Charles v. Diamond

• Decision Date: 23 April 1975
• Citation: 366 N.Y.S.2d 921,47 A.D.2d 426
• Parties: In the Matter of William J. CHARLES, Appellant, v. Henry DIAMOND, New York State Commissioner of Environmental Conservation, etal., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 921

366 N.Y.S.2d 921

47 A.D.2d 426

In the Matter of William J. CHARLES, Appellant, v. Henry DIAMOND, New York State Commissioner of Environmental Conservation, etal., Respondents.

Supreme Court, Appellate Division, Fourth Department.

April 23, 1975.

Oot, Greene Setright, Hershdorfer & Sharpe, Syracuse, for appellant (Victor J. Ciabotti, Syracuse, of counsel).

Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for respondent Diamond (Martin H. Schulman, Albany, of counsel).

Eli Gingold, Syracuse, for respondent Harris (Hugh C. Gregg, II, Syracuse, of counsel).

Alexander J. Hersha, Camillus, for respondent Village of Camillus (Roger Scott, Syracuse, of counsel).

Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and DEL VECCHIO, JJ.

CARDAMONE, Justice.

In this Article 78 proceeding petitioner alleg that his property has been taken without just compensation by reason of denial of his request to develop it. He claims that in the event that sewers are not approved for his property and he is thereby prevented from building apartments on his property, he will be damaged in the amount of One Hundred Thousand Dollars ($100,000). On a previous appeal from a dismissal of this same Article 78 petition we reversed and held that petitioner had stated a cause of action for Article 78 relief and a cause of action on constitutional grounds for a taking without just compensation conditioned on the unavailability of the Article 78 relief (Matter of Charles v. Diamond, 42 A.D.2d 232, 235, 345 N.Y.S.2d 764). On remand from the previous appeal, Special Term directed the respondent Village of Camillus (Onondaga County) to proceed immediately to correct deficiencies in its sewage system, directed respondent State Commissioner of Environmental Conservation to issue a permit to petitioner which would allow him to connect to the Village sewage system only upon proof that the Village had satisfactorily corrected the deficiencies as ordered and dismissed petitioner's cause of action for One Hundred Thousand Dollars in money damages. Petitioner has appealed, contending essentially that he should have been permitted to adjudicate the constitutional claim for money damages immediately. The resolution of this issue requires a brief resume of its factual background.

Petitioner, William J. Charles, is the owner of real property located in the Village of Camillus and planned to construct on it three apartment buildings consisting of 36 units. On May 9, 1972 the Village Board authorized issuance of a building permit. The State Department of Environmental Conservation (DEC), however, informed petitioner on May 22, 1972 that his application to tie into the Village sewage system would not be approved until 'the Village undertakes a program to correct the deficiencies of their sewage system.' The DEC also directed the Onondaga County Health Department not to approve any extension of, or connection to, the existing system until it is improved. Thereafter, in June, 1972 petitioner commenced the present Article 78 proceeding seeking the following relief: 1. An order that all respondents approve sewer connections to his property. 2. An order that the Village take appropriate steps so that the state and county officials would approve. 3. $50,000 for consequential damages incurred, and 4. If a sewer connection was not approved and the partment construction was precluded, $100,000 for the appropriati of petitioner's property. The New York State Commissioner of Environmental Conservation (Commissioner) and the Deputy Commissioner of the Onondaga County Department of Health were joined with the Village as co-respondents. As noted, Special Term granted the respondent's motion to dismiss for failure to state a cause of action and this court reversed and remanded (42 A.D.2d 232, 345 N.Y.S.2d 764).

Upon remand, respondents served answers to the petition which reveal that it July, 1966 the Village had submitted to a consent decree of the Commissioner of the State Department of Health concerning its sewage system. That decree, however, was held in abeyance on April 5, 1968 pending completion of a relevant portion of an Onondaga County Comprehensive Sewage Study. On January 27, 1972 the Department of Environmental Conservation (successor to the Department of Health) informed the Village that it had to undertake an immediate program to minimize pollution pending implementation of a comprehensive sewage project in the Camillus area. After commencement of the present Article 78 proceeding the Village submitted to a new DEC consent order effective October 4, 1972 which modified the original 1966 consent decree. This new consent order noted that the 1966 decree 'contained certain requirements that were impossible of performance' and specified a timetable of interim steps for the Village to improve the existing sewage system pending completion of a Comprehensive Sewage Plan for Nine Mile Creek Drainage Basin. On July 12, 1973 the Village agreed to a modification of the consent order which extended the Village's time to perform certain requirements until January 1, 1974.

The answers of the Commissioner and the Village served subsequent to this court's prior decision further reveal that the Commissioner has undertaken substantial action to effectuate improvement of the Village's sewage system. First, the original 1966 consent order was modified in October, 1972 to require a less ambitious, short-term program by the Village to improve the sewage system. Second, within three weeks after this court's prior decision the Commissioner initiated an administrative proceeding on July 26, 1973 'to set and establish a definite date on or before which all unlawful discharges of sewage or wastes' by the Village shall be abated. The outcome of this proceeding does not appear in the record before us. Some light may be shed on this from oral argument where it appeared that the Village now intends to join a comprehensive County Wide Sewer System being planned in Onondaga County. It has given no factual indication other than conclusory allegations that it has undertaken to improve its existing sewage system in compliance with the administrative consent order. Despite the legal obligation imposed by the consent order upon the Village to improve its sewage system, it has attempted unsuccessfully to prohibit administrative enforcement of it (Village of Camillus v. Diamond, 45 A.D.2d 982, 359 N.Y.S.2d 878). Its own current estimated timetable for pollution abatement is 1977, although in its most recent agreement...