Flacke v. Freshwater Wetlands Appeals Bd.

• Decision Date: 20 October 1981
• Citation: 428 N.E.2d 380,53 N.Y.2d 537,444 N.Y.S.2d 48
• Parties: , 428 N.E.2d 380 In the Matter of Robert F. FLACKE, as Commissioner of Environmental Conservation of the State of New York, Appellant, v. FRESHWATER WETLANDS APPEALS BOARD of the State of New York et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 48

444 N.Y.S.2d 48

53 N.Y.2d 537, 428 N.E.2d 380

In the Matter of Robert F. FLACKE, as Commissioner of Environmental Conservation of the State of New York, Appellant, v. FRESHWATER WETLANDS APPEALS BOARD of the State of New York et al., Respondents.

Court of Appeals of New York.

Oct. 20, 1981.

Robert Abrams, Atty. Gen., Albany (Francis J. Keehan, Asst. Atty. Gen., Shirley Adelson Siegel, Sol. Gen., and James A. Sevinsky, Albany, of counsel), for appellant.

Whitney North Seymour, Jr., and Molly K. Heines, New York City, for Freshwater Wetlands Appeals Board of State of New York, respondent.

H. Wayne Judge and Mark A. Lebowitz, Glens Falls, for Meadow Run Development Corporation, respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

The issue presented in this case is whether the Commissioner of the Department of Environmental Conservation may, by means of an article 78 proceeding, seek review of a determination of the Freshwater Wetlands Appeals Board reversing a determination of his department. A State agency, of course, has only those powers conferred upon it by the Legislature. We conclude today that the Legislature has so empowered the commissioner to challenge an adverse determination of the Freshwater Wetlands Appeals Board.

The Freshwater Wetlands Act (ECL art. 24) was promulgated in 1975 to preserve, protect and conserve this State's freshwater wetlands through regulation of their use and development (ECL 24-0103). Once property has been identified as a freshwater wetland covered by the act, virtually all forms of development are prohibited without first obtaining a permit from the Department of Environmental Conservation. In this case, respondent Meadow Run Development Corporation (Meadow Run) requested the department to determine if land on which the corporation wished to expand an existing parking facility was a freshwater wetland falling within the province of the Freshwater Wetlands Act (see ECL 24-0703, subd. 5). The commissioner determined that the property proposed for development was a portion of a wetland larger than 12.4 acres and was, therefore, protected by the act. Meadow Run thereupon appealed to the Freshwater Wetlands Appeals Board, which thereafter overturned the determination of the commissioner.

The commissioner then brought the present article 78 proceeding seeking reinstatement of his determination. After concluding that the commissioner had standing to challenge the determination of the board, Special Term upheld its determination on the merits. On appeal, however, the Appellate Division reversed the order and judgment of Special Term denying respondent board's motion to dismiss the petition on the ground that the commissioner lacks standing to commence the instant proceeding, and dismissed the petition.

Preliminarily, we note our continued adherence to the principles set forth in Matter of Pooler v. Public Serv. Comm., 58 A.D.2d 940, 397 N.Y.S.2d 425, affd. 43 N.Y.2d 750, 401 N.Y.S.2d 1009, 372 N.E.2d 797), where it was held that the Executive Director of the State Consumer Protection Board did not have the capacity to commence an article 78 proceeding against the Public Service Commission for judicial review of its order in a rate case. The Appellate Division there noted that although the Legislature had conferred upon the director of the board power to participate in certain rate cases before the commission, it did not confer authority upon the Consumer Protection Board or its director to maintain a suit. This court then affirmed on the memorandum of the Appellate Division.

Respondents now urge that the principles stated in Pooler require a determination in this case that the commissioner is without power to challenge by way of an article 78 proceeding a determination of the Freshwater Wetlands Appeals Board. We cannot agree with this...