Save the Pine Bush v. Nys Dept. Envtl. Conserv.

• Decision Date: 06 December 2001
• Docket Number: 88940,3
• Parties: In the Matter of SAVE THE PINE BUSH INC. et al., Appellants, v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents. 88940 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

In the Matter of SAVE THE PINE BUSH INC. et al., Appellants v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents

88940

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: October 17, 2001

Decided and Entered: December 6, 2001

Lewis B. Oliver Jr., Albany, for appellants.

Eliot Spitzer, Attorney-General (Lisa M. Burianek of counsel), Albany, for New York State Department of Environmental Conservation, respondent.

Nixon & Peabody L.L.P. (Ruth E. Leistensnider of counsel), Albany, for City of Albany, respondent.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Mercure, Crew III, Carpinello and Lahtinen, JJ.

Mercure, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), entered October 31, 2000 in Albany County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent Department of Environmental Conservation granting respondent City of Albany a permit to expand a landfill.

In April 1999, respondent City of Albany applied to respondent Department of Environmental Conservation for permission to expand its existing Rapp Road landfill in the City's Pine Bush area, which the Department had previously classified as a principal aquifer. The expansion (hereinafter referred to as the Project) was proposed for a 23-acre parcel located east and southeast of the Albany Interim Landfill and north of the closed Greater Albany Landfill and consists of an immediate 11.5-acre vertical and horizontal expansion of the Greater Albany Landfill (hereinafter Phase One) and a 7.6-acre horizontal expansion scheduled to commence in 2005 (hereinafter Phase Two). Because current regulations prohibit the construction or expansion of a landfill over a principal aquifer (see, 6 NYCRR 360-2.12 [c] [1] [i]), the City's application included a request for a variance from the regulatory siting restrictions (see, 6 NYCRR 360-1.7 [c]).

Following the completion of environmental studies and public hearings on the proposal, the City revised its application and prepared a third supplemental final environmental impact statement addressing issues raised during the public comment period. The Department accepted the revised application and on February 29, 2000 issued a findings statement pursuant to the State Environmental Quality Review Act (ECL art 8), which concluded that "the standards for granting a variance found in [6 NYCRR 360-1.7 (c)] have been met" with regard to the "variance request to construct the expansion area over a principal aquifer", and granted the permit. A month later, the City authorized commencement of the Project. The site was cleared by mid-April and principal construction commenced shortly thereafter.

On June 29, 2000, petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action to annul the Department's determination, primarily contending that the Department had no authority to grant the variance. Specifically, petitioners argued that because 6 NYCRR 360-2.12 (c) (1) (ii) contains its own variance procedure that expressly prohibits the operation of a landfill over a principal aquifer after December 31, 1995, the Department improperly employed the general variance provision of 6 NYCRR 360-1.7 (c), which cannot be utilized if a variance is "otherwise precluded by law".

Supreme Court concluded that, in view of the fact that Phase One had been more than half completed at a cost of approximately $8,300,000, petitioners' challenge to that phase of the Project was barred by the doctrine of laches. The court further concluded, however, that the doctrine of laches would not preclude a challenge to Phase Two because its level of completion was at that time insufficient to prejudice the City. Addressing the merits of the petition regarding Phase Two, Supreme Court determined that although 6 NYCRR 360-2.12 (c) (1) (ii) appeared on its face to preclude any landfill siting over a principal aquifer after December 31, 1995, the regulation could not be read in a vacuum and must be harmonized with the entire regulatory scheme for landfill siting. Relying upon the affidavit of Robert Phaneuf, the Department's environmental engineer who drafted the landfill siting regulations, Supreme Court determined that the variance procedure contained in 6 NYCRR 360-1.7 (c) is available for any siting restriction contained within 6 NYCRR part 360. Accordingly, the court held that petitioners' argument was lacking in merit and dismissed the petition. Petitioners appeal.

In our view, there is merit to the contention that the instant proceeding is barred by laches and that the appeal should be dismissed as moot. As a threshold matter, we reject petitioners' argument that, because neither of the respondents cross-appealed from Supreme Court's judgment, this Court lacks jurisdiction to consider the issue of laches as it relates to any aspect of the Project other than Phase One, on which respondents obtained a favorable ruling in Supreme Court. To the contrary, the established rule is that "the successful party, who is not aggrieved by the judgment or order appealed from and who, therefore, has no right to bring an appeal, is entitled to raise an error made below, for review by the appellate court, as long as that error has been properly preserved and would, if corrected, support a judgment in [its] favor" (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546; see, Town of Massena v Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488; Matter of Nieves v Martinez, 285 A.D.2d 410; Panetta v Tonetti, 182 A.D.2d 977, 978, lv denied 80 N.Y.2d 756).

Respondents may therefore assert as an alternative ground for affirmance of Supreme Court's judgment that petitioners' delay in bringing the proceeding, prosecuting it to judgment and perfecting the present appeal constitutes laches and that the resulting prejudice to respondents warrants dismissal of the petition with respect to the entire Project. Our inquiry will therefore not be limited to post-permit expenditures directly relating to either Phase One or Phase Two but may include other expenditures, such as costs of remediation, that relate to the Project as a whole.

Now turning to the merits of the laches claim, "[i]t is well settled that where neglect in promptly asserting a claim for relief causes prejudice to one's adversary, such neglect operates as a bar to a remedy and is a basis for asserting the defense of laches" (Matter of Stockdale v...