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Equitable Estoppel Against NYS Department of Environmental Conservation (DEC) Not Available Under the Facts

The Third Department determined the doctrine of equitable estoppel could not be applied to a statute of limitations defense raised by the Department of Environmental Conservation (DEC).  The petitioner’s president [Sage] alleged he was told by an employee of the DEC [Lynch] that he need not comply with the 30 day time limit for challenging the DEC’s approval of a Freshwater Wetlands permit:

It is axiomatic that the doctrine of equitable estoppel cannot generally be invoked against governmental agencies in the exercise of their governmental function … . However, estoppel may apply in certain “exceptional cases in which there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon” … .

Here, less than 30 days after the permit was issued, Sage spoke with Lynch regarding petitioner’s plans to challenge the permit. According to Sage, Lynch explained that he was not adequately familiar with the permit and needed to review the matter. Sage “believe[d]” that it was during this conversation that Lynch told him that petitioner did not need to commence a CPLR article 78 proceeding within 30 days of the issuance of the permit because petitioner had four months to bring a challenge, which would give Lynch time to review it. Although Lynch acknowledged having spoken to Sage about the permit, he denied telling Sage that the applicable statute of limitations was four months or that the limitations period would be extended. Indeed, Lynch averred that he had no authority to waive or extend the applicable statute of limitations on behalf of DEC, and the statement that petitioner attributes to Lynch was, at best, akin to erroneous advice that does not rise to the level necessary to implicate the exception where estoppel may be invoked against a governmental agency… . Matter of Atlantic States Legal Found Inc v NYS Dept of Envtl Conservation, 2014 NY Slip Op 05384, 3rd Dept 7-17-14

 

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Adirondack Park Agency Properly Approved the Construction of a Resort Within the Confines of the Park

In a full-fledged opinion by Justice Rose, the Third Department determined the Adirondack Park Agency (APA) properly approved the construction of a club and resort project which will include a ski area, an inn, single family residences, camps and a marina.  The court went through each of the required findings and found them supported by substantial evidence.  The court explained its review role as follows:

Judicial review of the APA’s determination, made after a hearing at which evidence was taken pursuant to law, is limited to whether the decision is supported by substantial evidence (see CPLR 7803 [4]…). Substantial evidence does not require overwhelming evidence or even a preponderance of the evidence … . Rather, all that is required is “‘relevant proof [that] a reasonable mind may accept as adequate to support a conclusion or ultimate fact'” … . Additionally, “[t]he fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination” … .

To the extent that petitioners argue that the APA’s determination was affected by errors of law (see CPLR 7803 [3]), this Court’s “review of these arguments, made in a CPLR article 78 proceeding following a hearing, is limited to whether the [APA] exceeded its authority, violated a controlling law or otherwise acted in an arbitrary and capricious manner” … . Matter of Protect the Adirondacks! Inc v Adirondack Park Agency, 2014 NY Slip Op 04992, 3rd Dept 7-3-14

 

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Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review

The Fourth Department determined petitioners did not have standing to contest the county’s negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county’s permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:

Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge” based solely on a party’s proximity … . In such a situation, parties seeking to establish standing must establish that the injury of which they complain “falls within the zone of interests,’ or concerns, sought to be promoted or protected” …, and that they “would suffer direct harm, injury that is in some way different from that of the public at large” … . Contrary to petitioners’ contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public … . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … . Thus, the court did not err in concluding that none of the petitioners has standing … . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14

 

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NYS Department of Environmental Protection (DEC) Has Authority to Address the Pollution of New York Waters by Oil and Gas Producer Operating Across the Border in Pennsylvania/DEC’s Authority Not Demonstrated to Be Preempted by Federal Clean Water Act

The Fourth Department affirmed Supreme Court’s dismissal of a petition brought by an oil and gas producer seeking to prohibit the New York State Department of Environmental Protection (DEC) from enforcing consent orders which concern the pollution of Yeager Brook in the Allegany State Park.  The oil and gas producer is operating across the border in Pennsylvania on land owned by the US Forest Service.  The court held that the DEC has the authority to address the pollution of New York waters and rejected the argument that the DEC’s authority to act was preempted by the Federal Clean Water Act (CWA):

Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York’s Yeager Brook, downstream from and caused by petitioner’s operations in Pennsylvania, in contravention of New York’s water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ([CWA] 33 USC § 1251 et seq.) preempts the application of an affected state’s laws and regulations to an out-of-state point source … .

As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” … . We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders (see ECL 17-0303 [2], [4] [a], [b]; [5] [a]; see also ECL 17-0105 [1]; ECL 17-0501). Petitioner has failed to establish in this proceeding that the DEC’s exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would “stand[] as an obstacle to the full implementation of the CWA” … . Moreover, the preemptive effect of the CWA “should be determined, in the first instance, through the administrative process”… . “[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course” … . No such irreparable injury has been demonstrated here.  Matter of US Energy Dev Corp v NYS Department of Environmental Protection, 2014 NY Slip Op 04591, 4th Dept 6-20-14

 

Neighborhood Association Had Standing to Contest Planning Board’s Negative Finding (Re: a Construction Project) After a SEQRA Review

The Second Department affirmed Supreme Court’s determination that a neighborhood association had standing to contest the planning board’s finding that a proposed construction project would not adversely affect the environment after a review pursuant to the State Environmental Quality Review Act (SEQRA) (the board issued a “negative finding”):

The Supreme Court properly determined that the Association has standing to contest the Planning Board’s issuance of the negative declaration. An association or organization has standing when “one or more of its members would have standing to sue,” “the interests it asserts are germane to its purposes,” and “neither the asserted claim nor the appropriate relief requires the participation of the individual members” … . Here, as the Planning Board concedes in its reply brief, several Association members have standing to sue, as their properties are adjacent to the proposed project site and they have alleged potential structural harm from construction-related blasting, as well as visual harm … . Moreover, the interests that the Association asserts are germane to its purpose, and the participation of Association members is not necessary in order for the Association to obtain the relief it seeks. Accordingly, the Association satisfied all relevant criteria to establish standing … . Matter of Schlemme v Planning Bd of City of Poughkeepsie, 2014 NY Slip Op 04498, 2nd Dept 6-18-14

 

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Village’s Unauthorized Use of Dedicated Park Land Prohibited by the “Public Trust Doctrine”—Village’s Use of the Land Was a “Continuing Wrong” Which Tolled the Statute of Limitations and Precluded the Application of the Laches Doctrine

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly granted a permanent injunction, pursuant to the common law “public trust doctrine,” prohibiting the village from building public works structures on dedicated park land.  The action was brought by residents who live near the park, who were later joined by the state.  Because the park land had been used without legislative authority by the village for many decades, the village argued the action was prohibited by the statute of limitations and the doctrine of laches.  The Court of Appeals determined the “continuing wrong doctrine” tolled the statute of limitations and the laches doctrine did not apply to a continuing wrong, or to actions by the state:

The harm sustained by the public when structures having “no connection with park purposes . . . encroach upon [parkland] without legislative authority plainly conferred” … cannot be traced exclusively to the day when the illegal encroachment began. “In New York, we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action” … . Even though here, because the Village owns the parkland, the encroachment is not trespass, it clearly bears the hallmark of continuity common to the trespass cases: defendants are, continuously, in violation of the public trust doctrine and able to abate that wrong. Just as the failure of a landlord to repair a building's common elements, in violation of by-laws, “constituted a continuing wrong that is not referable exclusively to the day the original wrong was committed” … and “[t]he alleged violation of defendants' contractual obligations to comply with the law and refrain from interfering with the rights of other lessees amounts to a continuous or recurring wrong” …, so does a municipality's ongoing failure to comply with the law and seek legislative authorization for non-park use of parkland. The harm does not consist of the lingering effects of a single, discrete incursion, but rather is a continuous series of wrongs. In short, the claim here is “predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” …  Capruso v Village of Kings Point, 2014 NY Slip Op 04228, CtApp 5-12-14

 

Purchaser of a Hazardous Waste Treatment, Storage or Disposal Facility Was Not Required to Provide Financial Assurance for the Ongoing Performance of Corrective Action Imposed Upon the Prior Owner

The Third Department, reversing the Department of Environmental Conservation Commissioners ruling below on an issue of first impression, determined the subsequent owner of property formerly used as a permitted hazardous waste treatment, storage or disposal (TSD) facility was not required to provide financial assurance for the ongoing performance of corrective action imposed upon the prior owner.  The decision includes an exhaustive analysis of all the relevant statutes and regulations:

In essence, respondents seek to impose strict liability to provide financial assurance, in perpetuity, on all subsequent owners of property on which a former TSD facility was operated. Had this been the Legislature’s intent, rather than relegate us to a strained analysis of multiple regulations in order to reach that conclusion, it would have done so expressly. Indeed, the Legislature did exactly that in the context of New York’s “Superfund Law,” which requires the owner of an inactive hazardous waste disposal site, and/or any person responsible for the disposal of hazardous wastes at such site, to take remedial action … . Other examples of New York statutes imposing “strict liability” on property owners are the Oil Spill Act (see Navigation Law § 181 [1]) and the Scaffold Law (see Labor Law § 240 [1]). Thus, there can be no doubt that, if the Legislature had intended to impose liability on landowners for providing financial assurance under New York’s version of RCRA —[Resource Conservation and Recovery Act] without regard to whether they had ever operated a TSD facility on the property in question — clear language to that effect could easily have found its place in the statute and regulations. While such a result would not be inconsistent with the laudatory environmental purposes of this regulatory scheme, absent such language, we discern no legal basis for the Commissioner to create such a requirement. To the extent that the Commissioner interpreted the regulations otherwise, such interpretation was arbitrary and capricious and affected by an error of law and we, therefore, annul his determination, as well as the penalties imposed on petitioners.  Matter of Thompson Corners LLC v New York State Dept of Envtl Conservation, 2014 NY Slip Op 03556, 3rd Dept 5-15-14

 

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New Paltz Local Wetlands Law Should Not Have Been Annulled

The Third Department, in a lengthy and detailed decision, reversed Supreme Court’s annulment of a Local Law enacted by the Town of New Paltz.  The law was enacted to prevent the “despoliation and destruction of wetlands.”  The court determined, among other issues, the town board had acted in compliance with the State Environental Quality Review Act (SEQRA), the law was not unconsitutionally vague, and the law was not preempted by other laws.  The  court described the “hard look” required by SEQRA, as well as the court’s review-role, as follows:

Initially, respondents contend that Supreme Court erred in concluding that the Board failed to take the “hard look” required by SEQRA before concluding that an environmental impact statement (hereinafter EIS) was not required. SEQRA requires an EIS when an agency action “may have a significant effect on the environment,” and such an impact is presumed to be likely where, as here, a type I action is involved (ECL 8-0109 [2]… 6 NYCRR 617.4 [a] [1]); however, a type I action does not, “per se, necessitate the filing of an [EIS]” … . A negative declaration may be issued, obviating the need for an EIS, if the lead agency — here, the Board — determines that “no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant” (6 NYCRR 617.7 [a] [2]…). Upon judicial review, we may not substitute our judgment for that of the Board, and may annul its decision “only if it is arbitrary, capricious or unsupported by the evidence” … . Matter of Gabrielli v Town of New Paltz, 2014 NY Slip Op 02826, Third Dept 4-24-14

 

Commissioner’s Finding Site Constituted a Significant Threat to Public Health or Environment Upheld

The Third Department affirmed the Commissioner of Environmental Conservation’s denial of petitioner’s request to reclassify a hazardous waste site.  The site is polluted with PCBs and is classified at level 2 (significant threat to public health or environment–action required).  The petitioner sought reclassification at level 3 (no significant threat to public health or environment–action may be deferred).  In finding the Commissioner’s determination supported by the evidence, the court wrote:

The Commissioner did not … premise his determination in this matter upon the mere presence of PCBs at the site and a potential for harm. He found that a highly toxic contaminant (i.e., PCBs) was present in concentration levels at the site that exceeded the environmental quality standards (see 6 NYCRR part 703; see also 6 NYCRR former 375-1.4 [b] [7]; 375-2.7 [a] [3] [viii]), and he determined that, under such circumstances, the contaminant could constitute a significant threat. We need not decide in this case whether such exceedances of environmental standards alone can — as stated by the Commissioner — constitute a significant threat since ultimately he did not premise his determination solely on such ground. Although setting forth in detail the reasons and record proof supporting a conclusion that the onsite impact of the PCB contamination at the site constituted a significant threat, he went on to find record support for actual threats and offsite impact on the river, wetlands and nearby wildlife. The exceedances of groundwater standards was clearly a significant factor; however, it was considered in conjunction with other proof pertinent to the ultimate finding of a significant threat. We are not persuaded that the Commissioner used an analysis at odds with the regulations or case law. Matter of ELG Utica Alloys Inc v Department of Envtl Conservation, 2014 NY Slip Op 02485, 3rd Dept 4-10-14

 

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Owners of Land Slated for Development Had Standing to Challenge Procedures Used by the NYS Department of Environmental Conservation to Amend Regulations Affecting Endangered Species/The Land In Question Was Home to Two Endangered Species/Therefore the Amendments Affected the Land Owners Differently from the Public at Large

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that the petitioners (land owners) had standing to raise claims that the NYS Department of Environmental Conservation failed to adhere to certain procedural requirements before adopting amendments aimed at protecting endangered species.  The land, which was designated for economic development, was home to two endangered species.  The Court explained why the petitioners had alleged a unique “injury,” different from injury to the public at large, which comported standing to raise the procedural claims:

Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria” … . Petitioner has the burden of establishing 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 … . In land use matters, moreover, petitioner “must show that it would suffer direct harm, injury that is in some way different from that of the public at large” … . These requirements ensure that the courts are adjudicating actual controversies for parties that have a genuine stake in the litigation … . * * *

Petitioners, governmental entities titled to land for the purpose of redevelopment, whose property is subject to the amended regulations, have alleged a sufficient injury in fact for these purposes. We do not, and need not, decide whether land ownership, by itself, could satisfy the injury requirement. As the United States Supreme Court has recognized, a litigant’s ” some day’ intentions -— without any description of concrete plans, or indeed even any specification of when the some day will be —- do not support a finding of the actual or imminent’ injury that our cases require” … . Here, however, there is more than an amorphous allegation of potential future injury. Petitioners have asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency’s failure to follow procedure. Moreover, in connection with [a] prior proposal to subdivide the land at issue, DEC provided them with an outline for a comprehensive habitat protection plan and indicated its intention to serve as lead agency for the purposes of SEQRA (State Environment Quality Review Act) review. Petitioners’ allegations are sufficient to satisfy the requirements that they have an actual stake in the litigation and suffer a harm that is different from that of the public at large… .

Petitioners further allege that the violation of these procedural statutes deprived them of an adequate “airing” of the relevant issues and impacts of the proposed amendments, as well as an accurate assessment of the projected costs involved. The asserted statutory provisions set forth certain procedural steps to be followed when promulgating rules or regulations. The alleged violations, including the deprivation of an opportunity to be heard, constitute injuries to petitioners within the zone of interests sought to be protected by the statutes. Most significantly, to deny petitioners standing in this case would have the effect of insulating these amendments from timely procedural challenge — a result that is contrary to the public interest … . Given the compressed four-month statute of limitations (see SAPA 202 [8]), we would be erecting an “impenetrable barrier” to any review of this facet of the administrative action… .  Matter of Association for a Better Long Is Inc v New York State Dept of Envtl Conservation 2014 NY Slip Op 02216, CtApp 4-1-14

 

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