MATTER OF ZACCARO v. Cahill

• Court: New York Court of Appeals
• Writing for the Court: READ, J.
• Citation: 768 N.Y.S.2d 730,800 N.E.2d 1096,100 N.Y.2d 884
• Decision Date: 21 October 2003
• Parties: In the Matter of LOUISE ZACCARO, as Executor of FRANK ZACCARO, Deceased, Appellant, v. JOHN P. CAHILL, as Commissioner of Environmental Conservation, Respondent.

100 N.Y.2d 884
800 N.E.2d 1096
768 N.Y.S.2d 730

In the Matter of LOUISE ZACCARO, as Executor of FRANK ZACCARO, Deceased, Appellant,
v.
JOHN P. CAHILL, as Commissioner of Environmental Conservation, Respondent

Court of Appeals of the State of New York.

Argued September 16, 2003.

Decided October 21, 2003.

Esseks, Hefter & Angel, Riverhead (Stephen R. Angel and Anthony C. Pasca of counsel), for appellant.

100 N.Y.2d 885

Eliot Spitzer, Attorney General, Albany (Peter Lehner, Caitlin J. Halligan, Daniel Smirlock, Denise A. Hartman, John Sipos and Lawrence A. Rappoport of counsel), for respondent

Chief Judge KAYE and Judges SMITH, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

READ, J.

The principal issue in this appeal is whether due process requires actual notice before the New York State Department of Environmental Conservation (DEC) designates a landowner's property as a wetland and places it on a freshwater wetlands map. We hold that actual notice is not required so long as DEC complies with the statutory notice provisions of ECL 24-0301

100 N.Y.2d 886

(4) and (5), which are reasonably calculated to inform affected landowners that their property is located in a protected wetland. We further conclude that substantial evidence supports the DEC Commissioner's determination that DEC complied with these statutory notice provisions in the facts of this case

I.

In 1975, the Legislature enacted the Freshwater Wetlands Act (ECL art 24), which protects the state's freshwater wetlands by prohibiting landowners from engaging in certain activities on property designated as a wetland unless they first obtain a permit from DEC (ECL art 24, tit 7). To this end, the Act authorizes the Commissioner to prepare a freshwater wetlands map which, once finalized, identifies those properties subject to the Act's regulatory scheme (ECL 24-0301). In the interim period between the Act's effective date (Sept. 1, 1975) and final mapping, all wetlands were already subject to DEC's jurisdiction (Matter of Wedinger v Goldberger, 71 NY2d 428, 439 [1988]).

Mapping is carried out in two stages: first, DEC develops a tentative map, subject to a public hearing at which additions or deletions may be proposed, which is followed by a final map (ECL 24-0301). DEC must provide written notice of the public hearing to "each owner of record as shown on the latest completed tax assessment rolls, of lands designated as such wetlands as shown on [the tentative] map"¹ and to the affected local governments, and it must cause notice of the public hearing to be published in two local newspapers at least once (ECL 24-0301 [4]). Second, after the public hearing, DEC must promulgate the final wetlands map by order, and again give notice to "each owner of lands, as shown on the latest completed tax assessment rolls, designated as such wetlands" and to the affected local governments by mailing a copy of the order, and it must cause the order's publication in local newspapers (ECL 24-0301 [5]). DEC must also file the final map in the office of the clerk of affected local governments.

As we have previously recognized, the Act's mandate to map wetlands statewide presented DEC with a "formidable task" (Wedinger, 71 NY2d at 436). In Columbia County alone, DEC

100 N.Y.2d 887

devoted considerable resources throughout the early 1980's to the mapping enterprise. DEC staff examined aerial photographs of the entire county to identify potential wetlands. Field checks were performed to verify whether the areas preliminarily identified from the photographs were actually wetlands. Then the boundaries of field-verified wetlands were transferred from the photographs to 7.5 minute quadrangle maps. These maps became the tentative freshwater wetlands maps for purposes of notification of the public hearing

While the Act directs DEC to notify landowners "as shown on the latest completed tax assessment rolls," it does not instruct DEC how to find out which landowners listed on the tax assessment rolls are the owners of lands identified as wetlands on the tentative wetlands maps. To bridge this gap between the tentative maps and the tax rolls, DEC staff compared the tentative maps to Columbia County's tax maps in order to find the block and lot number of parcels affected by the mapping, and DEC then notified the owners of those parcels as their names and addresses appeared on the most recent tax assessment roll.

This method of identifying affected landowners is not foolproof. Tax maps are only updated every four to five years. Tax rolls are also outdated to the extent they reflect the owners of parcels at the end of the year preceding the tax bill, and do not contain information concerning title changes occurring midyear. In addition, the information in the tax maps or tax rolls may be incomplete or inaccurate, as was the case here.

Decedent Frank Zaccaro² and his predecessor in title, Joseph A. Lauri (a relative), owned property in the wetlands mapping area, and their names and addresses were accurately listed on the tax assessment roll during the relevant time periods. Nonetheless, Mr. Lauri did not receive actual notice of the tentative map and public hearing, and decedent did not receive actual notice of the final map.

Neither decedent nor his predecessor was actually notified because the tax maps did not show their parcel in the correct location. Specifically, the wetland at issue, "H-12," was located in the area depicted on tax map 143. Decedent's parcel was shown on tax map 133, not tax map 143. Accordingly, he was listed on the tax assessment roll as the owner of a parcel

100 N.Y.2d 888

located on tax map 133,³ which apparently depicts the area just north of the area depicted on tax map 143.

In 1997, 12 years after the final freshwater wetlands map for Columbia County was promulgated and filed, decedent was charged with violating the Act by engaging in numerous prohibited activities on his land without a permit. After an administrative hearing, at which decedent asserted the defense of lack of actual notice,...