Rappl & Hoenig Co., Inc. v. New York State Dept. of Environmental Conservation

Decision Date26 June 1979
Citation47 N.Y.2d 925,419 N.Y.S.2d 490,393 N.E.2d 485
Parties, 393 N.E.2d 485 In the Matter of RAPPL & HOENIG CO., INC., Respondent, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Appellants.
CourtNew York Court of Appeals Court of Appeals
Robert Abrams, Atty. Gen. (Murray Susswein, Ruth Kessler Toch and Stanley Fishman, Albany, of counsel), for appellants.
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division erred, however, in the reasons given for leaving the matter with Special Term. The determination of whether the petitioner's property could be drained without endangering the environment, as well as other issues concerning the use of the property, may be raised only after a determination that the subject property comes within the Freshwater Wetlands Act (ECL 24-0107, subd. 1). If it is determined that the property comes within the purview of the act, questions concerning the use of the property must be considered initially by the Department of Environmental Conservation or the duly empowered local government within the confines of an application for a permit (ECL 24-0703, subd. 1; 24-0705, subd. 1). Review of such determinations may then be sought either administratively or in the courts (ECL 24-1105).

The sole question for judicial review in this proceeding, brought pursuant to ECL 24-1105, is whether the Freshwater Wetlands Act applies to petitioner's property. Although the courts below held the act applicable to artificially as well as naturally created wetlands, it does not appear that the necessary factual findings have been made to decide whether the petitioner's property constitutes a wetland within the meaning of the act. The matter, therefore, is properly before Special Term for consideration of this question.

COOKE, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur in memorandum.

Order affirmed.

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5 cases
  • Gazza v. New York State Dept. of Environmental Conservation
    • United States
    • New York Supreme Court Appellate Division
    • April 18, 1988
    ...... of authority to regulate and restrict their use ( see, Coletta, Inc. v. New York State Dept. of Envtl. Conservation, 128 A.D.2d 755, 513 ... denied 70 N.Y.2d 602, 518 N.Y.S.2d 1025, 512 N.E.2d 551; Matter of Rappl & Hoenig Co. v. New York State Dept. of Environmental Conservation, 61 ......
  • Jack Coletta, Inc. v. New York State Dept. of Environmental Conservation
    • United States
    • New York Supreme Court Appellate Division
    • March 23, 1987
    ......Lang, 52 A.D.2d 921, 383 N.Y.S.2d 400 and O'Brien v. Barnes Bldg. Co., 85 Misc.2d 424, 380 N.Y.S.2d 405, affd. 48 A.D.2d 1018, 372 N.Y.S.2d 992, and refute the ... the application of its provisions to wetlands which are artificially created (see, Matter of Rappl & Hoenig Co. v. Dept. of Environmental Conservation, 61 A.D.2d 20, 401 N.Y.S.2d 346, ......
  • Stapf v. Flacke
    • United States
    • United States State Supreme Court (New York)
    • September 14, 1981
    ......Environmental Conservation of the State of New. York for ...v. Allen, 32 A.D.2d 985, Rappl & Hoenig v. En Con, 61 A.D.2d 20, 22, 401 ......
  • Tilles v. Williams
    • United States
    • United States State Supreme Court (New York)
    • March 13, 1985
    ......WILLIAMS, as Commissioner of The New York State. Department of Environmental Conservation, ... 24-1105 is demonstrated in Matter of Rappl & Hoenig Co. v. New York State Dept. of ......
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