Petition for Writ of Certiorari — Palmieri v. New York State Department of Environmental Conservation (No. 06-1135)
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Supreme Court of the
Gnited States
e
PAUL PALMIERI,
Petitioner,
-against-
NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Second Circuit
Sacieand
i
PETITION FOR A WRIT OF CERTIORARI
a aaaall ——
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
®
QUESTIONS PRESENTED FOR REVIEW
Did respondents, as punishment for his refusal to
allow a violation of his Fourth Amendment rights,
unreasonably deny petitioner a wetlands permit to
build an extension of an existing dock that protrudes
approximately 92 feet away from his yard and into a
bay because petitioner refused to give his consent to a
warrantless pre-permit inspection of his home, deck,
backyard fencing, bulkhead, dock and two boat lifts?
Should the “special needs” test be expanded to permit
a governmental agency to deny a private property
owner his right against unreasonable searches,
seizures, and to be secure in his property, as protected
by the Fourth Amendment to the United States
Constitution, under circumstances where the
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, seizures and to be secure in
their property because their rear property faces a body
of water?
Did respondents, as punishment for petitioner’s
refusal to allow 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
QUESTIONS 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 allow 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?
ii
10.
11.
QUESTIONS 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 the 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 government agency demonstrate
disregard for its own rules and for 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 receipt of
additional information from petitioner as the afore-
mentioned rules require?
LIST OF PARTIES
The parties are the petitioner, Paul Palmieri, and the
respondents, the New York State Department of
Environmental Conservation hereafter (“DEC”), Erin M.
Crotty, Commissioner, and Molly T. McBride,
Administrative Law Judge.
TABLE OF CONTENTS
Questions Presented for Review .................... i
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| PREP ee ee PO On Ee rH on
ny IE I oo oo in bes we nie wow ee oO ]
URNNNONE OE FUTURE sn on cet ivess 1
Constitutional Provision and Statute Involved .......... ]
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TURIN sec brie oe oes aera ee 16
CE Sis a has eo ae 28
iV
TABLE OF AUTHORITIES
Cases: Page(s
Ambry v. Bd. of Trustees of
N.Y. City Fire Department,
296 A.D.26 S82 CAG DCM. 2007) 5 owe eens 11-12
Anobile v. Pelligrino,
203 F.36 107, 420 GGCi. 2008) 6c cece ones 20
Bd. of Educ. of Indep. School Dist.
No. 92 of Pottawatomie County v. Earls,
536 U.S 822, 829, 122 S.Ct. 2559,
O55 CE FE To Ce 5 5 ES 12, 21, 23, 24
Brookhaven v. Ronkonkoma Realty Corp.,
154 A.D.26:665 (26 Dept. 1969)... 0. ces. 12, 20
California v. Ciraolo,
476 U.S. 207, 213, 106 S.Ct. 1809,
Pe Ree er CD keh ee Pees 25, 26
Camara v. Municipal Court of the
City and County of San Francisco,
387 U.S. 523, 540, 87 S.Ct. 1727,
Te ee EE UPTE So pa oe eee ees , 20, 23, ZF:
Colon v. Bailey,
26 A.D.3d 454, 455-456,
810 N.Y.S.2d 51]
CE Ss GOOD. recs saacced Rie eee 6
Cases: Page(s)
DiCarlo v. City of New York,
286 A.D.2d 363, 365 (2d Dept. 2001) .......0........ -
Dow Chemical Co. v. United States,
476 U.S. 227, 106 S.Ct. 1819,
ee ne a ee mee 25-26, 26
Florida v. Riley,
488 U.S. 445, 109 S.Ct. 693,
ee Cie ORO RATE ws an odes aN wel 26
Fry v. Village of Tarryton,
NE He POE UPPED hs oka ek eed els Ohne 12
Griffin v. Wisconsin,
483 U.S. 868, 873, 107 S.Ct. 3164,
55 po ES. 7) Eng eae meer AiraiG Sites 21, 22, 24
Heimbach v. Commissioner,
136 Mic.2d 1 (Sup. Ct. Albany Co. 1987) ............ 17
Leventhal v. Knapek,
Pe POPE: BOOED jcc See dceaesteuewces 22
Matter of Atlantic Cement Co. v. Williams,
IZPAD.2E C4, 90d Dent. 1967)... 2. es 3
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) ............ 3, 18
vi
Cases:
Matter of Calm Lake Dev. v.
Town Bd. of Town of Farmington,
213 A.D.2d 979 (4" Dept. 1995) ..............
Matter of Northern Metro.
Residential Healthcare Facility v. Novello,
24 A.D.3d 1069, n. 1 (3d Dept. 2005) ..........
Matter of Oak Is. Beach Assn. v. Flacke,
96 A.D.2d 841, 465 N.Y.S.2d 596
Ce BOE. SPE oor Os eh ree ee eee en ees
Matter of Paul Palmieri, appellant, v.
New York State Department of
Environmental Conservation, respondent,
2006 NY Slip Op 5794; 2006 N.Y. App.
Div. LEXIS 9379 under Appellate Division
Docket No. 2005-02686; Suffolk County
ee See BE. ce ee ee wake we ee ao
Matter of Saltzman v. Board
of Appeals of Vil. of Roslyn,
26 A.D.3d 505, 506, 811 N.Y.S.2d 99
oe ee. ee
Matter of Thompson v. Department of
Envtl. Conservation of the State of New York,
132 A.D.2d 665 (2d Dept. 1987) app. den.
MUSEO Ge.
Vil
Cases: Page(s)
Michigan + _‘lifford,
464 U.S.287, 291-92,
104 S.Ct. 641, 78 L.Ed.2d 477 (1984) ............. 20, 21
National Treasury Employees Union v. Von Raab,
489 U.S. 656, 109 S.Ct. 1384,
SEF Rca OOF CAPONE ee eee 22
New Jersey v. T.L.O.,
469 U.S. 325, 342, 105 S.Ct. 733, :
Se ee FRIEND oS LE ee 21 (twice)
Nicholas v. Goord,
No. 01 Civ. 7891, 2003
U.S. Dist. LEXIS 1621,
at *50 (S.D.N.Y. February 6, 2003).............. 3 Sys
O’Connor v. Ortega,
480 U.S. 709, 724, 107 S.Ct. 1492,
94 L.BG.26 TIVCI9ST). 2 eg ei eee ins 4 Weese 24
Palmieri v. Lynch,
392 F.3d 73 73 (2d Cir. 2004)
cert. denied 126 S.Ct. 424, 163 L.Ed.2d 323 (2005) ... 3,4
Reed v. Schneider,
Giz F Sap. ZIG TE DON.Y. 1905) «i ies ie 27
Skinner v. Railway Labor Executive ’s Assn.,
489 U.S. 602, 109 S.Ct. 1402,
HOS 52 ee Ore CPOE ke cle ed od bo oe de eae
Vill
Cases: Page(s)
Sokolov v. Village of Freeport,
re 20
Stender v. Albany,
188 A.D.2d 986 (3d Dept. 1992)
ey Ge sr 23
Tayntor v. NYS Department of
Envronmental Conservation,
See rae ee 7) 02 EO, IDBT) ow eee ees 17
United States v. Hatfield,
pee we tee, oe clo Cw. 2003)... ......-06.--- 26
United States v. Jenkins,
od ES 26
United States v. Knights,
534 U.S. 112, 122 8.Ct. 387,
| Bo) |) ) rr rrr 22
United States v. Knotts,
460 U.S. 276, 103 S.Ct. 1081,
a 25
United States v. Newton,
Be ee ee a? COIN, F. 2002)... wee ees 22
United States v. Paulino, :
See eee C7 iC 1988) .............6....:.. 20
Cases: Page(s)
United States v. Reilly,
Po he Vath, BAT e Oe. TOG) noon ccc aewens 26
Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 654-661, 115 S.Ct. 2386,
EFe MA DOUEIGOED 6 ooo veeh eek 3, 4, 21, 23, 24
Statutes:
Beds SND lad ee ede eee er ree 11,19
ay SPE. ck hele sk Ch UKE eee ee eee 12
CME. c's ob 'k-a bo ie leh Reka ae ee eae 5
hs. SOE = abaya Ce eke ees bee 17
ECL 70-0109 (a), (b) and{c).......... 16-17 (twice), 18
ECL 70-0109(1)(a) and (b) ............... ii, 11, 16-17
Saas POE 3 3 eo oe She eee ee wae ee 18
Ory eae cs o's ¥ carne bee evades ene. 11, 19
6NARR CLIO MD 2... ee 3,14
Pre Cae ae ok op a he oa ee eee 14
Ca ee 11,14
CHYTRR SIS Ls Se 11,19
Statutes: —= Page(s
Ree ee ii, 11, 17, 18
Ce OE os ks 2, 3, 15 (twice), 16
GNVCRE G21.90Ne) 2... 5. eee eee 3, 11, 19
Cire 0 3, 12, 14 (twice)
“pth NSS eee See eer ee see 12
RNR 3 oe ee ae 12
CN A Nh ei. 14
xl
\
TABLE OF APPENDICES
APPENDIX A
Decision of the Court of Appeals,
State of New York, Dated and
Entered November 21,1006 .............. la-2a
APPENDIX B
Decision of the Appellate Division,
Second Department, State of New
York, dated and Entered July 18, 2006....... 3a-5a
APPENDIX C
Judgment of Supreme Court, State of
New York, County of Suffolk, Dated
July 25, 2003 and Entered August 8, 2003 ... . 6a-9a
APPENDIX D
Memorandum Decision of Supreme Court,
State of New York, County of Suffolk,
Dated and Filed May 5, 2003 ............ 10a-21a
APPENDIX E
Decision of the Commissioner, State
of New York, Department of
Environmental Conservation,
Dated and Filed April 7,2004 .......... 22a- 33a
Xi!
TABLE OF APPENDICES
(Continued)
APPENDIX F
Hearing Report of Administrative
Law Judge Molly T. McBride
Dated January 30,2004 ............... 34a- 46a
APPENDIX G
Ruling of the Commissioner, State
of New York, Department of
Environmental Conservation,
Dated and Filed February 1, 2002........ 47a- 50a
APPENDIX H
Ruling on Motion and Summary
Report of Molly McBride (ALJ) ......... Sla- 66a
APPENDIX I
Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations ... . 67a- 132a
Xili
OPINIONS BELOW
The opinion of the Court of Appeals, State of New
York, the court below, is reported at 2006 N.Y. LEXIS 3587
(November 21, 2006); and the opinion of the Appellate
Division of State Supreme Court, Second Department, is
reported at 31 A.D.3d 645 (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 judgment of the Supreme Court of the State of
New York, County of Suffolk, which is dated July 25, 2003,
was entered on August 8, 2003.
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.”
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 (1)
under the circumstances of this case, the nisi prius court
properly directed an administrative hearing on the issue of
whether an inspection of petitioner’s property was reasonably
necessary, (2) the Fourth Amendment to the United States
Constitution does not bar a warrantless inspection of his
premises; (3) a request by respondents for an on-site
inspection of the wetlands and adjacent areas on his property,
in order to review the accuracy and impact of petitioner’s
permit application, fell within the special needs exception to
the Fourth Amendment’s warrant requirement; (4) in this
instance, the state’s interest in protecting wetlands is strong;
(5) 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; and (6)
petitioner’s remaining contentions were without merit; and
affirmed the Judgment dated July 25, 2003 and entered on
August 8, 2003 of the Supreme Court of Suffolk County
(Baisley, J.) and undated Memorandum Decision, which
Judgment and Memorandum Decision granted the petition to
the extent that petitioner was held to be entitled to an
adjudicatory hearing pursuant to 6 NYCRR §621.7(f),
otherwise denied the petition; and determined that petitioner
would have the burden at such hearing of demonstrating that
respondent’s demand for an on-site inspection of petitioner’s
property is not reasonably necessary in order to evaluate
petitioner’s application for a wetland’s permit (6 NYCRR
§624.9(b)(1)).
The July 18, 2006 decision and order of the Appellate
Division, Second Department, provides in pertinent part as
follows:
“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 post-completion
review of an application (see 6 NYCRR 621.1{[c],
621.7[f] and 621.15[b]; Matter of Benlevi Obedian &
Benlevi v. New York State Dept. of Envitl.
Conservation, 144 AD2d 358, 361; Matter of Atlantic
Cement Co. v. Williams, 129 AD2d 84, 90). 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, cert denied 126 S Ct
424; see also Vernonia School Dist. 47J v. Acton, 515
US 646; Matter of Thompson v. Department of Envil.
Conservation of State of N.Y., 132 AD2d 665). 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). In 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 minima! intrusion (id. ;
see also Vernonia School Dist. 47J v. Acton, supra;
Matter of Thompson v. Department of Envil.
Conservation of State of New York, supra).
“The petitioner’s remaining contentions are without
merit (see Matter of Northern Metro. Residential
Healthcare Facility v. Novello, 24 AD3d 1069, n 1;
DiCarlo v. City of New York, 286 AD2d 363, 365;
Matter of Calm Lake Dev. v. Town Bd. of Town of
Farmington, 213 AD2d 979).”
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
L. Reported as /n the Matter of Paul Palmieri, appellant, v.
New York State Department of Environmental
Conservation respondent, 2006 NY Slip Op 5794; 2006
N.Y. App. Div. LEXIS 9379 under Appellate Division
Docket No. 2005-02686; Suffolk County
Index No. 13500/04.
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 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 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 the 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).
“In light of our determination, we need not reach the
petitioner’s remaining contentions.
“FLORIO, J.P., CRANE, RITTER and FISHER, JJ.,
concur.”
Petitioner’s Article 78 proceeding arose out of the
respondents’ denial of his application for a tidal wetlands’
permit authorizing construction of an extension to an existing
dock presently protruding approximately 92 feet into the
Great South Bay.
In 1991, petitioner applied for, and was granted, a
tidal wetlands’ permit for the reconstruction of his bulkhead
and the construction of a 52 foot fixed pier with additional
pilings and two boat lifts. Following construction of these
improvements, in January of 1993, petitioner applied for
another tidal wetlands’ permit to extend his existing 52 foot
dock an additional 110 feet and to add two more boat lifts.
Although that permit application was denied by the DEC on
November 4, 1993, following petitioner’s request for an
administrative hearing, a settlement was reached wherein the
DEC agreed to issue petitioner a permit for a dock extension
of 40 feet and for the construction of an additional boat lift
after it had conducted a pre-permit inspection by boat of an
area in the Great South Bay behind petitioner’s property in
the area adjacent to and beneath petitioner’s then existing
dock.
Petitioner submitted another application to the DEC
for a wetlands’ permit in May of 1999, seeking to extend his
92 foot dock by 50 feet and to add another boat lift. Ina
letter sent to petitioner dated April 7, 2000 by Mark C.
Carrara, its Deputy Permit Administrator, the DEC
acknowledged that it had received petitioner’s application for
a wetlands’ permit “on June 7, 1999”. Approximately 36
days later, the DEC sent petitioner its first Notice of
Incomplete Application dated July 13, 1999, informing
petitioner that his application was incomplete in that he had
failed 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. After it received
petitioner’s photographs, project plans and a location map on
January 20, 2000, the DEC waited almost three months
before sending petitioner a second “Notice of Incomplete
Application” dated March 13, 2000 indicating that
petitioner’s application was still incomplete as he had failed
to submit a recent survey of the project site. Thereafter, by
letter dated April 7, 2000, the DEC informed petitioner that
his application was complete except for a pre-permit
inspection on his property. When petitioner refused to give
the DEC his consent to conduct a pre-permit inspection on
his property, insisting instead that the DEC conduct its pre-
permit inspection of the bottom of the bay adjacent to, and
beneath, the proposed location of the dock extension
(approximately 92 feet into the bay) by boat, a method which
the DEC had used in performing its prior pre-permit
inspections of the bottom of the bay adjacent to, and beneath,
petitioner’s present dock, the DEC denied his wetlands’
permit application by “Notice of Permit Denial” dated July 7,
2000 upon the ground that petitioner failed to give his
consent to a pre-permit inspection on his property. The
Notice of Permit Denial further informed petitioner that he
had a right to request an adjudicatory hearing pursuant to 6
NYCRR 621.7(f), which he did by letter dated August 3,
2000.
The hearing, which was initially scheduled for March
21, 2001, was adjourned to June 25, 2001 due to DEC staff
unavailability. When neither petitioner nor his attorney
appeared on the adjourned date of the hearing, the DEC
moved for administrative judicial intervention contending
that petitioner’s failure to appear at the re-scheduled hearing
should be considered as an abandonment or withdrawal of
his request for a hearing or a default; or alternatively, that the
DEC’s denial of petitioner’s permit application shouid be
affirmed without the need for an adjudicatory hearing upon
the ground that controlling administrative case law precluded
a hearing until petitioner consented to a pre-permit
inspection on his property. Petitioner opposed the motion
upon the grounds that the DEC failed to confirm the
adjourned hearing date and to provide proof of publication of
the notice of hearing. Petitioner’s attorney, in a letter dated
April 27, 2000, contended that the DEC could conduct a
review of petitioner’s permit application in a manner less
intrusive than a pre-permit inspection on his property,
particularly since there was an alternative method of
inspection, namely by boat, which the DEC had used in
performing prior inspections relating to petitioner’s
wetlands’ permit applications of the bottom of the bay,
adjacent to, and beneath, petitioner’s present dock.
Petitioner’s attorney further contended that conditioning a
permit upon a non-consensual pre-permit inspection on
petitioner’s property violated petitioner’s rights under the
Fourth Amendment to the U.S. Constitution.
In an undated decision (hereafter the “McBride
Ruling”) rendered on the DEC’s motion by Administrative
Law Judge Molly McBride (hereafter “ALJ”), the ALJ ruled
that there was no confirmation that petitioner’s attorney saw
the notice of the adjourned hearing and determined “Frankly,
scheduling errors occur and such a severe penalty as
requested by [DEC] Staff is not warranted here”. With
respect to the DEC’s alternate request for relief, the ALJ
determined that the DEC could not determine whether the
application met the standards for permit issuance unless it
was permitted to conduct a pre-permit inspection on
petitioner’s property; and that if it could not be determined
whether the standards had been met, petitioner’s permit
application could not be deemed complete. The ALJ
recommended that the Notice of Permit Denial be vacated
and replaced with a Notice of Incomplete Application; ruled
that 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; and concluded that there could be
no further processing of petitioner’s application until it was
complete.
In a ruling dated February 1, 2002 (hereafter the
“Commissioner’s Ruling”), the Commissioner of the DEC
(Erin M. Crotty), adopted the decision of the ALJ
commenting as follows:
“T find that the Applicant’s [petitioner] tidal wetland
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 Staffs review. Further, |
am determining that the Applicant’s request for
hearing on its [sic.] 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”.
Thereafter, petitioner commenced an Article 78
proceeding by service of a notice of petition and verified
petition; and subsequently served an amended verified
petition. In his amended petition, petitioner sought a
judgment annulling and vacating the Commissioner's Ruling
to the extent that it affirmed those portions of the McBride
Ruling determining that petitioner’s application was
incomplete and that petitioner’s request for a hearing was
void; and also sought review of the McBride Ruling
10
contending that (A) pursuant to 6 NYCRR 621.4(K), a pre-
permit inspection on petitioner’s property by a DEC staff
member is not one of the requirements for a complete permit
application, although petitioner had no objection to a pre-
permit inspection on petitioner’s property by a private
environmental consultant, which is expressly authorized by 6
NYCRR 621.4(K)(iii)), (B) the McBride decision violated
the provisions of ECL 70-0109(1)(a) and (b) and 6 NYCRR
621.5(b) which deem an application complete unless the
DEC mails a written notice that the application is incomplete
within 15 calendar days of its receipt of the permit
application, (C) the McBride Ruling improperly relied on an
Interim Decision of the Deputy Commissioner of the DEC
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 (D) the DEC’s conditioning of the issuance
of a permit upon its receipt of petitioner’s consent to a pre-
permit inspection on petitioner’s property violated
petitioner’s right against unreasonable search and seizure
under the Fourth Amendment to the United States
Constitution.
Petitioner further contended that his property does not
come within the DEC’s wetland permit jurisdiction pursuant
to ECL 15-0505(1) and 6 NYCRR 608.5; and that his permit
application should be deemed approved on the basis of the
five day demand provisions of 6 NYCRR 621.9(b) and (c).
The nisi prius court refused to consider the latter contention
upon the ground that it had not been raised at the
administrative level in reliance upon the cases of Ambry v.
1]
Bd. of Trustees of N.Y. City Fire Department, 298 A.D.2d
582 (2d Dept. 2002); and Fry v. Village of Tarrytown, 89
N.Y.2d 714 (1997)).
The nisi prius court determined that petitioner’s
contention that the DEC’s conditioning of the issuance of a
permit upon its receipt of petitioner’s consent to a pre-permit
inspection on petitioner’s property violated petitioner’s night
against unreasonable search and seizure under the Fourth
Amendment to the United States Constitution was without
merit; and held that whenever the DEC can demonstrate a
“reasonable need” for the scientific information obtainable
through a pre-permit inspection, such inspection would
constitute a valid condition to a wetlands’s permit in reliance
upon the case of 7hompson v. Department of Environmental
Conservation, 132 A.D.2d 665 (2d Dept. 1987) app. den. 71
N.Y.2d 803 (1988) and 6 NYCRR 621.15(b)).
The nisi prius court eschewed such cases as Stender
v. Albany, 188 A.D.2d 986 (3d Dept. 1992) app. dis. 81
N.Y.2d 1006 (1993); and Brookhaven v. Ronkonkoma Realty
Corp., 154 A.D.2d 665 (2d Dept. 1989) based upon its
opinion that a pre-permit inspection on petitioner’s property
constituted a “minimal intrusion” upon the property, that
petitioner had a “diminished expectation of privacy” in his
property and that a pre-permit inspection on petitioner’s
property was a matter of governmental interest in reliance
upon ECL 25-0102, 6 NYCRR 661.1, 661.9(b); and Board of
Education v. Earls, 536 U.S. 822, 829, 122 S.Ct. 2559, 153
L.Ed.2d 735 (2002)), which rulings petitioner disputed in his
12
appeals to the Appellate Division of State Supreme Court,
Second Department, and New York State Court of Appeals.
Petitioner also challenged that part of the
Commissioner’s Ruling that relieved the DEC from any
further action including a hearing on petitioner’s application
until he complied with its demand for a pre-permit inspection
on his property.
In reaching its determination, the nisi prius court
expressly found that since the Commissioner adopted the
McBride Ruling as its own, it was constrained to review the
findings in that ruling in order to determine its efficacy.
The nisi prius court found that the record established
that initially the DEC had afforded petitioner the right to a
public adjudicatory hearing in the Notice of Permit Denial
but that such hearing was adjourned because of the DEC’s
inability to proceed. Although neither the petitioner nor his
attorney appeared on the adjourned date of that hearing, the
ALJ subsequently determined that petitioner should not be
deprived of his right to an adjudicatory hearing based. merely
upon this ground.
The nisi prius court found that the ALJ, by
characterizing petitioner’s application as incomplete,
determined that no further action, including the adjudicatory
hearing, would be taken, that the ALJ’s determination
constituted error and that petitioner should have been
afforded the opportunity at an adjudicatory hearing to
demonstrate whether the DEC’s request for a pre-permit
13
inspection on petitioner’s property was reasonable and
necessary. Petitioner contends that under no circumstances
can the DEC condition the grant of a permit application upon
a non-consensual pre-permit inspection on petitioner’s
property.
Although following the submission of his tidal
wetlands’ permit application to the DEC, petitioner was
served with at least two “incomplete notices” which did not
require a pre-permit inspection on petitioner’s property,
nevertheless, the nisi prius court determined that
notwithstanding that 6 NYCRR 661.12(a)(1), 6 NYCRR
621.3 and 6 NYCRR 621.4(k) do not specifically provide for
a pre-permit inspection as a prerequisite for a complete
application, the DEC had the authority to require pre-permit
inspections based upon its general authority to request
supplemental information during the course of permit review
to enable it to make the findings and determinations required
by law, citing 6 NYCRR 621.1(d), additional information
“which is reasonably necessary to make any findings or
determinations required by law”, citing 6 NYCRR 621.15(b)
and that, the NYSDEC could fix a date for receipt of such
additional information and if it was not timely submitted it
“may be grounds for denial of the application”, citing 6
NYCRR 621.15(b).
The nisi prius court further found that in this case,
petitioner’s application could be denied upon the ground that
without a pre-permit inspection on petitioner’s property, the
DEC could not determine whether or not petitioner’s
proposal complied with the standards for permit issuance.
14
The nisi prius court ruled that petitioner, upon his
request therefor pursuant to 6 NYCRR 621.7(f), was entitled
to an adjudicatory hearing on whether or not the DEC’s
demand for a pre-permit inspection on petitioner’s property
was “reasonably necessary” to make the required findings or
determinations with regard to petitioner’s permit application;
that the ALJ’s reliance on the Bath Storage decision was
misplaced; and that petitioner was entitled to an adjudicatory
hearing pursuant to 6 NYCRR 621.7(f) at which petitioner
would have the burden of demonstrating that the DEC’s
demand for a pre-permit inspection on petitioner’s property
was not reasonably necessary in order to evaluate his
application for a wetland’s permit, but the petition was
otherwise denied.
In his appeals to the Appellate Division of New York
State Supreme Court, Second Department, and the New York
State Court of Appeals, the petitioner contended, inter alia,
that the nisi prius court’s rulings were erroneous as a matter
of law because no governmental agency may condition the
grant of a permit application upon a non-consensual pre-
permit inspection on private residential property irrespective
of whether or not it was reasonably necessary in order to
evaluate an application for a permit.
In a letter sent to petitioner dated April 7, 2000 by
Mark C. Carrara, its Deputy Permit Administrator, the DEC
admitted that it had received petitioner’s application for a
tidal wetlands’ permit “on June 7, 1999”. Approximately 36
days later, the DEC sent petitioner a Notice of Incomplete
Application dated July 13, 1999 informing petitioner that his
15
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. After it received petitioner’s
photographs, project plans and a location map on January 20,
2000, the DEC waited almost three months before sending
petitioner a second “Notice of Incomplete Application” dated
March 13, 2000 indicating that petitioner’s application was
still incomplete as he had failed to submit a recent survey of
the project site. Thereafter, by letter dated April 7, 2000, the
DEC informed petitioner that his application was complete
except for a pre-permit inspection on his property.
Following petitioner’s refusal to give his consent to a pre-
permit inspection on his property, the DEC denied his
wetlands’ permit application by “Notice of Permit Denial”
dated July 7, 2000 upon the ground that petitioner failed to
give his consent to a pre-permit inspection on his property.
The Notice of Permit Denial further informed petitioner that
he had a right to request a public hearing pursuant to 6
NYCRR 621.7(f) which he did by letter dated August 3,
2000.
LEGAL ARGUMENT
Subdivision (1) of ECL 70-0109 provides in relevant
part as follows:
“(a) On or before fifteen calendar days after the
receipt of an application for a permit which has been
filed in a manner and in a form prescribed by the
department, the department shall mail written notice
16
to the applicant of its determination whether or not
the application is complete.
“(b) If the department fails to mail written notice to
an applicant of its determination whether or not an
application is complete within such fifteen calendar
day period, the application shall be deemed
complete.”
The regulations of the DEC provide in relevant part at
6 NYCRR 621.5 as follows: “(b) The Department shall mail
notice of its determination of completeness or
incompleteness to the applicant . . . (2). . . on or before 15
calendar days after receipt of the application”; and “(f) If the
department fails to mail notice of its determination of
completeness or incompleteness to the applicant within the
time limit specified above, the application shall be deemed
complete”.
The intent of the legislature in enacting ECL 70-0109
was “to establish reasonable time periods for administrative
agency action on permits” (ECL 70-0103); and “in order to
set in motion the timetable set forth in the uniform
procedures and compel that the permit application continue
to be processed” (Heimbach v. Commisioner, 136 Misc.2d 1
(Albany Co. 1987). Any other construction would result in
permit applications being held in administrative limbo,
neither denied, granted, or processed, as occurred in the case
at bar (/d.).
In Jayntor v. NYS Department of Environmental
Conservation, 130 A.D.2d 571 (2d Dept. 1987), the court
found that a letter mailed by the DEC on August 17, 1983
within 15 days of its receipt of a permit application received
17
on August 2, 1983 was mailed timely. However, in Benlevi
v. NYS Department of Environmental Conservation, 144
A.D.2d 358 (2d Dept. 1988) appeal dismissed 74 N. Y.2d 650
(1989) the court ruled that an application for a permit must
be deemed complete because the DEC had failed to send the
petitioners a notice of incomplete application within 15 days
of the agency’s receipt of the permit application.
In the case at bar, after receiving petitioner’s permit
application on June 7, 1999, the DEC waited until July 13,
1999 before sending petitioner its Notice of Incomplete
Application, a period of 36 days. Therefore, based upon
ECL 70-0109 and 6 NYCRR §621.5, petitioner’s permit
application should have been deemed complete.
As mentioned above, the DEC received petitioner’s
photographs, project plans and a location map on January 20,
2000 but waited until March 13, 2000 to send him its second
Notice of Incomplete Application. Assuming the subsequent
submission by petitioner of photographs, project plans and a
location map constituted a re-submission of the application
or the submission of additional information, ECL §70-
0109(1)(d) provides that such submission “shall commence a
new fifteen calendar day period for department review of the
additional information for purposes of determining ©
completeness”. Therefore, the DEC failed to observe the 15
day period for mailing petitioner written notice of his
incomplete application Twice!
If petitioner’s permit application was deemed to be
complete before the DEC requested a pre-permit inspection
on petitioner’s property, the DEC cannot subsequently
require petitioner’s consent to a pre-permit inspection on his
property as a condition precedent to a completed permit
18
application. Nor can it deny petitioner a wetlands’ permit
based upon his refusal to give the DEC consent to enter upon
his property in order to conduct a pre-permit inspection. Nor
could the nisi prius court require petitioner to attend an
adjudicatory hearing for the sole purpose of determining
whether or not the DEC’s demand for a pre-permit inspection
On petitioner’s property was “reasonably necessary” for it to
make the required findings or determinations with regard to
petitioner’s permit application.
As well, the nisi prius court’s rulings were erroneous
as a matter of law because no governmental agency may
condition the grant of a permit application upon a non-
consensual pre-permit inspection on private property
irrespective of whether or not it was reasonably necessary in
order to evaluate an application for a permit; a pre-permit
inspection on petitioner’s property by a DEC staff member is
not one of the requirements for a complete permit
application; petitioner had no objection to a pre-permit
inspection on his property by a private environmental
consultant, which is expressly authorized by 6 NYCRR
621.4(K)(iii); that the DEC by conditioning the issuance of a
permit upon its receipt of petitioner’s consent to a pre-permit
inspection on his property violated petitioner’s right against
unreasonable search and seizure-under the Fourth
Amendment to the United States Constitution; that
petitioner’s property does not come within the DEC’s
wetland permit jurisdiction pursuant to ECL 15-0505(1) and
6 NYCRR 608.5; and that petitioner’s permit application
should have been deemed approved on the basis of the five
day demand provisions of 6 NYCRR 621.9(b) and (c).
An ordinance that requires an owner of residential
property to submit to an inspection of his property violates
19
the owner’s right to be free from searches as guaranteed by
the Fourth Amendment to the United States Constitution
(See Camara v. Municipal Court of San Francisco, 387 U.S.
523, 540, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Sokolov v.
Village of Freeport, 52 N.Y.2d 341 (1981) (an intrusion
upon a Citizen’s property as a condition precedent to the
issuance of a permit is impermissible), Town of Brookhaven
v. Ronkonkoma Realty Corp., 164 A.D.2d 665 (2d Dept.
1989) (The Town of Brookhaven may not compel a property
owner to submit to a physical inspection of his premises, nor
may it penalize the owner for failing to comply with the
permit requirements of the Zoning Code).
The lower courts applied the “special needs” doctrine
to this case. Previously, this doctrine had only been applied
to “extraordinary situations” (United States v. Paulino, 850
F.2d 93, 97 (2d Cir. 1988)); commercial enterprises, public
facilities governed by regulatory schemes and to the living
spaces of paroles. “Neither the Supreme Court nor this Court
has ever permitted warrantless administrative searches of a
person’s residence unless: exigent circumstances exist[ed],
business was conducted in the home, or the search was
directed at convicted felons still serving sentences of
probation or parole” (Anobile v. Pelligrino, 303 F.3d 107,
120 (2d Cir. 2002) (emphasis supplied); Michigan v.
Clifford, 464 U.S. 287, 291-92, 104 S.Ct. 641, 78 L.Ed.2d
477 (1984)).
The “special needs” exception has never before been
applied to inspections of private property and its owners who
have absolutely no criminal involvement.
Warrantless searches are permissible only when there
exists an immediate and weighty public need to sacrifice the
20
Fourth Amendment protections afforded our citizens
(Michigan v. Clifford, supra. at 464 U.S. 293 (fire fighters
may enter a burning building to “fight the blaze’’)).
The threshold issue to be determined in any given
case is whether or not a “special need” actually exists. If
there exists no “special need” beyond the normal need for
law enforcement, application of the “special need” exception
cannot be justified (Nicholas v. Goord, No. 01 Civ. 7891,
2003 U.S. Dist. LEXIS 1621, at *50 (S.D.N.Y. February 6,
2003); New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S.Ct.
733, 83 L.Ed.2d 720 (1985) because “the delay inherent in
obtaining a warrant would make it more difficult for
probation officials to respond quickly to evidence of
misconduct (citation omitted) and would reduce the deterrent
effect that the possibility of expeditious searches would
otherwise create (citation omitted)” (Griffin v. Wisconsin,
483 U.S. 868, 873, 107 S.Ct. 3164, 9 L_Ed.2d 709 (1987)).
Therefore, under Griffin, absent some urgency to perform a
search without a warrant and a concomitant need to deter
criminal activity, there can exist no “special need” beyond
the normal need for law enforcement, particularly where, as
here, the DEC conditioned the issuance of a wetlands’ permit
upon petitioner’s consent to an otherwise illegal inspection
of his private residential property.
Every case in which this Court applied the “special
needs” exception involved (1) some urgency to perform the
search without a warrant and (2) the need to deter some
criminal or other pernicious activity (New Jersey T.L.O.,
supra.), Vernonia School District 47J v. Acton, 515 U.S.
646, 654-661, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995);
Board of Education v. Earls, 536 U.S. 822, 122 S.Ct. 2559,
153 L.Ed.2d 735 (2002) (a case relied upon by the nisi prius
21
court that involved drug testing); Griffin v. Wisconsin,
supra., United States v. Knights, 534 U.S. 112, 122 S.Ct.
587, 151 L.Ed.2d 497 (2001); United States v. Newton, 181
F.Supp.2d 157 (E.D.N.Y. 2002); Skinner v. Railway Labor
Executive ’s Assn., 489 U.S. 602, 109 §.Ct. 1402, 103
L.Ed.2d 639 (1989); National Treasury Employees Union v.
Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685
(1989); Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001)).
The “special needs” exception should not be routinely
invoked whenever a warrantless inspection is required
pursuant to a “regulatory scheme”; it should not be invoked
in the absence of a need beyond the normal need for law
enforcement; it should not be invoked unless the warrant and
probable-cause requirement is impracticable; it should not be
invoked absent any need to deter criminal activity; it should
not be invoked absent some urgency to perform the search
without a warrant; and it should not be invoked against an
ordinary citizen by making entry upon his property a
condition to the issuance of a tidal wetlands’ permit, which
in this case the DEC has sought to do.
The nisi prius court ruled that the DEC had a
“reasonable need” that outweighed the plaintiff's expectation
of privacy. However, application of the “special needs”
exception requires a threshold analysis whether there exists
any “special need”, and it cannot be assumed that every
governmental regulation gives birth to a “special need” as a
condition precedent to the issuance of a permit. Even if the
DEC did have a legitimate “special need” beyond the normal
need for law enforcement to make the warrant and probable-
cause requirement impracticable, the inquiry does not end
there since “[e]ven where a court concludes that a statute or
program qualifies as a ‘special need, beyond the normal need
22
for law enforcement,’ the reasonableness of the intrusion
must still be evaluated through a balancing analysis”
(Nicholas v. Goord, supra.).
The U.S. Supreme Court has articulated three factors
to be considered in determinating whether governmental
intrusion upon the individual’s expectation of privacy is
justified by the “special needs” of the government: (1) the
nature of the privacy interest upon which the search intrudes,
(2) the character of the intrusion that is complained of and
(3) the nature and immediacy of the governmental concern at
issue, and the efficacy of the means for meeting it (Vernonia
Sch. Dist. 47J v. Acton, supra.; Bd. of Educ. v. Earls, supra.).
None of these factors supports an extension of the
“special needs” exception to the DEC’s requirement that it be
permitted to invade petitioner’s property as a condition
precedent to its issuance to petitioner of a wetlands’ permit.
The right to exclude government agents from the home and
the curtilage surrounding the home is the bed rock of Fourth
Amendment jurisprudence. That protection is being violated
by the DEC when it required petitioner to consent to a pre-
permit inspection on his property as a condition to the
issuance to petitioner of a wetlands’ permit. The purpose
served by this entry - inspection requirement of the permit
granting process - was neither weighty nor immediate.
Application of the balancing test to this case weighs
heavily against applying a novel and far reaching extension
of the “special needs” exception in order to negate
petitioner’s Fourth Amendment rights.
It is palpable that the nature of the DEC’s
governmental interest does not warrant application of the
“special needs” exception and the opinion of the nisi prius
court in this case does not recite a single legitimate
governmental interest that would have been compromised
had it refused to refer the issue to administrative review, let
alone to have placed the burden of proof upon the petitioner
to demonstrate that a pre-permit inspection on his property
was not reasonably necessary. Although the lower courts
perceived an interest to perform a regulatory inspection in
order to protect the natural resources and the public beaches
and waterways, no pellucid reason is given why such interest
is, in any way, compromised unless petitioner’s Fourth
Amendment protections are compromised. No cogent reason
has been advanced why the warrant and probable-cause
requirement is impracticable. No reason has been suggested
why violating petitioner’s Fourth Amendment rights, in any
way, protects the natural resources and the public beaches
and waterways.
Inherent in the lower courts’ opinions is the fact that
the DEC lacked any immediate need to inspect petitioner’s
property. If there existed no immediate need to inspect
petitioner’s property, it would logically follow that no
governmental interest would be at stake requiring the lower
courts to abide the DEC’s violation of petitioner’s Fourth
Amendment protections; and, there existed no reason for the
DEC to forego the warrant requirement of the Fourth
Amendment (Board of Education v. Earls, supra. at 536 U.S.
836); Vernonia School District 47J v. Acton, supra. at 515
U.S. 662-663); Griffin v. Wisconsin, supra. at 483 U.S. 876;
O’Connor v. Ortega, 480 U.S. 709, 724, 107 S.Ct. 1492, 94
L.Ed.2d 714 (1987)).
In this case, there is no evidence in the record that
petitioner had begun construction or was otherwise engaged
24
in conduct that could potentially damage the wetlands. All
of the parties agreed, including petitioner, that construction
could not commence absent a permit; and, it is undisputed
that the DEC had adamantly refused to grant petitioner a
permit unless he gave his consent to a pre-permit inspection
on his property, which petitioner, just as adamantly, refused
to give the DEC.
Without doubt, petitioner’s home and curtilage are
entitled to the most stringent Fourth Amendment protection.
The lower courts’ attempt to minimize any intrusion upon
petitioner’s property ignores facts that are critical to an
appropriate analysis of petitioner’s Fourth Amendment
. protections. The entry by DEC personnel upon petitioner’s
property as a condition precedent to the issuance of a
wetlands’ permit raises serious Fourth Amendment concerns
that cannot be characterized as de minimus (Camara v.
Municipal Court of San Francisco, supra. at 387 U.S. 530-
31 (“even the most law-abiding citizen has a very tangible
interest in limiting the circumstances under which the
sanctity of his home may be broken by official authority”)).
The lower courts opined that petitioner had a
diminished expectation of privacy in the curtilage around his
home. It is an elemental proposition, which petitioner does
not dispute, that private areas of a home or curtilage visible
to members of the public are not protected from inspection
by governmental agents so long as they do not enter upon the
property and view such private areas from a permissible
vantage point such as a public road or waterway (United
States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d
55 (1983); California v. Ciraolo, 476 U.S. 207, 213, 106 St.
Ct. 1809, 90 L.Ed.2d 210 (1986); Dow Chemical Co. v.
25
United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226
(1986)).
However, quite plainly, even if a person’s living
room can be seen from the street by passers-by through a
glass window, that fact does not permit entry of the home by
governmental agents because physical entry upon the
property is much more intrusive than a mere visual
inspection from the periphery (Dow Chemical Co. v. United
States, supra. at 237 (finding that aerial inspection of area in
question was permissible but stating that “[a]ny actual
physical entry by [the] EPA into any enclosed area would
raise significantly different questions”); United States v.
Hatfield, 333 F.3d 1189, 1198 (10th Cir. 2003) (explaining
that if the officer had “physically invaded the curtilage to
make his observation, that would have constituted a search
subject to the proscriptions of the Fourth Amendment’);
United States v. Jenkins, 124 F.3d 768, 774 (6" Cir. 1997)
(“Visual inspection from a lawful vantage point, however, is
quite different from the physical assault on defendants’
backyard that occurred in this case”); United States v. Reilly,
76 F.3d 1271, 1279 (2d Cir. 1996) (noting the fact that
information was gathered “only after the officers invaded the
area” put that case in “stark contradistinction to the situation
in Dunn, where the officers stood outside the protected
curtilage”); Florida v. Riley, 488 U.S. 445, 449 (1989)
(“[T]he home and its curtilage are not necessarily protected
from inspection that involves no physical invasion. . . As a
general proposition, the police may see what may be seen
‘from a public vantage point where [they have] a right to
be’”); California v. Ciraolo, supra. at 476 U.S. 213 (“The
Fourth Amendment protection of the home has never been
extended to require law enforcement officers to shield their
eyes when passing by a home on public thoroughfares. Nor
26
does the mere fact that an individual has taken measures to
restrict some views of his activities preclude an officer’s
observations from a public vantage point where he has a right
to be. . .”)).
In this case, the DEC refused to inspect the bottom of
the Great South Bay adjacent to, and beneath, a dock
extending approximately 92 feet into the bay and insisted
that it be permitted to enter upon petitioner’s property to
conduct the inspection. The lower courts’ overly dismissive
view of the physical intrusion that would have occurred in
this case trivializes the importance of the Fourth Amendment
protections at stake. The fact that the inspection at issue in
this case would involve a mere intrusion upon petitioner’s
privacy does nothing to excuse the constitutional violation,
as the lower court propounds, but rather exacerbates it
(Camara v. Municipal Court of San Francisco, supra. at 387
U.S. at 531 (“the possibility of criminal entry under the guise
of official sanction is a serious threat to personal and family
security”).
There exists no case that suggests that a trespass, de
minimus or otherwise, into an individual’s backyard does not
constitute a Fourth Amendment violation since “any
unauthorized physical penetration [is] a search” (Reed v.
Schneider, 612 F.Supp. 216, 220 (E.D.N.Y. 1985)).
27
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
28
Appendix A - Decision of the Court of Appeals, State
New York, Dated and Entered November
21, 2006 [1a - 2a]
STATE OF NEW YORK
COURT OF APPEALS
At a session of the Court, held at
Court of Appeals Hall in the City
of Albany of the twenty-first day
of November, 2006
PRESENT, HON. JUDITH KAYE, Chief Judge, presiding
2-10 Mo. No. 1016
In the Matter of Paul Palmieri,
Appellant,
¥:
New York State Department of
Environmental Conservation et al.,
Respondents.
The appellant having filed notice of appeal and a
motion for leave to appeal to the Court of Appeals in the
above cause, papers having been submitted thereon and due
deliberation having been thereupon had, it is
ORDERED, on the Court’s own motion, that the
appeal be and the same hereby is dismissed, without costs,
upon the ground that the order appealed from does not finally
-la-
Appendix A
[Decision of the Court of Appeals, State of
New York, Dated and Entered November 21, 2006]
determine the proceeding within the meaning of the
Constitution; and it is
ORDERED, that the said motion for leave to
appeal be and the same hereby is denied.
S/
; Stuart M. Cohen
Clerk of the Court
Appendix B - Decision of the Appellate Division, Second
Department, State of New York, Dated and
Entered July 18, 2006 [3a - Sa]
APPELLATE DIVISION
SECOND DEPARTMENT
In the Matter of Paul Palmieri,
Appellant,
V.
New York State Department of
Environmental Conservation et al.,
Respondents.
Docket No. 2004 - 5943
Suffolk Co. Index No. 3925/02
2006 NY Slip Op 5793; 31 A.D.3d 645
820 N.Y.S.2d 77, 2006 N.Y. App. Div. LEXTS 9378
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
Appendix B
[Decision of the Appellate Division, Second Department,
State of New York, Dated and Entered July 18, 2006]
Department of Environmental Conservation was reasonably
necessary.
Ordered that the judgment is affirmed insofar as
appealed from, with costs.
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 Envtl. 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 _, 126SCt
424 [2005]; see also Vernonia School Dist. 47J Acton, 515
US 646 [1995]; Matter of Thompson v. Department of Envil.
Conservation of State of NY, 132 AD2d 665 [1987]). A
-4a-
Appendix B
[Decision of the Appellate Division, Second Department,
State of New York, Dated and Entered July 18, 2006]
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). In 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 Envtl. Conservation of State of N.Y., 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.
Appendix C - Judgment of Supreme Court, State
of New York, County of Suffolk,
Dated July 25, 2003 and Entered
August 8, 2003 [6a - 9a]
At an IAS Term, Part 36 [of]
the Supreme Court of the State
of New York, held in and for
the County of Suffolk, at the
Supreme Court, Riverhead,
New York on the 25" day of
July, 2003
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Paul Palmieri,
Petitioner, Index No.
02-03925
V.
Baisley, J.
New York State Department of
Environmental Conservation;
ERIN M. CROTTY, Commissioner;
and MOLLY T. McBRIDE, JUDGMENT
Administrative Law Judge,
Respondents.
Petitioner Paul Palmieri, by his attorney Law Offices
of Timothy M. McEnaney, Esq., staff counsel to the
Coalition of Landlords, Homeowners, and Merchants, Inc.,
having commenced a proceeding under CPLR Article 78 on
-6a-
Appendix C
[Judgment of Supreme Court, State of New York, County
of Suffolk, Dated July 25, and Entered August 8, 2003]
March 4, 2002, by the filing of a notice of petition and
verified petition, and respondents having duly appeared by
Eliot Spitzer, Attorney General, State of New York, by
Gregory J. Nolan, Assistant Attorney General, and petitioner
having then served and filed an amended verified petition
dated April 2, 2002, challenging a Department of
Environmental Conservation (“NYSDEC”) Ruling of the
Commissioner dated February 1, 2002, which ruling
determined that petitioner’s application for a permit to
extend a dock and install additional boatlifts was incomplete
because petitioner refused to allow agency staff to inspect the
site of the proposed project; and respondents having served
and filed a verified answer to the amended petition dated July
22, 2002, together with a copy of the administrative record of
said Ruling and an affirmation in opposition to the petition of
Assistant Attorney General Gregory J. Nolan dated July 22,
2002, with exhibits, and a memorandum of law in opposition
to the petition; and petitioner having served and filed a reply
affirmation dated August 26, 2002, with exhibits, made by
Joseph F. Battista, Esq., of counsel to petitioner’s counsel,
together with an affidavit of petitioner sworn to on August
26, 2002, with exhibits, which reply asserted a new claim, to
wit, that petitioner was entitled to a permit because of an
alleged “five day demand letter” sent pursuant to ECL
Section 70-0109.3(b) and 6 NYCRR Section 621.9(b); and
respondents having served and filed (after obtaining leave of
court with consent of petitioner’s counsel) a sur-reply
memorandum of law in opposition to the petition dated
December 4, 2002 together with affidavits in support of the
sur-reply, with exhibits, sworn to by William R. Adriance on
-Ja-
Appendix C
{Judgment of Supreme Court, State of New York, County
of Suffolk, Dated July 25, and Entered August 8, 2003]
December 3, 2002, Michael A. Mascelli on December 4,
2002, Emily Limbach on December 4, 2002, and an
affirmation with exhibits in support or the sur-reply made by
Gregory J. Nolan, Esq. on December 4, 2002; and petitioner
having served and filed a “Second reply Affirmation” dated
January 15, 2003 made by Joseph F. Battista, Esq., of
counsel to petitioner’s counsel, together with an affidavit of
petitioner sworn to on January 15, 2003, with exhibits; and
petitioner having submitted additional exhibits to the court
under cover of correspondence dated February 20, 2003; and
the court, after due deliberation, on the 5" day of May, 2003,
having made and filed a Memorandum decision [sic.] (a copy
of which is annexed hereto and made a part hereof)
determining that the DEC had jurisdiction to either grant or
deny a tidal wetlands permit for petitioner’s proposed
project, that NYSDEC’s attempt to enforce a non-consensual
site inspection of petitioner’s property did not violate
petitioner’s constitutional rights; that petitioner’s claim for a
permit based on the five day demand provisions of 6
NYCRR Section 621.9(b)(c) had not been raised at the
administrative level and so was not considered by the court;
and that when petitioner’s permit application was denied on
the ground that without a site inspection NYSDEC cold not
determine whether or not the petitioner’s proposal complied
with the standards for permit issuance, petitioner was entitled
to an adjudicatory hearing pursuant to 6 NYCRR Section
621.7(f),
NOW, on motion of Eliot Spitzer, Attorney General
of the State of New York and attorney for respondents, it is
-Sa-
Appendix C
[Judgment of Supreme Court, State of New York, County
of Suffolk, Dated July 25, and Entered August 8, 2003]
ADJUDGED, DECREED, AND DECLARED, that
the petition is granted to the extent that petitioner is held to
be entitled to an adjudicatory hearing pursuant to 6 NYCRR
Section 621.7(f); and its is further
ORDERED, ADJUDGED AND DECREED, that the
petition is otherwise denied, and it is further
ORDERED, ADJUDGED AND DECREED, that the
petition [sic.] 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 Section 624.9(b)(1).
ENTER
GRANTED
JUL 25, 2003
S/ _ Paul J. Baisley, Jr.
Edward P. Romaine J.S.C.
Clerk of Suffolk County
-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 LA.S. PART 36
Paul Palmieri, By: Baisley, J.S.C.
Petitioner, Dated: May 5, 2003
V. 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 Deiiial 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.
l. 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.
-12a-
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. Petitioner's attorney, in a letter dated Apn! 27, 2000,
contended that NYSDEC could conduct a review of the
permit application in a manner less intrusive than an on-
site inspection, particularly where there is an alternative
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
warrantless search.
-|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 1, 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:
“T 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)(iii).
-15a-
Appendix D
{Memorandum Decision of Supreme Court, State of New
York, County of Suffolk, Dated and Filed May 5, 2003]
unless NYSDEC mails a Written [sic.] notice that the
application is incomplete within 15 calendar days, (ii) 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
[15-]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 § 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
-18a-
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
3 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 Palmien’s
permit application is incomplete, it should be viewed
as a denial of the application on the ground that Palmien
failed to meet 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.
-2la-
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
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
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 4-5 [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 are 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 1 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-
ee
Appendix E
[Decision of the Commissioner, State of New York,
Department of Environmental Conservation,
Dated and Filed April 7, 2004]
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.”
] 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.
2 Applicant introduced a list of boats (see 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.
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. Staff'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
concerning 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
-3 la-
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 ina
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/
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 due to the
unavailability of Staff's witness. The hearing was
rescheduled fer 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 tfie 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 S' 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
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
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-
EE
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 Ib. 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 110' 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 /% 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 ona
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 at 6 NYCRR 608.9 and the protection
of waters permit issuance standards 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
-45a-
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 Environmenta! 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 OF THE COMMISSIONER
February |, 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)(1) 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 tie 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 1, 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 T.
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 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 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 Environmental Conservation
S/
By: ErinM. Crotty, Commissioner
Date: Albany, New York
February 1, 2002
-50a-
Appendix H - Ruling on Motion and Summary Report of
Molly McBride (ALJ) [51a - 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-
S/
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 Ib.
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.
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 had 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, from 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:
: 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.
-55a-
Appendix H
jRuling 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 lift.
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 FAILURE 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.
-S7a-
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 io 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 I 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. In 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
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 w.ong 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.
| 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 52' 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
-62a-
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 Carl 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
[Ru’*-< on Motion and Summary
Re... 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.
-64a-
Appendix H
{Ruling on Motion and Summary
Report of Molly McBride (ALJ)|
Based upon the Interim Decision in Bath, I 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, | recommend that the Notice of Denial be
vacated and that Staff's determination that the application is
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
-6Sa-
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.
Appendix I - Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations
[67a - 132a]
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 shali 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
-67a-
Appendix I
[Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations]
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.
ECL §25-0102 entitled “Declaration of policy”
provides:
It is declared to be the public policy of this state to
preserve and protect tidal wetlands, and to prevent
their despoliation and destruction, giving due
consideration to the reasonable economic and social
development of the state.
ECL § 25-0404 entitled “Judicial review” provides:
Any person aggrieved by the issuance, denial,
suspension, or revocation of a permit may within
thirty days from the date of the commissioner's order
seek judicial review pursuant to article seventy-eight
of the civil practice law and rules in the supreme
court for the county in which the tidal wetlands
-68a-
Appendix I
{Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations}
affected are located. In the event that the court may
find that the determination of the commissioner
constitutes the equivalent of a taking without
compensation, and the land so regulated otherwise
meets the interest and objectives of this act it may, at
the election of the commissioner, either set aside the
order or require the commissioner to acquire the tidal
wetlands or such rights in them as have been taken,
proceeding under the power of eminent domain.
ECL §70-0103 entitled “Legislative findings and
declarations” provides:
The legislature finds and declares that:
|. It is the intent of the legislature to assure the fair,
expeditious and thorough administrative review of
regulatory permits.
2. It is the intent of the legislature that, to the extent
feasible and appropriate, statutory and regulatory
procedures shall be made uniform and inconsistencies
and redundancies shall be eliminated.
3. It is the intent of the legislature to establish
reasonable time periods for administrative agency
action on permits.
4. It is the intent of the legislature to encourage
public participation in government review and
-69a-
Appendix I
{Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations]
decision-making processes and to promote public
understanding of all government activities.
5. It is the intent of the legis! ture that, to the
maximum extent feasible, a comprehensive project
review approach shall replace separate and individual
permit application reviews.
ECL §70-0109 entitled “Time periods for department
action On permit applications provides:
1. (a) On or before fifteen calendar days after the
receipt of an application for a permit which has been
filed in a manner and in a form prescribed by the
department, the department shall mail written notice
to the applicant of its determination whether or not
the application is complete.
(b) If the department fails to mail written notice to an
applicant of its determination whether or not an
application is complete within such fifteen calendar
day period, the application shall be deemed complete.
(c) If the department determines the application is
not complete, the notice shall include a concise
statement of the respects in which the application is
incomplete.
-70a-
Appendix |
|Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations}
d) The resubmission of the application or the
submission of such additional information shall
commence a new fifteen calendar day period for
department review of the additional information for
purposes of determining completeness.
(e) If the department determines the application is
complete, the notice shall so state.
2. (a) Immediately upon determining that an
application is complete, the department shall cause a
notice of application to be published in the next
available environmental notice bulletin which shall
be not later than ten calendar days after the date of
such determination and not less than once during the
fifteen calendar day period following such
determination in a newspaper having general
circulation in the area in which the project is
proposed to be located, and shall provide notice to the
chief executive officer of each municipality in which
the proposed project is located, and may direct the
applicant to provide such reasonable notice and
opportunity for comment to the public as the
department deems appropriate. Newspaper
publications shall be provided by the applicant.
(b) The time period for public comment on a permit
application shall be stated in the notice of application.
-7la- :
Appendix I
[Constitutional Provisions, Treaties,
Statutes, Ordinances and Regulations]
3. (a) Within the time periods specified in
subparagraphs (i) and (ii) of this subdivision and
subject to the provisions of subdivisions four, five
and six of this section, the department shall make a
decision on an application for a permit by mailing the
applicant a permit, a permit with conditions or a
statement that the permit applied for has been denied.
(i) Inthe case of an application for a permit for
which no public hearing has been held, such decision
shall be mailed on or before ninety calendar days
after the department mails written notice to the
applicant that the application is complete or on or
before ninety calendar days after the application is
deemed complete pursuant to the provisions of this
article.
(ii) In the case of an application for a permit for
which a public hearing has been held, the department
shall mail its decision to the applicant and to all
parties to the hearing on or before sixty calendar days
after receipt by the department of a complete record,
as that term is defined in paragraphs (a)
through (e) of subdivision one of section three
hundred two of the state administrative procedure act.
(b) If the department fails to mail a decision on an
application for a permit within the time periods
specified, the applicant may cause notice of such
failure to be made to the department by means of
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certified mail return receipt requested addressed to
the commissioner. If, within five working days after
the receipt of such notice, the department fails to mail
a decision, the application shall be deemed approved
and a permit deemed granted subject to any standard
terms or conditions applicable to such a permit.
However, no permit shall be deemed approved where
such permit is issued in lieu of a federal permit
pursuant to an authorization granted to the state
pursuant to either Public Law 94-580, the "Federal
Resource Conservation and Recovery Act of 1976",
or Title V of Public Law 101-549, the "Clean Air
Act", and where the issuance of a permit in such a
manner is contrary to such authorization.
4. The time periods for a department decision on an
application for a permit as specified in subdivision
three of this section shall be suspended pending
receipt by the department of any final environmental
impact statement and any explicit findings related to
a proposed project as may be required pursuant to
article eight (environmental quality review) of this
chapter when the department is not the lead agency as
that term is used in rules and regulations adopted by
the department pursuant to section 8-0113 of said
article.
5. The department shall make no decision and no
permit shall be deemed granted until the applicant has
paid all applicable fees and costs.
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6. Any time period specified in this article may be
waived and extended for good cause by written
request by the applicant with the consent of the
department, or by the written request of the
commissioner or his designee with the consent of the
applicant.
6 NYCRR §608.5 entitled “Excavation or placement
of fill in navigable waters” provides:
(a) Permit required. No person, local public
corporation or interstate authority may excavate from
or place fill, either directly or indirectly, in any of the
navigable waters of the state or.in marshes, estuaries,
tidal marshes and wetlands that are adjacent to an
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 this
Part.
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.
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(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.
(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
(HWMEBP) or remedial action plans (RAP) under ECL
article 27, title 9 except those limited to the disposal
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of waste containing polychlorinated biphenyl (PCB)
only.
(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
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