101CO, LLC v. New York State Dep't of Envtl. Conservation

• Decision Date: 28 February 2019
• Docket Number: 526777
• Citation: 95 N.Y.S.3d 404,169 A.D.3d 1307
• Parties: In the Matter of 101CO, LLC, et al., Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1307

95 N.Y.S.3d 404

In the Matter of 101CO, LLC, et al., Appellants,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.

526777

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 8, 2019

Decided and Entered: February 28, 2019

Tooher & Barone, LLP, Albany (Meave M. Tooher of counsel), for appellants.

Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for Department of Environmental Conservation, respondent.

Matthews, Kirst & Cooley PLLC, East Hampton (Brian E. Matthews of counsel), for Sand Land Corporation and another, respondents.

Before: Lynch, J.P., Mulvey, Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.Appeal from a judgment of the Supreme Court (Ferreira, J.), entered February 2, 2018 in Albany County, which, among other things, in a combined proceeding pursuant to CPLR article 78 and action pursuant to ECL 71–1311(2), granted respondents' motions to dismiss the petition/complaint.

Respondents Sand Land Corporation and Wainscott Sand and Gravel Corporation (hereinafter collectively referred to as Sand Land) operate a 50–acre sand and gravel mine in the hamlet of Bridgehampton, Suffolk County (hereinafter the mine) that has been active at this location for nearly 60 years. Petitioners are landowners that neighbor the mine. Petitioners and Sand Land have a history of acrimony relating to alleged environmental issues caused by the mine and the alleged failure of respondent Department of Environmental Conservation (hereinafter DEC) to properly enforce its regulations. Upon becoming aware of respondents' negotiations following two notices of violations issued in May 2015 and May 2016, petitioners sought and were denied inclusion in the negotiation process. On November 10, 2016, respondents ultimately negotiated an order on consent (hereinafter the consent order) resolving the enforcement action against Sand Land. This consent order required Sand Land to submit, for DEC approval, a remediation plan addressing eight specific items. Petitioners were notified, by email, that the remediation plan had been approved on November 17, 2016.¹

Petitioners filed a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) request in November 2016 seeking copies and drafts of the consent order and remediation plan, along with related correspondence, which was immediately acknowledged by DEC. By January 2017, DEC produced "[a]ll records identified as responsive" to petitioners' FOIL request, including the consent order and remediation plan, with the exception of some redacted material and privileged documents, which petitioners appealed.

On March 17, 2017, petitioners commenced this combined CPLR article 78 proceeding and action pursuant to ECL 71–1311(2) seeking, in relevant part, review of DEC's approval of the remediation plan and a determination regarding the partial denial of petitioners' FOIL request. Following commencement of this action/proceeding, DEC produced additional documents pursuant to petitioners' FOIL request. Following pre-answer motions to dismiss by respondents, Supreme Court, as relevant here, dismissed petitioners' first three causes of action, all of which sought nullification of the remediation plan based upon its alleged insufficiencies, holding that the November 10, 2016 consent order was the relevant final determination of the agency and, therefore, these claims were untimely. The court alternatively found that because the remediation plan was nearly fully implemented by the time of the filing of the petition/complaint, the first three causes of action were barred by the doctrines of laches and mootness. Finally, regarding the FOIL request, the court found that, as DEC had subsequently released the settlement negotiation documents and petitioners had not continued to contest the documents withheld, the claim was moot and that petitioners had not "substantially prevailed" for the purposes of counsel fees and costs. Petitioners appeal.

Turning first to Supreme Court's dismissal of the first three causes of action based upon statute of limitations, the question turns on whether accrual is the November 10, 2016 date of the consent order or the later November 17, 2016 approval of the remediation plan. "The statute of limitations for a challenge to a governmental determination begins to run when the determination to be reviewed becomes final and binding upon the petitioner, which occurs when the petitioner has been aggrieved because the determination has an impact upon that party" ( Matter of Adirondack Med. Center–Uihlein v. Daines, 119 A.D.3d 1175, 1177, 990 N.Y.S.2d 325 [2014] [internal quotation marks and citations omitted]; see Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853 [1986] ). An administrative agency "bear[s] the burden of establishing [its] statute of limitations defense" ( Matter of Bronx–Lebanon Hosp. Ctr. v. Daines, 101 A.D.3d 1431, 1432, 956 N.Y.S.2d 660 [2012] ).

Here, petitioners are specifically challenging the remediation plan, rather than the consent order. Also, DEC, in the consent order, reserved the right to approve or disapprove the submitted plan and, further, did in fact exercise that right in its approval by requiring modifications based upon its concerns. Thus, inasmuch as the purpose of the remediation plan was to particularly set forth the specific actions that Sand Land was to take to address its violations – none of which was detailed in the consent order – any harm to petitioners would be "merely speculative" until such time as the remediation plan was approved by DEC ( Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1188, 1190, 3 N.Y.S.3d 785 [2015] ; see Matter of Adirondack Council, Inc. v. Adirondack Park Agency, 92 A.D.3d 188, 191, 936 N.Y.S.2d 766 [2012] ). Therefore, it was proper for petitioners to rely on the approval of the remediation plan for accrual of their claims because a challenge to the consent order itself would not have been ripe for judicial review (see Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency, 161 A.D.3d 169, 173, 75 N.Y.S.3d 681 [2018] ; Matter of Adirondack Council, Inc. v. Adirondack Park Agency, 92 A.D.3d at 190, 936 N.Y.S.2d 766 ). Accordingly, Supreme Court erred in finding that the November 10, 2016 consent order was the final and binding determination that triggered the four-month statute of limitations, rendering petitioners' claims untimely, because the details of the remediation plan were necessary for the matter to be justiciable (see Matter of FMC Corp. v. New York State Dept. of Envtl. Conservation, 143 A.D.3d 1128, 1130–1131, 40 N.Y.S.3d 220 [2016], revd on other grounds 31 N.Y.3d 332, 76 N.Y.S.3d 911, 101 N.E.3d 379 [2018] ; Matter of Adirondack Council, Inc. v. Adirondack Park Agency, 92 A.D.3d at 190–192, 936 N.Y.S.2d 766 ; Matter of Chapin Home for Aging v. Novello, 66 A.D.3d 1288, 1289, 888 N.Y.S.2d 252 [2009] ).

We find that Supreme Court also erred in alternatively dismissing petitioners' first three causes of action based upon laches and mootness. To the extent that these fact-based affirmative defenses can be raised in a motion to dismiss challenging the sufficiency of the pleadings, we find them lacking in merit (see generally Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem. Hosp., Inc., 148 A.D.3d 1418, 1420, 49 N.Y.S.3d 792 [2017] ; Demas v. Levitsky, 291 A.D.2d 653, 661–662, 738 N.Y.S.2d 402 [2002], lv dismissed 98 N.Y.2d 728, 749 N.Y.S.2d 477, 779 N.E.2d 188 [2002] ). Laches is defined as "an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party" ( Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ; see City of Schenectady v. Edison Exploratorium, Inc., 147 A.D.3d 1264, 1267, 48 N.Y.S.3d 795 [2017] ). A party asserting the laches defense must "establish [his or her] lack of knowledge that [the petitioner] would assert claims ... and an unconscionable delay on [the petitioner's] part that induced [the respondent] to act or refrain from acting in ways that would prejudice [the respondent] if [the petitioner was] now permitted to assert such claims" ( Sparkling Waters Lakefront Assn, Inc. v. Shaw, 42 A.D.3d 801, 803, 841 N.Y.S.2d 146 [2007] ; see Matter of Letourneau v. Town of Berne, 89 A.D.3d 1202, 1203, 931 N.Y.S.2d 810 [2011] ). Further, "the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ; see Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d 1475, 1477–1478, 944 N.Y.S.2d 660 [2012] ).

On the record before us, we fail to see how respondents can claim lack of awareness that petitioners would seek to assert claims alleging issues with regard to the consent order or remediation plan (see Matter of Letourneau v. Town of Berne, 89 A.D.3d at 1203, 931 N.Y.S.2d 810 ; Turner v. Caesar, 291 A.D.2d 650, 652, 737 N.Y.S.2d 426 [2002] ). First, petitioners have been asserting claims against Sand Land since 2013, including parallel litigation pending against it relating to petitioners' claims of trespass, nuisance, unjust enrichment and negligence, as well as another action commenced by Suffolk County. Further, DEC was acutely aware of petitioners' interest in protecting their claims, as petitioners repeatedly complained to DEC, sought to be involved with negotiations and sought all documentation on how the enforcement action was being carried out. Also, Sand Land was aware of petitioners' continued...