Petition for Writ of Certiorari — Palmieri v. New York State Department of Environmental Conservation (No. 06-1134)
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Live , 2007
No. eae
3 belt ne . tke f
In The
Supreme Court of the
Gnuited States
*
PAUL PALMIERI,
Petitioner,
-against-
NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, ERIN M.
CROTTY,. Commissioner and MOLLY T.
McBRIDE, Administrative Law Judge,
Respondents.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Second Circuit
ee eens
Se
PETITION FOR A WRIT OF CERTIORARI
nes
a
R. BERTIL PETERSON
Counsel of Record, Attorney for
Petitioner and Staff Counsel for
The Coalition of Landlords,
Homeowners & Merchants, Inc.
28 East Main Street
Babylon, New York 11702
(631) 376-2110
Sd
QUESTION PRESENTED FOR REVIEW
Did petitioner’s refusal to surrender his Fourth
Amendment right to security in his property
necessitate the denial of his permit application?
Did petitioner fail to meet his burden of
demonstrating that respondent’s demand for a pre-
permit inspection on his property was unreasonable
and unnecessary in order to evaluate petitioner’s
application for a tidal wetlands permit authorizing
construction of a dock extension and boat lifts in the
water 92 feet away form petitioner’s yard?
Does CPLR 306-b provide courts with discretion to
__extend a complainant’s time to serve defendants in
order to avoid the kind of miscarriage of justice that
took place in this case, in light of the deprivation by
the respondent of the petitioner’s Fourth Amendment
rights?
Did the ruling of the Commissioner of the NYSDEC
demonstrate an utter disregard for the United States
Constitution that should be vacated, annulled and
reversed?
Was the lower court’s dismissal of petitioner’s
petition upon the ground that it was time barred a
miscarriage of justice?
Did respondent, as punishment for his refusal to
abide a violation of his Fourth Amendment rights,
unreasonably refuse to conduct a pre-permit
QUESTION PRESENTED FOR REVIEW
(Continued)
inspection of the area adjacent to, and beneath, an
existing dock that protrudes 92 feet away from
petitioner’s yard and into the bay using a boat, a
method which had been used previously during a pre-
permit inspection of petitioner’s prior tidal wetlands’
permit application and which is the only reasonable
way of inspecting the area in question?
Should the “special needs” test be expanded to permit
a governmental agency to deny a private property
owner his right against unreasonable searches, and to
be secure in his property, as protected by the Fourth
Amendment to the United States Constitution under
circumstances where a governmental agency seeks
access to private property as part of a construction
permit process, not an emergency criminal
investigation or prevention?
Should all private owners of waterfront property be
stripped of their Fourth Amendment right against
unreasonable searches and seizures and to be secure
in their property because their rear property faces a
body of water?
Did respondent, as punishment for petitioner’s refusal
to abide a violation of his Fourth Amendment rights,
unreasonably refuse to conduct a pre-permit
inspection of the area adjacent to, and beneath, an
existing dock that protrudes 92 feet away from
petitioner’s yard and into the bay using a boat, a
li
10.
11.
12.
QUESTION PRESENTED FOR REVIEW
(Continued)
method which had been used previously during a pre-
permit inspection of petitioner’s prior tidal wetlands’
permit application and which is the only reasonable
way of inspecting the area in question?
Could respondents even conduct a warrantless
pre-permit inspection, while on petitioner’s property,
of an area in a bay adjacent to, and beneath, an
existing dock that protrudes 92 feet away from
petitioner’s yard?
Was respondents’ denial of petitioner’s tidal
wetlands’ permit application, as punishment for his
refusal to abide a violation of his Fourth Amendment
Rights, upon the ground that petitioner refused to
give his consent to a pre-permit warrantless
inspection of his property and the area adjacent to,
and beneath, an existing dock that protrudes 92 feet
away from his yard and into the bay, a violation of
petitioner’s right against unreasonable search and
seizure under the Fourth Amendment to the United
States Constitution?
Assuming that respondents demonstrated a_ special
need” to enter petitioner’s property, did such need
constitute a constitutionally acceptable exception to
plaintiff's right not to be subjected to an unreasonable
search and seizure under the Fourth Amendment to
the United States Constitution?
ill
13.
14.
15.
16.
QUESTION PRESENTED FOR REVIEW
(Continued)
Is a warrantless pre-permit inspection during which
representatives of a governmental agency walk
through closed gates across the front yard, side yard,
and entire length of the back yard of petitioner’s
private residential property a minimal intrusion?
Was a warrantless pre-permit inspection on
petitioner’s private residential property a matter of
governmental interest?
Did respondent governmental agency demonstrate
disregard for its own rules and the rule of law by not
deeming petitioner’s application for a wetlands’
permit complete pursuant to ECL §70-0109(1)(a) and
(b) and 6 NYCRR §621.5 (b)(2) and by failing to
send petitioner its first notice of incomplete
application within 15 days of its receipt of
petitioner’s permit application as the afore-mentioned
rules require?
Did the respondent governmental demonstrate
disregard for its own rules and the rule of law by not
deeming petitioner’s application for a wetlands’
permit complete pursuant to ECL §70-0109(1)(d) and
by failing to send petitioner its second notice of
incomplete application within 15 days of its receip’ of
additional information from petitioner as the afore-
mentioned rules require?
iV
LIST OF PARTIES
The parties are the petitioner, Paul Palmieri, and the
respondent, the New York State Department of
Environmental Conservation hereatter (“DEC”).
TABLE OF CONTENTS
ee he ee ieee ee ae i
PONS 6G bE eae Lees ee ees Vv
emia ae ee Vv
ey Oe IN oi kc: So ee ae ke Ree vi
ee PN oe ne a ee re x
SN I fg el eae ae te es eran nag l
Eo NE I i i i i a ee a I
Srmlemment OF WuittsGitiOn. ow wc eee eee ]
Constitutional Provision and Statutes Involved ......... I
nn ir a ee eee ek as f-
SI 3 td ee ag hee ee es 5
RI po Fe) Sas oe ee eS ey ee nee 16
TABLE OF AUTHORITIES
Cases: Page(s)
Brooklyn Housing and Family
Services, Inc. v. Lynch,
_191 Misc.2d 341 (Kings Co. Sup. Ct. 2002) .......... 12
Colon v. Bailey,
26 A.D.3d 454, 455-456,
810 N.Y.S.2d 511
DRE I oc he OR re Ue oe 2, 14 (twice)
DiCarlo v. City of New York,
286 A.D.2d 363, 365 (24 Dept. 2001) .... 1... eee. 5
Dutchess County D.S.S. v. Day
Wey heehee ko 7 (thrice)
Leader v. Maroney, Ponzini & Spencer,
Pe WE es a ae tsb eR a on ee 11 (twice)
Matter of Atlantic Cement Co. v. Williams,
cae eee Oe, FO CS et. TFET) i ow ee ee ks, 4
Matter of Benlevi Obedian & Belevi v.
New York State Dept. of Envtl. Conservation,
144 A.D.2d 358, 361 (2d Dept. 1988),
appeal dismissed 74 N.Y 2d 650 (1989) ............... 4
Matter of Calm Lake Dev. v.
Town Bd. of Town of Farmington,
213 A726 979 (" Dest. 1995)... 2. ee ee 5
vi
Cases: Page(s)
Matter of Northern Metro.
Residential Healthcare Facility v. Novello,
24 A.D.3d 1069, n. 1 (3d Dept. 2005) ................ 5
Matter of Oak Is. Beach Assn. v. Flacke,
96 A.D.2d 841, 465 N.Y.S.2d 596
(2d Dept. 1983) motion for leave denied
oe et od | er ee 2, 5 (twice), 10
Matter of Paul Palmieri, appellant, v.
New York State Department of
Environmental Conservation, respondent,
31 A.D.3d 647 (2d Dept. 2006) motion
for leave denied 2006 N.Y. LEXIS 3585
(November 21, 2006)
Matter of Paul Palmieri, appellani, v.
New York State Department of
Environmental Conservation, et al. respondents,
2006 NY Slip Op 5793; 2006 N.Y. App.
Div. LEXIS 9378 under Appellate Division
Docket No. 2004-5943; Suffolk County
Index No. 3925/02
Matter of Saltzman v. Board
of Appeals of Vil. of Roslyn,
26 A.D.3d 505, 506, 811 N.Y.S.2d 99
ep | Bee meprarat ere ee _.. 2, 14 (twice)
Cases: Page(s)
Matter of Thompson v. Department of
Envil. Conservation of the State of New York,
132 A.D.2d 665 (2d Dept. 1987) app. den.
71 N.Y.S.2d 803 (1988) ..... Sick oats eo tile ele 4,5
Palmieri v. Lynch,
392 F.3d 73 73 (2d Cir. 2004)
cert. denied 126 S.Ct. 424,
S65 L. BEAR Fee CaO Oe os hee dha. 4 (twice)
Rochester Canoe Club v. Jorling,
150 Misc.2d 321
Cre Se, ee OO. Bee Ssh eee eee 8,15
Spinnenweber v. New York State
Department of Environmental Conservation
120 A.D.2d 172 (3d Dept. 1986) ..............
Town of Islip v. Powell
78 Misc.2d 1007
mp: Sh. Se, BO ok ee ee
Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 654-661, 115 S.Ct. 2386,
ee Yb)... | ne errr ree re orn Gs.
Statutes:
GO MTCRR Seton Gi 116) 5 nee ee aeeiews
OG NVCRM ane Gil Fe . se oo ee eee
Vili
Statutes: Page(s)
EE 2,4
ES SS l
CPLR Section 306-b ........ 2, 11 (four times), 14 (twice)
CPLR Section 307 (1) and (2) . 2, 12 (twice), 13 (twice), 14
EE re 2,9
Er 2, 13
Conservation Law Section 429-c .................05. 2
Conservation Law Section 432(1) ................ 2,10
ee 2,8
ECL Section 15-0503
ECL Section 15-0505
CS 2, 8 (twice)
ECL Section 15-0905 ... 2, 7 (thrice), 9, 10 (thrice), 14, 15
ECL Section 25-0404 .......... 2, 5, 6, 7 (twice), 10, 15
General Construction Law Section 20 ........... 2, 7,10
Peavemetnon Law pection3Z.6..................... 2,7
1X
TABLE OF APPENDICES
APPENDIX A
Decision of the Court of Appeals,
State of New York, Dated and
Entered November 21, 1006 ................ la
APPENDIX B
Decision of the Appellate Division,
Second Department, State of New
York, dated and Entered July 18, 2006....... 2a-4a
APPENDIX C
Order of Supreme Court, State of
New York, County of Suffolk, Dated
and Filed January 5, 2005 ................. Sa-9a
APPENDIX D
Memorandum Decision of Supreme Court,
State of New York, County of Suffolk,
Dated and Filed May 5, 2003 ............ 10a-21la
APPENDIX E
Decision of the Commissioner, State
of New York, Department of
Environmental Conservation,
Dated and Filed April 7, 2004 .......... 22a- 33a
TABLE OF APPENDICES
(Continued)
APPENDIX F
Hearing Report of Administrative
Law Judge Molly T. McBride
Dated January 30,2004 ..........
APPENDIX G
Ruling of the Commissioner, State
of New York, Department of
Environmental Conservation,
Dated and Filed February 1, 2002...
APPENDIX H
Ruling on Motion and Summary
Report of Molly McBride (ALJ)... .
APPENDIX I
Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations
xi
alae. 34a- 46a
Mesias Sla- 66a
_... 67a- 103a
OPINIONS BELOW
The opinion of the Court of Appeals, State of New
York, the court below, is reported at 2006 N.Y. LEXIS 3585
(November 21, 2006), and the opinion of the Appellate
Division of State Supreme Court, Second Department, is
reported at 31 A.D.3d 647 (2d Dept. 2006). The opinion of
the Supreme Court of the State of New York, County of
Suffolk, is not reported.
DATE JUDGMENT ENTERED
The order of the Supreme Court of the State of New
York, County of Suffolk, which is dated January 5, 2005 was
filed on January 5, 2005.
STATEMENT OF JURISDICTION
This Court has jurisdiction under 28 U.S.C. Section
1257.
CONSTITUTIONAL PROVISION
AND STATUTES INVOLVED
The constitutional provision involved is the Fourth
Amendment to the U.S. Constitution which provides:
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.”
The statutes involved are 6 NYCRR Sections
621.1{c], 621.7[f] and 621.15[b], Civil Practice Law and
Rules (“CPLR”) Sections 306-b, 307(1) and (2), CPLR Rules
2103(b)(2) and 3025(a), Conservation Law Sections 429-c
and 432(1), Environmental Conservation Law (“ECL”)
Sections 15-0501, 15-0503, 15-050 15-0515, 15-0905 and
25-0404, General Construction Law Section 20 and
Navigation Law Section 32.
STATEMENT OF THE CASE
This is an appeal from a decision and order dated and
entered on November 21, 2006 of the Court of Appeals of
the State of New York denying petitioner’s motion for leave
to appeal an order of the Appellate Division, Second
Department, dated and entered in the office of the Clerk of
the Appellate Division on July 18, 2006, holding that the visi
prius court properly dismissed the petitioner’s petition as
time barred; the nisi prius court correctly applied the 30-day
limitations period in ECL 25-0404 and held that the petition,
filed 57 days after the determination of the Commissioner of
the State of New York Department of Environmental
Conservation (hereafter “DEC”) was untimely citing Matter
of Oak Is. Beach Assn v. Flacke, 96 A.D.2d 841 (2d Dept.
1983) mot. leave den. 62 N.Y .2d 606 (1984); the petitioner
offered no good cause for his delay in serving the DEC, and
that branch of his cross motion which was for leave to extend
the time for service was made over three months after his
first attempt at service; and that the nisi prius court
providently exercised its discretion in denying that branch of
the cross motion citing Matter of Saltzman v. Board of
Appeals of Vil. of Roslyn, 26 A.D.3d 505, 506, 811 N.Y.S.2d
99 (2d Dept. 2006) and Colon v. Bailey, 26 A.D.3d 454, 455-
456, 810 N.Y.S.2d 511 (2d Dept. 2006)).
In a companion case, argued in, and decided by the
Appellate Division, Second Department, on the same day’;
decided by the Court of Appeals of the State of New York,
on the same day, for which review is being sought in a
petition for a writ of certiorari that will be submitted to this
Court on the same day as the within petition, the Appellate
Division, Second Department, ruled as follows:
“In a proceeding pursuant to CPLR article 78 to
review a determination of the New York State
Department of Environmental Conservation pursuant
to Environmental Conservation Law articles 15 and
—25 that, inter alia, the petitioner’s application for a
permit to extend his dock was incomplete, the
petitioner appeals, as limited by his brief, from stated
portions of a judgment of the Supreme Court, Suffolk
County (Baisley, J.), dated July 25, 2003, which, inter
alia, upon, in effect, determining that the petitioner’s
wetland permit was complete, directed an
administrative hearing on the issue of whether an
inspection of his property by the Department of
Environmental Conservation was reasonably
necessary.
“Ordered that the judgment is affirmed insofar as
appealed from, with costs
l. Reported as /n the Matter of Paul Palmieri, appellant, v.
New York State Department of Environmental
——~ Conservation et al., respondents, 2006 NY Slip Op 5793,
31 A.D.3d 645, 820 N.Y.S.2d 77, 2006 N.Y. App. Div.
LEXIS 9378 under Appellate Division Docket No. 2004-
5943, Suffolk County Index No. 3925/02.
*
.
“The Supreme Court, in effect, determined that the
petitioner’s wetlands permit application was
complete. However, the fact that an application is
complete does not preclude the Department of
Environmental Conservation (hereinafter the DEC)
from requesting supplemental information, including
an on-site inspection, during the postcompletion
review of an application (see 6 NYCRR 621.1[c];
621.7[f]; 621.15[b]; Matter of Benlevi Obedian &
Benlevi v. New York State Dept. of Envil.
Conservation, 144 AD2d 358, 361 [1988]; Matter of
Atlantic Cement Co. v. Williams, 129 AD2d 84, 90
[1987]). Under the circumstances of this case, the
Supreme Court properly directed an [*2]
administrative hearing on the issue of whether an
inspection of the petitioner’s property was reasonably
necessary.
“Contrary to the petitioner’s contention, the Fourth
Amendment to the United States Constitution does
not bar a warrantless inspection of his premises (see
Palmieri v. Lynch, 392 F3d 73 [2004], cert denied
546 US _, 126 S Ct 424 [2005]; see also Vernonia
School Dist. 47.J Acton, 515 US 646 [1995]; Matter
of Thompson v. Department of Envil. Conservation of
State of NY, 132 AD2d 665 [1987]). A request by the
DEC for an on-site inspection of the wetlands and
adjacent areas on his property, in order to review the
accuracy and impact of the petitioner’s permit
application, fell within the special needs exception to
the Fourth Amendment’s warrant requirement (see
Palmieri v. Lynch, supra). \n this instance, the state’s
interest in protecting wetlands is strong. Moreover,
the petitioner’s expectation of privacy was
diminished by the fact that his yard was open and
exposed to the Great South Bay, that he applied for a
permit to build in tidal wetlands, that he had
previously consented to periodic inspections, and that
the inspection would be a minimal intrusion (id; see
also Vernonia School Dist. 47J v. Acton, supra;
Matter of Thompson v. Department of Envil.
Conservation of State of N.¥., supra).
The petitioner’s remaining contentions are without
merit (see Matter of Northern Metro. Residential
Healthcare Facility, Inc. v. Novello, 24 AD3d 1069,
1071 n 1 [2005]; DiCarlo v. City of New York, 286
AD2d 363, 365 [2001], Matter of Calm Lake Dev. v.
Town Bd. of Town of Farmington, 213 AD2d 979
[1995]). Florio, J.P., Crane, Ritter and Fisher, JJ.,
concur. |
LEGAL ARGUMENT
The decision and order of the Appellate Division,
Second Department, erroneously ruled that the Supreme
Court of Suffolk County had correctly applied the 30-day
limitations period contained in ECL 25-0404 when it held
that petitioner’s petition, filed 57 days after the determination
of the Commissioner of the New York State Department of
Environmental Conservation (hereafter “the DEC”), was
untimely in reliance upon the case of Matter of Oak Is. Beach
Assn. v. Flacke, supra.
Petitioner contends that the 30-day statute of
limitations contained in ECL §25-0404 that was applied by
the Appellate Division in the case of Matter of Oak Is. Beach
Assn. v. I'lacke, supra. should not have been applied in this
case and that the 60-day statute that is contained in ECL §15-
0905 was the applicable statute to be applied in the case at
bar.
The Petitioner’s Article 78
Proceeding Is Not Time Barred:
Annexed as an exhibit to the petitioner’s petition to
the nisi prius court was a copy of the April 7, 2004 decision
of Erin Crotty, Commissioner of the New York State
Department of Environmental Conservation. The caption of
that decision states as follows: “In the Matter - of- the
application for a tidal wetlands permit, use and protection of
water permit, and water quality certification pursuant to the
Environmental Conservation Law (ECL) Articles 15 and 25,
and title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York (6 NYCRR) parts 608
and 661 - by- Paul Palmieri, Applicant, PERMIT
APPLICATION NO. | - 4720 - 00666/00009".
Thus, petitioner’ application was brought pursuant to
both Article 25 and Article 15 of the Environmental
Conservation Law (“ECL”).
In the nisi prius court, the NYSDEC made the claim
that petitioner applied for “two” permits, one a “tidal wetland
permit” and the other a “use and protection of waters
permit”. This claim was erroneous. Petitioner applied for
one permit, not two, pursuant to two articles of the
Environmental Conservation Law (ECL”), Articles 15 and
25.
The nisi prius court, the Appellate Division and the
Court of Appeals all applied the 30-day statute of limitations
for Article 78 proceedings found in ECL Section 25-0404
and ignored the 60-day statute of limitations contained in
ECL Section 15-0905. As will be demonstrated, application
of the 30-day statute of limitations rather than the 60-day
statute of limitations to petitioner’s Article 78 proceeding
constituted error.
Under New York law, statutes which relate to the
same subject matter must be construed together unless a
contrary legislative intent is expressed (See Dutchess County
D.S.S. v. Day, 96 N.Y.2d 149 (2001)). Courts must
harmonize the various provisions of related statutes and
construe them in a way that renders them internally
compatible (/d.). Another well-established rule of statutory
construction in the state of New York provides that a general
statute yields to a specific or special statute” (id).
ECL Section 15-0905 (the 60-day statute) applies to
all proceedings before the NYSDEC that are “affected by a
decision made pursuant to [Article 15]” (ECL §15-0905).
Subdivision | of Section 15-0503, which is contained in
Article 15 of the ECL, states that no “dock, pier, wharf or
other structure, temporary or permanent, used as a landing
place on waters, shall be erected, reconstructed or repaired . .
. without a permit” [from the Department of Environmental
Conservation} ”. Therefore, ECL Section 15-0503 is more
specific than is ECL §25-0404 (the 30-day statute of
limitations) which applies to all persons “aggrieved by the
issuance, denial, suspension, or revocation of a permit”.
Not only is ECL §15-0503 more specific than is ECL
§25-0404, it has been in existence longer and is derived from
Section 32 of the Navigation Law (L. 1965, ch. 955, §9) and
Section 429-c of the Conservation Law.
New York courts have consistently applied 60-day
statute of limitations contained in ECL Section 15-0905 to
the denial of permits to build a dock (See i.e. Spinnenweber
v. New York State Department of Environmental
Conservation, 120 A.D.2d 172 (3d Dept. 1986); Zown of
Islip v. Powell, 78 Misc.2d 1007 (Sup. Ct. Suff. Co. 1974);
Rochester Canoe Club v. Jorling, 150 Misc.2d 321 (Sup. Ct.
Mon. Co. 1991)).
Pursuant to Section 15- 0503(1)(b) the term
‘reconstructed’ as used in relation to docks, wharves,
platforms, breakwaters, mooring or other structures Means
“the substantial rebuilding of structures or facilities and shall
not apply to ordinary maintenance or repair of existing
functional structures or facilities, such as repainting,
redriving pilings or replacing broken boards in docks”.
The decision of Commissioner Crotty concludes at
page 10 that “[a]pplicant has applied to the Department for
the privilege of constructing a long extension to a dock in a
protected tidal wetland”.
Based upon the foregoing, Commissioner’s April 7,
2004 decision was governed by the 60-day statute of
limitations contained in Article 15 of the ECL and not by the
30-day statute contained in Article 25 of the ECL.
Section 15 - 0515 of the ECL entitled “Review”
provides that “[a] determination, order or issuance,
modification or denial of a permit, pursuant to Sections 15 -
0501, 15 - 0503 and 15 - 0505 shall be reviewable in a
proceeding pursuant to article 78 of the Civil Practice Law
and Rules”.
Section 15 - 0905 of the ECL, also entitled “Review”
provides in relevant part as follows:
“|. The applicant or any person or public
corporation, who or which has filed a notice of ©
appearance in the proceedings before the department
and is affected by a decision made pursuant to this
article, may review such decision under the
provisions of article 78 of the Civil Practice Law and
rules.
“2. A special proceeding for such review must be
commenced within 60 days after the service in person
or by mail of a copy of the decision upon the attorney
of record of the applicant and of each person who has
filed a notice of appearance, or to.such applicant in
person directly if not represented by an attorney.”
Annexed to petitioner’s Article 78 petition as Exhibit
“A” was a letter dated April 13, 2004 from James T.
McClymonds, Chief Administrative Law Judge, to
petitioner’s attorney enclosing a copy of the April 7, 2004
decision of Commissioner Croty. Pursuant to ECL Section
15 - 0905(2), petitioner had 60 days from the date of Mr.
McClymonds letter to commence his Article 78 proceeding
against the DEC and, pursuant to CPLR Rule 2103(b) (2),
had an additional 5 days because the decision was mailed to
petitioner’s attorney. Therefore, petitioner had 65 days
within which to commence his Article 78 proceeding
measured from the date of mailing of the decision to
petitioner’s attorney.
This means that since the decision of Commissioner
Crotty was mailed on April 13, 2004, excluding the date of
mailing (See New York’s General Construction Law §20),
petitioner’s Article 78 proceeding could be commenced on or
before June 17, 2004. In fact, petitioner’s Article 78
proceeding was commenced on June 3, 2004 by the filing of
a Notice of Petition, Petition and Exhibits, two (2) weeks
short of the expiration of 65 days from the date of mailing of
Commissioner Crotty’s decision to the petitioner’s attorney.
In Spinnenweber v. New York State Department of
Environmental Conservation, supra., the court ruled: “ECL
15 - 0905(1) formerly Conservation Law §432(1), provides
that any person who is affected by a decision made pursuant
‘to this article’ may seek judicial review of such decision
under the provisions of CPLR article 78. ECL 15 - 0905(2)
formerly Conservation Law §432(2), provided, however, that
such proceeding must be commenced within 60 days of that
decision”. (emphasis supplied)
The lower courts’ reliance upon Matter of Oak Beach
Association, Inc. v. Flacke, supra. is misplaced because that
case concerned application of the 30-day statute of limitation
contained in ECL §25-0404 to a permit to extend and widen
a pier, not as in the case at bar, a permit for the construction
of a dock which is expressly governed by the 60-day statute
of limitations contained in ECL §15-0905.
Accordingly, such part of the respondent’s motion as
sought the dismissal of petitioner’s petition upon the ground
that it was commenced untimely should have been, in all
respects, DENIED.
10
Petitioner Offered a Good Cause
for His Delay in Serving the DEC:
The Lower Courts Should Have Exercised
Their Discretion to Extend Petitioner’s Time
to Effectuate Service Pursuant to CPLR 306-b:
The DEC admitted at page | of its memorandum of
law that “[t]his proceeding was initiated 57 days after the
date of the Commissioner’s April 7, 2004 order, by the filing
of the notice of petition and petition on June 3, 2004" but
claimed that, pursuant to CPLR §306-b, petitioner failed to
serve the DEC within fifteen days after the expiration of the
statute of limitations applicable to a challenge of the
wetlands permit denial.
Pursuant to CPLR §306-b, petitioner was required to
serve the DEC on or before June 21, 2004, which was the
fifteenth day after expiration on June 6, 2004 of the 60 day
statute of limitations.
In Leader v. Maroney, Ponzini & Spencer, 97 N.Y .2d
95 (2001), New York’s Court of Appeals determined the
standards by which a court may, “upon good cause shown or
in the interest of justice” exercise its discretion to extend a
plaintiff s time to effectuate service pursuant to CPLR §306-
b.
In Leader, the Court ruled that in enacting CPLR
§306-b, the Legislature gave a court two separate standards
by which to measure an application for an extension of time
to serve. Although the “good cause” standard encompasses
“reasonably diligent efforts at service”, a court may also
consider any other factor in making its determination,
1]
including length of delay in service, the promptness of a
plaintiff's request for an extension of time and prejudice to
the defendant, which is wholly lacking in this case.
As set forth herein, petitioner made reasonably
diligent efforts to serve the DEC, the length of delay in
service was minimal, petitioner promptly requested an
extension of time and there was no prejudice to the DEC
(Brooklyn Housing and Family Services, Inc. v. Lynch, 191
Misc.2d 341 (Kings Co. Sup. Ct. 2002)). Accordingly,
petitioner requests that this Court exercise its discretion,
reverse the lower courts and excuse any delay that may have
occurred in serving the DEC with petitioner’s Notice of
Petition, Petition and exhibits.
Petitioner Made Reasonably Diligent
Efforts to Serve; Length of Delay Was
Minimal, Petitioner Promptly Requested
an Extension of Time; and There Was No
Prejudice to the DEC:
Personal service on a state agency such as the DEC
can be made by “(1) delivering the summons to . . . the chief
executive officer of such agency . . . or (2) by mailing the
summons by certified mail, return receipt requested . . . to the
chief executive officer of such agency, and by personal
service upon the state in the manner provided by subdivision
one of this section” (CPLR Section 307(2)).
CPLR Section 307(1) provides that “[p]ersonal
service upon the state shall be made by delivering the
summons to an assistant attorney-general at an office of the
attorney - general or to the attorney - general within the
state”.
12
in accordance with CPLR Sections 307(1) and (2), on
June 8, 2004, petitioner personally served the Attorney
General of the State of New York with copies of his initial
Article 78 Notice of Petition, Petition and Exhibits but did
not serve copies upon the DEC as required by CPLR 307(2).
However, on June 24, 2004, petitioner served a copy
of his Supplemental Notice of Petition’ , together with copies
of his initial Petition and Exhibits on the DEC by mailing
same U.S. Express Mail, certified mail, return receipt
requested, to the DEC which the DEC received on June 25,
2004; and, on June 25, 2004, served a copy of the
Supplemental Notice of Petition, together with copies of his
initial Petition and Exhibits on the State of New York “by
personal service upon the state in the manner provided by
subdivision one of this section”.
On July 26, 2004, petitioner served his second
Supplemental Notice of Petition dated July 15, 2004,
together with copies of his initial Petition and Exhibits, upon
Erin M. Crotty, Chief Executive Officer of the DEC by
mailing same U.S. Express Mail, “certified mail, return
receipt requested, to . . . the chief executive officer of
such agency” and upon the State of New York by personal
wm
Pursuant to CPLR Rule 3025(a) petitioner was permitted
to supplement his notice of petition “once without leave of
court within twenty days after its service”. Alternatively,
CPLR Rule 3025(a) provides that petitioner could
supplement his notice of petition “within twenty days aficr
service of a pleading responding to it”. Since it is a
matter of record that the DEC has never served a pleading
responding to petitioner's Article 78 petition, the time
within which petitioner could supplement his notice of
petition never even began to run.
13
service in the manner provided by CPLR Rule 307(1), viz.
upon the Attorney General.
Therefore, the first time that the DEC was served
with copies of petitioner’s Notice of Petition, Petition and
Exhibits was June 24, 2004. Since petitioner had until on or
before June 21, 2004 to timely serve the DEC pursuant to
CPLR §306-b, service upon the DEC on June 24, 2004 was a
mere three days late and service on June 25, 2004 was a mere
four days late.
Therefore, petitioner made diligent efforts to
effectuate service upon the DEC, the length of delay in
service was minimal, petitioner promptly requested an
extension of time and there was no prejudice to the DEC.
Consequently, the lower courts should have exercised their
discretion to extend petitioner’s time to effectuate service
pursuant to CPLR §306-b.
The lower courts’ reliance upon the cases of Matter
of Saltzman v. Board of Appeals of Vil. of Roslyn, supra. and
Colon v. Bailey, supra. constituted error. In Sa/tzman, the
petitioners waited a year and a half before seeking an
extension of time and in Colon, the plaintiffs eschewed due
diligence by, inéer alia, failing to produce their process
server, without explanation, other than to say that he was not
available, did not otherwise ask to proceed at the hearing,
and instead asked for an adjournment of approximately six
weeks to produce their process server.
If the lower courts’ decisions and orders are permitted
to stand, the body of law applicable to the 60-day statute of
limitations contained in ECL Section 15-0905 which
expressly applies to the denial of permits to build a dock (See
14
i.e. Spinnenweber v. New York State Department of
Environmental Conservation, supra., lown of Islip v.
Powell, supra.,; Rochester Canoe Club v. Jorling, supra.)
will be hopelessly confused with the body of law applying -
ECL §25-0404 (the 30-day statute of limitations) to persons
“aggrieved by the issuance, denial, suspension, or revocation
of a permit”.
The lower courts’ decisions and orders involve a
matter of public importance and involves an important
question of law. The 60-day statute of limitations contained
in ECL §15-0905 has never been addressed by this Court.
CONCLUSION
The petition should be granted.
Respectfully submitted,
R. Bertil Peterson
Counsel of Record
Attorney for Petitioner and
Staff Counsel for
The Coalition of Landlords,
Homeowners & Merchants, Inc.
Attorney for Petitioner
28 East Main Street
Babylon, New York 11702
(631) 376-2110
16
Appendix A - Decision of the Court of Appeals, State
New York, Dated and Entered November
21, 2006 [la]
STATE OF NEW YORK
COURT OF APPEALS
Ata session of the Court, held at Court
of Appeals Hall in the City of Albany
on the twenty-first day of November, 2006
PRESENT, HON. JUDITH KAYE, Chief Judge, presiding
2-10 Mo. No. 1023
In the Matter of Paul Palmieri,
Appellant,
Vv.
New York State Department of
Environmental Conservation,
Respondent.
A motion for leave to appeal to the Court of Appeals
in the above cause having heretofore been made upon the
part of the appellant herein and papers having been submitted
thereon and due deliberation having been thereupon had, it is
ORDERED, that the said motion be and the same
hereby is denied.
S/
Stuart M. Cohen
Clerk of the Court
~-la-
Appendix B - Decision of the Appellate Division, Second
Department, State of New York, Dated and
Entered July 18, 2006 [2a - 4a]
APPELLATE DIVISION
SECOND DEPARTMENT
In the Matter of Paul Palmieri,
Appellant,
V.
New York State Department of
Environmental Conservation,
Respondents.
Docket No. 2005 - 2686
Suffolk Co. Index No. 13500/04
2006 NY Slip Op 5794; 31 A.D.3d 647
819 N.Y.S.2d 76, 2006 N.Y. App. Div. LEXTS 9379
In a proceeding pursuant to CPLR article 78 to
review a determination of the New York State Depariment of
Environmental Conservation that an on-site inspection of the
wetlands and adjacent areas on the petitioner's property was
reasonably necessary for the review of his application for a
permit to extend his dock pursuant to Environmental
Conservation Law articles 15 and 25, and that his application
was denied unless and until he allowed the inspection, the
petitioner appeals, as limited by his brief, from so much of an
order and judgment (one paper) of the Supreme Court,
Suffolk County (Baisley.), dated January 5, 2005, as granted
that branch of the respondent’s motion which was to dismiss
-2a-
Appendix B
{Decision of the Appellate Division, Second Department,
State of New York, Dated and Entered July 18, 2006]
the petition as time-barred, denied that branch of his cross-
motion which was for leave to extend the time to personally
serve the respondent, and dismissed he proceeding.
ORDERED that the order and judgment is affirmed
insofar as appealed from, with costs.
Contrary to the petitioner’s contention, the Supreme
Court properly dismissed the petition as time-barred. The
Supreme Court correctly applied the 30-day limitations
period in ECL 25-0404 and held that the petition, filed 57
days after the determination of the Commissioner of the State
of New York Department of Environmental Conservation
(hereinafter the DEC), was untimely (see Matter of Oak Is.
Beach Assn. v. Flacke, 96 A.D.2d 841, 465 N.Y.S.2d 596).
Furthermore, the petitioner offered no good cause for
his delay in serving the DEC, and that branch of his
cross motion which was for leave to extend the time
for service was made over three months after his first
attempt at service. Accordingly, the Supreme Court
providently exercised its discretion in denying that
branch of the cross motion (see Matter of Saltzman v.
Board of Appeals of Vil. of Roslyn, 26 A.D.3d 505,
506, 811 N.Y.S.2d 99; Colon v. Bailey, 26 A.D.3d
454, 455-456, 810 N.Y.S.2d 511).
Appendix B
[Decision of the Appellate Division, Second Department,
State of New York, Dated and Entered July 18, 2006|
In light of our determination, we need not reach the
petitioner’s remaining contentions. FLORIO, J.P., CRANE,
RITTER and FISHER, JJ., concur.
-493-
Appendix C - Order of Supreme Court, State of New
York, County of Suffolk, Dated and Filed
January 5, 2005 [5a - 9a]
SHORT FORM ORDER INDEX NO. 04-13500
SUPREME COURT - STATE OF NEW YORK
LA.S. PART 36 - SUFFOLK COUNTY
PRESENT:
Hon. _ PAUL J. BAISLEY, JR.
Justice of the Supreme Court
MOTION DATE 6-3-04 (#001 & 002)
10-07-04 (#003 & 004)
ADJ. DATE 10-14-04
Mot. Seq.#001- CASEDISP
002- MG
003-MD
004-XMD
ceieaacieicioailedaiascedlasiibae diciiaiionsaphiad xX
PAUL PALMIERI,
Petitioner,
-against-
NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION,
Respondent.
Appendix C
{Order of Supreme Court, State of New York,
County of Suffolk, Dated and Filed January 5, 2005]
R. BERTIL PETERSON, ESQ.
Attorney for the Petitioner
28 East Main Street
Babylon, New York 11702
ELIOT SPITZER, ESQ.
Attorney General for the
State of New York
By: Gregory J. Nolan, Esq.
120 Broadway, 26" Floor
New York, New York 10271-0332
Upon the following papers numbered | to 39 read on
this Article 78 proceeding and motions to dismiss and cross
motion to extend time to serve petition; Notice of
Petition/Petition and supporting papers 1- 11; Motion and
supporting papers 12- 17; 18- 22; 23- 28; Answering
Affidavits and supporting papers 29- 33; Replying Affidavits
and supporting papers 34- 39; Other ; (anc-after-hearing
counsel m-supportand opposed tothe mottan) it 1s,
ORDERED that the motion (motion sequence no.
002) by respondent New York State Department of
Environmental Conservation for a dismissal of the petition
(motion sequence no. 001) on the basis that the proceeding
was untimely commenced and for lack of personal
jurisdiction is granted to the extent that the proceeding is
dismissed as time barred; and it is further
-6a-
{Order of Supreme Court, State of New York,
County of Suffolk, Dated and Filed January 5, 2005]
ORDERED that the motion (motion sequence no.
003) by respondent New York State Department of
Environmental Conservation for a dismissal of the
petitioner’s supplemental notice and petition is denied as
moot; and it is further
ORDERED that the cross-motion (motion sequence
no. 004) by petitioner for leave to extend the time to
personally serve respondent New York State Department of
Environmental Conservation in accordance with CPLR
Section 306-b is denied as moot.
In this Article 78 proceeding petitioner seeks a
judgment annulling and reversing a determination by the
Commissioner of the respondent New York State
Department of Environmental Conservation (NYSDEC)
adopting the recommendation of an Administrative Law
Judge, made after an adjudicatory hearing, that petitioner
failed to meet his burden of demonstrating that the
NYSDEC’s request for an on-site inspection of petitioner’ s
real property was not reasonable and necessary to evaluate
his application for a tidal wetlands permit and that
petitioner’s failure to allow such inspection necessitated the
denial of his permit application. The adjudicatory hearing
was conduced at the direction of this Court by its decision,
dated May 5, 2003 (Baisley, J.), in a prior Article 78
proceeding commenced be petitioner after the NYSDEC
declared his tidal wetlands permit incomplete because he had
~
[Order of Supreme Court, State of New York,
County of Suffolk, Dated and Filed January 5, 2005]
declined to allow the NYSDEC to conduct an on-site
inspection of his property.’
Respondent NYSDEC now moves to dismiss the
petition on the basis that the proceeding was untimely
commenced. Pursuant to ECL Section 25-0404, any person
aggrieved by the denial of a tidal wetlands permit may within
thirty (30) days from the date of the commissioner’s order
seek judicial review pursuant to CPLR Article 78. The
thirty-day period runs from the date of the order, not its
service (Oak Island Beach Ass’n v. Flecke |sic.|, 96 AD2d
841, 465 NYS2d 596 [1983] app den 62 NY2d 606, 482
NYS2d 1023).
Since the Commissioner’s order is dated April 7,
2004, and the petition herein was not filed until 57 days later,
on June 3, 2004, the proceeding was not timely commenced
(see Obedian v. New York State Department of
Environmental Conservation, 108 AD2d 749, 485 NYS2d
98 [1985]). Petitioner’s attempt to re-characterize the
petition as one seeking judicial review in accordance with
ECL 15-0515, which would thus entitle the proceeding to the
sixty-day period of limitations provided for such
proceedings, is without merit. The administrative law judge,
the Commissioner and the petitioner himself all clearly
referred to and treated petitioner’s permit application as one
| The Article 78 proceeding was entitled Palmieri v. New
York State Department of Environmental Conservation,
and was filed under Suffolk County Index No. 02-3925.
-Sa-
{Order of Supreme Court, State of New York,
County of Suffolk, Dated and Filed January 5, 2005]
for a tidal wetlands permit under Title 25 of the
Environmental Conservation Law. Respondent NYSDEC’s
motion to dismiss the petition is therefore granted
Respondent NYSDEC’s additional motion to dismiss the
petitioner’s supplemental notice of petition and petition and
petitioner’s cross-motion for leave to extend the time to
personally serve respondent NYSDEC are both denied, as
moot.
Accordingly, the proceeding is dismissed.
Dated: January 5, 2005 S/
X FINAL DISPOSITION _ NON-FINAL
DISPOSITION
i)
The Court acknowledges that petitioner would also be
required to obtain a permit under Title 5 of Article 15
(Protection of Waters) of the ECL for his proposed dock
Nevertheless, tn the absence of a tidal wetlands permit he
may not build that dock.
-9a-
Appendix D - Memorandum Decision of Supreme Court,
State of New York, County of Suffolk,
Dated and Filed May 5, 2003 [10a - 21a]
MEMORANDUM
SUPREME COURT, SUFFOLK COUNTY 1I.A.S. PART 36
Paul Palmieri, By: Baisley, J.S.C.
Petitioner, Dated: May 5, 2003
Vv. Index No. 02-3925
New York State Department of Mot. Seq. #001-
Environmental Conservation; ERIN SDISPSJ
M. CROTTY, Commissioner;
and MOLLY T. McBRIDE, Return Date: 4-3-02
Administrative Law Judge, Adjourned: 1-16-
03
Respondents.
TIMOTHY M. McENANEY, ESQ.
Attorney for the Plaintiffs
28 East Main Street
Babylon, New York 11702
ELIOT SPITZER, ESQ.
New York State Attorney General
By: Gregory J. Nolan, Esq.
120 Broadway, 26" Floor
New York, New York 10271-0332
-10a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
This Article 78 proceeding arises out of respondent’s
denial of petitioner’s application for a tidal wetland permit.
The petitioner owns property located in Babylon, New York
which adjoins the Great South Bay. The property is
improved by the petitioner’s house and backyard fencing.
The rear of the property, which is adjacent to the water, is
improved with a bulkhead, a 92 foot long dock extending
outward from the bulkhead and three boat lifts.
In 1991 the petitioner applied for and was granted
tidal wetlands permits for the reconstruction of a bulkhead
and construction of a 30 foot by 10 foot ramp, a 5 foot by 45
foot float and pilings and a 52 foot fixed pier with additional
pilings and two boat lifts. Following construction of these
improvements and in January of 1993, the petitioner applied
for another tidal wetlands permit to extend the existing 52
foot dock an additional 110 feet and to add two more boat
lifts. This application was denied by the respondent, the
New York State Department of Environmental Conservation
(NYSDEC), on November 4, 1993. Following the
petitioner’s request for an administrative hearing, a
settlement was reached wherein it was greed that a permit
would be issued for a dock extension of 40 feet and for
construction of an additional boat lift (Administrative
Record, pages 22-23).
The petitioner submitted the current application for a
tidal wetlands permit in May of 1999. He sought to extend
the existing 92 foot dock by 50 feet and to add another boat
lift. By a NOTICE OF INCOMPLETE APPLICATION
-lla-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
(Incomplete Notice) dated July 13, 1999, NYSDEC informed
the petitioner that his application was incomplete in that he
was required to submit photographs, project plans, a location
map, a recent survey, proof that the proposed dock extension
and boat lift were reasonable and necessary and information
as to how many boats would be moored (Administrative
Record, page 56). The petitioner was served with a second
“Notice of Incomplete Application” (Second Incomplete
Notice) which indicated that his application was still
designated as incomplete as he had failed to submit a recent
survey of the project site (Administrative Record, page 64).
By letter dated April 7, 2000, NYSDEC informed the
petitioner that his application was complete except for an on-
site inspection. Following petitioner’s continued refusal to
allow NYSDEC to conduct an on-site inspection, NYSDEC
denied the permit application by “Notice of Permit Denial”
(Notice of Denial), dated July 7, 2000. NYSDEC denied the
application on the ground that the petitioner failed to allow
NYSDEC to conduct an on-site inspection of the property.
The Notice of Denial further informed the petitioner that he
had a right to a public hearing pursuant to NYCRR 621.7(f).
Subsequently, the petitioner requested a hearing on the denial
of the permit.’ The hearing, which was initially scheduled
for March 21, 2001, was adjourned to June 25, 2001 because
of NYSDEC staff unavailability. Neither the petitioner nor
his attorney appeared at the adjourned hearing.
f In NYSDEC’s request for a hearing, it indicated that a
Notice of Complete Application was not required since the
proposed activity was classified as a minor project.
-|2a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
NYSDEC then moved for administrative judicial
intervention. On the motion NYSDEC contended that the
petitioner’s failure to appear at the re-scheduled hearing
should be considered as an abandonment or withdrawal of
the request for a hearing or a default. NYSDEC contended
alternatively, that NYSDEC’s denial of the permit
application should be affirmed without the need for an
adjudicatory hearing on the ground that controlling
administrative case law precludes a hearing until petitioner
consents to an On site inspection. Petitioner opposed the
motion on the grounds that NYSDEC failed to confirm the
adjourned hearing date and to provide proof of publication of
the notice of hearing.’
An undated decision was rendered on the petitioner’s
motion by Administrative Law Judge Molly McBride (ALJ,
the “McBride Ruling”). Initially, the ALJ determined that
there was no confirmation that petitioner’s attorney saw the
notice of the adjourned hearing. The ALJ further determined
“Frankly, scheduling errors occur and such a sever penalty as
requested by Staff [NYSDEC] is not warranted here”
(Administrative Record, page 7). With regard to NYSDEC’s
2. Petitioncr’s attorney, in a letter dated April 27, 2000,
contended that NYSDIC could conduct a review of the
permit application in a manner less intrusive than an on-
site inspection, particularly where there ts an aliernative
method of inspection such as from a waterway.
Petitioner's attorney further contended that a non-
consensual on-site inspection was tantamount to an illegal
-|3a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
alternate request for relief, the ALJ determined that
NYSDEC could not determine whether the application met
the standards for permit issuance without conducting an on-
site inspection. The ALJ decided that if it cannot be
determined whether the standards have been met, then the
application cannot be deemed complete. The ALJ
recommended that the Notice of Denial be vacated and
replaced with a Notice of Incomplete Application. The ALJ
further recommended that the petitioner’s request for a
hearing be treated as void since such a request could not be
made in response to a Notice of Incomplete Application.
The ALJ concluded that there could be no further processing
of the petitioner’s application until it was complete.
In a Ruling dated February |, 2002, the respondent
Erin M. Crotty as the Commissioner of NYSDEC, adopted
the decision of the ALJ (the Commissioner’s Ruling). The
Commissioner commented in the Ruling:
“] find that the Applicant’s tidal wetlands application
under review must be deemed incomplete for the
purposes of permit processing under the
Department’s Uniform Procedures, 6 NYCRR part
621. The Applicant’s denial of access to his property
prevented Department Staff from evaluating the on-
site conditions and the proposed project. The ability
to gather such information is necessary to make the
determination that the permit application is complete.
The Applicant’s actions effectively relieves
Department Staff from taking any further action on
-14a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003}
the permit application until access to the site and site
information is available for Staffs review. Further, I
am determining that the Applicant’s request for
hearing on its proposed project is void until such time
as the site access and the necessary information is
made part of the permit application. Thereafter, if
and when said information is supplied and Staffs
redetermination is to deny the proposed project, then
the Applicant will be afforded a hearing on Staffs
denial of the requested permit” (Administrative
Record, pages 2 to 3).
Petitioner then commenced this special proceeding by
service of a notice of petition and verified petition.
Petitioner subsequently served an amended verified petition.
Petitioner seeks in the amended petition a judgment
annulling and vacating the Commissioner’s ruling to the
extent it affirms those portions of the McBride ruling
determining that the petitioner’s application was incomplete
and that the petitioner’s request for a hearing was void.
Petitioner also seeks a review of the McBride Ruling.
Petitioner contends that: (i) pursuant to 6 NYCRR 621.4(k),
an on-site inspection by a NYSDEC staff member is not one
of the requirements for a complete permit,’ (ii) the McBride
decision violates the provisions of ECL 70-0109(1)(a)(b) and
6 NYCRR 621.5(b) which deem an application complete
3. Petitioner avers that he has no objection to an on-site
inspection by a private environmental consultant pursuant
to 6 NYCRR 621.4¢(k)(i1)
-|5a-
Appendix D
[Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003}
unless NYSDEC mails a Wiiiten [sic.] notice that the
application is incomplete within 15 calendar days, (iii) the
ALJ in the McBride Ruling improperly relied on an Interim
Decision of the Deputy Commissioner of NYSDEC, dated
November 6, 2000 (the Bath Storage decision) in holding
that an adjudicatory hearing is not available for review of a
permit denial based on the incompleteness of the application,
and (iv) NYSDEC’s attempt to enforce a non-consensual,
warrantless site inspection violates petitioner’s right against
unreasonable search and seizure under the Fourth
Amendment of the United States Constitution. Petitioner
further contends that his property does not come wthin
NYSDEC’s wetland permit jurisdiction pursuant to ECL
0505(1) and 6 NYCRR 608.5.*
Petitioner’s claim that NYSDEC lacked jurisdiction
to either grant or deny a tidal wetlands permit for the
petitioner’s project is considered first. Article 25 of the
4. Petitioner’s attorney also contended in the reply
affirmation that the permit application should be deemed
approved on the basis of the five day demand provisions
of 6 NYCRR 621.9(b)(c). The Court did not consider this
contention since the issue was not raised at the
administrative level (Ambry v. Bd. of Trs. of N.Y. City
Fire Dep 't, 298 A.D.2d 582, 748 N.Y.S.2d 681 [2002}).
The cases cited by the petitioner to the contrary are
inapposite since this issue does not relate to whether the
Court has subject matter jurisdiction over this Article 78
proceeding (Cf, Fry v. Village of Tarrytown, 89 NY2d
714, 658 N.Y.S.2d 205 (19971) (sic.).
-16a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003}
Environmental Conservation Law (Tidal Wetlands Act) was
enacted as an expression of the State’s public policy “to
preserve and protect tidal wetlands. .. ” (ECL 25-0102).
Although the provisions of ECL 0505(1) and 6 NYCRR
608.5 acknowledge the Towns’ control over the wetlands in
the Counties of Nassau and Suffolk, these provisions should
not be interpreted to preclude joint control over the issuance
of wetland permits by the respective governmental entities
(see, Huntington v. Albicocco, 66 AD2d 886, 411 NYS2d
675 [1978]). The provisions of Article 25 specifically state
that the tidal wetland permits issued by NYSDEC shall be in
addition to, and not in lieu of, any such permits required by
the affected local municipality (ECL 25-0401(1); Weinberg,
Practice Commentaries, McKinney’s Cons Laws of NY,
Book 17 1/2, ECL Section 25-0401, p. 433; see, 6 NYCRR
661 3).
Petitioner’s contention that NYSDEC’s attempt to
enforce a non-consensual site inspection of his property
violates his constitutional rights is also without merit.
Where NYSDEC can demonstrate a reasonable need for the
scientific information obtained by an on-site inspection, such
inspections may be valid criteria for a wetlands permit
(Thompson v. Department of Environmental Conservation,
132 AD2d 665, 518 NYS2d 36 [19871 [sic.] app. den. 71
NY2d 803, 527 NYS2d 769; see, 6 NYCRR 621.15(b)). The
cases cited by the petitioner (see Stender v. Albany, 188
AD2d 986, 592 NYS2d 70, 547 NYS2d 68 [1992], app. dis.
81 NY2d 1006, 599 NYS2d 805; Brookhaven v. Ronkoma
[sic.] Realty Corp., 154 AD2d 665, [19891) [sic.] are
-17a-
Appendix D. |
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
inapposite in that an on-site inspection is a minimal intrusion
and petitioner’s project poses a diminished expectation of
privacy and as well is a matter of significant governmental
interest (ECL 25-0102; 6 NYCRR 661.1, 661.9(b)(1); see Bd
of Educ. v. Earls, 536 US 822, 829, 122 S Ct 2559, 153 L Ed
2d 735 [2002]).
Petitioner’s other contentions in effect challenge that
part of the Commissioner’s Ruling that NYSDEC is relieved
from any further action including a hearing on the
petitioner’s application until he complies with its demand for
an on-site inspection. In reaching this determination the
Commissioner adopted the McBride Ruling as his own.
Accordingly, in order to determine the efficacy of the
Commissioner’s Ruling, the court must review the findings
in the McBride Ruling.
The record establishes that initially NYSDEC
afforded the petitioner the right to a public adjudicatory
hearing in the Notice of Denial. This hearing was adjourned
because of NYSDEC’s inability to proceed. Although
neither the petitioner nor his attorney appeared at the
adjourned date of the hearing, the ALJ subsequently
determined that petitioner should not be deprived of his right
to a hearing on this ground. The ALJ, by characterizing the
petitioner’s application as incomplete, determined that no
further action, including the adjudicatory hearing, could be
taken. The Court finds that this was error and petitioner
should have been afforded the opportunity at an adjudicatory
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
hearing to demonstrate whether NYSDEC’s request for an
on-site inspection was reasonable and necessary.”
Following petitioner’s submission of his tidal
wetlands permit, he was served with the Incomplete Notices
which did not require an on-site inspection. The
requirements for a complete application are listed in 6
NYCRR 661.12(a)(1), 6 NYCRR 621.3 and under the
circumstances of this case, also in 6 NYCRR 621 .4(k).
Although these sections do not specifically provide for an
on-site inspection as a prerequisite for a complete
application, NYSDEC has the general authority to request
supplemental information during the course of permit review
to enable it [to] make the findings and determinations
required by law (6 NYCRR 621.1(d)). NYSDEC may also
request during the permit review process additional
information “which is reasonably necessary to make any
findings or determinations required by law” (6 NYCRR
621.15(b), emphasis added). NYSDEC may fix a date for
receipt of the additional information and if the information is
5. The ALJ found that NYSDEC could not determine if the
petitioner’s application met the standards for permit
issuance without an on-site inspection. This finding was
premature, not having been based on evidence adduced
in an adjudicatory hearing.
-19a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
not timely submitted it “may be grounds for denial of the
application” (6 NYCRR 621.15(b), emphasis added).°
Here petitioner’s application was denied on the
ground that without a site inspection NYSDEC could not
determine whether or not the petitioner’s proposal complied
with the standards for permit issuance. Petitioner, upon his
request pursuant to 6 NYCRR 621.7(f), was entitled to an
adjudicatory hearing on whether or not NYSDEC’s demand
for an on-site inspection was reasonably necessary to make
the required findings or determinations with regard to the
petitioner’s permit application. The ALJ’s reliance on the
Bath Storage decision is misplaced. the Deputy
Commissioner in Bath Storage noted:
“There may be times when an application is
determined to be complete by Staff but after further
review, Staff requests additional information in
accordance with 6 NYCRR 621.15(b). In some of
these instances, adjudication might proceed on points
of dispute where a reasonable interpretation
indicates that supplemental information is necessary
6. NYSDEC, in its memorandum of law in opposition to the
petition, requests that “should the DEC’s action not be
found to be a non-reviewable determination that Palmieri’s
permit application is incomplete, it should be viewed
as a denial of the application on the ground that Palmieri
failed to mect his burden of establishing that his proposed
project meets all applicable regulatory standards” (pages
17-18).
-20a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003}
to complete staff's review. Such is not the case in
this proceeding” (amended verified petition, Exhibit
G, page 5, emphasis added).
In the case at bar NYSDEC had determined that
petitioner’s application was complete except for information
to be derived from an on-site inspection which NYSDEC
believed was reasonably necessary for its review of the
petitioner’s permit. Requiring an adjudicatory hearing on
this issue would not, as the Deputy Commissioner opined in
Bath Storage, turn “the permitting process on its head.”
Accordingly, this petition is granted to the extent that
petitioner is held to be entitled to an adjudicatory hearing
pursuant to 6 NYCRR 621.7(f), and is otherwise denied.
Petitioner shall have the burden at such hearing of
demonstrating that NYSDEC’s demand for an on-site
inspection of the petitioner’s property is not reasonably
necessary in order to evaluate the petitioner’s application for
a wetlands permit (6 NYCRR 624.9(b)(1)).
Settle judgment on five days’ notice.
PAUL J. BAISLEY, JR.
JSC.
Appendix E - Decision of the Commissioner, State of New
York, Department of Environmental
Conservation, Dated and Filed April 7,
2004 [22a - 33a]
STATE OF NEW YORK DEPARTMENT
OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550
In the Matter
<Of-
the application for a tidal wetlands permit,
use and protection of water permit, and water
quality certification pursuant to the
Environmental Conservation Law (ECL)
articles 15 and 25, and Title 6 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York (6 NYCRR)
Parts 608 and 661
-by
PAUL PALMIERI
Applicant.
PERMIT APPLICATION No. 1-4720-00666/00009
DECISION OF THE COMMISSIONER
April 7, 2004
-22a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
DECISION OF THE COMMISSIONER
The attached hearing report, except for the section
headed “Recommendation,” of Administrative Law Judge
(“ALJ”) Molly T. McBride in the matter of the application of
Paul Palmieri for a tidal wetlands permit, protection of
waters permit, and water quality certification is hereby
adopted as the decision in this matter subject to the following
additional findings and conclusions.
This matter is before the Department of
Environmental Conservation (“Department”) pursuant to an
order of Supreme Court, Suffolk County (see Matter of
Palmieri v. New York State Dept. of Envtl. Conservation,
Sup Ct, Suffolk County, May 5, 2003, Baisley, J., Index No.
02-3925). In that order, Supreme Court remanded the matter
to the Department to afford applicant Paul Palmieri an
adjudicatory hearing on the issue of whether Department
staff's demand for an on-site inspection of applicant’s
property is reasonably necessary in order to evaluate
applicant’s application for a tidal wetlands permit (see id. at
6). The court placed the burden upon applicant to
demonstrate that the Department’s demand is not reasonably
necessary in order to evaluate his application (see id.).
The hearing record demonstrates that applicant failed
to meet his burden of proof that Department staff's request to
inspect the project site from applicant’s property is not
reasonably necessary. Accordingly, for the reasons stated in
-23a-
Appendix E
|Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
the hearing report and in this decision, I affirm Department
staff's denial of the permit application.
Discussion
As an initial matter, it is important to note the narrow
scope of the issue remanded for hearing by Supreme Court,
Applicant devotes significant portions of his post-hearing
brief to the ALJ to the argument that Department staff's
demand for a pre-permit inspection on applicant’s property to
evaluate his wetlands permit application constitutes an
unreasonable intrusion and unconstitutional search in
violation of the Fourth Amendment of the United States
Constitution, and an illegal trespass under New York law. In
its order in the CPLR article 78 proceeding initiated by
applicant, however, Supreme Court expressly rejected these
arguments. The court held:
“{ Applicant’s] contention that NYSDEC’s attempt to
enforce a non-consensual site inspection of his
property violates his constitutional rights is also
without merit. Where NYSDEC can demonstrate a
reasonable need for the scientific information
obtained by an on-site inspection, such inspections
may be valid criteria for a wetlands permit .. . The
cases cited by the petitioner . . . are inapposite in that
an On-site inspection is a minimal intrusion and
petitioner’s project poses a diminished expectation of
-24a-
Appendix E
{Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
privacy and as well is a matter of significant governmental
interest”
(id. at 4-S [citations omitted]; see also Palmieri v. Lynch, US
Dist Ct, Ed NY, Aug. 29, 2003, Seybert, J., 00-CV-3225
| dismissing similar claims under federal law that the
Department’s on-site inspection violated applicant’s 4"
Amendment rights]).
The court also expressly recognized that the
Department has the authority to request during the permit
review process additional information that is “reasonably
necessary” to make any findings or determinations required
by law in connection with the permit application, and that an
applicant’s failure to provide such information may be
grounds for denial of an application (see id, at 5 [citing 6
NYCRR 621.1(d) and 621.15(b)]). Thus, applicant’s
arguments under federal and state law were rejected by
Supreme Court, and are not presently before the Department
on this remand.
Accordingly, the narrow issue presented for hearing
is whether Department staffs demand for an on-site
inspection complied with the regulatory requirement of 6
NYCRR 621.15(b), that is whether the demand was
“reasonably necessary” to make the required findings or
determinations with regard to applicant’s tidal wetlands
permit application (see id. at 6). As noted above, Supreme
Court expressly placed the burden of proof on applicant (see
-25a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
id. [citing 6 NYCRR 624 .9(b)(1)]). The regulations
applicable to permit hearing procedures establish that the
party bearing the burden of proof must sustain that burden by
a preponderance of the evidence unless a higher standard has
been established by statute or regulation (see 6 NYCRR
624.9[c]).
Review of the hearing record reveals that applicant
failed to carry his burden of proof. A preponderance of the
credible evidence presented at the hearing establishes that
on-site inspections by Department staff are reasonably
necessary to evaluate tidal wetland permit applications, and
to determine whether statutory and regulatory standards for
permit issuance can be met [see Environmental Conservation
Law 25-0402 & 25-0403, and 6 NYCRR 661.9(b)].
On-site inspections aze reasonably necessary to allow
the Department to most efficiently and effectively carry out
its statutory and regulatory obligations. The record
demonstrates that, due to the high volume of permit
applications filed with the Department’s Region | office, the
limited number of available inspectors must conduct
numerous tidal wetland permit application inspections per
day in an area covering both Nassau and Suffolk Counties.
Department staff's witness testified that on-site
inspections are important in order to obtain the
environmental information necessary for the evaluation of a
tidal wetlands permit application with respect to the
-26a-
Appendix E
|Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 204;
applicable statutory and regulatory criteria. As testified, such
on-site inspections provide significant information,
including, for example, information on the upland
topography, the extent and types of vegetated areas, the
values of upland areas as buffers, existing structures, and
drainage patterns.
Department staff's witness noted that on-site
inspections afford a comprehensive view of the shoreline and
upland areas. From the vantage point of the height of the
bulkhead, it provides an opportunity to observe, among other
things, water flow patterns and te condition of the areas
seaward from the bulkhead.
Moreover, a preponderance of the credible evidence
demonstrates that the Department had a reasonable need for
the environmental information that wold have been obtained
by an on-site inspection in this particular case. Review of
applicant’s permit application materials submitted in 1991,
1993, and 1999, respectively, suggest that the underwater
area under applicant’s dock may be subject to significant
sedimentation and accretion. Thus, applicant’s own
application materials revealed that a significant degree of
sedimentation or accretion was underway in the shoals, mud
flats, and littoral zone just seaward of applicant’s property
that required evaluation before a permit could be issued.
-27a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004
Staff's witness provided detailed reasons why access
to the upland area of applicant’s property was necessary,
including to confirm that accretion was occurring and, if so,
to evaluate its source. He testified that an upland inspection
on applicant’s property would include, for example,
determining the sources and nature of run off from the
property, inspecting the condition of the landward side of the
bulkhead, and inspecting the shoreline adjacent to the
property from a vantage point that allowed a comprehensive
view.
Staff's witness also indicated that the best vantage
point for assessing water quality and the condition of the
shoals and mud flats seaward of the bulkhead was from the
bulkhead itself, and that walking out on applicant’s dock
would provide a more effective means of observing
underwater vegetation growth in the vicinity of the dock.
Applicant did not challenge staff's assertion that an
assessment of the upland area of the project site was a
necessary part of the permit application review. Rather,
applicant’s contention at hearing was that staff could access
the project site either by boat or along the shoreline, and
could conduct the inspection from either of those two routes
without crossing or stepping foot on applicant’s property.
The weight of the record evidence demonstrates that
both alternatives suggested by applicant would provide a
much less effective means for conducting the appropriate
-28a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
inspection, both upland and in the water itself. In addition,
the two alternatives are impracticable, more costly, time
consuming, and wasteful of limited Departmental resources.
With respect to an inspection by boat, the record indicates
that boats appropriate for use in the waters adjacent to
applicant’s project are not available to Department staff that
review tidal wetlands permit application review.’
l Use of a boat, practically and as a matter of Department
policy, requires at least two staff members in order to both
operate the boat and conduct the inspection. The record
clearly establishes that inspections conducted during
routine, high-volume review of tidal wetland applications
are usually conducted by one inspector from land.
to
Applicant introduced a list of boats (sce Exh C) that are
utilized by the Department, and argued that a Department-
owned sixteen-foot Boston whaler was available to staff
to use. Applicant did not establish by a preponderance of
the evidence that the Boston whaler was available to staff
to use.
-29a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
More importantly, the record indicates that inspection
of the upland area, the shoreline, and the relevant underwater
areas would be less effective and significantly hindered if it
had to be conducted from a boat rather than from applicant’s
property. Statf’s witness testified that inspection by boat,
due to safety considerations, would best be conducted during
high tide, a condition less favorable to effective inspection of
underwater shoals and mud flats, and where projects
involving a dock are concerned.
Applicant referred to staff using a boat in 1995 to
visit off-shore around his dock following the Department’s
denial of a prior permit application. This does not compel
the conclusion that access to applicant’s property is not
reasonably necessary to evaluate applicant’s 1999 permit
application. To the contrary, the circumstances surrounding
staff's use of a boat at that time demonstrates such use is
atypical and out of the ordinary.”
3 Applicant contends that staff also visited his site in 1991
by boat. This contention was not corroborated and, thus,
the contention was not established by the preponderance
of the evidence. Moreover, the record is entirely silent
conceming the circumstances surrounding the 1991 visit,
assuming it occurred by boat.
-30a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
As the record demonstrates, significant obstacles and
costs are associated with applicant’s second offered
alternative of an inspection from the shoreline. applicant
failed to establish that access to the shoreline from a public
location was generally known. Moreover, applicant failed to
establish that use of the shoreline would be a safe mens of
gaining access to the project site. At most, applicant’s
witness established that the shoreline was rocky and sandy,
but did not otherwise establish its condition. In contract,
Department staff's witness noted potential hazards associated
with walking along similar shorelines, including the
difficulty of walking over algae-covered rocks and the
presence of sinkhole-like features under the water.
Applicant also failed to indicate the height of the
bulkhead or otherwise establish the bulkhead would not
effectively block the view of the upland area and the area
landward of the bulkhead to a viewer standing on the
shoreline (or a viewer from a boat). To the contrary, staff's
witness testified that bulkheads in the area are generally
about six feet high.
Photographs entered into evidence by the applicant
are the only record evidence of the actual height of the
bulkhead in this case (see Exhs F, G, and H). Those
photographs suggest that the bulkhead is taller than an adult
male, and support the reasonable inference that the view of
the upland area would be significantly blocked to an
inspector of average height standing on the shoreline. In any
-3la-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
event, applicant fails to establish, by a preponderance of the
evidence, that such an inspector could effectively conduct the
necessary inspection of the upland area from the shoreline or
from a boat.
Conclusion
The hearing record demonstrates that applicant failed
to carry his burden of establishing, by a preponderance of the
evidence, that staff's demand to conduct an on-site
inspection was not reasonably necessary to make the required
permit application. The weight of the record evidence
supports the conclusion that such access was reasonably
necessary, and that applicant’s two proposed alternatives to
on-site inspection would impose an unreasonable burden
upon the limited resources of the Department and
significantly hinder the necessary environmental assessments
required to determine whether applicant’s application meets
with statutory and regulatory criteria.
Applicant has applied to the Department for the
privilege of constructing a long extension to a dock in a
State-protected tidal wetland. Because staff's request during
the permit application review process for an on-site
inspection was reasonably necessary to make the findings
and determinations required by law, applicant’s refusal to
allow the on-site inspection is ground for denial of the 1999
permit application. Therefore, Department staff's
-32a-
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004|
determination to deny the 1999 permit application is
affirmed.
For the New York State
Department of Environmental
Conservation
S/ OC a eee eee
By: Erin M. Crotty, Commissioner
Dated: April 7, 2004
Albany, New York
Appendix F - Hearing Report of Administrative Law
Judge Molly T. McBride Dated and Filed
January 30, 2004 [34a- 46a]
STATE OF NEW YORK DEPARTMENT
OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550
In the Matter
-of-
the application for a tidal wetlands permit,
use and protection of water permit, and water
quality certificate pursuant to the
Environmental Conservation Law (ECL)
Articles 15 and 25, and Title 6 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York (6 NYCRR)
Parts 608 and 661 by
PAUL PALMIERI
PERMIT APPLICATION No. 1-4720-00666/00009
HEARING REPORT
-by-
Molly T. McBride
Administrative Law Judge
January 30, 2004
-34a-
Appendix F
|Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
PROCEEDINGS
In May 1999, an application for permits from the
New York State Department of Environmental Conservation
(Department) was made by Paul Palmieri (applicant), 123
East Shore Road, Babylon, New York, for a tidal wetlands
permit, protection of waters permit and water quality
certificate pursuant to ECL Article 25 and 6 NYCRR 661.
The application was denied on July 7, 2000 and applicant
requested an adjudicatory hearing. A hearing was scheduled
for March 27, 2001 but was adjourned duc to the
unavailability of Staff's witness. The hearing was
rescheduled for June 25, 2001. Applicant failed to appear for
the hearing. Department Staff served a notice of motion for
administrative judicial intervention on or about June 28,
2001 asking that the permit application be denied due to
applicant’s failure to appear at the hearing. Applicant
opposed the motion. Department Staff had also moved for
an order affirming its denial of the application due to
applicant’s refusal to allow Staff to conduct a site visit as
part of the permit review process.
The motion was denied with regard to applicant’s
failure to appear for the hearing. By order of Commissioner
Erin M. Crotty dated February 1, 2002, the application was
deemed incomplete due to Department Staff's inability to
enter the property for a site inspection and the hearing
request was deemed void. Applicant commenced a
proceeding in New York State Supreme Court pursuant to
Article 78 of New York Civil Practice Law and Rules
-3Sa-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
(CPLR) challenging the Commissioner’s order. Supreme
Court, Suffolk County, by order of Justice Paul Paisley, Jr.
dated May 5, 2003, remanded the matter to the Department
for a hearing on the sole issue of whether an on-site
inspection by Department Staff, as part of the permit
application review, was reasonably necessary.
BACKGROUND
This applicant has a history of filing permit
applications with the Department for projects at this site. In
1991 applicant applied for a permit to reconstruct a bulkhead
and to construct a 30' x 10' ramp and a 5' x 45' float and
pilings. The permit was issued. Approximately 5 months
later, applicant applied for a permit to construct a 52' fixed
pier with additional pilings. This application was also
granted. In 1993, one year after the second permit was
issued, applicant sought to expand the existing 52' pier an
additiona! 110’, to add 2 boat lifts with 80,000 Ib. and 16,000
Ib. capabilities and to add 4 mooring pilings clusters. Staff
denied this application. A hearing was requested by
applicant after the denial. The parties entered into settlement
discussions. During these discussions, a site visit was done
by Department Staff via boat. Ultimately, the parties
resolved the matter and a Stipulation of Settlement was
entered into on May 30, 1995 wherein applicant agreed to
modify the application and reduce the extension of the boat
dock from 110' to 40' and to reduce the boat lift request from
two boat lifts to one boat lift. Based upon the changes made
to the application as a result of the settlement, Staff withdrew
-36a-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
its objections to the issuance of the permit and a permit was
issued in June 1995.
In May 1999 applicant applied for a permit to
construct an additional 50' extension of the dock and to add
an 80,000 lb. boat lift. This is basically what was requested
by applicant in his 1993 application, when combined with
what was permitted in June 1995.
The May 1999 application was denied by Staff by
letter dated July 7, 2000. The Notice of Permit Denial states,
in part: “You failed to allow Department Staff to inspect the
property to observe the conditions at the site in order to
determine whether or not your proposal complies with the
standards for permit issuance. Therefore, this application for
permit is hereby denied.” It is undisputed that applicant has
refused Staff access to his property to inspect it as part of the
permitting process. Applicant contends that Staff can
conduct whatever inspection is necessary without entering
his property.
Pursuant to the Order of the Supreme Court, a
hearing was conducted on October 8, 2003 at the Babylon
Public Library, 211 route 109, West Babylon, New York
before Administrative Law Judge Molly T. McBride. The
proceedings began with a legislative hearing at
approximately 10:40 a.m. Applicant appeared with his
counsel, Franklin Wilks, Esq. from the Coalition of
Landlords, Homeowners and Merchants. The Department
appeared by Craig L. Elgut, assistant regional attorney. No
-37a-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004}
persons came forward to speak on the project. At the
conclusion of the legislative hearing, an issues conference
was convened. No other persons, agencies or organizations
participated in the hearing process as parties or sought party
status. At the conclusion of the issues conference, the
adjudicatory hearing was immediately commenced on the
sole issue of whether the Department’s demand to conduct an
inspection of the project site from applicant’s property as
part of the permit application review was reasonably
necessary. The Supreme Court placed the burden of proof
for this issue on applicant.
The following witnesses testified on behalf of
applicant: Paul Palmieri and Aram Terchunian, First Coastal
Corp., applicant’s environmental consultant. Charles T.
Hamilton, regional supervisor of the Department’s Office of
Natural Resources, Region One, Stony Brook, New York
testified on behalf of the Department.
The parties submitted post-hearing briefs and the
hearing record closed on December 31, 2003 upon receipt of
the briefs.
POSITION OF THE PARTIES
Applicant
Applicant maintains that the Department can conduct
its permit application review without accessing his property
He contends that the Department can conduct its site
-38a-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
inspection from the water, by boat, or by walking along the
shoreline after entering it from a public access point.
Department
The Department contends that the application can not
be reviewed to determine if the standards for a tidal wetlands
permit have been met without Department personnel
accessing applicant’s property. Department Staff also argues
that applicant’s suggestion of using a boat is not practical
because they can rely on having boats available to do site
inspections.
FINDINGS OF FACT
1. In May 1999, Paul Palmieri, applicant, 123 East
Shore Drive, Babylon, New York, applied for a tidal
wetlands and protection of waters permit and water quality
certificate to expand an existing 92' dock structure by 50 feet
and add an 80,000 pound boat lift at his property noted
above. The proposed project is located on the Great South
Bay, in the Town of Babylon, County of Suffolk.
2. The existing dock structure was permitted by the
Department in three phases. The first phase permitted was to
reconstruct a bulkhead and to construct a 30’ x 10' ramp and
a 5' x 45' float and pilings. The permit was issued in 1991.
Approximately 5 months later, applicant applied for a permit
to construct a 52' fixed pier with additional pilings which
was also granted. A third permit application, filed in 1993,
-39a-
Appendix F
[Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
one year after the second permit was issued, sought to
expand the existing 52' pier an additional 110', to add 2 boat
lifts with 80,000 Ib. and 16,000 lb. capabilities and to add 4
moorings pilings clusters. This application was denied.
After a request for a hearing was filed by applicant, the
matter was resolved by an agreement between the parties
which provided for the extension of the boat dock by 40°
rather than 1 10' and the addition of one boat lift rather than
two.
3. Applicant refused Department Staff access to his
property in 1995 during the review of his 1993 permit
application.
4. Department Staff attempted to access applicant’s
property during its review of the current permit application
and applicant has refused Department Staff access to his
property.
5. Department Staff notified applicant by letter dated
April 7, 2000 that it would need to access the property to
conduct a site inspection and complete the permit application
review.
6. By letter dated July 7, 2000 the Department denied
the latest permit application because it could not gain access
to applicant’s property to complete the permit application
review.
-40a-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
7. Applicant filed a request for a hearing on the
permit application denial. A hearing was scheduled but
adjourned at the request of Staff as witnesses were
unavailable. The hearing was rescheduled but applicant and
his counsel filed to appear on the rescheduled date.
8. Department Staff moved for an order determining
the hearing process abandoned based upon applicant’s failure
to appear for the hearing or, in the alternative, for an order
affirming Staff's denial of the permit application based upon
applicant’s refusal to allow Department Staff on his property
to conduct the site inspection.
9 Commissioner Erin M.Crotty, by order dated
February 1, 2002, denied the motion to dismiss due to
applicant’s failure to appear. The order also deemed the
application incomplete based upon the Staff s inability to
access applicant’s property and, therefore, the hearing
request was voided.
10. Applicant commenced a proceeding in New York
Supreme Court, Suffolk County, pursuant to CPLR Article
78 Challenging the Commissioner’s order. Supreme Court,
Suffolk County (Baisley, J.), by decision dated May 5, 2003
granted the petition to the extent of remanding the matter to
the Department for a hearing to allow applicant an
opportunity to demonstrate the Department’s request for an
on-site inspection was not reasonable and necessary to
evaluate the application for a wetland permit, and otherwise
denied the petition. The decision placed the burden of proof
-4la-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
on applicant for the hearing. The hearing was held on
October 8, 2003.
11. Applicant testified at the October 8, 2003 hearing
that he will not agree to Department Staff entering his
property as part of the permit review process. Applicant
countered Department Staff's request with his suggestion
that Department Staff inspect the project site by boat from
the Great South Bay or enter the shoreline from a public
access point and walk to applicant’s project site. Applicant
has not provided a specific route, specific entry point, nor
provided details to Staff as to what they would find on any
route that they may take to applicant’s property if they did in
fact enter the shoreline from a public access point and walk
to his property.
12. Applicant was advised by Department Staff in
writing that a boat was not available to them to conduct a site
inspection. Applicant did not allow Staff onto his property
after being told that a boat was not available.
13. Department Staff routinely conducts permit
application reviews from an applicant’s property.
Department Staff testified as to numerous reasons why they
need access to applicant’s property as part of this permit
application review.
14. Department Staff testified as to why the
alternatives posed by applicant (walking shoreline or boat
inspection) are not adequate for the permit application
-42a-
Appendix F
[Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
review in this case. Those methods would not allow Staff to
obtain all necessary information to assess the application. By
way of example, Staff testified that there has been an
abnormal amount of accretion in the area around the boat
dock (water depth changed from 5-6' to 2 2 to less than 4'
from 1991 to the date of this application) and Staff would
need to evaluate the upland, as well as the dock location to
assess possible causes/problems. Charles Hamilton
identified approximately twelve items he would be
inspecting from applicant’s property with respect to the
accretion problem alone. Also, from applicant’s property
Staff would have an elevated spot to view organisms and
plants from the water that would not be readily visible from
the shoreline or from a boat in the water. The inspector can
view the shoals and mudflats below for other factors as well.
Based upon those findings, a second site inspection may be
warranted at which time Staff would come out with testing
gear and take some samplings for testing.
15. The Department’s Region One office, where this
application is pending, receives approximately 4,000 tidal
wetland permit applications each calendar year. Each permit
application requires review by Department Staff and four
Staff members are responsible for all tidal wetlands
applications inspections. The alternative methods proposed
by applicant would be too time consuming to employ on a
regular basis in the Department’s application reviews.
16. Charles Hamilton testified that he conducted 27
site inspections on the day before this hearing. He testified
-43a-
Appendix F
|Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
that that number of site inspections is not unusual due to the
volume of permit applications received in their office each
year. His other inspectors typically conduct 10-15
inspections per day. If he and his Staff were required to use
a boat or take a circuitous route to applicant’s property to
conduct site inspections, they would not be able to complete
as many site inspections and application processing would be
delayed.
17. Applicant permitted his environmental consultant
and employees to conduct a site inspection from his property.
18. Supreme Court, Justice Baisley, held that “Where
NYSDEC can demonstrate a reasonable need for the
scientific information obtained by an on-site inspection, such
inspections may be valid criteria for a wetlands permit.”
(Baisley Memorandum Decision, p. 4, citing Thompson v.
Dept. of Environmental Conservation 132 AD 2d 665).
CONCLUSIONS OF LAW
1. Section 624.9(b)(1) of 6 NYCRR states: “The
applicant has the burden of proof to demonstrate that its
proposal will be in compliance with all applicable laws and
regulations administered by the department.” Further, the
Memorandum Decision of Justice Baisley remanding this
matter for a hearing placed the burden of proof on applicant
to show why the Department’s demand for an on-site
inspection of applicant’s property is not reasonably necessary
in order to evaluate the application.
-44a-
Appendix F
| Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
2. This permit application is for a tidal wetlands
permit, protection of waters permit and water quality
certificate.
3. Section 661.1 of 6 NYCRR states, in part, “It is
the public policy of the State to preserve and protect tidal
wetlands, and to prevent their despoliation and destruction,
giving due consideration to the reasonable economic and
social developments of the State.” The Department is
entrusted with implementing the state’s tidal wetlands policy.
4. Section 661.9(b) of 6 NYCRR identifies the
standards for a tidal wetlands permit to be issued. In
summary, the applicable standards require a showing that the
permitted activity will preserve and protect tidal wetlands,
prevent the despoliation and destruction of wetlands, and not
have an undue adverse impact on the present or potential
value of the wetlands for marine food production, wildlife
habitat and flood and hurricane and storm control.
5. Standards for issuance of a water quality
certification are found ai 6 “ YCRR 608.9 and the protection
of waters permit issuance stamdards are found at 6 NYCRR
608.8.
6. Department Staff identified numerous reasons why
they need access to applicant’s property to conduct the
permit application review and why applicant’s alternatives
are not acceptable. Applicant has not met his burden of
proof to show why access to this property is not reasonably
-4Sa-
Appendix F
{Hearing Report of Administrative Law Judge
Molly T. McBride Dated and Filed January 30, 2004]
necessary as part of the permit application review.
Department Staff provided specific sworn testimony as to
why that type of inspection would not be sufficient.
RECOMMENDATION
I recommend that the Commissioner find that
applicant has not met his burden of proof to show that
Department Staff's request for access to his property as part
of its permit application review is not reasonably necessary.
Department Staff has indicated that they must deny the
permit application because they were denied access to the
property. Therefore, I recommend that the Commissioner
affirm Staff's denial of the permit application unless
Respondent provides Department Staff the necessary access
to his property within 20 days of the Commissioner’s
decision. If applicant provides Department Staff with the
necessary access, then I recommend that Staff conduct the
site inspection and take the appropriate action on the
application.
-46a-
Appendix G - Ruling of the Commissioner, State of New
York, Department of Environmental
Conservation, Dated and Filed February
1, 2002 [47a - 50a]
STATE OF NEW YORK
DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010
In the Matter
-of-
the Application for a tidal wetlands permit,
pursuant to Environmental Conservation
Law of the State of New York (“ECL”)
Article 25 and Title 6 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York (“6 NYCRR”)
Part 661 by
PAUL PALMIERI
Applicant
Application No. 1-4720-09666/00009
RULING OF THE COMMISSIONER
February 1, 2002
-47a-
Appendix G
[Ruling of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed February 1, 2002]
Pursuant to 6 NYCRR Part 624.8(b)(i) Staff of the
New York State Department of Environmental Conservation
(“DEC Staff’, “Department”) duly served a motion for
administrative judicial intervention upon Paul Palmieri (the
“Applicant”) on or about June 28, 2001. Said motion was
supported by the affirmation of assistant regional attorney
Craig L. Elgut, Esq. and the affidavit of DEC staff Charles T.
Hamilton, Supervisor of Natural Resources, Region One.
Applicant opposed said motion by affidavit of Richard
Young, Esq., counsel for Applicant.
The motion seeks an Order determining the
Applicant’s failure to appear for a hearing an abandonment
of the hearing process, thereby deeming the applicant’s
request for a hearing on his tidal wetlands application
withdrawn and denying any further administrative remedy.
In the alternative, Staff seeks an Order that affirms Staff ‘s
denial of the permit application due to the permit application
being incomplete.
Staff documents by affirmation of Craig L. Elgut,
Esq. that:
(i) Applicant applied for a tidal wetlands permit
to expand a residential dock an additional 50
feet and to add an 80,000 Ib. boat lift:
(ii) By letter dated July 7, 2000 DEC Staff denied
the application after notifying applicant that
-48a-
Appendix G
[Ruling of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed February |, 2002]
the Staff required access to the site to
complete the application review and Staff was
denied access;
(iii) | Applicant requested a hearing after receipt of
the denial;
(iv) An adjudicatory hearing was rescheduled to
be held on June 25, 2001.
A copy of the motion and supporting papers and the
Applicant’s opposing affidavit were filed with the Office of
Hearings and Mediation Services. The hearing and the
motion were assigned to Administrative Law Judge Molly 1
McBride (“ALJ”). Attached to this Ruling is the ALJ’s
Ruling on Motion and Summary Report, which I adopt as my
own, subject to my comments below.
.
Under the Department’s permit processing rules,
applicants are required to supply Department Staff with
sufficient information to afford Staff a reasonable
opportunity to evaluate information in determining whether
to approve, modify or deny a request for a Department
permit. As set forth in the ALJ’s report, applicants must
supply this information or otherwise cause their application
to be deemed incomplete requiring further information
before Staff can make a reasonable determination on the
proposed project.
-49a-
Appendix G
{Ruling of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed February 1, 2002]
I find that the Applicant’s tidal wetlands application
under review must be deemed incomplete for the purposes of
permit processing under the Department’s Uniform
Procedures, 6 NYCRR Part 621. The Applicant’s denial of
access to his property prevented Department Staff from
evaluating the on-site conditions and the proposed project.
The ability to gather such information is necessary to make
the determination that the permit application is complete.
The Applicant’s actions effectively relieves Department Staff
from taking any further action on the permit application until
access to the site and site information is available for Staff's
review. Further I am determining that the Applicant’s
request for hearing on its proposed project is void until such
time as the site access and the necessary information is made
part of the permit application. Thereafter, if and when said
information is supplied and Staff's redetermination is to deny
the proposed project, then the Applicant will be afforded a
hearing on Staff's denial of the requested permit.
For the New York State Department
of Environmenta! Conservation
S/ :
By: — Erin M. Crotty, Commissioner
Date: Albany, New York
February 1, 2002
-50a-
Appendix H - Ruling on Motion and Summary Report of
Molly McBride (ALJ) [Sla - 66a]
STATE OF NEW YORK
DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010
In the Matter
-of-
the Application for a tidal wetlands permit,
pursuant to Environmental Conservation
Law of the State of New York (“ECL”)
Article 25 and Title 6 of the Official
Compilation of Codes, Rules and Regulations
of the State of New York (“6 NYCRR”)
Part 661 by
PAUL PALMIERI
Applicant
Application No. 1-4720-00666/00009
RULING ON MOTION AND SUMMARY REPORT
-BY-
~ Molly McBride
Administrative Law Judge
-Sla-
Appendix H
[Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
PROCEDURAL BACKGROUND
Applicant Paul Palmieri ("Applicant”) applied to the
New York State Department of Environmental Conservation
(“DEC', "Staff", "Department') in May, 1999 for a tidal
wetlands permit pursuant to ECL Article 25 and 6 NYCRR
661. The application was denied on July 7, 2000 and
Applicant requested an adjudicatory hearing. A hearing was
scheduled for March 27, 2001 but was adjourned due to the
unavailability of Staff's witness. The hearing was
rescheduled for June 25, 2001. Applicant failed to appear for
the hearing. DEC Staff served a notice of motion for
administrative judicial intervention pursuant to 6 NYCRR
624.8(b)(i) on or about June 28, 2001. DEC Staff submitted
the following in Support of the motion: affirmation of
assistant regional attorney Craig L. Elgut, Esq. and the
affidavit of Charles T. Hamilton, Supervisor of Natural
Resources for the DEC, Region One, sworn to on June 28,
2001. Applicant opposed the motion by Affirmation of
Richard W. Young, Esq. counsel for Applicant, dated July
9.2001.
Staff's Motion was served on the Office of Hearings
and Mediation Services as was Applicant's opposing papers.
The hearing and now this motion were assigned to
Administrative Law Judge Molly T. McBride ("ALJ").
Staff moves for an order deeming the Applicant's
failure to appear at an adjudicatory hearing as an
abandonment of the hearing process which in turn deems the
-52a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)}
Applicant's request for a hearing withdrawn. In the
alternative, Staff seeks an Order that affirms Staffs denial of
the permit application.
BACKGROUND
Applicant owns a private residence at 123 East Shore
Road, Babylon, New York, on the Great South Bay. This
Applicant has a history of filing permit applications with the
Department. In 1991 the Applicant applied for a permit to
reconstruct a bulkhead and to construct a 30' x 10' ramp and
a 5' x 45' float and pilings. The permit was issued.
Approximately 5 months later, Applicant applied for a permit
to construct a 52' fixed pier with additional pilings. This
application was also granted.
One year after the second permit was issued,
Applicant sought to expand the exiting 52' pier an additional
110’, to add 2 boat lifts with 80,000 Ib. and 16,000 lb.
capabilities and to add 4 mooring pilings clusters. Staff
denied this application. A hearing was requested by the
Applicant after the denial. The parties entered into settlement
discussions and ultimately resolved the matter. A Stipulation
of Settlement was entered into by the parties on May 30,
1995 wherein the Applicant agreed to modify the application
and reduce the extension of the boat dock from 110’ to 40’
and to reduce the boat lift request from two boat lifts to one
boat lift. Based upon these changes, Staff withdrew its
objections to the issuance of the permit and a permit was
issued in June, 1995.
-53a-
Appendix H
[Ruling on Motion and Summary
Report of Molly McBride (ALJ)]
In May, 1999 the Applicant applied for a permit to
construct an additional 50' extension of the dock and to add
an 80,000 Ib. boat lift. This is basically what was requested
by the Applicant in his 1995 application, when combined
with what was permitted in June, 1995.
The May, 1999 application was denied by Staff by
letter dated July 7, 2000. The Notice of Permit Denial states,
in part: "You failed to allow Department Staff to inspect
your property to observe the conditions at the site in order to
determine whether or not your proposal complies with the
standards for permit issuance. Therefore, this application for
permit is hereby denied." It is undisputed that Applicant has
refused Staff access to his property to inspect it as part of the
permitting process. Applicant contends that Staff can
conduct whatever inspection is necessary from the water,
without entering his property.
An adjudicatory hearing was scheduled for March 27,
2001 in Babylon, New York. The hearing was adjourned due
to the unavailability of Staffs witness. The parties finally
settled on June 25, 2001 as the rescheduled date for the
hearing. The ALJ served on both parties by facsimile, a letter
dated May 10, 2001 and a Notice of Public Hearing
confirming the June 25, 2001 hearing date. The ALJ and
Staff appeared at the hearing site on June 25, 2001. Neither
the Applicant nor his counsel appeared. Counsel for the
Applicant later indicated that he did not believe that a firm
date hed been set for the hearing.
-54a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)]
STAFF’S POSITION
Staff seeks a denial of the application based on
Applicant's failure to appear for the hearing and due to the
incompleteness of the application. Staff advised Applicant
that an inspection of his property, ftom his property rather
than by boat, is essential for the review of the application.
Absent the inspection, the permit can not be granted.
APPLICANT’S POSITION
Applicant's counsel's affidavit in opposition to the
motion only addresses Staff's request to deny the application
based on Applicant’s failure to attend the hearing. However,
he has addressed the issue of the site inspection in earlier
correspondence with the Department. Applicant has denied
the DEC all access to his property. He insists that Staff
conduct its inspection from the least intrusive manner
available that being from the waterway."'
FINDINGS OF FACT
After a review of the pleadings and papers submitted
herein by the parties, 1 find that the following facts are not in
dispute:
1. By letter dated April 27, 2000, counsel for the Applicant
advised DEC that his client would not consent to an
inspection from the property and suggested an inspection
from the water
-5Sa-
to
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
By application dated May 25, 1999 Applicant
Paul Palmieri applied for a tidal wetlands
permit to construct a 50' extension to an
existing pier and to add one boat liit.
Staff attempted to inspect Applicant's property
in April, 2000 as part of the application
review process. Access was denied by the
Applicant.
By letter dated July 7, 2000 DEC Permit
Administrator Mark Carrara advised
Applicant's counsel that due to Applicant's
failure to allow an inspection from the
property, the permit application was being
denied.
A Notice of Permit Denial was issued to the
Applicant by the DEC on July 7, 2000. The
Notice stated, in part, "You failed to allow
Department staff to inspect the property to
observe the conditions at the site in order to
determine whether or not your proposal
complies with the standards for permit
issuance. Therefore, this application for
permit is hereby denied."
Applicant requested an adjudicatory hearing
on the denial of the application.
-56a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)]|
6. The hearing was scheduled for June 25, 2001
in Babylon, New York. Applicant failed to
appear for the hearing.
DISCUSSION
6 NYCRR 624.6(c) allows for the bringing of a
motion at any time. Motions made prior to the hearing shall
be filed with the ALJ and served on all parties. The ALJ
shall then rule upon the motion prior to the completion of
testimony. 6 NYCRR 624.8(b)(i) grants the authority to an
ALJ to rule upon all motions and requests, including those
that decide the ultimate merits of the case.
DISMISSAL DUE TO
APPLICANT'S FALLURE TO APPEAR
Staff requests that the Applicant be denied an
adjudicatory hearing due to his failure to appear for the
hearing scheduled for June 25, 2001. Applicant claims to
have not been aware that the hearing was rescheduled. To
deny the hearing based upon the Applicant's failure to appear
for the hearing is a drastic remedy. While the Notice for the
hearing was sent by facsimile by the Office of Hearings to
the Applicant's counsel on May 10, 2001, there is no
confirmation that counsel saw that letter and Notice.
Frankly, scheduling errors occur and such a severe penalty as
requested by Staff is not warranted here. Also, Staff has
submitted no law in support of the request.
-57a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)
RIGHT TO INSPECT
The application is for a tidal wetlands permit. Tidal
wetlands in New York State are regulated by Part 661 of 6
NYCRR. It is the public policy of the State to protect and
preserve tidal wetlands and to prevent their despoliation and
destruction. Part 661.2(a) states: “Tidal wetlands constitute
one of the most vital and productive areas of the natural
world and collectively have many values .. . Therefore, the
protection and preservation of tidal wetlands is essential."
There are five standards that govern whether the Department
will issue a tidal wetlands permit. Those standards are
defined at 6 NYCRR 661.9(b)(i)-(v).
The Applicant has the burden of establishing that the
applicable standards will be met. 6 NYCRR 661 .9(a)
In the instant case, the Applicant failed to allow Staff
onto his property. Staff notified Applicant in writing that it
was a necessary part of the permit process to have access to
the property to conduct the inspection. Despite being
notified of the Department's need to inspect, the Applicant
continued to deny access. As stated, the Applicant has not
addressed the issue of an inspection from the property in his
opposing papers. However, in April, 2000 Applicant's
attorney sent a letter to DEC indicating that his client would
not consent to the inspection from his property. Counsel
cited 3 cases in support of his position that the inspection
from the property was tantamount to an illegal and
warrantless search. After reviewing the cases cited, I
-58a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
disagree. The circumstances of those cases, which | will
address below, were significantly different than here and,
therefore, the rulings are not controlling here.
The leading case cited by the Applicant is Sokolov v.
Village of Freeport, 52 N.Y.2d 341. \n Sokolov, the Court of
Appeals held that a Village ordinance that required an
inspection of residential rental property in order for the
owner to rent out the property was a warrantless search and
therefore unconstitutional. The Village had enacted an
ordinance requiring all owners of rental property to have a
permit issued before renting the property. The permit would
only be issued after the Village inspected the property. The
Court held “We hold today that the imposition of a penalty
upon a landlord for renting his premises without first
consenting to a warrentless search violates the property
owner's Fourth Amendment rights." (Sokolov at 343) The
Court noted that if the property owner does not consent. he
will he deprived of the economic benefit of his property.
Here, the Applicant is seeking a privilege. He is asking to be
allowed to construct a pier extension and add a boat lift into
the Great South Bay. The issue is, does the construction
harm the delicate nature of the tidal wetlands. The DEC is
entrusted with the important task of preserving and
protecting tidal wetlands. That job requires the Department
to carefully review each application for a tidal wetlands
permit to ensure that it meets the standards enumerated in
part 661. As stated by Charles Hamilton, DEC Region One
supervisor of Natural Resources, the Department can not
-59a-
Appendix H
[Ruling on Motion and Summary
Report of Molly McBride (ALJ)}
complete their job without inspecting the property. The
suggestion of the Applicant that the inspection take place
from the water is not viable. Staff has refuted that in the
Hamilton affidavit. First it would be wrong to have the
Applicant dictate to Staff how they should do their job. But,
more importantly, it is crucial for Staff to have complete
access to the wetlands and no other type of inspection will
suffice. Staff has been entrusted with the responsibility of
ensuring that the existing and potential values of tidal
wetlands for marine food production and wildlife habitat and
other values associated with tidal wetlands are protected.
The Hamilton affidavit addresses why an inspection
from the Applicant's property is a necessary part of this
application process. Hamilton asserts that Staff must
conduct an extensive site review to assess a specific project
and it's specific wetland environment. (Hamilton, p.2) By
denying Staff access, Staff is denied the opportunity to
conduct a meaningful technical review of the project site as
required by the regulations. (Hamilton, p.2),"... , staff
must access the condition of the wetlands in the area of the
existing structure as well as the area where the proposed
extension would be located. Staff needs to determine
whether the existing structure is causing impacts which may
be compounded by increasing the size of the structure."
(Hamilton, p. 5) Applicant does not address any of these
issues in it's opposing papers. While Applicant's counsel
submitted case law that he alleges supports his client's
position that an inspection is a warrantless search, he has
offered no response to Staffs specific arguments on why they
-60a-
Appendix H
[Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
need to enter the property in this case. Applicant has never
stated how Staff can determine if the application meets the
standards for permit issuance without actually inspecting the
property.
I find staff's arguments persuasive and agree that in
order to meet the duties imposed by Part 661, an inspection
of the site is necessary.
The Applicant's attorney also cited 7own of
Brookhaven v. Ronkoma Realty Corp., 154 A.D. 2d 665,
Second Dept:, 1989. This case also involved an ordinance
requiring rental property to be inspected and a permit issued
prior to rental. For the same reasons cited in Sokolov, the
Court found that the ordinance was unconstitutional. Finally,
Applicant cited People v. Ost, 121 A. D. 2d 571, Second
Dept., 1986. In Ost, the police had entered the defendant's
business, without a warrant, examined his books, without
permission, and used the information gathered to charge the
defendant criminally. The Court found the warrantless
inspection a violation of the defendant's constitutional rights
and the charges were dismissed. For obvious reasons the
facts in Ost can not be equated with the facts here.
One of the differences between a tidal wetlands
permit and a permit to operate rental property is that the tidal
wetlands permit is asking for a privilege, not a right. There
is no right to a tidal wetlands permit. The Applicant here
will not lose his property in any way or suffer economic
harm if the permit is not granted. There is no monetary or
-6la-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
criminal penalty for him if he fails to allow the inspection.
The only consequence is that the application must be denied.
The Applicant is still free to enjoy his property as he did
before filing the application. He has previously been granted
permits to construct the pier, reconstruct the bulkhead and
install a boat lift. The pier has already been extended from
it's initial $2' to 92'. The Applicant is free to chose [sic. }
which route to take. He has elected to refuse Staff access to
his property. Surprisingly, the permits previously issued to
the Applicant all provide the DEC with the right to enter the
property to ensure that the permit conditions are being
complied with. All permits issued by the DEC grant the
Department that right. Applicant has already consented, by
accepting the permits, to Staff entering his property. It is
illogical for Applicant to deny access to Staff as a part of this
application. However, that is his right.
Staff can not determine if the application meets the
standards for permit issuance without inspecting the
property. Therefore, the application is incomplete. Staff has
no discretion with regards to applying the standards. If it can
not be determined that the standards are met, the application
simply can not be deemed complete.
DENIAL DUE TO INCOMPLETENESS
Staff argues in it's motion that the application is in
fact incomplete due to the lack of an inspection. Staff
notified Applicant in writing on April 1, 2000 that it was a
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)]
necessary part of the permit process to have access to the
property to conduct the inspection. At that time, Mark
Carrara, Deputy Permit Administrator for the DEC stated to
the Applicant that the permit application would be denied if
Staff was not allowed to inspect the property. Despite being
notified of the Department’s need to inspect, the Applicant
continued to deny access.
Clearly, the application can not be reviewed by Staff
without the inspection and therefore, the application is in
essence incomplete. Staff cites the Interim Decision in Bath
Petroleum Storage, Inc, November 6, 2000 in support of it's
argument that the completeness of the application is an issue
that is not subject to review.
The Interim Decision, issued by Deputy
Commissioner Cari Johnson held that there is a bar against
adjudicating the completeness of a permit application in 6
NYCRR section 624.4(c)(7).
A review of relevant administrative decisions reveal
the basis for the bar. The purpose of the prohibition
where an application is deemed complete is to give an
Applicant comfort and certainty that its application
cannot be undone at the hearing stage, i.e., assertions
by intervening parties to adjourn the hearing on
incompleteness grounds. See, Matter of Applications
of Department of Sanitation Southwest Brooklyn
Incinerator, Interim Decision, March 2, 1994. ".
the completeness determination . . . is intended to
-63a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)}
reflect the point at which the application contains
sufficient information to commence regulatory
review." Matter of LaFever Excavating, Inc., Interim
Decision, October 28, 1991. ".. . once the
completeness determination is made, there is no
turning back." Matter of Applications of NYC
Department of Environmental Protection, Preliminary
Ruling of ALJ, Match 24, 1994; See also, Matter of
Applications of Fulton County Board of Supervisors,
Decision of Commissioner, February 13, 1987. Bath
at p.7
I agree with Staff that the application is in fact
incomplete when Staff can not access the property. The
Applicant bears the burden of showing that the application
meets the standards enumerated in Part 661. That burden is
met with written submissions AND an inspection of the
site. The application information submitted must be field
verified. Qualified, trained biologists visit the site to assess
the area. A tidal wetlands permit can be issued only if the
proposed activity meets the standards for permit issuance in
6 NYCRR 661.9(b)(i)-(v). Nothing in Part 661 gives Staff
the discretion to work outside of these standards. Obviously,
Staff can not assess whether the standards are met without
sending trained professionals to the site to do their job. If
Staff can not determine if the standards arc met, Staff can not
conduct a complete the [sic.] review of the application.
Appendix Ht
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
Based upon the Interim Decision in Bath, | have no
authority to review Staffs determination that the application
is incomplete.
CONCLUSION
Staff has requested that the denial of the application
based upon incompleteness be affirmed or in the alternative,
the application be dismissed due to the Applicant's failure to
attend the hearing. Staff has cited no legal authority to deny
the application solely due to Applicant's failure to appear at
the hearing. Further, the penalty is too harsh to deny the
application when Applicant's attorney claims to not have
been aware of the hearing being scheduled. Also, the permit
denial issued by the Department was not the proper vehicle
in this circumstance. Staff acknowledges that the application
is incomplete. Staffs remedy to that particular circumstance
is to issue an [sic.] Notice of Incomplete Application rather
than a denial of the application based upon incompleteness.
RECOMMENDATION
Based upon the record before me and the Findings of
Fact herein, I recommend that the Notice of Denial be
vacated and that Staff's determination that the application ts
incomplete as stated in correspondence to the Applicant and
the motions papers herein, be deemed a Notice of Incomplete
Application. Further, the Request for Hearing filed by the
Applicant is void since such a request can not be made in
response to a Notice of Incomplete Application. The
-65a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
application can not be processed further until such time as it
is complete. This Ruling can be referred to the
Commissioner for final determination.
-66a-
Appendix I - Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations
[67a - 103a|
The constitutional provision involved is the Fourth
Amendment to the U.S. Constitution which provides:
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.”
The Statutes involved are:
ECL § 15-0505 entitled “Protection of navigable
waters; excavation or fill; permit” provides:
1. No person, local public corporation or interstate
authority shall excavate or place fill below the mean
high water level in any of the navigable waters of the
state, or in marshes, estuaries, tidal marshes and
wetlands that are adjacent to and contiguous at any
point to any of the navigable waters of the state and
that are inundated at mean high water level or tide,
without a permit issued pursuant to subdivision 3 of
this section. For the purposes of this section, fill shall
include, but shall not be limited to, earth, clay, silt,
sand, gravel, stone, rock, shale, concrete (whole or
fragmentary), ashes, cinders, slag, metal, or any other
similar material whether or not enclosed or contained
by (1) crib work of wood, timber, logs, concrete or
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metal, (2) bulkheads and cofferdams of timber
sheeting, bracing and piling or steel sheet piling or
steel H piling, separated or in combination. Nothing
contained in this section is intended to be, nor shall
be construed to limit, impair or affect the
memorandum of understanding which any state
department enters into with the Department of
Environmental Conservation or the general powers
and duties of the Department of Transportation
relating to canals or the general powers and duties of
the Department of Environmental Conservation
relating to flood control.
6 NYCRR §621.1 entitled “Definitions” provided:
(a) Adjudicatory public hearing means a trial type
proceeding which provides the opportunity for
adjudication on the basis of evidence, including direct
testimony and cross examination provided under
article 3 of the State Administrative Procedure Act,
section 70-0109 of the Environmental Conservation
Law (ECL), section 621.6 of this Part and Part 624 of
this Title.
(b) Chief permit administrator means an employee
of the department located in the main office of the
department and designated to act on the
commissioner's behalf in carrying out this Part.
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(c) Commissioner means the Commissioner of
Environmental Conservation, or any employee of the
department designated to act on the commissioner's
behalf in carrying out this Part.
(d) Complete application means an application for a
permit which is in an approved form and is
determined by the department to be complete for the
purpose of commencing review of the application but
which may need to be supplemented during the
course of review in order to enable the department to
make the findings and determinations required by
law.
(e) Delegated permit means a permit issued by the
department for which a comparable permit may be
required by Federal law. Delegated permits are issued
by the department for the following programs:
(1) Resource Conservation and Recovery Act
(RCRA) of 1976, 42 USC 6901 et seq., 1984 (see
section 621.16 of this Part) (ECL article 27, title 9)
for any hazardous waste management facilities
(HWMEF) or remedial action plans (RAP) under ECL
article 27, title 9 except those limited to the disposal
of waste containing polychlorinated biphenyl (PCB)
only.
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(2) Clean Water Act (CWA) amendments, 33 USC
1251 et seq., 1987 (see section 621.16 of this Part)
(ECL article 17, titles 7 and 8) for any State pollutant
discharge elimination systems (SPDES) permit
involving an industrial or municipal discharge under
ECL article 17, titles 7 and 8.
(3) Clean Air Act (CAA) amendments, 42 USC 7401
et seq., 1990 for any air pollution control source
under ECL article 19 subject to the following Federal
requirements:
(i) prevention of significant deterioration (PSD);
(ii) new source review in nonattainment areas; or
(iii) title V facility permits.
(f) Department means the New York State
Department of Environmental Conservation, or a
local agency to which the department has delegated
permitting or review authority.
(g) Emergency means an event which presents an
immediate threat to life, health, property, or natural
resources.
(h) ENB (Environmental Notice Bulletin) means the
publication of the department published pursuant to
section 3-0306 of the ECL, accessible on the
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department's Internet web site at
http://www.dec. state.ny.us.
(1) PA means the United States Environmental
Protection Agency.
(j) Legislative public hearing means a proceeding
which provides an opportunity for public comment
provided by section 621.7 of this Part.
(k) Local government means a village, town, city or
county.
(1) Major project means any action requiring a
permit identified in section 621.2 of this Part, which
is not specifically defined as minor.
(m) Minor project means any action listed as minor
in section 621.4 of this Part, subject to the
reservations of section 621.3(c)(3) of this Part. All —
actions identified as Type II in Parts 617 and 618 of
this Title are minor. Minor projects are projects
which by their nature and with respect to their
location are not likely to have a significant effect on
the environment.
(n}-Modification means any change or amendment
whatsoever to a permit that is currently in force,
including transfer form one person to another.
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(o) Permit means any permit, certificate, license or
other form of department approval, suspension,
modification, revocation, renewal, reissuance or
recertification, including any permit condition and
variance, that is issued in connection with any
regulatory program listed in section 621.2 of this Part.
(p) Person means any corporation, firm, partnership,
association, trust, estate, one or more individuals, any
other legal entity or any unit of Federal, State or local
government or any agency or subdivision thereof,
including any State department, bureau, commission,
board or other agency, public authority or public
benefit corporation.
(q) Project means any action requiring one or more
permits identified in section 621.2 of this Part.
(r) Regional permit administrator means an
employee of the department located in each of the
nine regional offices of the department and
designated to act on the commissioner's behalf in
carrying out this Part.
(s) Regulatory agency means the department, another
state agency, or a local government having any form
of jurisdiction over a project.
(t) Renewal means the reissuance, recertification or
extension of any permit for previously approved
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activities which will be continuing on the same site
without material change.
(u) SOR means the State Environmental Quality
Review Act, article 8 of the Environmental
Conservation Law and Parts 617 and 618 of this
Title.
(v) Tentative determination means a notice of intent
to issue or deny a permit.
(w) 7itle V facility permit means a permit, which is
issued by the department pursuant to Subpart 201-6
of this Title, for a facility or a defined area source,
group, or category of emission units at a facility.
(x) Variance means relief from the provisions of
specific permit program implementing regulations as
provided herein.
6 NYCRR §621.7 entitled “Determination to conduct
a public hearing” provided:
(a) After a permit application for a major project is
complete (see provisions of sections 621.3 through
621.5 of this Part), and notice in accordance with
section 621.6 of this Part has been provided, the
department shall evaluate the application and any
comments received on it to determine whether a
public hearing will be held. If a public hearing must
be held, the applicant and all persons who have filed
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comments shall be notified by mail. This shall be
done within 60 calendar days of the date the
application is complete. A public hearing may be
either adjudicatory or legislative.
(b) The determination to hold an adjudicatory public
hearing shall be based on whether the department's
review raises substantive and significant issues
relating to any findings or determinations the
department is required to make pursuant to the
Environmental Conservation Law, including the
reasonable likelihood that a permit applied for will be
denied or can be granted only with major
modifications to the project because the project, as
proposed, may not meet statutory or regulatory
criteria or standards. In addition, where any
comments received from members of the public or
other interested parties raise substantive and
significant issues relating to the application, and
resolution of any such issue may result in denial of
the permit application, or the imposition of
significant conditions thereon, the department shall
hold an adjudicatory public hearing on the
application.
(c) Regardless of whether the department holds +i:
adjudicatory public hearing, a determination to hold a
legislative public hearing shall be based on the
following:
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(1) if a significant degree of public interest exists;
(2) to fulfill the requirements of section 617.8 of this
Title; or
(3) for HWMEF permits or RAPs, if notification of
opposition to a draft permit or RAP, and a request for
a hearing is received during the public comment
period.
(d) Mere expressions of general opposition to a
project are insufficient grounds for holding an
adjudicatory public hearing on a permit application.
In order to raise substantive and significant issues,
written comments expressing objection or opposition
to an application must explain the basis of that
opposition and identify the specific grounds which
could lead the department to deny or impose
significant conditions on the permit.
(e) The department normally does not require public
hearings in connection with applications for minor
projects, as identified in sections 621.3 and 621.4 of
this Part. If a public hearing is required for a minor
project, the application shall be treated as a major
project for purposes of this Part.
(f) Ifa permit for a project is denied, or is issued
with significant conditions attached and an
adjudicatory public hearing was not held, then the
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applicant may request that one be held. Such a
request must be made within 30 calendar days of the
date of the mailing of either the notice of denial or the
permit with conditions. The hearing shall commence
within 45 calendar days of the date of receipt of the
request.
(g) Ifa public hearing on an application is required
to be held, it shall commence on or before 90
calendar days after the date the application is
complete.
(h) The public adjudicatory hearing will be held
according to the provisions of Part 624 of this Title.
6 NYCRR § 621.15 entitled “Special provisions”
provided:
(a) Any time period specified in this Part rhay be
extended for good cause, by mutual written consent
of the applicant and the department. The EPA must
be notified in those cases where a proposed extension
will exceed the time periods established in Federal
regulation. This provision does not supersede the
requirement that the public can request judicial
review in State court if a title V permit is not issued
within 18 months of the date that an application is
complete.
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(b) At any time during the review of an application
for a new permit, modification, or renewal, the
department may request in writing any additional
information which is reasonably necessary to make
any findings or determinations required by law. Such
a request shall be explicit, and shall indicate the
reasonable date by which the department is to receive
the information. Failure to provide such information
by the date specified in the request may be grounds
for denial of the application.
(c) The department may issue general permits to
allow work to eliminate damage caused by natural
disasters or extraordinary weather not unique to a
particular locality, including repair or replacement in
location and in kind of facilities which existed prior
to the damage. Processing of such permits need not
follow the full procedural requirements of this Part.
(d) General permits may also be issued by the
department for projects that are determined not to
have a significant impact on the environment, and
that have been subjected to the full procedural
requirements of this Part for major projects. General
permits under the SPDES program and the air
pollution control program in accordance with Part
201 of this Title may be issued for regulated activities
for which the department determines that all the
requirements of this subdivision have been met.
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(e) The department may require as a condition to a
permit, and prior to commencement of work, that the
permittee post a bond or other financial assurance
acceptable to the department of specified amount
with the department. This is to ensure faithful
compliance with the terms of the permit, and is used
for the indemnification of the State for any costs
which might result from failure to so comply. The
bond or other financial assurance shall remain in
effect until the work is completed to the satisfaction
of the department.
(f) Where this Part requires exchange of written
materials within specified time periods, postmark
dates shall satisfy the requirements, when not
otherwise specifically provided.
(g) The department may issue a research,
development, and demonstration permit for any
hazardous waste treatment facility which proposes to
utilize an innovative and experimental hazardous
waste treatment technology or process for which
permit standards have not been promulgated under
section 373-1.9 of this Title. This permit must
include terms and conditions to assure protection of
human health and the environment.
(1) Variances from permit application and issuance
requirements of this Part may be granted by the
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department, except there may be no variance from
any provisions requiring public participation.
(2) Such permits may be issued for a period not to
exceed one year and may not be renewed more than
three times, with each renewal period not to exceed
one year. Experimental permits may be revoked when
it is determined by the department to be necessary to
protect human health and the environment.
(3) These permit applications are subject to all other
procedural requirements of this Part.
28 U.S.C. Section 1257(a) entitled “State courts,
certiorari provides:
(a) Final judgments or decrees rendered by the
highest court of a State in which a decision could be
had, may be reviewed by the Supreme Court by writ
of certiorari where the validity of a treaty or statute of
the United States is drawn in question or where the
validity of a statute of any State is drawn in question
on the ground of its being repugnant to the
Constitution, treaties, or laws of the United States, or
.where any title, right, privilege, or immunity is
specially set up or claimed under the Constitution or
the treaties or statutes of, or any commission held or
authority exercised under, the United States.
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CPLR Section 306-b entitled “Service of the
summons and complaint, summons with notice, third-party
summons and complaint, or petition with notice of petition
or order to show cause” provides:
Service of the summons and complaint, summons
with notice, third-party summons and complaint, or
petition with a notice of petition or order to show
cause shall be made within one hundred twenty days
after the filing of the summons and complaint,
summons with notice, third-party summons and
complaint, or petition, provided that in an action or
proceeding, except a proceeding commenced under
the election law, where the applicable statute of
limitations is four months or less, service shall be
made not later than fifteen days after the date on
which the applicable statute of limitations expires. If
service is not made upon a defendant within the time
provided in this section, the court, upon motion, shall
dismiss the action without prejudice as to that
defendant, or upon good cause shown or in the
interest of justice, extend the time for service.
CPLR Section 307 entitled “Personal service upon
the state
1. Personal service upon the state shall be made by
delivering the summons to an assistant attorney-
general at an office of the attorney-general or to the
attorney-general within the state.
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2. Personal service on a state officer sued solely in an
official capacity or state agency, which shall be
required to obtain personal jurisdiction over such an
officer or agency, shall be made by (1) delivering the
summons to such officer or to the chief executive
officer of such agency or to a person designated by
such chief executive officer to receive service, or (2)
by mailing the summons by certified mail, return
receipt requested, to such officer or to the chief
executive officer of such agency, and by personal
service upon the state in the manner provided by
subdivision one of this section. Service by certified
mail shall not be complete until the summons is
received in a principal office of the agency and until
personal service upon the state in the manner
provided by subdivision one of this section is
completed. For purposes of this subdivision, the term
"principal office of the agency" shall mean the
location at which the office of the chief executive
officer of the agency is generally located. Service by
certified mail shall not be effective unless the front of
the envelope bears the legend "URGENT LEGAL
MAIL" in capital letters. The chief executive officer
of every such agency shall designate at least one
person, in addition to himself or herself, to accept
personal service on behalf of the agency. For
purposes of this subdivision the term state agency
shall be deemed to refer to any agency, board, bureau,
commission, division, tribunal or other entity which
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constitutes the state for purposes of service under
subdivision one of this section.
CPLR Rule 2103 entitled “Service of papers”
provides:
(a) Who can serve. Except where otherwise
prescribed by law or order of court, papers may be
served by any person not a party of the age of
eighteen years or over.
(b) Upon an attorney. Except where otherwise
prescribed by law or order of court, papers to be
served upon a party in a pending action shall be
served upon the party's attorney. Where the same
attorney appears for two or more parties, only one
copy need be served upon the attorney. Such service
upon an attorney shall be made:
1. by delivering the paper to the attorney personally;
or
2. by mailing the paper to the attorney at the address
designated by that attorney for that purpose or, if
none is designated, at the attorney's last known
address; service by mail shall be complete upon
mailing; where a period of time prescribed by law is
measured from the service of a paper and service is
by mail, five days shall be added to the prescribed
period; or
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3. If the attorney's office is open, by leaving the
paper with a person in charge, or if no person is in
charge, by leaving it in a conspicuous place; or if the
attorney's office is not open, by depositing the paper,
enclosed in a sealed wrapper directed to the attorney,
in the attorney's office letter drop or box; or
4. by leaving it at the attorney's residence within the
state with a person of suitable age and discretion.
Service upon an attorney shall not be made at the
attorney's residence unless service at the attorney's
office cannot be made; or
5. by transmitting the paper to the attorney by
facsimile transmission, provided that a facsimile
telephone number is designated by the attorney for
that purpose. Service by facsimile transmission shall
be complete upon the receipt by the sender of a signal
from the equipment of the attorney served indicating
that the transmission was received, and the mailing of
a copy of the paper to that attorney. The designation
of a facsimile telephone number in the address block
subscribed on a paper served or filed in the course of
an action or proceeding shall constitute consent to
service by facsimile transmission in accordance with
this subdivision. An attorney may change or rescind a
facsimile telephone number by serving a notice on the
other parties; or
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6. by dispatching the paper to the attorney by
overnight delivery service at the address designated
by the attorney for that purpose or, if none is
designated, at the attorney s last known address.
Service by overnight delivery service shall be
complete upon deposit of the paper enclosed in a
properly addressed wrapper into the custody of the
overnight delivery service for overnight delivery,
prior to the latest time designated by the overnight
delivery service for overnight delivery. Where a
period of time prescribed by law is measured from
the service of a paper and service is by overnight
delivery, one business day shall be added to the
prescribed period. “Overnight delivery service"
means any delivery service which regularly accepts
items for overnight delivery to any address in the
state; or
7. [Expires and repealed Sept 1, 2009] by
transmitting the paper to the attorney by electronic
means where and in the manner authorized by the
chief administrator of the courts by rule upon the
party's written consent. The subject matter heading
for each paper sent by electronic means must indicate
that the matter being transmitted electronically is
related to a court proceeding.
(c) Upon a party. If a party has not appeared by an
attorney or the party's attorney cannot be served,
service shall be upon the party by a method specified
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in paragraph one, two, four, five or six of subdivision
(b) of this rule.
(d) Filing. If a paper cannot be served by any of the
methods specified in subdivisions (b) and (c), service
may be made by filing the paper as if it were a paper
required to be filed.
(e) Parties to be served. Each paper served on any
party shall be served on every other party who has
appeared, except as otherwise may be provided by
court order or as provided in section 3012 or in
subdivision (f) of section 3215. Upon demand by a
party, the plaintiff shall supply that party with a list of
those who have appeared and the names and
addresses of their attorneys.
(f) Definitions. For the purposes of this rule:
1. "Mailing" means the deposit of a paper enclosed in
a first class postpaid wrapper, addressed to the
address designated by a person for that purpose or, if
none is designated, at that person's last known
address, in a post office or official depository under
the exclusive care and custody of the United States
Postal Service within the state;
2. "Electronic means" means any method of
transmission of information between computers or
other machines designed for the purpose of sending
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and receiving such transmissions, and which allows
the recipient to reproduce the information transmitted
in a tangible medium of expression,
3. "Facsimile transmission" means any method of
transmission of documents to a facsimile machine at
a remote location which can automatically produce a
tangible copy of such documents.
CPLR Rule 3025(a) entitled “Amended and
supplemental pleadings” provides:
(a) Amendments without leave. A party may amend
his pleading once without leave of court within
twenty days after its service, or at an time before the
period of responding to it expires, or within twenty
days after service of a pleading responding to it.
ECL Section 15-0501 entitled “Protection of certain
streams; disturbances of stream beds; permit” provides:
1. Except as provided in subdivisions 4, 5, 6 and 7 of
this section, no person or public corporation shall
change, modify or disturb the course, channel or bed
of any stream as defined in subdivision 2, or remove
any sand, gravel or other material from the bed or
banks of such a stream without a permit issued
pursuant to subdivision 3 of this section.
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2. For the purposes of this section, stream shall mean
that portion of any fresh surface watercourse, except
lakes or ponds having a surface area greater than ten
acres at mean low water level, for which the
department has adopted or may hereafter adopt
pursuant to section 17-0301, any of the following
classifications or standards:
AA and AA (T),
A and A(T),
B and B (7),
C(T)
Small ponds or lakes with a surface area at mean low
water level of ten acres or less, located in the course
of a stream, shall be considered a part of the stream
and subject to regulation under this section.
3. Permit.
a. Before granting a permit, a permit renewal or a
permit modification pursuant to this section, the
department shall ascertain the probable effect on the
health, safety and welfare of the people of the state,
and the effect on the natural resources of the state,
including soil, forests, water, fish and aquatic
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resources therein, likely to result from the proposed
project or work.
b. In order to minimize the disturbance of a stream
and in order to prevent unreasonable erosion of soil,
increased turbidity of the waters, irregular variations
in velocity, temperature and level of waters, the loss
of fish and aquatic wildlife and the destruction of
natural habitat thereof, and the danger of flood or
pollution, the department shall review the permit
application or request for renewal or modification of
an existing permit and may approve the manner and
the extent to which the stream bed or channel may be
changed, altered or modified and may limit the
quantity of sand, gravel or other material to be
removed, designate the location in the bed, channel or
banks of the stream from which the sand, gravel or
other material may be removed, or it may deny the
permit or request.
c. The rules and regulations adopted by the
department to implement this section and the
provisions of article 70 of this chapter and rules and
regulations adopted thereunder shall govern the
processing of permit applications, renewals,
modifications, suspensions and revocations under this
section.
4. No permit under this section shall be required of
any local public corporation which has entered into a
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written memorandum of understanding with the
department establishing the plan of operation to be
followed in carrying out projects or work affecting
water courses so as to afford proper protection to the
public beneficial uses of such water courses.
5. No permit under this section shall be required of
any state department or state public corporation. State
departments and state public corporations may enter
into a written memorandum of understanding with
the department concerning projects or work of the
type for which a permit would be required under this
section if the project or work were undertaken by a
person or local public corporation. The memorandum
may establish procedures for review by the
department of the plans for such projects or work and
for written recommendations by the department with
respect thereto.
6. No permit under this section shall be required for
emergency work in a stream or on its banks which is
immediately necessary to protect the health, safety
and well-being of any person or persons or to prevent
damage to personal or real property, provided that the
department is given written notification by registered
mail or telegraph within forty-eight hours after the
commencement of the work and within forty-eight
hours following the completion of such work.
Whenever emergency work is performed as provided
in this subdivision, it shall be performed in a manner
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that will cause the least change, modification,
disturbance or damage to the course or bed of the
stream and its banks.
7. No permit under this section shall be required for
certain agricultural activities of persons and
corporations actively cultivating land devoted to
agriculture whether or not the same be along a stream
or watercourse as described in subdivision 2;
providing that these agricultural activities consist
only of crossing and recrossing of such streams or
watercourses by livestock or by wheeled farm
equipment normally used for traditional agricultural
purposes; or the use of such stream or watercourse for
withdrawal of water for irrigation where such
withdrawal does not require altering the bed, banks or
course of the stream in any manner.
8. The requirements of this section shall be in
addition to those specified in section 15-0505 of this
title, provided however, that the department may, by
rule and regulation, provide that only one application
for a permit or request for renewal or modification of
an existing permit need be filed with the proposed
project or work requires a department permit under
this section and section 15-0505 of this title.
ECL § 15-0503 entitled “Protection of water bodies;
permit” provides:
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1. Except as provided in subdivision [fig 1] 3 of this
section
a. No dam [fig 1] shall be erected, constructed,
reconstructed or repaired by any person or local
public corporation without a permit issued pursuant
to subdivision [fig 2] 2 of this section. As used in this
section, and section 15-0511 of this title, "dam"
means any artificial barrier including any earthen
barrier, together with its appurtenant works, which
impounds or will impound waters, provided it has (1)
a height equal to or greater than fifteen feet or (2) a
maximum impoundment capacity equal to or greater
than three million gallons; except that for purposes of
this section a dam shall not include any structure
which has (i) a height equal to or less than six feet
regardless of the structure's impoundment capacity, or
(ii) an impoundment capacity not exceeding one
million gallons regardless of the structure's height.
b. Except where a lease or other appropriate
conveyance of an interest authorizing the use and
occupancy of state-owned lands underwater has been
obtained from the commissioner of general services
pursuant to subdivision seven of section seventy-five
of the public lands law, no dock, wharf, platform,
breakwater, mooring, or other structure in, on or
above waters shall be erected, placed, constructed,
reconstructed, or expanded after the effective date of
this paragraph by any person or local public
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Statutes, Ordinances and Regulations]
corporation without a permit issued pursuant to
subdivision [fig 1] 2 of this section. The term
"reconstructed" as used [fig 2] in relation to docks,
wharves, platforms, breakwaters, mooring or other
structures pursuant to this paragraph shall mean the
substantial rebuilding of structures or facilities and
shall not apply to ordinary maintenance or repair of
existing functional structures or facilities, such as
repainting, redriving pilings or replacing broken
boards in docks.
c. A city, town, village or county may submit to the
commissioner a local law or ordinance regulating
docks or other structures as described in paragraph b
of this subdivision. The commissioner shall review
such law or ordinance to determine whether it
provides environmental protection comparable to, or
greater than, the provisions of such paragraph and any
regulations promulgated thereunder. If the
commissioner determines that the local law or
ordinance submitted meets such requirements, the
commissioner may delegate, upon such terms and
conditions as he or she deems appropriate, to the
local government the authority to administer the
permit program and to charge a fee for permit
processing. Any delegation may be revoked by the
commissioner if he or she finds that the local
government has failed to carry out the program in
accordance with the terms of the delegation.
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Appendix |
[Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations]
2. Permits.
a. Before granting a permit, a permit renewal or a
permit modification pursuant to this section, the
department shall ascertain the probable effect on the
health, safety and welfare of the people of the state,
and the effect on the natural resources of the state
likely to result from the proposed project or work.
b. The department shall review the permit
application or request for renewal or modification of
an existing permit and may approve the manner and
extent to which the waters of the state or the banks
and shore thereof will be affected by the proposed
project or work and may grant or deny the permit or
request, or may grant the permit or request with such
conditions as might appear necessary to safeguard
life, property and natural resources during and after
the execution of the proposed project or work.
c. The rules and regulations adopted by the
commissioner to implement this section and the
provisions of article 70 of this chapter and rules and
regulations adopted thereunder shall govern permit
applications, renewals, modifications, suspensions
and revocations under this section.
d. The requirements of this section shall be in
addition to those specified in sections 15-0501 and
15-0505 of this title, provided however, that the
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Appendix |
{Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations]
department may, by rule and regulation, provide that
only one application for a permit or request for
renewal or modification of an existing permit need be
filed when the proposed project or work requires a
department permit under this section and any other
section of this title.
3. The requirement of a permit pursuant to this
section shall not apply to the following facilities:
a. A dock, pier, wharf or other structure used solely
as a landing place on water providing dockage for
five or fewer boats and encompassing within its outer
perimeter an area less than four thousand square feet;
b. A mooring facility providing mooring for fewer
than ten boats;
c. Seasonal repl
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