Loon Lake Estates, Inc. v. Adirondack Park Agency
| Decision Date | 13 September 1975 |
| Citation | 372 N.Y.S.2d 865,83 Misc.2d 686 |
| Parties | In the Matter of LOON LAKE ESTATES, INC., Petitioner, v. The ADIRONDACK PARK AGENCY et al., Respondents. For Judgment Under CPLR Article 78. |
| Court | New York Supreme Court |
Andrew Halloran, North Creek, for petitioner.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, Albany, for respondents; Stanley Fishman, Asst. Atty. Gen., Howard A. Fromer, Deputy Asst. Atty. Gen., of counsel.
Robert J. Kafin, Glens Falls, for respondents-intervenors Loon Lake Homeowners Ass'n Natural Resources Defense Council.
Respondents object in point of law and move to dismiss (CPLR 7804(f); CPLR 3211(a)) nine of fifteen of petitioner's causes of action stated in a verified petition dated and served on June 6, 1975. Petitioner seeks review of and declaratory judgment concerning defendant respondent Adirondack Park Agency's (APA) January 10, 1975 'decision and order' and defendant respondent's, Department of Environmental Conservation ('En Con') April 8, 1975, October 24, 1973 and February 8, 1974 'decisions'. The parties appeared and argued at Special Term in the Village of Elizabethtown, County of Essex, on July 8, 1975. The matter was 'finally submitted' on August 1, 1975.
Petitioner owns and plans to develop approximately 3500 acres located in the Town of Franklin, County of Franklin, State of New York (the project). Petitioner has already received the required regulatory agencies' approvals for, has marketed and has sold 109 building lots. The total number of new dwelling units proposed for the project site is 914.
On April 4, 1973, petitioner filed an application with En Con for approval of a public water supply and distribution system for the project. The Department issued an interim decision (October 24, 1973) authorizing the construction of a portion of the water supply system subject to conditions. Condition 'O' reads:
(emphasis added).
On January 30, 1973, the Assistant Director of respondent APA confirmed in a letter to petitioner's president, Mr. Anthony D'Elia, the APA's December 21, 1972 determination to 'conceptually review' (see the Adirondack Part Agency Act (Act), Section 809, subd. 13(d) (Executive Law, art. 27); 9 NYCRR, Section 581.5, a thru f) the entire project before approval of any additional sections of the planned subdivision. In a November 8, 1973 letter with several exhibits, Mr D'Elia specifically applied to the APA for 'general master plan concept approval'.
By April, 1974, petitioner had completed its extensive submissions to both respondents, including a SPDES application (State Pollution Discharge Elimination System) filed with En Con on January 24, 1974. Respondents then determined 'it would be in the best interest of both agencies and the general public to hold a combined public hearing . . .' The hearing was duly noticed in the Adirondack Daily Enterprise on May 6 and 16, 1974. The notice listed the following jurisdictional bases for the respondents; (1) APA--Act, Section 809, (2) En Con--Environmental Conservation Law, Article 15, Titles 5, 15 and 9, and Article 17; 6 NYCRR, Part 615 and Part 653; Federal Water Pollution Control Act, Amendments of 1972 (Public Law 92--500), 33 U.S.C., Sections 1251--1376. The notice further stated that 'the entire project is subject to conceptual review'.
The hearing was held in Ray Brook beginning on June 4, 1974 and continued on June 5, 6, 7, 25, 26, 27 and 28; July 16, 17, 18, 19, 23, 24, 25, 26; August 27, 28, 29, 30; September 3, 4, 5, 6, 11, 13, 27; and October 1, 1974. The entire hearing transcript of 4,633 pages was available on November 6, 1974; all briefs and reply briefs were filed by December 17, 1974.
Respondent APA's decision includes: 23 findings of fact and five conclusions of law, grants conceptual approval to the project subject to 27 separately numbered conditions, premises the APA's jurisdiction on facts found (Decision, paragraph 7c) and Act, Section 810 and 9 NYCRR, Section 581.2c and applies the criteria listed in the Adirondack Park Agency Act, Section 809, subd. 10(a--e).
Respondent En Con's decision includes: 98 findings of fact and 26 'conclusions and recommendations'; approves the project as modified by 27 separate conditions, reiterates the above quoted jurisdictional basis and applies Environmental Conservation Law, Sections 1--0101, 3--0301, 15--0101, 15--0105, 17--0101 and 17--0103.
The petition states 15 causes of action: 1 thru 6 against defendant respondent APA and 7 thru 15 against defendant respondent En Con.
The following numbered causes of action assert the following respective claims:
1. That the APA's demand that petitioner apply for conceptual review (see 9 NYCRR 581.5(f)), and participate in the hearing was in excess of jurisdiction. Petitioner never intended to apply for conceptual review but was compelled to do so by the APA contrary to its own rules and regulations which provide for conceptual review only at the project sponsor's request. Petitioner further contends that the above regulation exceeds the legal authority granted by the act. .
2. The 27 conditions were imposed in excess of jurisdiction because the decisions granted no permit (see Act, Section 809, subd. 13(a--c)).
3. The imposition of nine conditions exceeded the proper exercise of the police power.
4. The above imposition was arbitrary, capricious, an abuse of discretion and a violation of lawful procedure.
5. The nine conditions and findings underlying them are not on the entire record supported by substantial evidence.
6. The court should render a declaratory judgment invalidating the Act, Section 809, subd. 13(d) and 9 NYCRR 581.5 as improper exercise of the police power, a taking without compensation and a violation of right to equal protection under the law.
7. The court should render a declaratory judgment 'that the decision of the Department of Environmental Conservation as rendered by the Department is illegal because the Commissioner and the Department exceeded their lawful jurisdiction in extending the time for final decision and in failing to render a water supply decision within 90 days (see En.Con.Law, Section 15--1503, subd. 5) after the close of the hearing.'
9. Condition O in the October 23, 1973 decision of En Con was in excess of jurisdiction.
15. The court should render declaratory judgment to invalidate the Environmental Conservation Laws and Regulations requiring conceptual review and approval; this cause of action otherwise parallels the sixth cause of action.
The remaining causes of action are not involved in this motion to dismiss. Defendant respondents have not answered them, but are not in default (CPLR 3211(f); Supplementary Practice Commentaries, McK.Cons.Laws, David D. Siegel, CPLR 3211:72; see also CPLR 7804(f)).
Respondents argue:
1. Causes of action 1 thru 5 and 9 are time barred (See Act, Section 817 and Environmental Conservation Law, Section 15--0905, both of which impose a 60-day Statute of Limitations for judicial review to be commenced; CPLR Section 217).
2. Causes of action 6, 7 and 15 were improperly commenced (CPLR 304); 'no summons having been served, the court does not have either jurisdiction of the subject matter of said cause of action or in personam jurisdiction over said respondents' 3. The seventh cause of action should be dismissed for the additional reason that a declaratory judgment does not lie to obtain relief specifically available under CPLR Article
4. The first thru sixth causes of action against all officers and employees of the Adirondack Park Agency should be dismissed upon the grounds that an Article 78 proceeding cannot be commenced against a general and indefinite group of people but rather can only be commenced against a specifically named person; moreover said respondents were never served with the notice of petition and petition and petition herein and, accordingly, this court does not have personal jurisdiction over said respondents.
DECISION (See CPLR § 7804(g), second sentence)
Causes of Action 1 thru 5 and 9 are time barred and therefore dismissed (Act, Section 817; Environmental Conservation Law, Section 15--0905; CPLR, Section 217). These statutes clearly express a strong legislative intent and policy: administrative determinations must be reviewed promptly. The January 10, 1975, February 8, 1974 and October 24, 1973 decisions had immediate Substantive impact on petitioner. The enabling statutes for En Con and the APA make no provision for rehearing, administrative review, or administrative appeal. The above decisions were therefor 'final and effective' on the date of their service upon petitioner (Mtr. of Karaffa v. Simon, 14 A.D.2d 978, 979, 222 N.Y.S.2d 47, 51 (3rd Dept., 1961); Mtr. of Central Sch. Dist. v. Teachers' Retirement, 46 Misc.2d 225, 228, 259 N.Y.S.2d 585, 588 (Sup.Ct., Albany Co., 1965), aff'd, 27 A.D.2d 265, ...
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