To Be Argued By:
FRANK A. ISLER, ESQ.
Time Requested: 30 Minutes
Court of Appeals
STATE OF NEW YORK
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: January 14, 2013 Of Counsel:
FRANK A. ISLER, ESQ.
Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601
Printed on Recycled Paper 19582
COURT OF APPEALS
STATE OF NEW YORK
-----------------------------------------------------------------------------x
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.
--------------------------------------------------------------------------x
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.
-----------------------------------------------------------------------------x
TABLE OF CONTENTS
PAGE
Statement .......................................................... ,: .................................................... 1
Jurisdiction of this Court ............................................................................................ 3
Questions Presented ................................................................................................... 3
Procedural History ..................................................................................................... 4
The Challenged Amendments ................................................................................... 6
Facts ................................................................................................... : ......•.. 11
Point I
A Property Owner Affected by Illegally Adopted
Regulatory Amendments must have Standing to
Assert Their Invalidity at the Time of Adoption
Otherwise the Actions of the Administrative Agency
Will not be Subject to Review by the Courts ................................................ 12
Point II
The Appellate Division's Holding that the Town's
Facial Challenge to the Amendments as Ultra Vires
Is not Ripe for Review is Contrary to this Court's
Estab lished Precedents .................................................................................. 18
Conclusion ............................................................................................................. 20
11
TABLE OF AUTHORITIES
PAGE
Cases
Amazon.com LLC v. New York State Dept. of Taxation and Finance, 81 A.D.3d
183, 203 ................................................................................................................ 19
Community Housing Improvement Program, Inc. v. New York State Division of
Housing and Community Renewal, 175 A.D.2d 905 ..................................... 16, 19
Empire State Association of Adult Homes, v. Novello (193 Misc. 2d 543) ............ 17
Klostermann v. Cuomo (61 N.Y.2d 525, at 538 ...................................................... 18
Matter ofHar Enters. v. Town of Brookhaven , 74 N.Y.2d 524,526 ...................... 16
Matter of Hospital Ass'n of New York State v. Axelrod (164 A.D.2d 518, 525) ..... 17
Matter of New York Construction Materials Association, Inc. v. New York State
Department of Environmental Conservation, 83 A.D.3d 1323 ........................... 16
Matter of New York State Superfund Coalition v. New York State Department of
Environmental Conservation, 75 N.Y.2d 88 ....................................................... 19
Matter of New York State Superfund Coalition, Inc. v. New York State Department
of Environmental Conservation, 18 N.Y.3d 289 ................................................. 15
Matter of New York State Superfund Coalition, Inc. v. New York State Department
of Environmental Conservation, 75 N.Y.2d 88 ................................................... 15
Riccelli Enterprises, Inc. v. New York State Department of Environmental
Conservation, 30 Mise.3d 573 ............................................................................... 16
Save the Pine Bush v. City of Albany, 70 N.Y.2d 193,202 ................................ 5,13
Schulz v. Lake George Park Comm'n, 180 A.D.2d 852 .......................................... 16
Society of Plastics Industry Inc. v. County of Suffolk, 77 N.Y.2d 761, 773 ........... 15
Transportation Alternatives, Inc. v. Gotbaum, 199 A.D.2d 53 ............................... 16
111
STATUTES
CPLR 5602(a)(I)(i) .................................................................................................. 3
6 NYCRR Part 182 .................................................................................................... 1
Public Law 103-C337 .............................................................................................. 11
REGULATIONS
DEC § 1802.11(a) ..................................................................................................... 8
DEC § 1802.11(d)(2) ....... ~ ....................................................................................... 14
DEC § 1802.11(d)(3) .................................................................................................. 9
DEC § 1802.11(e) .................................................................................................... 10
DEC § 182.2U) ......................................................................................................... 7
DEC § 182.2(k) ......................................................................................................... 7
DEC § 182.2(1) ......................................................................................................... 7
DEC § 182.2(n) .............................................................................................. 8, 9, 14
DEC § 182.2(x) ........................................................................................................ 7
DEC § 182.9 ............................................................................................................ 10
DEC § 182.9(c) ........................................................................................................ 10
ECL§ 3-0301(2)(a) and § 202 ........................................................... 5, 13, 14, 15, 18
SAPA § 202-a(3)(c) .................................................................................... 13, 14, 15
IV
STATEMENT
This brief is submitted on behalf of the appellants Town of Riverhead and
the Town of Riverhead Community Development Agency (collectively the
- "Town").
The Town brought this hybrid action to challenge, on both procedural and
substantive grounds, the New York State Department of Environmental
Conservation's (the "NYSDEC") adoption of amendments to its Endangered and
Threatened Species of Fish and Wildlife Regulations, (6 NYCRR Part 182) (the
"Amendments"). The Town is the owner of some 3,000 acres of land that are
subject to the Amendments.
The Town appeals from the Memorandum and Order of the Appellate
Division, Third Department, dated July 26, 2012 (Record Pages CA-4 through CA-
7), that affirmed the December 1, 2011 Decision/Order/Judgment of the Supreme
Court, Albany County (by Ceresia, J.) (Record Pages 7-21). The Supreme Court
granted NYSDEC's motion to dismiss the Town's challenge (134-150).
The lower Court dismissed the Town's challenge to the Amendments
holding that the Town lacked standing despite being the owner of some 3,000 acres
of land that are subject to the Amendments. The Court further held that the matter
was not ripe for determination despite the following indisputable facts: 1) that the
procedural challenges to the adoption of the Amendments would be barred forever
by a four month statute of limitations; 2) that the substantive challenges to the
Amendments were directed at the invalidity of the Amendments as a matter of law;
and 3) that the NYSDEC's actions unequivocally established that the Town would
be fully subjected to the Amendments.
On appeal, the Appellate Division, Third Department, affirmed. Contrary to
the lower Court's decision, however, the Appellate Division found that the Town's
procedural challenges to the adoption of the Amendments were ripe but
nevertheless found that the Town lacked standing since it had not undergone
review of a specific development plan under the challenged Amendments (Record
Page CA-7).
The Appellate Division's decision precludes any challenge to the NYSDEC's
violation of the procedural requirements required in adopting the Amendments,
including the need to conduct public hearings. Under the Third Department's
decision on appeal, no person has standing to challenge procedural violations until
the agency has acted under the amended regulations. This would only occur well
after the fourmonth statute of limitations to assert these procedural violations has
run. The Third Department's decision therefore creates an untenable "Catch 22"
situation. Procedural challenges to improperly adopted regulations, which would
annul those amendments ab initio, cannot be brought until the property owner is
subjected to the amendments by which time the procedural challenges would be
2
time barred. No party would have standing to bring such a challenge within the
very short four month statute of limitations period.
The Town's motion to this Court for leave to appeal from the Memorandum
and Order of the Appellate Division was granted by Order dated November 27,
2012 (Record Page CA-8) .
.JURISDICTION OF THIS COURT
This Court of Appeals has jurisdiction to entertain the appeal and to review
the questions raised by virtue of its Order dated November 27, 2012 (Record Page
CA-8) that granted the appellant's motion for leave to appeal to this Court made
pursuant to CPLR 5602(a)(I)(i).
The questions to be reviewed by this Court were raised in the Town's
memoranda of law submitted to the Supreme Court and in the appellate briefs
submitted to the Appellate Division, Third Department.
QUESTIONS PRESENTED
This appeal presents the following questions regarding the interplay of
standing and the four month statute of limitations to challenge administrative
regulations that are adopted illegally:
a. should the Appellate Division's holding that no one can acquire
standing to assert procedural challenges to an agency's adoption of
regulatory amendments until the agency actually acts on that person's
3
specific application be reversed since that standard would preclude all Court
review of such procedural challenges?
b. should the Appellate Division's decision be reversed because it
renders a State agency's procedurally defective adoption of regulatory
amendments immune from judicial scrutiny by creating a standing
requirement that cannot realistically be attained within the four month
statute of limitations applicable to such procedural challenges?
c. does a person affected by a regulatory amendment have standing at
the time of its adoption to challenge procedural defects in the adoption
process, including the failure to hold mandatory public hearings, that would
render the amendments null and void, ab initio?
The Town respectfully submits that all three questions should" be answered in the
affirmative.
This appeal also raises the additional question regarding the ripeness of a
facial challenge to regulatory amendments that are ultra vires:
d. is a facial challenge to regulatory amendments as ultra vires ripe
for review at the time of their adoption without first having to exhaust the
administrative permitting process created by the amendments?
The Town respectfully submits that this question should be answered in the
affirmative as well.
PROCEDURAL HISTORY
The Town commenced this hybrid action in Supreme Court, Suffolk County
(Index No. 11-05988), challenging the Amendments on both procedural and
4
substantive grounds. The alleged procedural violations included the failure to
conduct public hearings on the proposed amendments as mandated under ECL
§ 3-0301(2)(a) and § 202 of the New York State Administrative Procedure Act
(SAP A). The action was brought within the four month statute of limitations that
applies to procedural challenges to the adoption of the regulatory amendments
(Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 202).
A similar hybrid action was brought by the Association for a Better Long
Island, Inc., Jan Burman and M-GBC, LLC. in Supreme Court, Albany County
(Index No. 11-1268). The two actions were consolidated and venue was
transferred by stipulation to Albany County (Record page 86).
Prior to serving an.answer, the NYSDEC moved to dismiss both
petitions/complaints alleging that the petitioners-plaintiffs lacked standing and that
the claims were not ripe for determination. The Supreme Court granted the motion
holding that none of the claims asserted were ripe for determination and that none
of the petitioners-plaintiffs had standing (Record pages 7-21).
All petitioners-plaintiffs appealed to the Appellate Division, Third
Department. The Appellate Division, Third Department, in its Memorandum and
Order dated July 26,2012, affirmed the Supreme Court Decision (Record pages
CA-4 through CA 7).
5
Although affirming, the Appellate Division disagreed with the lower Court
on the issue of ripeness. The Appellate Division found that the procedural
challenges to the adoption of the amendments were ripe for determination but
dismissed them on the ground that the petitioners-plaintiffs lacked standing until a
specific development plan was acted on by the NYSDEC under the challenged
amended regulations (Record page CA-7).
Thereafter, the Town moved this Court for leave to appeal. Leave to appeal
was granted by Order dated November 27, 2012 (Record page CA-8).
The Town respectfully submits that the questions raised on this appeal
should be answered in the affirmative and, therefore, the Memorandum and Order
of the Appellate Division, Third Department, should be reversed.
THE CHALLENGED AMENDMENTS
In August 2010, the NYSDEC noticed its intention to adopt the
Amendments. The Notice of Rule Making (Record Pages 152-154) failed to alert
the public that the proposed Amendments will impose new, substantive obligations
on property owners throughout the State. Instead, the "Purpose" section of the
Notice inaccurately describes the "purpose" of the proposed Amendments as rule
making necessary "to clarify process and procedures for handling listed species
issues in New York" (Record Page 152, emphasis added).
6
This mischaracterization of the Amendments is at best misleading by
creating the false impression that they were mere I y procedural and would not
affect substantive rights of property owners, both public and private, throughout
the_State.
In fact, the proposed Amendments have substantive and significant long-
range and sweeping impacts on property rights that affect the future development
of vacant and improved property throughout the State by creating new standards
that place onerous burdens on property owners. These burdens, instead, should be
borne by the State.
Contrary to the NYSDEC's misleading description of the purpose of the
Amendments as merely clarifying processing procedures, the Amendments
include, among other things, the following major, new substantive provisions:
A. a new permit is created called an "Incidental Take P~rmit" [§ 182.2(k),
Record Page 135]. This new permit is required when a "taking" of a listed species
occurs that is "incidental to, and not the intended purpose of, an otherwise lawful
activity" [§ 182.2(j), Record Page 135]. A "taking" is defined as including a
"lesser act" [§ 182.2(x), Record Page 137] which includes any "adverse
modification of habitat" or any "interference with or impairment of an essential
behavior" of listed species [§ 182.2(1), Record Page 135]. Thus, under the
Amendments, where a property owner wishes to develop its property and, in doing
7
so, inadvertently "modifies" any aspect of a listed species' habitat to any extent-
no matter how trivial - this new "Incidental Take Permit" requirement is triggered;
B. in order to obtain this new Incidental Take Permit, an applicant must
prepare, among other things, a "mitigation plan" which establishes an entirely new,
substantive standard that must be achieved before a permit will issue. The
mitigation plan must "result in a net conservation benefit" to the affected listed
species [§ 182.11(a), Record Page 145]. A "net conservation benefit" is defined as:
"a successful enhancement of the species' subject population,
successful enhancement of the species' overall population or a
contribution to the recovery of the species in New York. To be
classified as a net conservation benefit, the enhancement or
contribution must benefit the affected species listed as endangered or
~hreatened in this Part or its habitat to a greater degree than if the
applicant's proposed activity were not undertaken" [§ 182.2(n),
Record Page 136, emphasis added].
Prior to the adoption of the Amendments, a property owner was only
required to mitigate any potential adverse impacts the proposed development might
have on a listed species. Now, with the adoption of the new "net conservation
benefit" requirement, a property owner cannot conduct any activity on its property
that might modify a listed species habitat - no matter how minimally - without first
demonstrating that the proposed activity will provide a better habitat than existed
before the activity. In many instances, and particularly where property was in its
natural state before the proposed activity, the clear wording of the NYDEC's
8
definition of a "net conservation benefit" would require the property owner to
enhance the habitat by making it better than it had been made by Mother Nature.
This creates an unachievable standard which would unjustly and improperly
preclude a property owner from using its property.
In light of this new and dramatic substantive change to the regulations, it is
simply incredible that the NYSDEC would characterize the Amendments as
merely "clarifying process and procedures" .
C. under the broad definition of a "net conservation benefit" in § 182~2(n),
the Amendments now force a property owner to address and enhance a species'
overall viability without any geographic limitation whatsoever. Prior to the
adoption of the Amendments, the property owner was only responsible for
mitigating potential on-site impacts. As written, the new regulation now requires
the property owner to be responsible for the viability of protected species literally
throughout the State;
D. the new Amendments require that as part of the required mitigation plan
needed to get an Incidental Take Permit, the property owner must provide
monitoring of compliance with the plan without any durationallimitation
[§ 1802.11(d)(3), Record Page 146]. As written, this requirement can run forever.
E. in order to get an Incidental Take Permit, property owners are also now
mandated to enter into an "Implementation Agreement" with the NYSDEC
9
[§ 1802.11(e), Record Page 146]. This agreement requires the property owner to
provide financial security in the form of bonds, escrow deposits and the like to
guarantee the full implementation of the mitigation plan. The Amendments are
silent as to maximum amounts or duration of the security, leaving those
determinations to the unfettered discretion of the NYSDEC.
F. the Amendments also introduce for the first time a requirement that·the
NYSDEC make, upon request, a pre-application determination of whether an
Incidental Take Permit will be needed [§ 182.9, Record Page 144]. While the
section recites that the pre-application determination must be made by the
NYSDEC within 30 days of the request, the Amendments allow the NYSDEC to
unilaterally extend that time period indefinitely [§ 182.9(c), Record Page 144].
This open-ended extension language can potentially sterilize the lawful use of
property for years.
Despite these far reaching, substantive impacts the proposed Amendments
would have on land use and land development throughout the State, the NYSDEC
refused to hold public hearings on them. Instead, the NYSDEC merely provided
for a 45 day comment period and refused numerous requests from affected parties
and the public that the comment period be extended.
Notwithstanding having been put on notice by the Town and others that it
was proceeding with the adoption of the Amendments in violation of the
10
procedures required by State Law, on November 3, 2010, the NYSDEC
nevertheless adopted the proposed Amendments.
FACTS
By an act of Congress (Public Law 103-C337), the Town became the owner
of approximately 3,000 acres of property designated as the Enterprise Park at
Calverton ("EPCAL") after the former Grumman manufacturing facility closed.
Pursuant to the legislation, the United States Navy transferred title to EPCAL to
the Town for the express purpose that the 3,000 acre site be redeveloped pursuant
to a comprehensive reuse plan in order to replace the loss of the Grumman facility
with new, viable economic growth. This reuse plan envisions that the property be
sold to various private entities for redevelopment in accordance with the permitted
uses set forth in the reuse plan. The plan envisions redevelopment for industrial,
recreational and family entertainment uses, among others.
The NYSDEC does not and cannot dispute that the EPCAL property is a
habitat for listed species and thus would be regulated under the Amendments. The
property is impacted by several species of animals listed by New York State as
endangered, threatened or of special concern such as tiger salamanders and the
short eared owl. That is why the NYSDEC insisted in June of 2010 on being lead
agency under SEQRA for the Town's application to subdivide the EPCAL property
(Record Page 192). In seeking lead agency status, the NYSDEC identified as a
11
"major area" of concern the "potential for impacts to several species of animals
listed by New York State as endangered, threatened or special concern and their
habitats" (Record Page 192). Moreover, as early as October 2009, the NYSDEC
had prepared an outline for Comprehensive Habitat Protection Plan that the Town
would have to adopt for the EPCAL property (Record Pages 195-200).
Since the EPCAL property serves as a habitat for species to be regulated
under the Amendments, the Town's property unquestionably falls within the
specific class of properties subject to the Amendments.
POINT I
A PROPERTY OWNER AFFECTED BY ILLEGALLY ADOPTED
REGULATORY AMENDMENTS MUST HAVE STANDING TO ASSERT
THEIR INVALIDITY AT THE TIME OF ADOPTION OTHERWISE THE
ACTIONS OF THE ADMINISTRATIVE AGENCY WILL NOT BE
SUBJECT TO REVIEW BY THE COURTS
Despite finding that the Town's procedural challenges to the Amendments
were ripe, the Appellate Division erroneously held that the Town lacked standing
to bring a challenge until such time as a specific development plan was acted on by
the NYSDEC even though the Town's property is unquestionably subject to the
Amendments (Record Page CA-7).
The Appellate Division did not address the fact that its ruling forecloses any
Court review of the NYSDEC's procedural violations in adopting the amendments,
including the failure to hold mandated public hearings on the proposed substantive
12
amendments, since such a review would be forever time barred four months after
the amendments were adopted.
There is no dispute that the procedural challenges asserted by the Town in its
pleadings must be brought within four months of the date the challenged
regulations were adopted (Save the Pine Bush v. City of Albany, 70 N.Y.2d 193,
202).
The first four causes of action set forth in the Town's petition/complaint
allege fatal procedural violations in the NYSDEC's adoption of the challenged
amendments, including failure to comply with the requirements of ECL § 3-
0301(2)(a), ECL Article 8 (SEQRA), and SAPA § 202-a(3)(c). It cannot be
disputed that if any of these causes of action are sustained, the challenged
amendments would be void ab initio. Thus, if the Town's procedural challenges
were successful, it would not be subject to the very permit process and standards
the Appellate Division held must first be pursued in order to have standing.
The challenged amendments impose, among other things, new substantive
requirements of a class of property owners whose properties are impacted by
threatened or endangered species. The challenged amendments require a property
owner to obtain a permit prior to undertaking any activity that might potentially
modify a protected species' habitat, no matter how minor. As part of the permit
requirement, the property owner must provide a mitigation plan that results in
13
enhancing the species' habitat "to a greater degree than if the applicant's proposed
activity were not undertaken" (§ 182.2(n), Record page 136, emphasis added).
This standard requires the property owner to make the habitat better than the very
habitat made by Mother Nature. In addition, the newly required mitigation plan
mandates that the property owner address and enhance any affected species' overall
viability without geographic limitation [§ 182.11(d)(2), Record page 146].
Despite these clearly substantive requirements added in the challenged
amendments, the NYSDEC was forced to argue that the amendments were merely
procedural in nature. If the amendments created new "standards and criteria" -
which they clearly do - the amendments would have to have been subject to public
hearings under ECL § 3-0301 and SAPA § 202-a(3)(c). No such hearings were
held.
The NYSDEC does not and cannot dispute that the Town's EPCAL site is
subject to these and other substantive mandates created for the first time in the
challenged amendments. The NYSDEC has already determined that the EPCAL
property is impacted by several species of animals listed as endangered, threatened
or of special concern such as tiger salamanders and the short eared owl.
Nor can the NYSDEC dispute that even prior to its adoption of the
Amendments, it mandated that the Town prepare a mitigation plan as a prerequisite
to its application to subdivide the EPCAL property into marketable lots (Record
14
Pages 192-200). The NYSDEC took this position notwithstanding the fact that the
subdivision application merely put lot lines on a map and that no disturbance of
any habitat would result from the application. If a mere lot line triggered this
response from the NYSDEC, any land use application affecting EPCAL will be
subject to these substantive amendments adopted without compliance with ECL
§ 3-0301(2)(a), ECL Article 8 (SEQRA), and SAPA § 202-a(3)(c).
Since the Town's EPCAL property is unquestionably within the specific
class of properties subject to the challenged amendments. Its status is different
from that of the public at large and thus has standing now to assert its procedural
challenges to the adoption of the amendments (Society of Plastics Industry Inc. v.
County of Suffolk, 77 N.Y.2d 761,773).
The Town's status is no different from that of the New York Superfund
Coalition, Inc. whose members are owners of inactive hazardous waste sites who
twice challenged NYSDEC regulations affecting their properties as ultra vires
before any administrative actions were undertaken (Matter of New York State
Superfund Coalition, Inc. v. New York State Department of Environmental
Conservation, 18 N.Y.3d 289; Matter of New York State Superfund Coalition, Inc.
v. New York State Department of Environmental Conservation, 75 N.Y.2d 88).
Likewise, the Town is no different than the trucking companies that
successfully set aside the NYSDEC's ultra vires regulations under the Diesel
15
Emissions Reduction Act prior to any implementation (Matter of New York
Construction Materials Association, Inc. v. New York State Department of
Environmental Conservation, 83 A.D.3d 1323; Riccelli Enterprises, Inc. v. New
York State Department of Environmental Conservation, 30 Misc.3d 573); the
bicycle association that had standing to challenge a regulation imposing speed
limits prior to enforcement (Transportation Alternatives, Inc. v. Gotbaum, 199
A.D.2d 53); or the association of landlords that had standing to challenge
amendments to rent control regulations (Community Housing Improvement
Program, Inc. v. New York State Division of Housing and Community Renewal,
175 A.D.2d 905).
Moreover, as a property owner subject to the Amendments, the Town is
presumptively adversely affected by violations of SEQRA and thus has standing to
assert its Fourth Cause of Action (77) (Matter of Har Enters. v. Town of
Brookhaven, 74 N.Y.2d 524, 526; Schulz v. Lake George Park Comm'n, 180
A.D.2d 852) .
. Contrary to the lower Court's reasoning, the Town is no different than a
property owner who unquestionably has standing to challenge zoning amendments
affecting its property (see e.g. Matter of Har Enters. v. Town of Brookhaven, 74
N.Y.2d 524).
16
Simply put, the Town is no less affected by the Amendments than were the
plaintiffs in the above cited cases, all of whose pre-implementation challenges to
other adopted State regulations were heard by the Courts.
The Appellate Division's Memorandum and Order is also inconsistent with
Matter of Hospital Ass'n of New York State v. Axelrod (164 A.D.2d 518, 525),
where the Third Department addressed the merits of the appellants' claim that the
regulations at issue were not adopted in compliance with SAPA despite holding
that the underlying substantive challenge was not ripe for review.
As the Court held in Empire State Association of Adult Homes, v. Novello
(193 Misc. 2d 543), a procedural challenge could be brought prior to
implementation by a party who was within the specific scope of the regulations.
The Court noted that a contrary result would render the regulation "effectively
unchallengeable" (Id. at 550).
Contrary to the Appellate Division's holding below, there is no intervening
administrative ruling that must first be made before the Town has standing to assert
its procedural challenge to the adoption of the Amendments. If the Town's claims
are sustained, the Amendments would be annulled and there would be no permit
process to exhaust.
The Appellate Division simply did not address the Town's contention that a
dismissal of its procedural challenge to the Amendments would result in illegally
17
adopted regulations from taking full force and effect without Court scrutiny. As a
result of its decision, the NYSDEC's unilateral and erroneous declaration that these
major Amendments are not substantive and thus not subject to the adoption
requirements of the ECL and SAP A is immunized from any Court review. Any
challenge to the adoption process would be time barred if the Third Department's
decision is not reversed. The Town respectfully submits that such a result would
defy all logic and due process.
POINT II
THE APPELLATE DIVISION'S HOLDING THAT THE TOWN'S FACIAL
CHALLENGE TO THE AMENDMENTS AS ULTRA VIRES IS NOT RIPE
FOR REVIEW IS CONTRARY TO THIS COURT'S ESTABLISHED
PRECEDENTS
As a matter of law, the Town need not first exhaust the administrative
process created by the Amendments before maintaining i~s declaratory judgment
claims that the Amendments are invalid as a matter of law. The Appellate
Division's holding is contrary to this Court's ruling in Klostermann v. Cuomo (61
N.Y.2d 525, at 538):
"The primary purpose of declaratory judgments is to adjudicate the parties'
rights before a 'wrong' actually occurs in the hope that later litigation will be
unnecessary" .
18
A declaratory judgment action is ripe for adjudication where 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; see also, Amazon. com LLC v. New York State Dept. of
Taxation and Finance, 81 A.D.3d 183,203).
Following these principles of ripeness, this Court annulled NYSDEC
regulations affecting inactive hazardous waste sites as ultra vires prior to any
administrative implementation in a challenge brought by a not-for-profit
corporation whose members' properties would be subject to the regulations (Matter
of New York State Superfund Coalition v. New York State Department of
Environmental Conservation, 75 N.Y.2d 88).
It is respectfully submitted that the dismissal of the Town's Fifth through
Seventh Causes of Action (Record Pages 78-82) is contrary to this Court's
decisions and to well established precedent of the Appellate Divisions. The
Appellate Division's affirmance of the dismissal of these declaratory judgment
causes of action should be reversed.
19
CONCLUSION
For the reasons set forth above, the Memorandum and Order of the
Appellate Division, Third Department, should be reversed.
Dated: Riverhead, New York
January 14, 2013
Of Counsel:
Frank A. Isler, Esq.
Frank A. Isler
Smith, Finkelstein, Lundberg,
Isler and Yakaboski, LLP
Attorneys for the Appellants
456 Griffing Avenue
Riverhead, New York 11901
631-727-4100
20
