Jorling v. Adirondack Park Agency
| Docket Number | 533913 |
| Decision Date | 02 March 2023 |
| Citation | 185 N.Y.S.3d 354 |
| Parties | In the Matter of Thomas JORLING, Appellant, v. ADIRONDACK PARK AGENCY et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel), for appellant.
Letitia James, Attorney General, Albany (Joshua M. Tallent of counsel), for Adirondack Park Agency and another, respondents.
Norfolk Beier PLLC, Lake Placid (Matthew D. Norfolk of counsel), for LS Marina, LLC, respondent.
Protect the Adirondacks! Inc., Johnsburg (Christopher Amato of counsel), for Protect the Adirondacks! Inc., amicus curiae.
Pace Environmental Litigation Clinic, White Plains (Todd D. Ommen of counsel), for Adirondack Wild: Friends of the Forest Preserve and another, amici curiae.
Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.
(1) Appeal from a judgment of the Supreme Court (Richard B. Meyer, J.), entered August 3, 2021 in Essex County, which dismissed petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review, among other things, a determination of respondent Adirondack Park Agency granting a shoreline variance to respondent LS Marina, LLC, (2) motions to strike the addendum to petitioner's reply brief, and (3) cross-motion to strike the addendum to respondents Adirondack Park Agency and Department of Environmental Conservation's brief.
Petitioner owns real property on the western shore of Ampersand Bay, at the northern end of Lower Saranac Lake in the Adirondack Park. Respondent LS Marina, LLC owns and operates the Saranac Lake Marina (hereinafter the marina), with two locations on the lake. One location, known as the Annex, is across Ampersand Bay from petitioner's property on the bay's eastern shore, occupying approximately five acres with 1,300 feet of shoreline. The other location, known as the Main Marina, is in Crescent Bay, south of the Annex, and occupies roughly 12 acres and 650 feet of shoreline. Both sites are in the Town of Harrietstown, Franklin County, on lands classified as Hamlet on the Adirondack Park Land Use and Development Plan Map.
The marina's boathouses and docks were originally constructed in 1924 and had fallen into disrepair by the time LS Marina acquired the marina in March 2014. Additionally, the boathouses did not conform with shoreline building setback restrictions that had been enacted after they were built. Although LS Marina could have chosen to rebuild the nonconforming boathouses in their original footprints (see 9 NYCRR 575.5 [a]), it instead embarked upon a plan to redevelop both sites by replacing the boathouses with new floating dock structures and increasing the overall number of boat slips from 219 to 300. In furtherance of this plan, in April 2014, LS Marina applied to respondent Adirondack Park Agency (hereinafter APA) for a shoreline setback variance for both the Annex and the Main Marina locations, and in February 2016, it applied to APA for a wetlands permit in connection with the Annex location. Over the next several years, APA made a number of requests for more information concerning LS Marina's intentions. Specifically, APA sought additional information regarding, among other things, the economic justification for the increased boat slips; visual impacts and mitigation measures; wetlands impacts; potential alternatives; impacts from increased boat traffic; and stormwater control and wastewater treatment plans. LS Marina responded to these requests and also modified its plans, reducing the number of proposed boat slips from 300 to 292 and making changes to the designs of the floating docks. In May 2020, following an adverse possession action (see LS Mar., LLC v. Acme of Saranac, LLC, 174 A.D.3d 1104, 1108, 106 N.Y.S.3d 186 [3d Dept. 2019] ), LS Marina acquired an eight-acre parcel consisting of lakebed beneath the proposed location for the floating dock structures at the Main Marina.
In August 2020, APA determined that the applications were complete and solicited public comment. APA staff then submitted to its board a draft permit/order conditionally granting the permit and variance, along with their supporting findings and recommendations. The board voted to grant the permit and variance as conditioned in the draft permit/order.
Petitioner thereafter challenged APA's determination by commencing the instant combined proceeding pursuant to CPLR article 78 and action for declaratory judgment.1 APA and respondent Department of Environmental Conservation (hereinafter DEC) (hereinafter collectively referred to as the state respondents) jointly filed an answer, and LS Marina separately answered. Supreme Court dismissed the petition/complaint, and petitioner appeals.
As an initial matter, three related motions currently pending before this Court must be addressed. The state respondents and LS Marina each moved to strike an addendum to petitioner's reply brief, and petitioner cross-moved to strike an addendum to the state respondents' brief. The submissions in question consist of internal APA staff memoranda that are not part of the administrative record. "It is well settled that this Court is limited to reviewing facts contained in the record and any arguments based thereon and we will therefore not consider arguments founded upon information outside the record" ( Reed v. New York State Elec. & Gas Corp., 183 A.D.3d 1207, 1209, 125 N.Y.S.3d 475 [3d Dept. 2020] [internal quotation marks and citations omitted]; see Federal Natl. Mtge. Assn. v. Banks, 198 A.D.3d 1222, 1225, 156 N.Y.S.3d 496 [3d Dept. 2021] ). Accordingly, the motions and cross-motion are granted (see Matter of New York State Correctional Officers & Police Benevolent Assn., Inc. v. New York State Pub. Empl. Relations Bd. , 309 A.D.2d 1118, 1119, 767 N.Y.S.2d 282 [3d Dept. 2003] ). To the extent that the state respondents request that we take judicial notice of the memorandum attached to their brief, we decline that invitation, inasmuch as it is not necessary for a determination of the issues before us.
Turning next to the issue of standing, we have no quarrel with Supreme Court's conclusion that petitioner adequately demonstrated standing to bring this proceeding.2 In order to establish standing to challenge the permit/order, petitioner was "obliged to show an actual stake in the controversy by establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated" ( Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 187 A.D.3d 1437, 1439, 134 N.Y.S.3d 545 [3d Dept. 2020] [internal quotation marks and citation omitted]). As Supreme Court noted, with regard to the Annex portion of the proposed project, petitioner "sufficiently alleged direct harm to [his] aesthetic and environmental well-being" ( Matter of Protect the Adirondacks! Inc. v. Adirondack Park Agency, 121 A.D.3d 63, 69 n. 3, 990 N.Y.S.2d 643 [3d Dept. 2014] [internal quotation marks, brackets and citation omitted], lv dismissed & denied 24 N.Y.3d 1065, 1 N.Y.S.3d 3, 25 N.E.3d 339 [2014] ; see Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 305, 890 N.Y.S.2d 405, 918 N.E.2d 917 [2009] ), and these allegations fall within the zone of interests sought to be protected by the Adirondack Park Agency Act (see Executive Law § 801 ; compare Matter of Saratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979, 982, 846 N.Y.S.2d 786 [3d Dept. 2007], lv denied 10 N.Y.3d 706, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008] ; Matter of Barrett v. Dutchess County Legislature, 38 A.D.3d 651, 654, 831 N.Y.S.2d 540 [2d Dept. 2007] ).3
As for the merits, petitioner first contends that APA incorrectly interpreted its wetlands regulations. An agency's interpretation of its own regulations is ordinarily entitled to deference, but this rule does not apply when the agency's interpretation contradicts the plain language of the regulations or is irrational or unreasonable (see Matter of Entergy Nuclear Indian Point 2, LLC v. New York State Dept. of State, 130 A.D.3d 1190, 1192, 14 N.Y.S.3d 177 [3d Dept. 2015] ; Matter of Town of Camillus v. Commissioner of Dept. of Envtl. Conservation, 256 A.D.2d 967, 968, 681 N.Y.S.2d 903 [3d Dept. 1998] ). LS Marina's wetlands permit application required APA to evaluate the freshwater wetland at the Annex location and assign it a value rating between one and four, with one representing the highest value (see 9 NYCRR 578.5 ). The value rating is arrived at by first determining whether the wetland possesses any one or more of 24 different characteristics, each of which, in turn, has an assigned value of one through four (see 9 NYCRR 578.5 [a]-[x]). These 24 characteristics are grouped under six headings or categories, which APA refers to as "factors." The wetland's overall value is to be no lower than the highest value of any of its characteristics (see 9 NYCRR 578.6 [a]). Furthermore, as is relevant here, if the wetland has three or more characteristics with a value of two, which fall under "more than one factor," this will raise the wetland's value to one ( 9 NYCRR 578.6 [c]).
There is no dispute that the wetland at the Annex has three value-two characteristics, and that these three characteristics fall under two separate factors (see 9 NYCRR 578.5 [c], [g], [k]). Nevertheless, APA assigned the wetland an overall value of two rather than one, reasoning that, under these circumstances, the regulations do not allow for elevation to a value of one. In so doing, APA maintains that it relied upon its longstanding regulatory interpretation of the phrase "more than one factor" to require elevation of a wetland to a value-one rating only where there are at least three separate factors...
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