O'Brien v. Barnes Bldg. Co., Inc.

• Decision Date: 06 November 1974
• Citation: 380 N.Y.S.2d 405,85 Misc.2d 424
• Parties: Dorothy Case O'BRIEN et al., Plaintiffs, v. BARNES BUILDING COMPANY, INC., and Vincent Amann, as Building Inspector of the Village of East Hampton, Suffolk County, New York, Defendants. Application of Dorothy Case O'BRIEN et al., Petitioners, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules v. J. L. BIGGANE, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
• Court: New York Supreme Court

Page 405

380 N.Y.S.2d 405

85 Misc.2d 424

Dorothy Case O'BRIEN et al., Plaintiffs, v. BARNES BUILDING COMPANY, INC., and Vincent Amann, as

Building Inspector of the Village of East Hampton,

Suffolk County, New York, Defendants.

Application of Dorothy Case O'BRIEN et al., Petitioners, for

a judgment pursuant to Article 78 of the Civil

Practice Law and Rules v. J. L. BIGGANE, as Commissioner of the New York State

Department of Environmental Conservation, et al.,

Respondents.

Supreme Court, Special Term, Suffolk County, Part I.

Nov. 6, 1974.

Winer, Neuburger & Sive, New York City, for plaintiffs.

Fallon & O'Conor, East Hampton, for defendant Amann.

Tooker, Tooker & Esseks, Riverhead, for respondent-defendant Barnes.

Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, for respondents Beggane and N.Y. State Dept. of Conservation.

JOHN F. SCILEPPI, Justice.

MEMORANDUM

This is a complex and multi-faceted litigation involving, essentially, an interpretation of the term 'tidal wetlands' as it is used in the new Tidal Wetlands Act (Chapter 25 of the Environmental Conservation Law), which accounts for this rather lengthy decision.

The background of this litigation is as follows. Barnes Building Co., Inc., one of the parties, plans to erect a housing development on land adjoining Hook Pond in the Village of East Hampton. The Group for America's South Fork, Inc., a conservation group, objects to the proposed construction on the ground that Hook Pond and the surrounding land are tidal wetlands. The Tidal Wetlands Act which became effective September 1, 1973, places a moratorium on the development of tidal wetlands. It provides that a builder must first apply for a hardship permit from the New York State Department of Environmental Conservation, which administers the Act. That Department would then weigh the degree of hardship presented by the builder with the adverse impact on the ecology that the proposed construction might have. Accordingly, the Planning Board of the Village of East Hampton sought an opinion from the Department of Environmental Conservation before issuing any building permits to Barnes Building Co. The Department said that Hook Pond and the adjoining land are not tidal wetlands and thus it did not have any jurisdiction over the area. Consequently, the Planning Board gave final approval to Barnes' plans in January, 1974 and accepted and filed a map of the development to be known as Pondview. However, the Group requested the Department of Environmental Conservation to hold an evidentiary hearing on the matter, which was conducted in February, 1974. All parties had the opportunity to produce witnesses and to cross-examine their opponents' witnesses, and to submit documentary evidence. The hearing officer presented his findings of fact to the Commissioners of the Department, and, on June 14, 1974, Commissioner Biggane issued his determination that Hook Pond and the surrounding area are not tidal wetlands within the meaning of the statute.

The Group and two individuals, Dorothy Case O'Brien and Ilene O. Wolff, have brought an Article 78 proceeding to annul the Commissioner's determination, against J. L. Biggane as Commissioner, the New York State Department of Environmental Conservation, the Planning Board of the Village of East Hampton and Barnes Building Co. In addition, the same three parties have brought an action for a permanent injunction against Barnes Building Co. and Vincent Amann, the Building Inspector of the Village of East Hampton. These two pending matters have not been formally consolidated. However, since the substantive issues involved are similar and both matters were brought before me at the same time, I will deal with them both in this one decision. For the sake of simplifying the nomenclature, although the parties are known as plaintiffs and defendants in the action, and as petitioners and respondents in the special proceeding, I will refer to them throughout as plaintiffs and defendants.

There is also a motion pending by the plaintiffs for a preliminary injunction, and four motions by the various defendants to dismiss both There are a number of thorny procedural questions that must be resolved before the substantive issues are reached, and I will deal with them first.

the proceeding and the action. I will also dispose of these motions in this decision.

The defendant Barnes challenges the Article 78 proceeding on the grounds that neither the corporate plaintiff nor the individual plaintiffs has any standing to sue; that there is another action pending; and that no order was ever filed pursuant to the determination of the Department of Environmental Conservation to which a proceeding to review can refer. With respect to the action for injunctive relief, the defendant Barnes argues that it, too, should be dismissed because there is another matter pending. Finally, the defendant Barnes attacks the right of the plaintiffs to introduce new evidence in the Article 78 proceeding that was not adduced at the hearing below. The defendant Planning Board seeks to dismiss the Article 78 proceeding on the grounds that it is barred by the Statute of Limitations, and the defendant Amann seeks to dismiss the action for injunctive relief on the same ground. Finally, there is a complicated procedural question which the Court is raising Sua sponte, as to whether Special Term of the Supreme Court has jurisdiction to entertain the Article 78 proceeding. All these questions except the latter have been raised by motions to dismiss by the defendants Barnes, Planning Board and Amann. I will repeat that the defendants also assert arguments on the substantive merits in their motions and in their answers to the complaint and the petition, and I will discuss all of them in detail later herein. For the moment, I shall deal only with the procedural questions.

I will first consider whether this Court has jurisdiction over the Article 78 proceeding since, if it does not, any other considerations would be futile. In this regard, CPLR § 7804(g) states:

'Where an issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall make an order directing that the proceeding be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced; the court may, however, itself pass on objections in point of law. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding.'

Question 4 of CPLR § 7803 is this:

'Whether a determination made as the result of a hearing held, and at which evidence was taken, pursuant to direction by law is The First Department interprets this statute most strictly with respect to requiring a case to be transferred to the Appellate Division in the first instance. The opinions of that department have not explained the reasoning of the court in much detail, but have stated simply that the proceeding should have been transferred because it followed an administrative hearing and sought to review the determination at that hearing. (See, e.g., D.H.K. Restaurant, Inc. v. New York State Liquor Auth'y, 31 A.D.2d 525, 294 N.Y.S.2d 977 (1st Dept. 1968), affd. without opinion 28 N.Y.2d 836, 322 N.Y.S.2d 72, 270 N.E.2d 898 (1971); and Emerman v. Nathan, 34 A.D.2d 282, 311 N.Y.S.2d 383 (1st Dept. 1970)). Similarly, the First Department wrote in Dan's Living Room, Ltd. v. New York State Liquor Auth'y, 31 A.D.2d 799, 298 N.Y.S.2d 291 (1st Dept.) affd. without opinion 25 N.Y.2d 759, 303 N.Y.S.2d 513, 250 N.E.2d 574 (1969): 'The fact that a hearing was held made it mandatory that there be appellate review as to the question of substantiality of evidence based on the entire record. Thus, the entire proceeding to review should have been transferred to the Appellate Division . . ..' Most recently, the First Department reiterated its position on § 7804(g) in Hammerl v. Mavis, 41 A.D.2d 724, 341 N.Y.S.2d 842 (1973), affd. without opinion 34 N.Y.2d 579, 354 N.Y.S.2d 946, 310 N.E.2d 542 (1974): 'As the proceeding was based on an administrative hearing and questioned the interpretation of evidence, the matter should have been transferred to this court.' Not only does the First Department feel that such a proceeding must be transferred whenever there has been an evidentiary hearing, it also seems to take the position that the entire proceeding should be transferred Ab initio even though there are also questions of law involved. Sec. 7804(g) seems to indicate, in the second sentence thereof, that even when an order of transfer is necessary, the Supreme Court May itself pass on objections in point of law, and then effect the transfer. The next sentence of the statute then states that the Appellate Division, after the transfer, Shall dispose of all issues in 'We treat the proceeding as if it had been transferred in the first instance (CPLR 7804(g)). Upon this record we find the determination of the Commissioner was not supported by substantial evidence.'

on the entire record, supported by substantial evidence.' In the proceeding before me, the petitioners allege that the determination of the Department of Environmental Conservation was erroneous because, among other things, the hearing officer failed 'to take cognizance of substantial evidence showing that the area in question was in fact connected to tidal wetlands.' If a case qualifies for transfer to the Appellate Division because of a question of substantial evidence, then such a transfer is mandatory, and it is not up to the discretion of Special Term. (See 24 Carmody-Wait 2d § 145:349). Which cases require transfer and which do not, and whether the Entire proceeding must be...