Charles v. Diamond

• Decision Date: 15 February 1977
• Citation: 360 N.E.2d 1295,41 N.Y.2d 318,392 N.Y.S.2d 594
• Parties: , 360 N.E.2d 1295, 7 Envtl. L. Rep. 20,434 In the Matter of William J. CHARLES, Respondent, v. Henry DIAMOND, as New York State Commissioner of Environmental Conservation, Appellant, William Harris, as Duputy Commissioner of Onondaga County Department of Health, Respondent, Village of Camillus, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 594

392 N.Y.S.2d 594

41 N.Y.2d 318, 360 N.E.2d 1295, 7

Envtl. L. Rep. 20,434

In the Matter of William J. CHARLES, Respondent, v. Henry DIAMOND, as New York State Commissioner of Environmental Conservation, Appellant William Harris, as Duputy Commissioner of Onondaga County Department of Health, Respondent Village of Camillus, Appellant.

Court of Appeals of New York.

Feb. 15, 1977.

Louis J. Lefkowitz, Atty. Gen., Albany (Martin H. Shulman, Ruth Kessler Toch and Stanley Fishman, Albany, of counsel), for Henry Diamond, appellant.

Roger Scott and Alexander J. Hersha, Camillus, for Village of Camillus, appellant.

Victor J. Ciabotti, Syracuse, for William J. Charles, respondent.

JASEN, Judge.

Petitioner, a landowner in the Village of Camillus, planned to construct three apartment buildings, totaling 36 units, on his property. Village law required that such buildings had to be connected to the village sewage system. On May 9, 1972, the village board authorized issuance of a building permit. However, on May 22, 1972, the State Department of Environmental Conservation informed petitioner that he could not connect into the village sewage system until 'the Village undertakes a program to correct the deficiencies of their sewage system'. The State likewise directed the Onondaga County Health Department not to authorzed the petitioner to connect into the existing ststem until the present deficiencies were corrected. Thereafter, in June, 1972, petitioner commenced this article 78 proceeding against the State Commissioner of Environmental Conservation, the Deputy Commissioner, Onondaga County Department of Health, and the Village of Camillus, contending that the actions of the State, county and village were arbitrary and capricious, resulting in an unconstitutional appropriation of his property without compensation. Petitioner sought a judgment directing the respondents to approve the village connection to his property, requiring the village to take appropriate steps so that the State and county would allow petitioner to use the village sewer system and awarding damages in the amount of $50,000 for damages already sustained. Alternatively, petitioner sought damages in the amount of ,100,000 for the appropriation of his property in the event 'that sewers are not approved * * * and he is not allowed to build the apartments on his property'.

The sewage treatment problems of the Village of Camillus are long standing, and village sewage has contributed to the pollution of the waters of Nine Mile Creek. In July, 1966, the village and the State Department of Health entered into a consent decree concerning improvement of the village sewage system. However, in April, 1968, the State Department of Health agreed with the village and the County of Onondaga that the village should not proceed with the design of secondary treatment facilities until the results of the Nine Mile Creek portion of a county-wide comprehensive sewage study had been received and evaluated. The department advised the village that any enforcement action on the 1966 consent order would be withheld pending analysis of the results which were expected to be available during June, 1968. However, the department acted in the expectation that, after study of the findings, the village would present the department with a schedule for implementation of the abatement program.

The next development, as indicated by the present record, occurred in Cotober, 1972. The village entered into a new consent order with the State Department of Environmental Conservation, which in the interval had become the State agency responsible for the enforcement of the Water Pollution Control Law. The 1972 order provided a timetable for taking designated remedial steps. One tank of the sewage treatment plant was to be emptied of accumulated sludge and sediment and its baffles were to be repaired or replaced. The village was also to obtain and submit for approval a plan for the elimination of excessive groundwater and stormwater infiltration into the village sewage collection system. The village agreed to file an undertaking in the amount of $10,000 payable to the State commissioner in the event that the village failed to comply with the consent order. In July, 1973, the department found that the village was still discharging sewage and waste effluents into Nine Mile Creek which had not been subjected to effective primary treatment. The village's attempt to prohibit the State from conducting an administrative enforcement proceeding disigned to establish a definite date for abating the discharge of untreated sewage into Nine Mile Creek was unsuccessful. (See Village of Camillus v. Diamond, 76 Misc.2d 319, 350 N.Y.S.2d 546, affd., 45 A.D.2d 982, 359 N.Y.S.2d 878, mot. for lv. to app. den., 35 N.Y.2d 645, 366 N.Y.S.2d 1025, 324 N.E.2d 560, cert. den., 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88.)

The most recent development took place in March, 1976 when the village and the State entered into another consent order. The order recited the fact that the village had met technical problems in complying with the 1966 and 1972 orders, that the village had co-operated actively with the county in developing regional wastewater facilities, and that the county had completed a plan of study for the construction of regional facilities which would treat wastewater generated within the village. It was also noted that the original schedules were no longer attainable, and that Federal laws had been enacted requiring local compliance with Federal standards. A new schedule was agreed to, whereby the village was to apply for a State/Federal grant for the construction of new facilities with the facilities to be completed and in operation by January 1, 1980.

Special Term dismissed the article 78 proceeding for failure to state a cause of action, but the Appellate Division reversed. (42 A.D.2d 232, 345 N.Y.S.2d 764.) On remand, Special Term directed the village to proceed immediately to correct the dificiencies in its sewer system and directed the State to issue a permit authorizing a sewer connection to petitioner's property upon proof of satisfactory compliance by the village. The claim for money damages was dismissed against all respondents. The Appellate Division modified the order of Special Term by 'reinstating petitioner's cause of action for money damages for the alleged taking' and directed an immediate trial on that claim. (47 A.D.2d 426, 430, 366 N.Y.S.2d 921, 926.)

On this appeal, issues both of substance and procedure are raised. It is useful to first discuss the substantive rights of the respective parties before proceeding to consideration of the proper procedural vehicle for the enforcement of cognizable rights.

At the threshold, we note that this case does not involve the potentially troublesome issue of whether mere failure to provide municipal services can result in an inverse condemnation for which the municipality must pay compensation. Much more is involved here than merely an asserted failure to provide a service due equally to all members of the community. It is, of course, old law that a municipality is under no obligation to furnish sewers to particular property owners. Municipal corporations have ample opportunity to provide sewers 'but it is not their duty to make every sewer or drain which may be desired by individuals, or which a jury might even find to be necessary and proper.' (Wilson v. Mayor, 1 Denio 595, 600; accord O'Donnell v. City of Syracuse, 184 N.Y. 1, 76 N.E. 738; Seifert v. City of Brooklyn, 101 N.Y. 136, 4 N.E. 321; see 40 N.Y.Jur., Municipal Corporations § 1023, p. 281.) Although municipal sewage disposal obligations have been discussed at great length in the tort realm, and little mentioned elsewhere, it is virtually beyond question that an individual property owner has no right to insist that the municipality provide him with a system, at least where the problem is unique to his land and can be remedied at his expense. (Cf. 45 N.Y.St.Dept.Rep. 666 (Inf. Opn. of Atty. Gen.).) Article 14 of the Village Law provides for the optional construction of sewers in a village, with the cost to be borne entirely by the village, entirely by the owners of the property benefited or by the village and the property owners jointly, at the option of the village. It is also old law that once a municipality has acted to provide a sewer and its improvement causes damage, the municipality is liable to compensate for the injuries sustained. (Seifert v. City of Brooklyn, 101 N.Y. 136, 4 N.E. 321, Supra.)

In this case, it is undisputed that the village provided a sewage disposal system and that local law requires that if a sewer is provided, it must be used. Moreover, the local law requires sewer-connected toilet facilities if the property is intended for any human use. The vice of the situation is that the municipality requires the use of public sewers if the property is to be developed for human use and yet has not provided an adequate system for meeting the requirement imposed by the ordinance. Hence, the claim is more than an undifferentiated demand for municipal service due to all citizens equally. The contention, stripped to its essence, is that the sewer ordinance is being applied unconstitutionally to petitioner's property, thereby frustrating nearly all reasonable development.

A municipality has ample power to remedy sanitation problems including difficulties presented by inadequate treatment or disposal of sewage and waste. (Westwood Forest Estates v. Village of South Nyack, 23 N.Y.2d 424, 427, 297 N.Y.S.2d 129, 132, 244 N.E.2d 700, 701--702.) Inadequate systems of sewage disposal present not only ecological and aesthetic problems, but may pose direct and immediate health hazards. The municipal power to act in furtherance of the public health and welfare may justify a moratorium on building permits or sewer attachments which are reasonably limited as to time. 23...