Essex County v. Zagata

• Decision Date: 07 April 1998
• Citation: 695 N.E.2d 232,91 N.Y.2d 447,672 N.Y.S.2d 281
• Parties: , 695 N.E.2d 232, 1998 N.Y. Slip Op. 3245 In the Matter of ESSEX COUNTY et al., Appellants, v. Michael D. ZAGATA, as Commissioner of New York State Department of Environmental Conservation, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 281

672 N.Y.S.2d 281

91 N.Y.2d 447, 695 N.E.2d 232, 1998

N.Y. Slip Op. 3245

In the Matter of ESSEX COUNTY et al., Appellants, v. Michael D. ZAGATA, as Commissioner of New York State Department of Environmental Conservation, et al Respondents.

Court of Appeals of New York.

April 7, 1998.

Richard B. Meyer, County Attorney of Essex County, Elizabethtown, and Devorsetz Stinziano Gilberti Heintz & Smith, P.C., Syracuse (Kevin G. Roe, William J. Gilberti, Jr. and Joshua H. Heintz, of counsel), for appellants.

Dennis C. Vacco, Attorney General, Albany (Lawrence A. Rappoport, Barbara G. Billet, Peter H. Schiff and Lisa M. Burianek, of counsel), for respondents.

OPINION OF THE COURT

KAYE, Chief Judge.

Underlying the complex factual scenario that follows is the question of when an application for agency review became "final" so as to trigger the 60-day Statute of Limitations under Executive Law § 818(1).

In November 1995, appellant Essex County Board of Supervisors solicited proposals from private entities seeking to buy its landfill, a state-of-the-art facility located within the Adirondack Park. The County accepted a proposal submitted by appellant Serkil, L.L.C, which was contingent on the County obtaining all necessary operating permit modifications to allow for an increase, from 95 tons to 500 tons, in the amount of solid waste that could be received each day in landfill "Cell No. 1."

In an effort to meet Serkil's conditions, the County applied for an amendment to its operating permit, issued in 1992 by the Department of Environmental Conservation (DEC). Because of the landfill's location within the Adirondack Park, the County's application was reviewed in accordance with procedures set forth in a 1976 Memorandum of Understanding (Memorandum) entered into by the DEC, the Adirondack Park Agency (APA) and the Department of Health (DOH). The objectives of that Memorandum were elimination of duplicative effort and procedural conflicts and implementation of a coordinated review process for Adirondack Park projects, which are often subject to regulation by all three agencies. The Memorandum specifies which of the three agencies--the DEC, the APA or the DOH--will be "lead agency" for various types of projects, and imposes on the lead agency responsibility for coordinating the project review, accepting applications and transmitting determinations.

On December 4, 1995, the County submitted its application to the DEC--the agency designated in the Memorandum of Understanding as lead agency for waste disposal projects. The next day, the DEC, again following the terms of the Memorandum, forwarded a copy of the application to the APA. By letter dated December 8, 1995, the APA notified the DEC that it did not have permit jurisdiction over the County's application to modify the tonnage received in Cell No. 1.

Approximately five weeks later, however, in a press release responding to a January 13, 1996 New York Times article critical of the manner in which the County's proposed permit modification was being handled, Governor Pataki directed APA Chairman Gregory Campbell to "re-consider whether the agency should conduct a full-blown review of off-site impacts stemming from any expansion of Cell No. 1." By letter dated January 25, 1996, the APA then informed the County that, after learning more about the proposal, it had become clear that the amendment represented a "material change in terms of daily tonnage and service area," and as such the APA intended to assert jurisdiction over the application. The decision to exercise jurisdiction was confirmed by a vote of the APA Board at its February 8, 1996 meeting, and a February 12th letter notified the County of that decision. The letter also informed the County that further information regarding the amendment application process would be forthcoming.

The County disputed every aspect of the APA's position. As a threshold matter, the County argued, the APA lacked jurisdiction over its application. Furthermore, the County asserted, pursuant to the terms of the Memorandum of Understanding the application filed with the DEC also constituted an application to the APA, and no new application was required. The APA, however, stood by its demands, advising the County in a letter dated February 29th that it was required to file a new application, consisting of a new signature page to be annexed to the copy of the DEC application and responses to interrogatories. The APA further informed the County that the "regulatory time clock" would not begin to run and APA review of the project would not commence until the signature page, signed by the Chairman of the County Board of Supervisors, was submitted to the agency.

The County, however, declined to send a new signature page, and continued to assert that the review time periods set forth under Executive Law § 809 had accrued on December 19th, when the DEC deemed its application complete. As such, reasoned the County, the 90-day period during which the APA was required to review its application had already expired, opening the door for the County to send a demand letter in accordance with Executive Law § 809(6)(a). Thus, on April 16, 1996, the County sent its demand letter, requesting a decision on the application within five working days. In response, the APA sent a letter of its own, dated April 22, 1996, reiterating its position that the County had not yet submitted the requisite application signature page and that the "section 809 regulatory clock" had therefore not yet begun to run. By letter dated May 1, 1996, the County made a similar five-day demand upon DEC pursuant to ECL 70-0109(3)(b). On May 9, 1996, the DEC denied the County's application without prejudice on the ground that it could not render a decision until the APA's review was complete.

The County and Serkil commenced this CPLR article 78 proceeding on May 16, 1996, arguing that the APA lacked jurisdiction over the application and that they were entitled to permits both on the merits and by virtue of the agencies' failure to render a decision on the application within five days following demand. On respondents' motion to dismiss, Supreme Court dismissed all causes of action asserted against the APA as untimely, rejecting the argument that the APA's refusal to issue a permit on April 22, 1996 was the date on which the 60-day limitations period set forth in Executive Law § 818(1) began to run. Instead, the court held that the limitations period accrued on February 8, 1996--the date on which the APA formally asserted jurisdiction over the County's application.

The Appellate Division, similarly, found that the claims against the APA were untimely. However, it held that, with regard to the claim regarding the agency's jurisdictional authority, it was "the APA's February 29, 1996 letter (if not its Feb. 8, 1996 determination to exercise review jurisdiction) * * * [that] rendered the matter ripe for review under CPLR article 78" (238 A.D.2d 796, 798, 656 N.Y.S.2d 445). The Appellate Division concluded, therefore, that the limitations period "began to run no later than March 7 1996, when Essex County acknowledged receipt of the February 29, 1996 letter" (id.).

The Appellate Division also diverged from the trial court's reasoning by holding that the limitations period for the remaining causes of action against the APA--including the claim that the County and Serkil were entitled to an APA permit on the merits and by virtue of the APA's failure to render a decision on the County's application within five days of demand--accrued on February 29, 1996. On that date, the Appellate Division reasoned, the APA "unequivocally advised petitioners, first, that the application submitted to DEC did not in and of itself constitute an application to the APA and, second, that the APA's 'regulatory time clock' had not yet begun to run" (id.). "Regardless of the correctness of those conclusions, there can be little question that with the transmittal of its February 29, 1996 letter, the APA 'had come to "a definitive position" that caused "an actual, concrete injury" ' that could not be 'prevented or significantly ameliorated by further administrative action' " (id.).

We agree that appellants' claims against the APA should be dismissed as untimely.

To challenge an APA determination in a proceeding governed by CPLR article 78, the agency action must be "final" and the application for review submitted no later than 60 days from the effective date of the disputed order or the date when the contested act or omission occurred (CPLR 7801[1]; Executive Law § 818[1] ). That rule is easier stated than applied.

The decisive legal question we face is, on the facts presented, when did the APA reach a final determination that rendered appellants' various claims amenable to article 78 review, triggering the 60-day limitations period? Like the Appellate Division, we conclude that appellants' claims accrued upon receipt of the February 29th APA letter, which set forth the agency's definitive position regarding the County's application and the commencement of the APA review process.

Administrative actions as a rule are not final "unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process" (Chicago & S. Air Lines v. Waterman Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568). To determine if agency action is final, therefore, consideration must be given to "the completeness of the administrative action" and "a pragmatic evaluation [must be made] of whether the 'decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury' " (Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 519, 505 N.Y.S.2d 24, 496 N.E.2d 183, cert. denied 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578, quoting Williamson County Regional Planning Commn. v. Hamilton Bank, 473 U.S. 172, 192-193, ...