Schwartz v. Hudacs
| Decision Date | 13 November 1990 |
| Citation | 149 Misc.2d 1024,566 N.Y.S.2d 435 |
| Parties | Ruth SCHWARTZ, Petitioner, v. John F. HUDACS, as Commissioner of the Office of General Services, Respondent. |
| Court | New York Supreme Court |
Robert Abrams, Atty. Gen. (Craig A. Slater, of counsel), New York State Dept. of Law, for respondent.
Petitioner is the owner of property on the east shore of Canandaigua Lake known as the "Thendara" property. By an Article 78 petition sworn to August 8, 1990, she seeks to challenge an April 27, 1990 letter Decision by the Office of General Services (OGS), of which respondent is Commissioner. Respondent has filed a motion containing several objections, seeking to have the petition dismissed. For the reasons set forth below, respondent's application is denied in most respects, and respondent is directed to file the record in this matter and his answer.
The Thendara property consists of approximately 30 acres of commercially and residentially zoned land, containing a restaurant and inn, which are owned and operated by petitioner's son and daughter-in-law Richard and Joy Schwartz. When the property was acquired in 1988, the property contained floating docks, which the Schwartzes decided to replace and expand.
On August 11, 1989, Richard Schwartz contacted Richard K. Matters of OGS, and was allegedly told that Mr. Matters would forward an OGS application for an easement for the docks so that piles could be driven into the lands underlying Canandaigua Lake. Mr. Matters allegedly told Mr. Schwartz to keep the application on file until the construction of the docks was completed. The construction of the docks was begun thereafter.
According to respondent, the construction of the docks was contemporaneous with the construction of over 50 one-family houses on the upland portion of the Thendara property. However, Mr. Schwartz states that the decision to construct and expand Thendara's docks was independent of the decision to develop the upland property, and that the docks were intended as an appurtenance to the restaurant.
By letter dated September 7, 1989, OGS attorney Thomas A. Pohl wrote to the former owners of the Thendara property, notifying them that OGS considered the construction of the docks to be unauthorized under the Public Lands Law and a violation of the State Environmental Quality Review Act (SEQRA). The recipient of the letter gave it to Mr. Schwartz. On September 22, 1989, the State served the Schwartzes with a temporary restraining order (TRO) halting the construction of the docks, and a complaint sounding in trespass and nuisance. On September 29, 1989, petitioner filed a notice of intention to apply for an OGS easement over the lands under Canandaigua Lake.
On October 10, 1989, this Court held a hearing on the State's application for a preliminary injunction in the trespass action. On October 13, 1989, this Court issued an oral decision lifting the TRO and permitting the completion of the docks, to preserve the Schwartzes' investment in the docks to that date. However, the decision forbade the use of the docks except for emergencies, and required the posting of a $250,000 bond to cover the cost of possible removal or modification of the docks, if petitioner's easement application was not granted. On October 15, 1989, petitioner filed a "Form of Petition Pursuant to the Provisions of Section 3, Subdivision 2 of the Public Lands Law", seeking an easement for a 70-slip open-member dock system running along the 800 foot shoreline of the Thendara property.
On January 10, 1990, OGS conducted a public hearing on petitioner's application at the Community College of the Finger Lakes in Canandaigua. Respondent's memorandum of law describes the hearing as a public informational hearing under 9 NYCRR Section 270.10. Respondent's representatives advised the attendees that the record would be held open for 30 days thereafter, for additional submittals. Six days after the expiration of this 30-day period, the attorneys for the East Shore Association of Canandaigua, Inc. were permitted to submit materials in opposition to petitioner's application. Although respondent argues that petitioner's former attorney made no objection to the late submissions, petitioner's former attorney submits an affidavit indicating he had no say in the matter.
On April 3, 1990, a meeting was held in Albany, attended by petitioner's former attorney, the attorney for the East Shore Association, and OGS attorneys and staff. In an apparent attempt to mediate the disagreement between petitioner and the East Shore Association, an OGS attorney suggested construction of a configuration with a "finger pier", which would allow space for 44 boats. The attempt to mediate was unsuccessful.
On April 23, 1990, respondent issued a negative declaration for the project under SEQRA, determining among other things that the requested 70 slips might reduce the enjoyment of Canandaigua Lake by petitioner's neighbors. By letter dated April 27, 1990, OGS allowed petitioner to construct only 44 of the requested 70 slips and imposed conditions, including restricting the use of the easement to transient customers of the restaurant only. On May 18, 1990, petitioner accepted the terms of the easement, without prejudice to her rights and legal remedies.
Petitioner then commenced this Article 78 proceeding, arguing that respondent's decision was arbitrary and capricious in several respects. She claims that no other commercial enterprise on Canandaigua Lake has either been subject to a temporary restraining order or required to go through the hearing process that she went through. She claims that respondent violated due process by accepting late materials from the project's opponents and by "attempting to condition the granting of an easement on the forfeiture of [petitioner's] right to seek judicial review". She also claims that there is no support in the record for the decision to allow only 44 docks and to impose other conditions on the easement.
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In the accompanying motion to dismiss, respondent argued that the petition is insufficient on its face, in seven respects:
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(b) No claimed due process violations can be sustained, as a matter of law, for administrative proceedings;
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Respondent's objections will be addressed in the order in which they were raised.
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Respondent next argues that no claimed due process violations can be sustained, as a matter of law, for administrative proceedings in which he has absolute discretion. He does not appear to be arguing that the due process clause does not apply to his administrative agency; instead, his argument appears to be that (because of his broad administrative discretion) petitioner has no recognized property interest to which due process protections would attach. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Respondent is correct to the extent that petitioner has no "property interest" in the outright grant of an OGS easement which would be protected by the due process clause. The test for such a property interest focuses primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case. Even if, in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the agency to deny issuance suffices to defeat the existence of a constitutionally protected property interest. RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 918 (2nd Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 240, 107 L.Ed.2d 191 (1989); Dean Tarry Corp. v. Friedlander, 826 F.2d 210, 213 (2nd Cir.1987). Given respondent's broad discretion here, petitioner has no protected "property interest" in the actual grant of an easement.
However, as respondent admits, petitioner does have certain riparian rights, including the right of access to navigable waters. As a riparian owner, petitioner has the right of access to the navigable portion of the lake "for navigation, fishing and such other uses as commonly belong to riparian ownership, the right to make a landing wharf or pier for [her] own use or for that of the public, with the right of passage to and from the same with reasonable safety and convenience." Saunders v. New York Central & Hudson River R. Co., 144 N.Y. 75, 87-88, 38 N.E. 992 (1894); see also Town of Brookhaven v. Smith, 188 N.Y. 74, 82, 80 N.E. 665 (1907); Rumsey v. New York & New England R. Co., 133 N.Y. 79, 88, 30 N.E. 654 (1892), app. dismissed, 163 U.S. 698, 16 S.Ct. 1204, 41 L.Ed. 306 (1896); Huguenot Yacht Club v. Lion, 43 Misc.2d 141, 147, 250 N.Y.S.2d 548 (S.Ct., Westchester Co., 1964). Public Lands Law section 75, subdivision 9 provides that rights such as these cannot be taken away, impaired, or impeded without due process.
Respondent argues that a restaurant is not a protected riparian use, citing Matter of City of New York (Neptune & Emmons Avenues), 280 N.Y. 604, 20 N.E.2d 557 (1939), and Town of Hempstead v. Oceanside Yacht Harbor, Inc., 38 A.D.2d 263, 265, 328 N.Y.S.2d 894 (2nd Dept.1972), aff'd, 32 N.Y.2d 859, 346 N.Y.S.2d 529, 299 N.E.2d 895 (1973). However, it is clear that those cases only refer to restaurants (and similar structures unrelated...
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