Berger v. N.Y. State Dep't of Envtl. Conservation
| Decision Date | 19 February 2015 |
| Citation | 4 N.Y.S.3d 631,125 A.D.3d 1128,2015 N.Y. Slip Op. 01496 |
| Parties | In the Matter of Robert BERGER et al., Petitioners, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Nolan & Heller, LLP, Albany (Carl G. Dworkin of counsel), for petitioners.
Eric T. Schneiderman, Attorney General, Albany (Allison B. Levine of counsel), for New York State Department of Environmental Conservation, respondent.
Zachary W. Carter, Corporation Counsel, New York City (Janet L. Zaleon of counsel), for City of New York, respondent.
Jacobowitz & Gubits, LLP, Walden, for David Cook and another, respondents.
Before: STEIN, J.P., McCARTHY, GARRY, LYNCH and DEVINE, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent Department of Environmental Conservation which found that petitioners and respondents David Cook and Jody Cook failed to operate and maintain a certain dam in a safe condition.
The Honk Falls Dam (hereinafter the dam), located on the Rondout Creek in the Town of Warwarsing, Ulster County, was built in 1898 to generate hydroelectric power. In 1924, United Hudson Electric Corporation (hereinafter Central Hudson)1 purchased a number of parcels surrounding the Rondout Creek from the original owner, including the dam and hydroelectric plant, and expanded the size of the dam. Since then, and today, the dam rises 42 feet above and spans 294 feet across Rondout Creek. In 1941, while Central Hudson was still operating a hydroelectric plant at the dam, respondent City of New York constructed the Merriman Dam upstream from Honk Lake and acquired through condemnation certain real estate and the right to divert the waters of Rondout Creek. When the City began diverting the waters in 1944, the dam no longer had the capacity to generate power. The City and Central Hudson, via an indenture and agreement dated March 24, 1948 and April 21, 1948, respectively, settled Central Hudson's compensation claims arising from the condemnation proceeding.
In 1949, Central Hudson transferred its property in the vicinity of the dam to the Rondout Paper Mills, Inc. and, thereafter, the property was conveyed a number of times before Ulster County acquired part of the property in 1979 via a tax deed. At issue herein are tax parcels 83.1–2–5 and 83.6–1–11. Respondents David Cook and Jody Cook obtained parcel 83.1–2–5 from Ulster County at a foreclosure sale in 1999 (hereinafter the Cook parcel), and petitioners purchased parcel 83.6–1–11 in 1992 by a quitclaim deed given by an estate (hereinafter the Berger parcel). The Cook parcel abuts the west side of Rondout Creek at the dam and the Berger parcel abuts the east side of the creek at the dam.
In 1981, the United States Army Corps of Engineers issued a safety report wherein it concluded that the dam was “unsafe” and in need of certain remedial repairs and maintenance. The record indicates that, beginning in 1983, respondent Department of Environmental Conservation (hereinafter DEC) periodically inspected the dam and issued safety reports, each time concluding that the dam was a “class C hazard,” meaning that its failure could “result in widespread or serious damage to home(s); damage to main highways, industrial or commercial buildings, railroads, and/or important utilities, including water supply, sewage treatment, fuel, power, cable or telephone infrastructure; or substantial environmental damage; such that the loss of human life or widespread substantial economic loss is likely” (6 NYCRR 673.5 [b][3] ). In 2006, DEC notified petitioners and the Cooks that, as owners of the dam, they had to maintain and operate it safely and pursuant to law. Neither petitioners nor the Cooks completed any maintenance or repairs to the dam. By notice and complaint dated April 27, 2007, DEC commenced an enforcement proceeding against petitioners and the Cooks. Following a hearing held over nine days, the Commissioner of Environmental Conservation adopted the findings of the Administrative Law Judge (hereinafter ALJ) and determined, as relevant here, that petitioners and the Cooks were the joint owners of the dam and, therefore, were jointly and severally liable for its maintenance. DEC directed them to retain an engineer to develop a compliance plan pursuant to the dam safety regulations (see 6 NYCRR part 673), to provide financial assurance in the amount of $500,000 and assessed a civil penalty in the amount of $116,500. Petitioners commenced this CPLR article 78 proceeding against DEC, the City and the Cooks seeking to, among other things, annul DEC's determination. The Cooks filed cross claims against DEC also challenging its determination. Supreme Court transferred the matter to this Court.
Under ECL 15–0507(1), “[a]ny owner of a dam or other structure which impounds waters shall at all times operate and maintain said structure and all appurtenant structures in a safe condition.” For purposes of the enforcement statute, an “owner” is “any person or local public corporation who owns ... or uses a dam ... which impounds waters” (ECL 15–0507[1] ).2 The statute, which was enacted in 1999 after certain dam failures, was intended to address “the ‘life threatening’ dangers created by dams and the fact that many dams had not been properly maintained” (Hosmer v. Kubricky Constr. Corp., 88 A.D.3d 1234, 1236, 931 N.Y.S.2d 738 [2011], lv. dismissed 19 N.Y.3d 839, 946 N.Y.S.2d 95, 969 N.E.2d 212 [2012], quoting Senate Mem. in Support, Bill Jacket, L. 1999, ch. 364 at 7). Accordingly, the Legislature “shift[ed] responsibility from the [DEC] to dam owners ... to encourage proper maintenance by owners in recognition of the fact that ‘[they] are ultimately liable for damage caused downstream as a result of negligence’ ” (id., quoting Senate Mem. in Support, Bill Jacket, L. 1999, ch. 364 at 7).
In this proceeding, the primary issue presented is whether petitioners and the Cooks own the dam. After finding that each party admitted ownership of the parcels abutting the creek, that each was named as an owner of the parcels in their recorded deeds and crediting the opinion of DEC's surveyor that the boundary between the Cook parcel and the Berger parcel is the midpoint of the dam's spillway, the ALJ concluded that they owned the dam. We do not agree.
Generally, we will not disturb an administrative determination made following a hearing unless it is shown that it was not supported by substantial evidence in the record (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ; Matter of Rauschmeier v. Village of Johnson City, 91 A.D.3d 1080, 1081–1082, 937 N.Y.S.2d 373 [2012], lv. denied 19 N.Y.3d 802, 2012 WL 1538361 [2012] ). In our view, the Commissioner, who adopted the findings of the ALJ, erred because his findings were made without regard to the statutory basis for the agreement and indenture by and between the City and Central Hudson, and his conclusions were based on an incomplete record with regard to the condemnation proceeding. As such, we cannot conclude that the determination was supported by substantial evidence.
Historically, the City's authority to take land for its water supply derives from the Laws of 1905 (ch. 724), known as the Water Supply Act (hereinafter WSA) (see generally Matter of Van Etten v. City of New York, 226 N.Y. 483, 492–493, 124 N.E. 201 [1919] ). The WSA sets forth the procedure that allowed the City to acquire “lands or interest” necessary “to provide for an additional supply of pure and wholesome water” (L. 1905, ch. 724). “The statute contemplates a proceeding to condemn the fee of the real property required by the [C]ity, and a proceeding to determine the damages arising for a decrease in the value of an established business” (Matter of Board of Water Supply, City of N.Y., 211 N.Y. 174, 183, 105 N.E. 213 [1914] [internal citations omitted] ). As relevant here, the WSA required the City to identify potential water sources and to approve a “final map” depicting the proposed water sources (L. 1905, ch. 724, § 3). Following the filing of the “final map,” additional maps were to be generated showing “the various parcels of real estate on, over or through which [dams] are to be constructed or maintained, or by which may be necessary for the prosecution of the work authorized by [the WSA]” and “plainly indicat[ing] which parcels the fee, and over or through which parcels the rights to use and occupy the same in perpetuity, is to be acquired” (L. 1905, ch. 724, § 5). The City was then required to file these maps (see L. 1905, ch. 724, § 6) and commence a proceeding by a petition that “set[s] forth the action theretofore taken by the [City's] board of water supply and by the [City's] board of estimate and apportionment, and the filing of such maps” (L. 1905, ch. 724, § 7). The petition had to state “a general description of all the real estate to, in, or over which any title, interest, right or easement is sought to be acquired for the ... [C]ity ..., each parcel being more particularly described by a reference to the number of said parcel as given on said maps, and the title, interest or easement sought to be acquired to, in or over such parcel, whether a fee or otherwise” (L. 1905, ch. 724, § 7 [emphasis added] ).
Once maps were created and the petition filed, commissioners of appraisal were sworn to determine the amount to be paid to those whose property was “taken or affected” (L. 1905, ch. 724, § 9). Upon the filing of the commissioner's oaths, the City was “seized in fee of all those parcels of real estate which are on the maps ... described as parcels, of which it [had] been determined that the fee should be acquired” (L. 1905, ch. 724, § 11; see Matter of Van Etten v. City of New York, 226 N.Y. at 490–491, 124 N.E. 201 ). Thereafter,...
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