Town of Poughkeepsie v. Flacke

• Decision Date: 28 December 1981
• Citation: 445 N.Y.S.2d 233,84 A.D.2d 1
• Parties: In the Matter of the TOWN OF POUGHKEEPSIE, Appellant, v. Robert F. FLACKE, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 233

445 N.Y.S.2d 233

84 A.D.2d 1

In the Matter of the TOWN OF POUGHKEEPSIE, Appellant, v. Robert F. FLACKE, as Commissioner of the New York State Department of Environmental Conservation, et al Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 28, 1981.

David D. Hagstrom, Poughkeepsie (Anthony DeRosa, Poughkeepsie, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Kathleen Liston Morrison, James A. Sevinsky and Shirley Adelson Siegel, Albany, of counsel), for respondent Commissioner.

Before HOPKINS, J. P., and RABIN, COHALAN and O'CONNOR, JJ.

COHALAN, Justice.

This appeal is from a judgment of the Supreme Court, Dutchess County, 105 Misc.2d 149, 431 N.Y.S.2d 951, that dismissed the petition in a CPLR article 78 proceeding. The proceeding was brought on the petition of the Town of Poughkeepsie (Town) to annul the determination of the Commissioner of the State Department of Environmental Conservation (DEC) which authorized the operation of a solid waste management facility (landfill) by Dutchess Sanitation Service, Inc. (Dutchess), in a residential portion of the Town, subject to numerous conditions.

The issues to be resolved on this appeal are:

(1) The jurisdiction of the State Environmental Quality Review Act; and,

(2) To what extent and when it may be exercised with respect to the factual circumstances of this case.

The current Environmental Conservation Law (ECL) was enacted by section 2 of chapter 664 of the Laws of 1972, effective September 1, 1972. In large part it is comprised of the former Environmental Conservation Law and also includes certain portions of the Agriculture and Markets Law, The Conservation Law, the Executive Law, the Public Health Law, and certain Unconsolidated Laws.

By section 1 of chapter 612 of the Laws of 1975, effective September 1, 1976, a new article 8 came into being entitled (State) Environmental Quality Review (Act) whose acronym is SEQRA. As stated in section 8-0101 of the article:

"It is the purpose of this act to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state."

In section 8-0103 (subd. 6, as amd. L.1977, ch. 252, § 1) entitled Legislative findings and declaration, we find that:

"It is the intent of the legislature that to the fullest extent possible the policies, statutes, regulations, and ordinances of the state and its political subdivisions should be interpreted and administered in accordance with the policies set forth in this article. However, the provisions of this article do not change the jurisdiction between or among state agencies and public corporations." (Emphasis added.)

Pursuant to the provisions of the ECL, Dutchess filed an application with DEC to carry out specific operations on its real property within the Town; among other items a sanitary landfill. Dutchess owns approximately 64 acres of land in the Town. On about 10 of the acres it operates a baling facility for waste paper products. This operation is a nonconforming use of 20 years' duration, by virtue of which Dutchess is permitted to conduct a "business consisting of the collection of garbage, commercial and residential", on the site.

The chronology indicates that the Town adopted an overall zoning ordinance on February 20, 1974; and that Dutchess, according to the Town, has illegally operated a landfill at the site since 1977.

A public hearing on Dutchess' application was held before an Administrative Law Judge (ALJ). Due notice of the hearing was advertised and the hearing itself was conducted. It terminated on March 4, 1980.

As a part of its proof, Dutchess prepared a draft environmental impact statement (DEIS) which was accepted as sufficient for hearing purposes. In his decision accepting the hearing report of the ALJ, (which included 11 conditions satisfactory to the parties) the respondent Commissioner noted in part that:--

"The Hearing Report in this case reveals that environmental impacts have been adequately addressed and that in exercising this Department's jurisdiction over the instant permit applications the findings under 6 NYCRR § 617.9(c) can be made in the affirmative. In this regard, the Hearing Report, together with the draft EIS constitutes the final EIS.

Accordingly, consistent with 6 NYCRR § 617.9(a) this Decision will be effective 15 days from the date of service of this Decision whereupon the Department staff is directed to issue the relevant permits approved herein consistent with the recommendations of the Hearing Report." (Emphasis added.)

At the time he issued his decision, the Commissioner was aware that the property was in a residential district and that Dutchess was involved in litigation with the Town concerning the valid use of the property.

The main thrust of the Town's appeal is that the DEC is barred as a matter of law from acting until Dutchess has proved its compliance with all applicable laws, including the zoning ordinance. As a corollary, states the Town, the Commissioner as head of the "lead agency" ¹, may not, in violation of section 8-0109 (subd. 8) of the Environmental Conservation Law issue any permits until the Town suit is determined. That subdivision reads:

"When an agency decides to carry out or approve an action which has been the subject of an environmental impact statement, it shall make an explicit finding that the requirements of this section have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or...