Waterside Associates v. New York State Dept. of Environmental Conservation

• Decision Date: 27 January 1986
• Parties: In re Application of WATERSIDE ASSOCIATES, Butler Manor Associates, and County Closing Corp., Petitioners, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. New York STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., Respondents.
• Court: New York Supreme Court

Page 716

498 N.Y.S.2d 716

130 Misc.2d 951

In re Application of WATERSIDE ASSOCIATES, Butler Manor Associates, and County Closing Corp., Petitioners for a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. New York STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., Respondents.

Supreme Court, Richmond County Jan. 27, 1986.

Squadron, Ellenoff, Plesent & Lehrer, New York City, for petitioners.

Robert Abrams, Atty. Gen., New York City, for respondents.

CHARLES A. KUFFNER, Jr., Justice.

Petitioners by Article 78 seek to bind Respondent New York State Department of Environmental Conservation (herein, "DEC") to its Freshwater Wetlands designation of certain portions of land by letter of February 2, 1982, to compel the processing of the SPDES application and for other incidental relief.

BACKGROUND

On January 22, 1982, Wohl & O'Mara, licensed land surveyers, sent a survey # 21847, together with a cover letter, (collectively, the O'Mara letter) to Mr. Gordon Colvin, the Regional Permit Administrator of the NYS Department of Environmental Conservation and requested a designation of what portion of this property would be considered a Wetland. (see Environmental Conservation Law § 24-0703(5)). The survey, approximately 17"' x 56"' containing parcels in Block 7744, 7741, 7740, and 7710, shows an enormous parcel of land. Covertly the "O'Mara letter" was captioned Tax Block 7740.

On February 22, 1982, Gordon C. Colvin responded (the Colvin letter) captioning his response; "Irregular parcel of land approximately bounded by Eastwood Ave/Richard Ave/Rariton Bay/Calcutta Street--24305--Travis". However the contents of the "colvin letter" refers to Freshwater Wetlands on one end of the survey (Eastwood Ave., etc.) to Tidal Wetlands on the other end (land seaward of Surf Ave.) The "Colvin letter" is the DEC's response required by Sec. 24-0703(5) of the ECL.

On January 28, 1985 the respondent, in response to an application for a State Pollutant Discharge Elimination System (SPDES) Permit, took the position that the application was incomplete because the Department was mapping freshwater wetlands "at the project site". The respondent's notice of incomplete application locates the project site as "Richard Ave. & Hylan Blvd., Staten Island."

Thus, the issue is crystalized--is DEC precluded from requiring a permit because of the Colvin letter of 2/2/82?

DISCUSSION

I. Ancillary Issues

Sec. 24-0703(5) in relevant part, states:

"Prior to the promulgation of the final freshwater wetlands map in a particular area and the implementation of a freshwater wetlands protection law or ordinance, no person shall conduct, or cause to be conducted, any activity for which a permit is required under section 24-0701 of this article on any freshwater wetland unless he has obtained a permit from the commissioner under this section. Any person may inquire of the department as to whether or not a given parcel of land will be designated a freshwater wetland subject to regulation. The department shall give a definite answer in writing within thirty days of such request as to whether such parcel will or will not be so designated. Provided that, in the event that weather or ground conditions prevent the department from making a determination within thirty days, it may extend such period until a determination can be made. Such answer in the affirmative shall be reviewable pursuant to title eleven of this article; such an answer in the negative shall be a complete defense to the enforcement of this article as to such parcel of land."

Before that issue is addressed a non-issue should be put to rest. The "O'Mara letter" could not and did not mislead Colvin or anyone else at DEC as to exactly what parcel was placed before respondent for Wetland consideration. Therefore, the "Colvin letter" designated what was considered wetlands within the meaning of Sec. 24-0703(5).

Again, before the real issue can be reached another point raised by respondents has to be dealt with, to wit: could the petitioner's parcel, after the Colvin letter, have additional portions designated a wetlands?

If we look at Sec. 24-0301 we learn that the Commissioner may re-adjust the Map (Final Map) by following the procedures set forth in § 24-0301(5). Even though the tentative map has been completed, lo these five years, finalization pursuant to Sec. 24-0301(5) has never taken place. It was only when a SPDES permit application was filed do we get an attempted change in wetlands designation (nearly four years after the initial designation requested).

The tentative map, as a boundry map (ECL § 24-0301(2) ) may be readjusted by the commission of the Department only after considering, among other things, testimony given at a public hearing for which notice has been given (ECL § 24-0301(4), (5), (6)). No such hearing has ever taken place. No authority exists for the DEC to designate any area as a wetland, solely in response to a SPDES permit application, after the filing of the tentative map, without following the proper statutory procedures.

II. Estoppel Against The State

Traditionally, an estoppel could not be invoked against the state in the exercise of its sovereign powers (21 N.Y.Jur., Estoppel § 76). However, exceptions exist which alleviate the hardships created by strict application of the rule. For example, the state may be estopped, as any other individual in a proper case, where it is acting in a proprietary or corporate capacity rather than in a governmental or sovereign capacity (Carney v. Newburgh Park Motors, 84 A.D.2d 599, 444 N.Y.S.2d 220; 21 N.Y.Jur. Estoppel, § 79; Curnen v. New York, 79 N.Y. 511).

This is not to say that the government is acting in a proprietary capacity in the case at bar. Unquestionably, the DEC is acting in a purely governmental capacity when it administers Article 24 of the Environmental Conservation Law, which regulates the uses of certain lands in order to preserve the state's natural freshwater wetlands. (E.C.L. § 24-0103). But exceptions to the general rule do exist in a proper case.

Additionally, a state or municipality cannot be estopped by unauthorized or wrongful acts of its officers or agents. (21 N.Y.Jur., Estoppel, § 81; Ziegler v. New York, 156 Misc. 624, 281 N.Y.S. 462, aff'd 248 App.Div. 873, 291 N.Y.S. 401, aff'd 253 App.Div. 764, 300 N.Y.S. 1152; Town of Guilderland v. Swanson, 41 Misc.2d 398, 245 N.Y.S.2d 696, Mod. 29 A.D.2d 717, 286 N.Y.S.2d 425, aff'd 24 N.Y.2d 872, 301 N.Y.S.2d 622, 249 N.E.2d 467.) But this principle is inapplicable to the case at bar, for the Colvin letter was neither unauthorized or wrongful. In fact, an affirmative duty was imposed upon him to respond to the request made pursuant to § 24-0703(5), and Colvin was, as a Regional Permit Administrator, a person so authorized to respond. Nothing is inherently wrongful in his failure to designate the subject property as a freshwater wetland.

The provisions of § 24-0703(5) are unique. Upon request, the DEC is called upon to make a definite determination as to the designation of specified property as a wetland, as that term is defined in the Statute. The statute doesn't end there. It further states, in clear terms, that a negative answer (i.e. that a certain parcel is not a freshwater wetland subject to regulation) is a complete defense to enforcement of the entire Freshwater Wetlands Act. This Act includes the requirement of obtaining a permit before regulated activities can be conducted (ECL 24-0701(1)). Thus, if the Act cannot be enforced as it applied to the subject property, no DEC permit is required to conduct the activities otherwise regulated. Section 24-0703(5) contemplates that the DEC would conduct a thorough investigation of the affected property, and that in some instances a thorough investigation could not be conducted within thirty (30) days. It permits the DEC to extend the thirty day period under certain circumstances which would effectively prevent a meaningful investigation of the facts and an informed response.

Numerous cases found have repeated the general rule that errors or misstatements made by state or municipal officers do not operate to estop the state or municipality from asserting a contrary position at a future time. (New York v. Wilson & Co., 278 N.Y. 86, 15 N.E.2d 408, reh. den. 278 N.Y. 702, 16 N.E.2d 850; Re Dickens Ave., 238 App.Div. 850, 262 N.Y.S. 817, aff'd 262 N.Y. 699, 188 N.E. 127; New York City Employees Retirement System v. Eliot, 267 N.Y 193, 196 N.C. 23; Intercounty Operating Corp. v. Terry, 181 Misc. 362, 47 N.Y.S.2d 496; New York v. Coney Island Fire Dept., 170 Misc. 787, 10 N.Y.S.2d 164, aff'd 259 App.Div. 286, 18 N.Y.S.2d 923, reh. and app. den. 259 App.Div. 888, 20 N.Y.S.2d 410, aff'd 285 N.Y. 535, 32 N.E.2d 827).

Even Statements made in formal opinions (Delman, Inc. v. Connel, 140 Misc. 675, 252 N.Y.S. 319, aff'd 240 App.Div. 816, 266 N.Y.S. 968) letters (Carillo v. Axelrod, 88 A.D.2d 681, 450 N.Y.S.2d 909) or maps (Decker v. New York, 216 App.Div. 334, 214 N.Y.S. 540 aff'd 245 N.Y. 515, 157 N.E. 839) have not been invoked to estop the government from later asserting a new or differing position. However, none of the reported cases denying an estoppel involve a statute remotely resembling the one before the court. To this extent, the issue is novel and one of apparent first impression. Even those cases which have invoked an estoppel against the government recognize that it may be done only in exceptional or unusual cases, or where a manifest injustice would otherwise result. (Eden v. Board of Trustees of the State Univ. of N.Y., 49 A.D.2d 277, 284, 374 N.Y.S.2d 686, 692; 1555 Boston Road Corp. v. Finance Administrator of the City of New York, 61 A.D.2d 187, 401 N.Y.S.2d 536 (2d Dept.); Prey v. Cattaraugus County, 79 A.D.2d 205, 436 N.Y.S.2d 476.)

The scheme provided by ECL § 24-0703(5) creates such an unusual and unique situation. It creates an express duty upon the DEC...