Citation Numbers: 154 Misc. 2d 424
Judges: Hillery
Filed Date: 4/24/1992
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Petitioner commenced this CPLR article 78 proceeding to declare the nullity of a cease and desist directive dated June 20, 1991 and to enjoin the New York State Department of Environmental Conservation (DEC) from enforcing the Fresh
Petitioner purchased the subject 68-acre parcel in the Town of Red Hook, Dutchess County, in 1986 for the purpose of subdividing and developing the property. At the time of the purchase, a portion of the property designated "CM-24” was included on a tentative wetland map prepared by respondent. Thereafter, petitioner requested a representative of respondent to determine whether any of petitioner’s land was wetland and, if so, to delineate those areas so that petitioner could plan the development of its property. DEC Senior Wildlife Biologist Joseph Steeley inspected petitioner’s land and determined that there were no wetlands on the premises and the property was not subject to regulation under the provisions of ECL article 24. This determination was embodied in a letter dated May 8, 1987 from Mr. Steeley to petitioner. The final Dutchess County wetlands map was filed on July 15, 1987 with the parcel designated CM-24 deleted.
Thereafter, petitioner proceeded to seek subdivision approval in October of 1987 and commenced work on the parcel to subdivide the property as well as road construction and drainage improvements. During the subdivision approval process, petitioner’s engineer received written confirmation that CM-24 did not appear on the final wetlands map. By September 1990, petitioner had substantially completed the improvements necessary to market the subdivision.
On January 29, 1991, respondent notified petitioner by letter that its property may be affected by proposed amendments to the final wetlands map for Dutchess County. That change sought to reestablish CM-24 which includes parts of two building lots included in petitioner’s subdivision. Petitioner was further notified that 6 NYCRR 664.7 (a) (7) (i) might apply which would prohibit activity on the site within the affected areas.
Petitioner claims that as a result of the action of the respondent DEC he will suffer economic loss of use of two parcels. Petitioner contends that pursuant to ECL 24-0703 (5) it can proceed since the DEC informed petitioner there were
Respondent moves to dismiss the petition upon the grounds that it fails to state a cause of action since article 24 gives the DEC power to amend final wetlands maps and to enforce the Freshwater Wetlands Act with respect to property. Respondent also contends that the petition is premature since the DEC has not adopted the amendments to the wetlands maps and petitioner has not applied for a freshwater wetlands permit in order to develop the affected property. Respondents also take the position that the motion for summary judgment by petitioner is premature since the respondents have not answered the petition and have merely moved to dismiss. Respondents allege that their notice to petitioner of the map amendment proceeding constituted a repudiation of its ECL 24-0703 (5) letter and that petitioner is time barred since more than four months has passed since the issuance of that repudiation letter. Lastly, it is argued by respondent that the map amendment proceeding has not yet been completed and any challenge at this time is premature and must be dismissed for failure to exhaust administrative remedies and further argue that petitioner has failed to prove that he has undertaken substantial construction and made substantial expenditures to vest his rights prior to the assertion of jurisdiction. Respondent contends that pursuant to ECL 24-0703 (5) the Commissioner may readjust the wetlands maps to clarify the boundaries of the wetlands, to correct any errors on the map, to effect any additions, deletions or technical changes on the map, and to reflect changes that have occurred as a result of the granting of permits or natural changes which may have occurred through erosion, accretion, or otherwise. Respondent urges the court to interpret ECL 24-0703 (5) to mean that a "negative declaration” is only effective as long as the letter is outstanding and has not been recalled by the DEC.
Petitioners contend that this action was commenced within a four-month period as provided by statute and sets forth the applicable time periods in its notice of cross motion to dismiss affirmative defenses and for summary judgment.
Petitioner relies for relief on ECL 24-0703 (5) which provides, in pertinent part, that prior to the promulgation of final freshwater wetlands maps, activity may not be conducted in that area without a permit, that any person may inquire of