# Petition for Writ of Certiorari — Palmieri v. New York State Department of Environmental Conservation (No. 06-1134) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2179%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text 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