Wedinger v. Goldberger

Decision Date18 February 1986
Citation131 Misc.2d 109,499 N.Y.S.2d 600
PartiesIn the Matter of the Application of Robert H. and Beatrice A. WEDINGER, Petitioners, For a Judgment Under Article 78 of the Civil Practice Law and Rules v. Helene G. GOLDBERGER, Assistant Regional Attorney, Department of Environmental Conservation; Wayne Richer, Biologist, Department of Environmental Conservation; Joseph J. Payne, Senior Environmental Analyst, Department of Environmental Conservation; Jeff Rabkin, Senior Environmental Analyst, Department of Environmental Conservation and the Department of Environmental Conservation, Henry G. Williams, Commissioner, Respondents.
CourtNew York Supreme Court

John S. Zachary, P.C., Staten Island, (Laurel A. Wedinger, of counsel), for petitioners.

Robert Abrams, Att. Gen., New York City (Ezra I. Bialik, Asst. Atty. Gen., of counsel), for respondents.

CHARLES A. KUFFNER, Jr., Justice.

This is a special proceeding in which the petitioners seek a judgment pursuant to Article 78 of the CPLR; 1) annulling a cease and desist order issued by the respondent, Department of Environmental Conservation (hereinafter the "DEC"); 2) determining that petitioners' property is not a wetland as defined in Article 24 of the Environmental Conservation Law; 3) preventing the Department of Environmental Conservation from further interference with construction on petitioners' property, or alternatively requiring it to commence condemnation proceedings.

The petitioners are in the process of constructing a home on their property at the corner of Stevenson Place and South Goff Avenue, Staten Island, New York. On October 21, 1985, the DEC sent a letter to petitioners' counsel directing that all activities, including clearing and filling of the property, cease and desist.

The issue before the Court although not directly raised by the parties, is whether the DEC has jurisdiction over petitioners' property. If it does, then it may enforce Article 24 of the Environmental Conservation Law as it pertains to this parcel, by requiring permits to conduct regulated activities (E.C.L. Section 24-0701(2)) by imposing civil penalties and cease and desist orders (E.C.L. Section 71-2303) and by seeking judicial enforcement (E.C.L. Section 71-2305). If not, the Department of Environmental Conservation has no jurisdiction over petitioners' property to enforce the Freshwater Wetlands Act.

A freshwater wetlands is land and water within the state as shown on the freshwater wetlands map (E.C.L. Section 24-0107(1)) (emphasis added). Thus, if the land or water in question is not shown on the freshwater wetlands map, it is not a freshwater wetlands by definition. Non-freshwater wetlands are not regulated by the Act.

What is a freshwater wetlands map? It is a map promulgated by the DEC pursuant to Section 24-0301 on which are indicated the boundaries of any freshwater wetlands (E.C.L. Section 24-0107(2)). An integral part of the promulgation procedure is the filing and availability for public inspection of the boundary maps at the DEC's regional office and in the office of the Clerk of each County in which such wetlands is located (E.C.L. Section 24-0301(6)). These maps shall be made available for public inspection, and the use of the word "shall" as used in subdivision six, is ordinarily mandatory in nature. (People v. Gowasky, 244 N.Y. 451, 466, 155 N.E. 737; People v. Ricken, 29 A.D.2d 192, 287 N.Y.S.2d 118). There is no other qualifying language in the statute indicating some other meaning. (Matter of Mulligan v. Murphy, 19 A.D.2d 218, 223, 241 N.Y.S.2d 529, 534).

Section 24-0301 of the Act contains an elaborate scheme for promulgation of freshwater wetlands maps. The Commissioner of the Department is directed to conduct a study to identify and map freshwater wetlands within the state. Those wetlands he identifies constitute this State's wetlands inventory. Upon completion of the inventory, the Commissioner is directed to prepare a tentative freshwater wetlands map delineating the boundaries of such wetlands as determined by the aforementioned study and inventory. Subdivision 6 requires these boundary maps to be available to the public for inspection and examination at a regional DEC office and in the office of the County Clerk in each county in which an affected wetland is located.

The Court has determined, on its own investigation, that only one such tentative map has been filed in the Office of the Clerk of Richmond County on March 30, 1981. This map (actually, it is one map consisting of several sections, but they were filed together) delineated several wetlands areas throughout Richmond County. No other maps have ever been filed in the Office of the County Clerk of Richmond County. Petitioners' property is not designated as a wetland area on this map. Thus, as of the time of the filing of this tentative map, the subject property was not a freshwater wetland, and any attempt to regulate land not shown on such map is in excess of authority granted by the Act. (People v. Bondi, 104 Misc.2d 627, 429 N.Y.S.2d 146).

The Legislature recognized that changed conditions might necessitate readjustment of the tentative maps (and for that matter, the final maps). Subdivision 6 gives the commissioner the authority to readjust the boundary maps so filed, in order to clarify the boundaries of the wetlands, to correct any error, to effect any additions, deletions, or technical changes on the map and to reflect any natural changes or changes which have occurred as a result of the granting of any permits. However, the power to readjust the maps is not unlimited. The commissioner may not arbitrarily and unilaterally readjust the tentative maps without violating procedural due process rights of property owners.

When this Act is applied to one's property, both the use of the property and its value are in serious jeopardy. The regulated activities are many (E.C.L. Section 24-0701(2)), and include draining, dredging, excavation, removal of soil, mud, sand, shells and gravel; also included are dumping, filling, depositing of soil, stones, sand, gravel, mud, rubbish and the erection of any structures, roads, pilings, obstructions, septic tanks, sewers, and the discharge of any sewage treatment effluent. These activities are so far-ranging in scope that it is safe to assume that any reasonable development or use of the land is precluded in the absence of a permit. If reasonable development is prohibited, the value of the property on the open market is surely impaired.

This Act is a form of zoning regulation. In fact, it requires the commissioner to promulgate land use regulations upon completion of the wetlands map. (E.C.L. Section 24-0903). These regulations must classify each wetland according to their most appropriate uses, and he shall prepare minimum land use regulations to permit only those uses compatible with their wetlands characteristics. These regulations have a potential to deprive one of the use and enjoyment of property unreasonably, and therefore constitutional due process protections must be afforded. (Fred F. French Investing Co., Inc. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381, cert. denied, 429 U.S. 990, 97 S.Ct. 515, 50 L.Ed.2d 602) See also, Seider v. Town of Islip, 56 N.Y.2d 1004 453 N.Y.S.2d 636, 439 N.E.2d 352). Without a permit, the property will be rendered unsuitable for any reasonable income production or other private use for which it is adapted. Thus, the economic value will be destroyed if only a base residue of that valve remains (Fred F. French Investing Co., Inc. v. City of New York, supra 39 N.Y.2d at p. 596, 385 N.Y.S.2d 5, 350 N.E.2d 381 and cases cited therein). Placing the bulk of one's property on a map which respondents have attempted to do, and which results in an inability to sell or deprives the owner of a substantial use of property can constitute a taking without due process of law (Jensen v. City of New York, 42 N.Y.2d 1079, 399 N.Y.S.2d 645, 369 N.E.2d 1179.

This is not to say that the actions of the respondents have already effectuated a deprivation of the reasonable use of petitioners' property at this point in time. In order to have standing to challenge the validity of the ordinance or regulation, petitioners will have to apply for, and be denied, a permit from the DEC. (Pichel v. Wells, 38 A.D.2d 632, 326 N.Y.S.2d 887). This court is not passing on the issue of whether petitioners' property has been "taken" by the state as a result of respondents' actions. The only issue determined by this court is whether the DEC has jurisdiction over the property in light of its failure to afford minimal procedural due process protections afforded by the Environmental Conservation Law.

In addition, this is not to say that the DEC cannot act in furtherance of a legitimate state interest in protecting freshwater wetlands. It cannot act without affording some sort of procedural due process. In this regard, due process means at a minimum, notice and an opportunity to be heard. (Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Bradford Audio Corp. v. Pious, 392 F.2d 67 [2d Cir.]; Bronson v. Consolidated Edison Co. of New York, Inc. 350 F. Supp. 443 (D.C.N.Y.); Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 332 N.E.2d 303; Harris v. Wyman, 42 A.D.2d 27, 344 N.Y.S.2d 410; Oberlander v. Perales, 740 F.2d 116 [2d Cir.] ).

The Legislature, perhaps recognizing that due process problems would arise if the DEC could readjust the maps without affording affected persons an opportunity to be heard, requires a certain procedure before a readjustment of any boundary map may be made. A tentative map is a "boundary map" as contemplated by subdivision six, since a tentative map must set forth the boundaries of designated wetlands (E.C.L. Section 24-0301(3)). This subdivision requires that "... [n]otice of such readjustment shall be given in the same manner as set forth...

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3 cases
  • Wedinger v. Goldberger
    • United States
    • New York Supreme Court — Appellate Division
    • April 20, 1987
    ...the property. The Supreme Court, Richmond County, subsequently issued a decision granting the petition (Matter of Wedinger v. Goldberger, 131 Misc.2d 109, 499 N.Y.S.2d 600). In doing so, the court reasoned that the subject property did not fall within the definition of "freshwater wetlands"......
  • Wedinger v. Goldberger
    • United States
    • New York Court of Appeals Court of Appeals
    • March 22, 1988
  • Bisignano v. Department of Environmental Conservation
    • United States
    • New York Supreme Court
    • July 30, 1986
    ...Judge Kuffner opined that tentative maps may be amended provided the DEC followed the appropriate procedure Matter of Wedinger v. Goldberger, 131 Misc.2d 109, 499 N.Y.S.2d 600. Accordingly, the Court finds that the DEC acted properly in filing the Official Tentative Freshwater Finally, Peti......

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