Wedinger v. Goldberger
| Decision Date | 22 March 1988 |
| Parties | , 522 N.E.2d 25, 28 ERC 1020, 18 Envtl. L. Rep. 21,068 In the Matter of Robert H. WEDINGER, et al., Appellants, v. Helene G. GOLDBERGER, et al., Respondents. In the Matter of DORA HOMES, INC., et al., Appellants, v. Cyril M. MOORE, Jr., et al., Respondents. MARINE EQUITIES COMPANY, Petitioner, v. Henry G. WILLIAMS, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents, and Palmieri Brothers, Inc., Appellant. CHESED AVRHOM HACOHN FOUNDATION, Petitioner, v. Henry G. WILLIAMS, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents, and F.D.M.B., Inc., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
These cases pit the property interests of several individuals and corporations against the New York State Department of Environmental Conservation's (DEC) efforts, under legislative mandate, to preserve freshwater wetlands on Staten Island. The battles have raged in the courts and in the legislative corridors for years and have culminated in these four proceedings with appeals in this court and in recent remedial legislation (L.1987, ch. 408).
The common and decisive issue, among several raised by appellants, is whether DEC's failure to designate their Bloeser's Pond properties on a tentative map prepared in 1981 exempts the properties from DEC jurisdiction and regulation. Subsequent tentative and final mappings in 1986 and 1987 included the properties. We agree with the Appellate Division and affirm that court's orders. DEC has continuing jurisdiction under the "Freshwater Wetlands Act" to identify and to map potential freshwater wetlands at least up to and including the promulgation of a final map.
The "Freshwater Wetlands Act" (ECL art. 24) was enacted in 1975 "to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands, and to regulate use and development of such wetlands" (ECL 24-0103). To accomplish this desirable goal, the Act assigns the Commissioner of DEC the formidable task, "as soon as practicable", to study and to map parcels of wetlands throughout the State having an area of at least 12.4 acres or areas measuring less than 12.4 acres deemed of "unusual local importance" (ECL 24-0301[1] ). DEC is responsible for regulating the use of designated wetlands, and ECL 24-0701 prohibits landowners from engaging in certain activities on the designated properties unless a permit is obtained from DEC.
As stages of its review progress and are completed in a particular area, the DEC is directed to prepare tentative maps, detailing the boundaries of the areas determined up to that point in time to be freshwater wetlands (ECL 24-0301[2] ). Pending completion of the mapping process, interim permits are available for parcels tentatively designated as wetland (ECL 24-0703[5]; 6 NYCRR part 662). Any landowner who is unaware of a particular parcel's status may make a written inquiry to DEC, and the agency is required to respond, in writing, within 30 days (ECL 24-0703[5] ).
Prior to promulgation of a final map, DEC is required to give the community and affected landowners specific notice and opportunity to be heard (ECL 24-0301[4] ). Once promulgated, a final map may even be amended by the Commissioner to correct any deficiencies and to effect any additions, deletions or technical changes on the map. Prior to amending a final map, however, the Commissioner must first provide to each owner of record further notice and opportunity to be heard (ECL 24-0301[6]; see also, 6 NYCRR part 664).
In 1981, DEC prepared a tentative map for Richmond County designating approximately 700 acres as freshwater wetlands. Although the statute does not require DEC to do so, the tentative map was filed with the Richmond County Clerk's office. Shortly afterwards, a public hearing was held (ECL 24-0301[4] ). Based upon public comment and upon continued investigation of the area, DEC determined that it had not designated, on that first map, several hundred additional acres which qualified under the statute. As a result, in 1986, DEC issued a second tentative map which almost doubled, to 1,300 acres, the designated freshwater wetland properties on Staten Island. In July 1986, another public hearing was held relating to the revised tentative map. In September 1987 a final map was promulgated.
The properties of appellants in these four cases were not designated on the 1981 tentative map, but they were on the 1986 tentative map and the 1987 final map. Indeed, the appellants in these four proceedings purchased interests in parcels of land located in the Bloeser's Pond area of Richmond County only in 1984, when none of the subject parcels were as yet on any wetlands map.
In 1985, DEC began its study of the Bloeser's Pond area as a possible freshwater wetland. Initially, DEC was considering designating the site as an area of "unusual local importance", the alternative predicate under the statute. It was later discovered, however, that the site contained 14.6 acres of wetlands and could therefore qualify on aggregate acreage as a wetland, without invoking the "unusual local importance" standard.
While conducting its investigation for designation purposes, DEC discovered that the appellants were beginning to develop their newly purchased lands in an apparent effort to anticipate and avoid any subsequent wetlands designation. DEC formally notified the appellants by letter that their lands were tentatively identified as freshwater wetlands, and that if they wanted to continue development they had to apply first for a permit from DEC pursuant to ECL 24-0703(5) (see also, 6 NYCRR part 662). The properties were still not on any wetlands map.
Rather than seeking the interim permits from DEC, appellants challenged, in article 78 proceedings, DEC's attempt to regulate their properties. The appellants alleged that they had expended substantial money in preparing to build on their properties and that DEC had failed to give them any prior notice that their parcels constituted wetlands. They also claimed that DEC's "interim designations" of the property as wetlands were arbitrary and capricious and constituted a deprivation of property without just compensation and without notice.
Supreme Court, Richmond County, granted the petitions solely on the ground asserted, sua sponte, by the trial court that DEC lacked "jurisdiction" over the subject properties. The Appellate Division unanimously reversed all four cases and dismissed the petitions. 131 Misc.2d 109, 499 N.Y.S.2d 600; 129 A.D.2d 704, 514 N.Y.S.2d 653; 129 A.D.2d 685, 514 N.Y.S.2d 653; 129 A.D.2d 670, 514 N.Y.S.2d 652. It correctly upheld the DEC's jurisdiction and actions in every respect ( see, Matter of Wedinger v. Goldberger, 129 A.D.2d 712, 514 N.Y.S.2d 474).
We turn first to jurisdiction. The trial court erred in concluding that DEC had no jurisdiction over the subject properties. It alluded to the definition in ECL 24-0107(1) defining a freshwater wetland, in part, as "lands and water of the state as shown on the freshwater wetlands map". Then it reasoned that since appellants' properties did not appear on the 1981 tentative map, the properties fell outside the statutory definition of a wetland and outside of DEC regulation under the Act.
The definition may not be interpreted so slenderly, for we would then be ignoring other relevant and integrated portions of the statutory scheme and the plain purpose of the "Freshwater Wetlands Act". For example, ECL 24-0703(5) provides: (emphasis added).
This provision would be rendered meaningless if DEC lacked jurisdiction to regulate wetlands during the entire evolving period up to and including final mapping. The effective date of the legislation (L.1975, ch. 614, eff. Sept. 1, 1975) and the promulgation of a final map is the critical span of jurisdictional life we must examine for purposes of deciding these cases. The mere fact that a particular property was not placed on a tentative map is not decisive and certainly does not deprive the DEC of legislatively...
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