 review after the determination is final (see CPLR 7801[1]). “For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate” … . Moreover, a matter is not ripe where the claimed harm may be prevented or significantly ameliorated by further administrative action … . Here, the issuance of written recommendations by the Executive Director of the Westchester County Tax Commission was not a final approval or denial of the appellant’s tax refund applications (see RPTL 5565])… . Matter of Greenberg v Assessor of Town of Scarsdale, 2014 NY Slip Op 07160, 2nd Dept 10-22-14

 

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Permit Allowing the Killing of 62 Deer Properly Issued/Exception to the Mootness Doctrine Applied

The Second Department determined an Article 78 proceeding contesting a permit issued by the Department of Environmental Conservation (DEC) allowing Vassar College to kill 62 deer was properly dismissed.  At the time of the appeal, the permit had already expired and the deer had been killed.  The court determined the appeal as an exception to the mootness doctrine because the issue is likely to reappear:

 …[A]n exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable … .

Here, although the subject deer cull has been completed and the challenged permit has expired, the appellants raise a substantial and novel issue as to whether the DEC is fulfilling its statutory responsibilities under SEQRA [State Environmental Quality Review Act] related to the issuance of nuisance deer permits. The issue is likely to recur and to evade appellate review, given the extremely short period of time during which such permits are valid … . * * *

Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a hard look’ at them, and made a reasoned elaboration’ of the basis for its determination” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . The agency decision should be annulled only if it is arbitrary and capricious, or unsupported by the evidence … . Further, an agency’s interpretation of its own regulation is entitled to deference unless it is unreasonable or irrational … .

Here, the Supreme Court properly determined that the DEC’s issuance of a nuisance deer permit to Vassar pursuant to Environmental Conservation Law § 11-0521 complied with the requirements of SEQRA and its implementing regulations. The DEC’s use of a generic EIS, updated with a supplemental findings statement, to assess the impacts of the issuance of nuisance deer permits as a part of its wildlife game species management program was proper… . Matter of In Defense of Animals v Vassar College, 2014 NY Slip Op 07162, 2nd Dept 10-22-14

 

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The Language of the NYC Rent Control Law, Unlike the Language of the NYC Rent Stabilization Law, Does Not Allow “Luxury Deregulation” After the Expiration of J-51 Tax Benefits

The First Department, in a full-fledged opinion by Justice Sweeny, determined that the relevant provision of the NYC Rent and Rehabilitation Act (Rent Control Law or RCL) could not be interpreted to allow “luxury deregulation” of a rent-controlled apartment upon the expiration of “J-51” tax benefits.  “Luxury deregulation” refers to the removal of rent controls where the tenant can afford to pay market rates. The opinion focused upon the wording of the Rent Stabilization Law (RSL) versus the wording of the Rent Control Law (RCL) .  The RSL specifically allows the owner of an apartment to apply for luxury deregulation upon the expiration of the J-51 tax benefits, while the RCL (the controlling regulation here) does not.  The opinion includes a discussion of court-review of an administrative agency’s interpretation of a statute where specialized knowledge is not involved, and statutory-interpretation criteria:

At the outset, we note that the question before us turns purely on statutory interpretation. As such, we need not defer to the agency’s interpretation of the statutes in question, as we are not called upon “to interpret a statute where specialized knowledge and understanding of underlying operational practices or . . . an evaluation of factual data and inferences to be drawn therefrom’ is at stake” … . * * *

The owner argues that the rationale of [the RSL] should also apply to apartments subject to rent control, because, inter alia, to hold otherwise would be inconsistent with the purpose of the luxury deregulation law, which attempted to “restore some rationality to a system which provides the bulk of its benefits to high income tenants” … . We are not unmindful that the legislative history indicates a preference not to have people who can easily afford market value rental property inhabit rent-regulated housing. However, this history does not offer sufficient evidence to alter the unambiguous language of Administrative Code § 26-403(e)(2)(j). To do so would require us to import new language into the RCL and “give it a meaning not otherwise found therein” … . Indeed, “where the language of a statute is clear, there is little room to add to or take away from that meaning'” … . If the application of such long-established principles of statutory construction produces “an undesirable result, the problem is one to be addressed by the Legislature” … . Matter of RAM I LLC v NYS Div of Hous & Community Renewal, 2014 NY Slip Op 06784, 1st Dept 10-7-14

 

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