Sutherland v. Glennon

• Decision Date: 30 November 1995
• Citation: 221 A.D.2d 893,634 N.Y.S.2d 259
• Parties: In the Matter of David SUTHERLAND et al., Petitioners, v. Robert C. GLENNON, as Executive Director of the Adirondack Park Agency, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 259

634 N.Y.S.2d 259

221 A.D.2d 893

In the Matter of David SUTHERLAND et al., Petitioners, v. Robert C. GLENNON, as Executive Director of the Adirondack Park Agency, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 30, 1995.

Lustberg & Ferretti (Joan M. Ferretti, of counsel), Glens Falls, for petitioners.

Dennis C. Vacco, Attorney-General (Kathleen Liston Morrison, of counsel), Albany, for respondents.

Before CARDONA, P.J., and MIKOLL, CASEY, YESAWICH and PETERS, JJ.

CARDONA, Presiding Justice.

Combined proceeding pursuant to CPLR article 78 and action for declaratory judgment (transferred to this court by order of the Supreme Court, entered in Hamilton County) to, inter alia, review a determination of respondent Adirondack Park Agency which found that petitioners illegally filled certain wetlands.

In 1992, petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action challenging a determination of respondent Adirondack Park Agency (hereinafter APA) that petitioners had illegally filled wetlands. The matter has previously been before this court on an appeal from a portion of an order by Supreme Court denying a motion to compel disclosure. We dismissed the appeal on the ground that the appeal was from an intermediate order (209 AD2d 898). Thereafter, Supreme Court transferred the case to this court pursuant to CPLR 7804(g).

Before we reach the merits of petitioners' arguments, we must first resolve certain procedural issues. Petitioners do not challenge the constitutionality of any statutes or regulations (see, Dimiero v. Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 A.D.2d 875, 606 N.Y.S.2d 92, lv. denied 83 N.Y.2d 756, 613 N.Y.S.2d 128, 635 N.E.2d 297); rather, their petition claims only that the APA violated certain governing laws and the relief sought is annulment of the APA's determination (see, Matter of Russo v. Jorling, 214 A.D.2d 863, 625 N.Y.S.2d 690, lv. denied 86 N.Y.2d 705, 632 N.Y.S.2d 498, 656 N.E.2d 597). Thus, the declaratory judgment portion of this hybrid case should have been converted to a CPLR article 78 proceeding (see, id.). Supreme Court did not specifically make that conversion in its order although its decision appears to implicitly reach this conclusion.

We next turn to respondents' procedural argument that the proper standard of review is not whether the determination was supported by substantial evidence (CPLR 7803[4], but whether it was arbitrary and capricious (CPLR 7803[3]. If the latter standard applies, the matter should not have been transferred to this court (see, Matter of Hudson Riv. Fisherman's Assn. v. Williams, 139 A.D.2d 234, 531 N.Y.S.2d 379). The arbitrary and capricious standard governs where agency action is taken without a hearing or where the hearing is discretionary or informational in nature (see, id.). Here however, insofar as the determination under review was the result of a formal adjudicatory hearing required by regulation upon petitioners' request (see, 9 NYCRR 581.5[b] ), the appropriate standard of review is whether the determination was supported by substantial evidence (see, Matter of Bevacqua v. Sobol, 176 A.D.2d 1, 579 N.Y.S.2d 243). Thus, the transfer was appropriate.

Turning to the merits, the APA's determination was based on its finding that petitioners had violated the terms of a subdivision permit issued in November 1987 as well as certain freshwater wetland regulations (see, 9 NYCRR 578.2[a]; 578.3[n][1][iii]. Although the permit delineated six lots, only lot No. 5 is at issue.

It is undisputed that petitioners placed gravel in four areas on lot No. 5: (1) in an area adjacent to the residence located on a 3.5-acre portion of the lot, (2) on a causeway running between the 3.5-acre portion and a five-acre "island" on the lot, the latter of which is bounded by a lake on the north and east and by a nine-acre marsh on the south and west, (3) on a road transversing the "island", and (4) in an area at the eastern end of the "island". According to the APA's determination, the four areas that were filled were wetlands. Petitioners contend, however, that, according to the APA's permit, the four areas were not wetlands and they, therefore, did not engage in a regulated activity. We agree and, accordingly, annul the determination.

The express findings of fact contained in the APA's permit establish that the four areas filled by petitioners were indeed not wetlands. In pertinent part, the permit required that:

8. Any regulated activity as defined by [9 NYCRR] 578.3(n) * * * in or adversely affecting the wetlands described in Finding of Fact No. 11 shall require prior [APA] review and approval. In simpler language, any future land use and development involving these wetlands, such as * * * filling * * * will require a permit from [the APA] * * * (emphasis supplied).

* * *

Findings of Fact:

* * *

4. * * * Lot 5 has 3.5 acres of upland surrounding the existing single family dwelling [located on it], approximately 9 acres of wetland located inside the mean high water marks of [a brook and lake] and a 5 [plus or minus] acre "island" located within the wetland area (emphasis supplied).

* * *

11. The 9 [plus or minus] acre wetland on Lot 5 referred to in Finding of Fact No. 4 is an emergent marsh. There are also fringe wetlands located along the northerly portions of Lots 1 through 5 * * * which are also emergent marshes.

It is undisputed that petitioners did not place fill in the nine acres of wetland...