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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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The Striking Down (by the Court of Appeals) of a Retroactive Zoning Ordinance Which Prohibited the Operation of a Landfill Did Not Require the Striking Down of a Subsequent Health and Safety Regulation Which Had the Same Effect

The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner’s property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect.  Because the two regulations are different in nature, the collateral estoppel doctrine is not available:

…[W]e agree with defendants that collateral estoppel does not apply here. “The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party’ ” … . The doctrine “applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action’ ” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . Here, the issue in this case—the legality of the 2007 Law as applied to plaintiffs—was neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs’ legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that “the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law” (id. at 142 [emphasis added]).

Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions… . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances… .

The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance … . Unlike the 2005 Law, the 2007 Law does not “regulate[] the location of certain facilities within particular zoning districts” but, rather, it “generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare” … . It is well established that “a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare” (id.) and “may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion” … . Jones v Town of Carroll, 2014 NY Slip Op 07780, 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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Provision of County Charter Requiring a Referendum to Amend the Drinking Water Protection Program Is Valid and Enforceable—Amendment Enacted Without the Referendum Is Null and Void—Both Individual and Organizational Plaintiffs Had Standing to Contest the Amendment

The Second Department reversed Supreme Court findng that: (1) the plaintiffs had standing to contest the amendment of the Suffolk County Drinking Water Protection Program (DWPP) on the ground that the referendum required by the county charter was not held; and (2) the resolution enacted in the absence of a referendum was null and void.  The court noted the fact that the pleadings were not included in plaintiffs’ motion for summary judgment, the reason Supreme Court denied the motion, was not fatal to the motion:

The Supreme Court erred in granting that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint on the ground that the plaintiffs lacked standing. An action commenced by natural persons pursuant to General Municipal Law § 51 “may take the form of [an] action for a declaratory judgment” … . To have standing based upon their status as taxpayers, the individual plaintiffs were required to allege that the challenged act constituted a waste of or injury to public funds or, alternatively, that the challenged act was both illegal and “imperil[ed] the public interests or [was] calculated to work public injury or produce some public mischief” … . Here, the plaintiffs alleged, in detail, that the defendants violated the Suffolk County Charter by enacting the Amendment in the absence of approval pursuant to a public referendum, and that this enactment threatened public funds expressly dedicated to protecting the drinking water supply in the County and lands in the Pine Barrens. Under the circumstances presented here, we conclude that the plaintiffs adequately alleged that the enactment of the challenged amendment without a public referendum is illegal insofar as it violates the Suffolk County Charter, and that this enactment imperiled the public interest or was calculated to work public injury or produce some public mischief… . …

Although the Supreme Court denied the plaintiffs’ motion for summary judgment on the ground that they failed to submit a copy of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to “disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . * * *

[The] provisions of the New York Constitution and the Municipal Home Rule Law do not prevent Suffolk County from adopting a charter provision like the one at issue here, which requires approval by a public referendum in order to amend or repeal the DWPP in the future (see Municipal Home Rule Law § 11[2][a]; § 34[4]…). Although the relevant charter provision requires a public referendum that is denominated as a “mandatory” referendum, that public referendum is not mandated by State law (cf. Municipal Home Rule Law § 23). Rather, the relevant charter provision constitutes the County’s mode of granting permission to the electorate to approve or disapprove, by means of a public referendum, proposed changes to the DWPP. Hence, the public referendum countenanced by the Suffolk County Charter can properly be characterized as a “permissive” referendum within the meaning of the New York Constitution and the Municipal Home Rule Law … . Long Is Pine Barrens Socy Inc v County of Suffolk, 2014 NY Slip Op 07633, 2nd Dept 11-12-14

 

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Organizations Representing Lakeshore Residents Should Have Been Allowed to Intervene in an Action Concerning Regulation of Lake Water Levels (Dictated by an 80-Year-Old Injunction)—Neither the Doctrine of Collateral Estoppel Nor Laches Was a Bar to the Relief Sought by the Lakeshore Residents

The Third Department determined Supreme Court should have allowed organizations representing hundreds of lakeshore residents (PLA and Sandy Knolls) to intervene in an Article 78/declaratory judgment proceeding concerning an 80-year-old injunction re: the operation of a dam to control water levels in the lake.  The court held that the neither the doctrine of collateral estoppel nor laches was a bar to the relief sought by the lakeshore residents:

“Pursuant to CPLR 7802 (d), a court may allow other interested persons to intervene” in proceedings brought against public agencies … . Further, intervention is to be granted as of right in any action or proceeding where a nonparty demonstrates that its interest in the matter is not being duly represented and the nonparty may be “bound by the judgment” (CPLR 1012 [a] [2]) or, alternatively, may be permitted by the court “when the person’s claim or defense and the main action [or proceeding] have a common question of law or fact” (CPLR 1013…). * * *

Although requests for leave to intervene invoke a court’s discretionary authority …, the thorough and well-reasoned submissions of the PLA and Sandy Knolls have shown that they have a “‘direct and substantial interest’ in the outcome of this litigation” and, therefore, Supreme Court erred in denying their motions to intervene … . Further, inasmuch as the motions to intervene were filed in the months after Supreme Court issued its order in proceeding No. 1, but before the final judgment was rendered in that proceeding more than a year and one half later, and approximately two years before judgment was entered in proceeding No. 2, we do not agree that denial of the motions on untimeliness grounds was necessitated … . Nor are there any indicia of undue prejudice to petitioners that would warrant the exclusion of the proposed intervenors from the matters . In light of this determination, the argument that the PLA and Sandy Knolls should have been joined as necessary parties has become academic.

Next, we consider Supreme Court’s finding …that collateral estoppel principles precluded respondents from challenging the [injunction]. As a “narrower species of res judicata,” the equitable doctrine of collateral estoppel precludes a party from retrying “an issue clearly raised in a prior action or proceeding and decided against that party or those in privity” … . In this regard, privity is an amorphous term not “susceptible to ease of application” …, and a court’s finding that differing parties are in privity requires consideration of “the character, right and extent of a party’s role in one proceeding as it bears on the intervention of the collateral estoppel doctrine in another” … . * * *[R]espondents were never given “a full and fair opportunity to contest the decision now said to be controlling” …, nor were their interests properly represented by [the defendant in the original injunction action], so as to warrant the application of collateral estoppel … . Borst v International Paper Co., 2014 NY Slip Op 07224, 3rd Dept 10-23-14

 

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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

 

Petitioner Did Not Have Standing to Contest Negative SEQRA Finding/”Alienation of Parkland” and “Public Trust” Arguments Rejected

The Fourth Department determined petitioner did not have standing to contest the negative finding pursuant to State Environmental Quality Review Act (SEQRA)  The finding concerned a storage facility to be built for the Maid of the Mist excursion boats on state-park land along the Niagara River.  The petitioner, Niagara Preservation Coalition, Inc., was formed to challenge the project.  In the course of the decision, the Fourth Department rejected the “alienation of parkland” and “public trust” arguments:

We conclude that petitioner failed to establish either an injury, or that it is the proper party to seek redress. Although petitioner submitted a supplemental affidavit of one of its members stating that he has a longtime personal and professional interest in the gorge trail and the ruins of the former hydroelectric plant, ” interest’ and injury’ are not synonymous . . . A general—or even special— interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances of the case” … . “Appreciation for historical and architectural [artifacts] does not rise to the level of injury different from that of the public at large for standing purposes” … . Here, petitioner failed to establish an injury distinct from members of the public who use the gorge trail to access the ruins of the former hydroelectric plant … , and thus it lacks standing to contest the SEQRA determination. * * *

Even assuming, arguendo, that petitioner has standing to allege alienation of parkland …, as it alleges in its third cause of action, we conclude that the court properly refused to issue a declaration that respondents …were required to obtain legislative approval for the construction of the facility within the confines of Niagara Falls State Park. It is well established “that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes” … . It is undisputed, however, that there is no case law in New York applying the “public trust” principle to state parks. The cases apply only to municipal parks … . Even assuming, arguendo, that [state] parks …are governed by the ” public trust doctrine’ ” … , which respondents dispute …, “what [petitioner] show[s here] is a dispute with public authorities about what is desirable for the park[,] . . . not a demonstration of illegality” … . Matter of Niagara Preserv Coalition Inc v New York Power Auth, 2014 NY Slip Op 06694, 4th Dept 10-3-14

 

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General Permit for Municipal Storm Water Discharge Does Not Violate Federal or State Law

The Second Department reversed Supreme Court’s determination that a general permit issued by the NYS  Department of Environmental Conservation (DEC) to municipalities for storm water discharge violated federal and state law.  One of the principle objections to the general permit was that it did not ensure municipalities would set appropriate limits on storm water pollutants.  The decision is very detailed and cannot be briefly summarized here:

The petition organized the alleged violations of state and federal law into four general groups, asserting that:

(1) the General Permit failed to ensure that small municipalities reduced their pollutant discharges to the maximum extent practicable, in violation of 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c);

(2) the General Permit failed to ensure that small municipalities complied with state water quality standards, in violation of ECL 17-0811(5) and ECL 17-0813;

(3) the General Permit failed to ensure that small municipalities monitored their storm water discharges, in violation of 33 USC § 1318(a) and ECL 17-0815(8); and

(4) the General Permit did not provide for public participation in the permit process, in violation of 33 USC §§ 1251(e), 1342(a)(1), and 1342(j), and ECL 17-0805(1)(a)(ix). * * *

The General Permit at issue on this appeal is consistent with the scheme for general permits envisioned by the EPA, and is designed to meet the maximum extent practicable standard prescribed by 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c). The General Permit requires entities seeking coverage to “develop, implement and enforce” a stormwater management plan designed to address pollutants of concern and “reduce the discharge of pollutants from the small MS4” to the maximum extent practicable, so as “to protect water quality, and to satisfy the appropriate water quality requirements of the ECL and the Clean Water Act” (see General Permit at 14, 95). A stormwater management plan must, inter alia, identify and describe the chosen best management practices and include measurable goals for each such practice (see General Permit at 95). The General Permit provides applicants with resources, including examples of successful stormwater management plans, a “menu” of best management practices, and suggested measurable goals (see General Permit at 95).  Matter of Natural Resources Defense Council Inc New York State Dept of Envtl Conservation, 2014 NY Slip Op 06090, 2nd Dept 9-10-14

 

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County Water Authority Had Standing to Bring Action Based Upon the Chemical Contamination of Its Wells—CPLR 214-c Governs Actions Based Upon Contamination—Action Was Untimely

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action against defendants alleging contamination of wells caused by chemicals (PCE and TCE).  However, the court determined the action was barred as untimely by CPLR 214-c.  In the course of the opinion, the court explained what the “two-injury” rule is in the context of a continuing wrong.  The court determined that CPLR 214-c was designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases.  In addition, the court explained the difference between latent and patent injuries with respect to CPLR 214-c:

Generally, a plaintiff has standing to sue if it has suffered an injury in fact … in some way different from that of the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions … .

We reject the movants’ contention that the SCWA lacked standing to seek damages for injury to 115 wells where the PCE contamination level fell below the MCL (federal and state “maximum contamination level” for PCE). The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury cannot have occurred … . Similarly, the MCL does not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs … . It is undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *

CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest itself until some time later … . CPLR 214-c provides for a three-year limitations period for actions to recover damages for injuries to person or property “caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property” (CPLR 214-c[2]). The three-year period is “computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c[2]…). For the purposes of CPLR 214-c, “discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . Suffolk County Water Auth v Dow Chem Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14

 

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