MATTER OF ZACCARO v. Cahill

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

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. 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 (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 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 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, the Commissioner sustained certain of the charges. He ordered decedent to implement remedial measures aimed at restoring the wetland, and imposed a penalty of $8,000, $6,000 of which was to be forgiven if decedent completed the remedy within 60 days of the order's receipt.

Decedent commenced a CPLR article 78 proceeding in Supreme Court to challenge the Commissioner's determination. Upon transfer of the proceeding, the Appellate Division confirmed the determination and dismissed decedent's petition (298 AD2d 671 [3d Dept 2002]). On this appeal pursuant to CPLR 5601 (b) (1), appellant argues that DEC violated decedent's constitutional and statutory rights to actual notice of the wetlands mapping because of its reliance on inaccurate tax maps and, in light of the absence of actual notice, DEC should be limited to prospective regulation of the property.

II.

The general rule concerning the due process rights of property owners derives from Mullane v Central Hanover Bank & Trust Co. (339 US 306, 314 [1950]). There, the United States Supreme Court reaffirmed that prior to taking action affecting life, liberty or property, the government must give "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Id.) Later, in Mennonite Bd. of Missions v Adams (462 US 791 [1983]), the Supreme Court applied this principle to an action concerning land, and held that notice by publication alone was insufficient to protect the due process rights of a mortgagee. Rather, a mortgagee who was "reasonably identifiable" was entitled to actual notice, by mail at the mortgagee's last known address or through personal service (id. at 798). While we have not considered the notice provisions of the Freshwater Wetlands Act in light of these principles, we have applied them in other contexts involving real property, including tax liens and special assessments.

In Congregation Yetev Lev D'Satmar v County of Sullivan (59 NY2d 418 [1983]), the assessor mailed notice of a tax sale to the last record owner of the land. Accordingly, a property owner who had obtained title by adverse possession did not receive actual notice of the sale. We found that due process "requires the assessor to give personal notice to all parties readily ascertainable who have a substantial interest in the property and the assessor is charged with knowledge of facts which an examination of the real property and tax records reveals" (id. at 425, citing Mennonite Bd. of Missions). Constructive notice was acceptable in this circumstance because the address of the owner by adverse possession was not "reasonably identifiable," and the assessor was not required to undertake "extraordinary efforts" to discover the claim of adverse possession (id. at 424, 426).

In Matter of McCann v Scaduto (71 NY2d 164 [1987]),

we expanded our holding in Congregation. In McCann, property owners challenged a local law concerning tax lien sales, which provided that publication in a "newspaper of general circulation" was all that was required (id. at 170). Reaffirming Congregation, we held that "where the interest of a property owner will be substantially affected by an act of government, and where the owner's name and address are known, due process requires that actual notice be given" (McCann, 71 NY2d at 176). We noted the importance of this rule given that "the [tax] sales create immediate, substantial adverse consequences for the property holder" (id.).

We next addressed the due process rights of property owners in Matter of ISCA Enters. v City of New York (77 NY2d 688, 699 [1991]),

holding that "notice by mail is a constitutional precondition to a proceeding that will adversely affect the property interest of any party whose name and address are reasonably ascertainable." There, property owners had challenged the...