To Be Argued By:
FRANK A. ISLER, ESQ.
Time Requested: 30 Minutes
Court of Appeals
STATE OF NEW YORK
REPLY BRIEF FOR APPELLANTS
THE ASSOCIATION FOR A BETTER LONG ISLAND, INC.,
JAN BURMAN and M-GBC, LLC,
Petitioners,
-against-
THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
and JOSEPH MARTENS, Acting Commissioner,
Respondents.
________________________________
THE TOWN OF RIVERHEAD and THE TOWN OF
RIVERHEAD COMMUNITY DEVELOPMENT AGENCY,
Appellants,
-against-
THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
and JOSEPH MARTENS, as COMMISSIONER OF
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
Respondents.
SMITH, FINKELSTEIN, LUNDBERG,
ISLER & YAKABOSKI, LLP
Attorneys for Appellants
The Town of Riverhead and The Town
of Riverhead Community Development Agency
456 Griffing Avenue
Riverhead, New York 11901
Phone No. (631) 727-4100
Fax No. (631)727-4130
Brief Completed on: June 17, 2013
Of Counsel:
FRANK A. ISLER, ESQ.
JEAN K. DELISLE, ESQ.
Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601
Printed on Recycled Paper 19970
,COURT OF APPEALS
STATE OF NEW YORK
-----------------------------------------------------------------------------}(
The Association for a Better Long Island, Inc.,
Jan Burman and M-GBC, LLC,
Petitioners,
-against-
The New York State Department of Environmental Conservation,
and Joseph Martens, Acting Commissioner,
Respondents.
--------------------------------------------------------------------------}(
The Town of Riverhead
and The Town of Riverhead Community Development Agency,
Appellants,
-against-
The New York State Department of Environmental Conservation,
and Joseph Martens, as Commissioner of New York State Department
of Environmental Conservation,
Respondents.
--------------~--------------------------------------------------------------}(
TABLE OF CONTENTS
PAGE
Statement ........................................................................................................................ 1
Point I
The Respondents Erroneously put the Burden of Proof
on the appellants to Show that the NYSDEC's Violations
of the Requirements ofECL § 3-030 1 (2)(a) and SAPA § 202
Would have made a Difference ................................................................................. 1
Point II
The Town has Standing and, its Procedural and
Substantive Claims are Ripe for Review .................................................................. 5
Point III
The Town would have Standing Under the Respondents'
Proposed New Federal Standard ............................................................................. 10
Conclusion ...................................................................................................................... 12
TABLE OF AUTHORITIES
PAGE
Cases
Amazon.com LLC v. New York State Dept. of Taxation and Finance,
81 A.D.3d 183, 203 ................................................................................................ 9
Citizens for Better Forestry v. U.S. Dep't of Agriculture,
341 F.3d 961, 970-971 ......................................................................................... 11
Community Housing Improvement Program, Inc. v. New York State Division
of Housing and Community Renewal, 175 A.D.2d 905, 907 ................................ 9
E. Thirteenth St. Cmty. Ass'n v. New York State Urban Dev. Corp.
(84 N.Y.2d 287) .................................................................................................... 7
Environmental Protection Agency, 549 U.S. 497, 517-518,
and Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 .................................. 10-11
Har Enterprises v. Brookhaven, 74 N.Y.2d 524,529 ........................................... 6, 7
Klostermann v. Cuomo, 61 N.Y.2d 525, 538 ............................................................ 9
Massachusetts v. Environmental Protection Agency,
549 U.S. 497, 517-518 ................................................................................... 10, 11
Matter of Oil Heat Institute v. Public Service Com., 90 A.D.2d 942,943 ............... 3
Matter of Mobil Oil v. Syracuse Dev. Agency (76 N.Y.2d 428) .............................. 7
Matter of New York State Superfund Coalition v. New York State DEC
(18 N.Y.3d 289) .................................................................................................... 9
Orbach v. New York State Urban Development Corp., 110 Misc. 2d 720, 723 ....... 3
People ex reI Lockyer v.United States Department of Agriculture,
259 F. Supp.2d 874,883 ...................................................................................... 11
Riccelli Enterprises, Inc. v.New York State Department of Environmental
Conservation, 30 Misc.3d 573, 576 ....................................................................... 9
11
Siegalv. New York State Div. ofHous. andComm. Renewal,
143 A.D.2d 430, 433 .............................................................................................. 3
Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94-95,
citing Defenders of Wildlife v. Lujan, 504 U.S. 555, 573 n.7 ............................ 2-3
WEOK Broadcasting Corp. v. Planning Bd. of Lloyd, 79 N.Y.2d 373,380 ............ 8
REGULATIONS
ECL§ 1-0101 ............................................................................................................. 7
ECL§ 3-0301(2)(a) ................................................................................................ 1,3
ECL§ 8-0103(6) ......................................................................................................... 8 .
ECL§ 11-2301 ......................................................................................................... 12
SAPA § 202-(I)(a)(ii) .................................................................... , ..................... 1,3
SAPA § 202-a(3) ................................................................................................... 1,4
SAP A § 202-a(3)( c ) ............................................................................................... 1, 4
SAP A § 202 (8) ....................................................................................................... 11
111
STATEMENT
This brief is submitted on behalf of the appellants Town of Riverhead and
Town of Riverhead Community Development Agency (collectively the "Town") in
reply to the respondents' brief.
The Court is respectfully referred to the Town's main brief for a full
discussion of why the Town has standing to maintain this hybrid action. This brief
will be limited to responding to arguments raised in the respondents' brief.
POINT I
THE RESPONDENTS ERRONEOUSLY PUT THE BURDEN OF PROOF
ON THE APPELLANTS TO SHOW THAT THE NYSDEC'S VIOLATIONS
OF THE REQUIREMENTS OF ECL § 3-0301(2)(a) AND SAPA § 202
WOULD HAVE MADE A DIFFERENCE.
In their brief to this Court, the respondents do not seriously dispute
appellants' claim that the NYSDEC violated ECL § 3-0301(2)(a) and SAPA
§ 202(1)(a)(ii) by failing to hold public hearings prior to adopting their substantive
amendments to Part 182 ("Amendments,,).l Nor do respondents refute appellants'
claim that the NYSDEC failed to properly provide an adequate regulatory impact
statement as mandated by SAPA § 202-a(3)(c). Most critically, respondents do not
and cannot dispute that if these challenges to the NYSDEC's failure to properly
1 In footnote 3 on page 7 of their brief, respondents inexplicably state that" strictly speaking, the
public-hearing claims in this case are brought under SEQRA, not SAP A" ignoring totally the
public hearing mandate ofECL 3-0301(2)(a).
1
adopt the Amendments are not brought within the four-month statute of
limitations, the claims are lost forever.
Instead, respondents argue that appellantS suffered no "injury" from these
serious violations of the legislatively mandated requirements since appellants have
not shown that the public hearings would have made a difference (respondents'
brief at pages 8 and 23). Likewise, respondents argue that appellants do not allege
that they were "misled or misinformed as a result of the alleged deficiencies in the
regulatory impact statement" (respondents' briefpage 9).
That the State would make these arguments is unsettling at best. The entire
purpose of the public hearing requirement is for there to be a full airing by
interested parties and the public as a whole before the regulatory agency makes a
final determination. No one will know what facts, expert and lay opinions, and
policy considerations will be presented until the conclusion of the public hearing.
While the NYSDEC may not think this input is necessary before reaching a
conclusion, the mandate is for it, and all other agencies, to approach the public
, hearings with an open mind.
The respondents' position has already been rejected and for good reason:
"A plaintiff who alleges deprivation of a procedural protection to which he is
entitled never has to prove that if he had received the procedure the
substantive result would have been altered. All that is necessary is to show
that the procedural step was connected to the substantive result" (Sugar
2
Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94-95, citing
Defenders of Wildlife v. Lujan, 504 U.S. 555, 573 n.7).
"[A] fair and open hearing is essential to the legal validity of administrative
agency and maintenance of public confidence therein" (Orbach v. New York State
Urban Development Corp., 110 Misc. 2d 720, 723). The failure to hold mandated
public hearings on proposed amendments pursuant to SAP A § 202 renders the
subsequently adopted amendments void (see e.g., Matter of Oil Heat Institute v.
Public Service Com., 90 A.D.2d 942, 943; Siegal v. New York State Div. ofHous.
and Comm. Renewal, 143 A.D.2d 430,433).
Respondents further argue that appellants are not aggrieved by respondents'
failure to conduct the required public hearings because appellants submitted
"comments" instead (respondents' brief page 23). This frankly incredible argument
presupposes that submittal of written comments is a sufficient replacement for full
public hearings. If that were the case, the public hearing mandates of the ECL and
SAP A would be rendered meaningless. In fact, the comments submitted by
appellants, as well as by others, put the NYSDEC on notice that it was proceeding
in violation of the ECL and SAP A (Record page 72). The impacted parties should
not be foreclosed from challenging the regulatory agency's failure to conduct
public hearings because they were left with no choice but to file comments when
3
the agency refused to conduct the public hearings. The NYSDEC cannot have it
both ways.
Respondents also claim that a party challenging the adequacy of the
regulatory impact statement mandated under SAP A § 202-a (3) must affirmatively
plead that it was "misled or misinformed" (respondents' brief p. 7). This argument
is equally irrational and unfounded.
As alleged in appellants' Third Cause of Action, the NYSDEC's regulatory
impact statement finding no new regulatory burdens was based upon its erroneous
position that the proposed regulatory Amendments would not result in any
substantive changes and thus create no new regulatory burdens (Record pages 74-
77). Based on this erroneous position, the regulatory impact statement issued by
the NYSDEC failed to accurately advise affected parties and the public of the true
impacts the proposed Amendments would have. Failing to properly identify and
analyze the new regulatory burdens being created rendered the entire regulatory
impact assessment a nullity under SAP A § 202-a(3). This claim was properly
alleged by appellants.
4
POINT II
THE TOWN HAS STANDING
AND ITS PROCEDURAL AND SUBSTANTIVE CLAIMS
ARE RIPE FOR REVIEW
It is undisputed that the Town's property is a habitat for several threatened
and endangered species and thus subject to the new substantive requirements of the
regulations.
As alleged by the Town, the adoption of the Amendments severely
<
undermines the ability to have the property redeveloped - the very purpose the
3,000 acres were conveyed to it by the United States government (Record pages
69, 72, 102-104)? Thus, while the respondents describe the Town's injury as
"economic", the injury is far greater. While the Town will not receive the revenue
from the sale of all or parts of the property, more significantly, it will not realize
the benefits intended by the federal government in giving the abandoned Grumman
property to the Town so that it could be redeveloped. The Grumman plant had
been a major employer and commercial engine. The gift of the property to the
Town would provide the opportunity to replace the now vacant property with
vibrant new redevelopment. Thus the alleged chilling effect of the Amendments
goes well beyond the ability to simply sell the property.
2 On a motion to dismiss, the allegations set forth in the pleadings, and all reasonable inferences
that can be drawn from them, must be presumed true (see e.g. Parsippany Constr. Co. Inc. v.
Clark Patterson Assoc., P. c., 41 A.D.3d 805).
5
The Town's position is no different than a property owner challenging the
adoption of zoning changes that affect the owner's property. Respondents concede,
citing to Sun-Brite Car Wash (69 N.Y.2d 406), that a property owner whose
property has been rezoned has standing to bring an immediate challenge because it
is presumed that a rezoning is "likely to have an immediate impact on property
value" (respondents' brief at 26). While citing this point, the respondents
nevertheless speciously argue throughout their brief that economic harm in the way
of adverse impact on property values cannot be a basis for standing. Furthermore,
the presumed harm to a property owner whose property has been rezoned is
recognized regardless of whether the owner has any immediate plans to develop
the property (see Har Enterprises v. Brookhaven, 74 N.Y.2d 524,529).
Like rezoning, the Amendments here have immediate impact on the Town's
property. The market value is impacted no differently than if the property had
been rezoned. Any development of the property could be considered a "taking",
which in tum will trigger the "incidental take permit" requirements, if there is any
modification of an endangered or threatened species, no matter how in'advertent or
inconsequential (§ 182.2 of the Amendments, Record page 135). The developer
will have to demonstrate a "net conservation benefit" which, in turn requires
establishing that the habitat has been "enhanced" "to a greater degree" than if the
6
activity "were not undertaken" (§ 182.2(n), Record page 136). As alleged, these
new requirements immediately impact the market value of the property.
The respondents' reliance on E. Thirteenth St. Cmty. Ass'n v. New York State
Urban Dev. Corp. (84 N.Y.2d 287) is misplaced since the Town is not an adjacent
owner but the owner of the very property being regulated by the Amendments.
This Court specifically distinguished between the plaintiff in that case and a
plaintiff such as the Town that has "proprietary interest in property ... [with] rights
which would be extinguished by the government's action" (id. at 293). A similar
distinction was made by this Court in Matter of Mobil Oil v. Syracuse Dev. Agency
(76 N.Y.2d 428).
Moreover, respondents' claim that the injury asserted by the Town is outside
the "zone of interest" of the statutes involved is simply wrong. "That petitioner
concededly has an economic interest in the outcome does not negate the standing
that it otherwise has by virtue of its status as owner of the property" (Har
Enterprises, 74 N.Y.2d at 530).
The economic impacts of environmental regulations are within the express
statutory zone of interest of the ECL. Indeed, in articulating the overall policies
underlying the ECL, the Legislature stated in ECL § 1-0101:
"It shall further be the policy of the state to foster, promote, create and
maintain conditions under which man and nature can thrive in harmony with
7
each other, and achieve social, economic and technological progress for
present and future generations" (emphasis added).
In ECL § 8-01 03(6), the Legislature further stated:
"It is the intent of the legislature that the protection and enhancement of the
environment, human and community resources shall be given appropriate
weight with social and economic considerations in public policy. Social,
economic, and environmental factors shall be considered together in
reaching decisions on proposed activities" (emphasis added).
(See also, e.g. WEOK Broadcasting Corp. v. Planning Bd. of Lloyd, 79 N.Y.2d
373,380: "SEQRA seeks to 'strike a balance between social and economic goals
and concerns about the environment"'). Thus, the NYSDEC cannot be heard to
claim that the economic impacts of its proposed Amendments are outside the
legislatively defined zone of interest.
Nor can respondents claim that the Town's property may never be subject to
the amended regulations when it is developed. The NYSDEC has already asserted
jurisdiction over the property and insisted on being named lead agency under
SEQRA on the Town's 2010 subdivision application to establish recordable lot
lines (Record page 192). The NYSDEC specifically identified the "potential for
impacts to several species of animals listed by New York State as endangered,
threatened or special concern and their habitats" as a "major area" of concern
(Record page 192). As early as October 2009, the NYSDEC went so far as
preparing an outline for a Comprehensive Habitat Protection Plan for the Town's
8
property (Record page 195). Contrary to respondents' argument, the Town is
similar to the petitioners in Matter of New YorkState Superfund Coalition v. New
York State DEC (18 N.Y.3d 289), since both were subject to NYSDEC
administrative determinations evidencing that their properties would be subject t<;>
the challenged regulations.
A declaratory judgment action is ripe for adjudication where, as here, the
"gravamen of the plaintiffs' challenges are 'purely legal' and are directed at the
defendant's authority to promulgate particular regulations" (Community Housing
Improvement Program, Inc. v. New York State Division of Housing and
Community Renewal, 175 A.D.2d 905,907). As the Appellate Division noted in
the Community Housing case, the primary purpose of a declaratory judgment is to
"adjudicate the parties' rights before a 'wrong' actually occurs" (id. at 907, citing
Klostermann v. Cuomo, 61 N.Y.2d 525, 538).
The Fifth Cause of Action attacking the Amendments as unconstitutional on
their face as ultra vires is a question of law that is ripe for determination at the
outset. A party need not exhaust administrative reml!dies or wait until enforcement
action is undertaken (Amazon. com LLC v. New York State Dept. of Taxation and
Finance, 81 A.D.3d 183,203; Riccelli Enterprises, Inc. v. New York State
Department of Environmental Conservation, 30 Misc.3d 573, 576).
The decisions below should be reversed for this reason alone.
9
POINT TIl
THE TOWN WOULD HAVE STANDING UNDER THE RESPONDENTS'
PROPOSED NEW FEDERAL STANDARD
Respondents apparently have finally come to recognize the severe
consequence that the lower Courts' adoption of respondents' standing and ripeness
arguments will have. The decisions of the Courts below effectively foreclose all
judicial review of serious violations of the procedural mandates agencies must
follow when adopting and amending their regulations since no one would have
standing to bring such a challenge within the four month statute of limitations.
As a result, respondents now suggest for the very first time in this case that this
Court adopt a less stringent standard for standing to assert these procedural
violations.3
Since, as set forth in the Town's main brief and the points above, the Town
has standing on traditional standing principles it would certainly have standing
under the more relaxed "federal approach" that respondents now suggest.
As described by respondents, under this "federal approach" procedural
challenges to administrative action could proceed without requiring the objectant
to first go through the entire administrative process (see Massachusetts v.
3 Although asserted by the Town throughout the case, neither the respondents nor the Courts
below addressed the Town's claim that judicial review of serious procedural violations in the
adoption process would be forever foreclosed by the four month statute of limitations if no
property owner had standing until it had gone through the administrative permit process.
10
Environmental Protection Agency, 549 U.S. 497, 517-518, and Lujan v. Defenders
of Wildlife, 504 U.S. 555, 572). Under this approach, an objectant would only
have to show that the objectant has a concrete interest in the challenged action and
that the administrative procedural requirements that protect that interest were not
followed (see e.g. People ex reI Lockyer v. United States Department of
Agriculture, 259 F. Supp.2d 874,883).
Here, respondents concede as they must, that the Town has a concrete
interest in the challenged action as the owner of property that will be subject to
amended regulations. It is also conceded that respondents did not conduct the
public hearings that the Town asserts were mandated under both the ECL and
SAPA. "The wholesale neglect of the regulations' mandatory inclusion of the
public in the process results in a procedural injury" and supports a finding of
standing (Citizens for Better Forestry v. US. Dep't of Agriculture, 341 F.3d 961,
970-971).
,Moreover, the Legislature has expressly provided the right to judicial review
of the NYSDEC's noncompliance under SAP A § 202(8):
"[a] proceeding may be commenced to contest a rule on the grounds of
noncompliance with the procedural requirements of this section, section two
hundred two-a and section two hundred two-b of this chapter, provided,
however, such proceeding must be commenced within four months from the
effective date of such rule. Each rule shall be promulgated in substantial
compliance with the provisions of such sections, provided, however, the
11
inadvertent failure to send notice to any person shall not serve to invalidate
any rule promulgated hereunder."
Under ECL § 11-2301, this and all other provisions of SAP A apply to the
NYSDEC.
Because the Town has both a concrete interest as the owner of regulated
property and a procedural right to challenge the rulemaking process, it would have
standing under the federal approach in any event (see Massachusetts, 549 U.S. at
519-520).
CONCLUSION
For the reasons set forth above and in the Town's main brief, the
Memorandum and Order of the Appellate Division, Third Department, should be
reversed.
Dated: Riverhead, New York
June 17,2013
Of Counsel
Frank A. Isler, Esq.
Jean K. Delisle, Esq.
Smith, Finkelstein, Lundberg,
Isler and Yakaboski LLP.
Attorneys for appellants
456 Griffing Avenue
Riverhead, New York 11901
631-727-4100
12