Salvador v. State

• Decision Date: 03 November 1994
• Citation: 618 N.Y.S.2d 142,205 A.D.2d 194
• Parties: In the Matter of John SALVADOR Jr. et al., Appellants, v. STATE of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 142

618 N.Y.S.2d 142

205 A.D.2d 194

In the Matter of John SALVADOR Jr. et al., Appellants, v. STATE of New York et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Nov. 3, 1994.

John Salvador Jr., in pro. per.

G. Oliver Koppell, Atty. Gen. (Lawrence A. Rappoport, Peter H. Schiff and Val Washington, of counsel), Albany, for State, respondent.

Paul B. Dusek, Town Atty., Queensbury, for Town of Queensbury, respondent.

Before MIKOLL, J.P., and MERCURE, WHITE and CASEY, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered July 6, 1993 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, inter alia granted respondents' motions to dismiss the amended petition for failure to state a cause of action.

The thrust of this litigation is primarily a challenge to certain laws (L.1979, ch. 599; L.1987, ch. 617) and regulations (6 NYCRR parts 645, 646) promulgated to implement the regulatory authority of respondent Lake George Park Commission (hereinafter the Commission) over vessels, wharfs, moorings and fee schedules set forth in ECL 43-0125, as well as the Commission's wastewater (6 NYCRR subpart 646-3) and stormwater (6 NYCRR subpart 646-4) authority conferred by ECL 43-0110 and 43-0112. Since 1973, petitioners have owned, operated and resided at Dunham's Bay Lodge situated on Lake George (hereinafter the Lake) and located entirely within the Town of Queensbury, Warren County. Petitioners claim ownership of submerged land beneath the waters of the Lake on which are located petitioners' docks, bulkheads, boat house, bathing beach, and boat-servicing utilities and amenities. Petitioners further assert that all of these represent inspected capital improvements that are included in the assessed valuation of their property.

In July 1988, the Commission and petitioners entered into an agreement by which petitioners agreed to pay $2,552.50 in annual fees for the 1,201 linear feet of commercially useable dock space they owned (see, 6 NYCRR 645-2.1[f]; [i][2]; 645-7.6; ECL 43-0125[2][a]. Petitioners were also obligated to pay $50 for one mooring. Petitioners paid the full annual fee for 1988, 1989, 1990 and 1991. In 1992, however, petitioners requested a redetermination of the annual fee based on their ownership of the portion of the bed of the Lake on which their docks were located. Petitioners therefore sought to exclude the portion of their docks from the fees on which they had paid real property taxes to respondent Town of Queensbury. The Commission denied their appeal, ruling that ECL 43-0125(2)(a) makes no distinction between lands held in private as opposed to public ownership. This CPLR article 78 proceeding/declaratory judgment action was thereafter commenced against the State, the Legislature, the Department of Environmental Conservation (hereinafter DEC), the Commission, the Comptroller (hereinafter collectively referred to as the State) and the Town.

The first, second, third and sixth causes of action set forth by petitioners allege that the Laws of 1987 (ch. 617) and the Laws of 1979 (ch. 599) were enacted in violation of their right to self government under the home rule provisions of NY Constitution article IX and that the Town failed to protect these rights on their behalf. The fourth cause of action alleges that the schedule of user fees for commercial docks imposed by ECL 43-0125(2)(a) as enacted by the Laws of 1987 (ch. 617) violates their right to equal protection. The fifth cause of action alleges that the enactment of the Laws of 1987 (ch. 617) effects a taking of private property without due process. Petitioners therefore asked that the Laws of 1987 (ch. 617), the Laws of 1979 (ch. 599) and the 1987 repeal and new enactment of ECL 17-1709(3) be declared unconstitutional and void. They also requested that their 1988 fee agreement with the Commission be annulled and that all the fees they paid from 1988 through 1991 be refunded to them.

The State and Town each moved to dismiss the six causes of action for, inter alia, failing to state a cause of action. In particular, the State claimed that the contention raised in the sixth cause of action, attacking the enactment of ECL 17-1709(3) in 1979, was moot. Petitioners did not respond directly to the motions to dismiss but, rather, moved by order to show cause issued February 11, 1993 to, inter alia, (1) have respondents' motions to dismiss converted to motions for summary judgment, and (2) add a further cause of action against the Town. Petitioners did not argue the merits of the first five causes of action in their order to show cause but they did contend that the challenge to the enactment of ECL 17-1709(3), alleged in the sixth cause of action, would not be moot if the 1987 repeal and new enactment of it were annulled.

Supreme Court dismissed the first, second, third and sixth causes of action for failure to state a cause of action, finding that the matters disputed therein were of State concern and, consequently, did not violate the home rule provisions of the NY Constitution. Supreme Court also dismissed the fourth cause of action for failure to state a cause of action, ruling that the constitutionality of the user fee schedule had been upheld in a prior action and petitioners did not distinguish it or show that it was wrongly decided. The dismissal of the fifth cause of action was based on petitioners' failure to present any support for their allegation that the user fees constituted a taking. Finally, petitioners' claims based on the State Finance Law were dismissed for lack of factual support and the added relief requested in the February 11, 1993 show cause order was dismissed for lack of merit and mootness. This appeal by petitioners ensued. ¹

The judgment of Supreme Court should be affirmed. We reject petitioners' contention that their first, second, third and sixth causes of action relate to matters of local concern only and are therefore special laws requiring a home rule message by the Town or the municipalities contiguous thereto and, in the absence of such message, the passage of the Laws of 1987 (ch. 617) in general, the enactment of 1979 (L.1979, ch. 599), and the 1987 repeal and new enactment (L.1987, ch. 617, § 10) of ECL 17-1709(3) by the Legislature violate the home rule provisions necessitating their annulment. The presumption that legislative enactments are constitutional obtains and such presumption will only be disturbed "by proof persuasive beyond a reasonable doubt" (Hotel Dorset Co. v. Trust for Cultural Resources of City of N.Y., 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284; see, City of New York v. State of New York, 76 N.Y.2d 479, 485, 561 N.Y.S.2d 154, 562 N.E.2d 118). The presumption also obtains that the Legislature made a sufficient inquiry into the existence of the necessary supporting facts as well as into the need for and desirability of the legislation (Hotel Dorset Co. v. Trust for Cultural Resources of City of N.Y., supra, at 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284; I.L.F.Y. Co. v. Temporary State Hous. Rent Commn., 10 N.Y.2d 263, 270, 219 N.Y.S.2d 249, 176 N.E.2d 822, appeal dismissed 369 U.S. 795, 82 S.Ct. 1155, 8 L.Ed.2d 285).

The Legislature can only act by general law when acting with respect to the "property, affairs or government of any local government" (N.Y. Const., art. IX, § 2[b][2]. The quoted phrase, however, has been construed to mean that when a State concern is involved to a substantial degree, the State may legislate even though local concerns are also involved (see, Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 493-494, 393 N.Y.S.2d 949, 362 N.E.2d 581; Adler v. Deegan, 251 N.Y. 467, 491, 167 N.E. 705 [Cardozo, Ch. J., concurring] amended 252 N.Y. 615, 170 N.E. 164). As long as "the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation * * * the State may freely legislate, notwithstanding the fact that the concern of the State may also touch upon local matters" (Matter of Kelley v. McGee, 57 N.Y.2d 522, 538, 457 N.Y.S.2d 434, 443 N.E.2d 908; accord, Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 56, 484 N.Y.S.2d 528, 473 N.E.2d 756). This is so even when the legislation has a " ' * * * direct effect on the most basic of local interests * * * ' " (Matter of Town of Islip v. Cuomo, supra, at 57, 484 N.Y.S.2d 528, 473 N.E.2d 756, quoting Matter of Board of Educ. v. City of New York, 41 N.Y.2d 535, 542, 394 N.Y.S.2d 148, 362 N.E.2d 948). The record demonstrates that there are State concerns of sufficient importance to the State generally to sustain the enactment of the statutes in question, i.e., the protection of the Lake's water quality, the Lake's environs, which are natural resources of the State, and the regulation of these resources for public purposes. The protection of the Lake as an environmental resource of the State is also of State concern. Thus, the home rule provisions of N.Y. Constitution, article IX, § 2(b)(2) have not been violated by the enactment of these statutes.

We also reject petitioners' argument that the dock fees imposed under ECL 43-0125(2)(a) violate their right to equal protection because the fees apply only to those engaged in recreational boating (the owners of private docks and boats on the Lake) and not to other classes of users (homeowners and visitors to the Lake George Park [hereinafter Park] who do not have boats on the Lake) despite the fact that the other users also benefit directly and indirectly from the protection of the Park's "unique resources". Supreme Court, in dismissing the equal...