New York Law Review

Tag: Freshwater Wetlands Act

  • Ardizzone v. Town of Yorktown, 75 N.Y.2d 96 (1990): Limits on Local Regulation of State-Mapped Wetlands

    Ardizzone v. Town of Yorktown, 75 N.Y.2d 96 (1990)

    A local government cannot regulate development in state-mapped freshwater wetlands unless it has expressly assumed jurisdiction over such wetlands by complying with the requirements of the Freshwater Wetlands Act.

    Summary

    Ardizzone sought to build a retail nursery on his property, part of which was located in a state-mapped freshwater wetland. He obtained a special use permit from the Town Zoning Board and a state wetlands permit from the DEC. However, the Town Board denied his application for a local wetlands permit under the Town’s Wetlands and Drainage Law. Ardizzone then filed an Article 78 proceeding. The Court of Appeals held that because the Town had not complied with the Freshwater Wetlands Act’s requirements for assuming local jurisdiction over state-mapped wetlands, it lacked the authority to regulate Ardizzone’s development. The DEC’s regulatory authority preempted parallel local authority until the Town underwent the certification process.

    Facts

    Salvatore Ardizzone owned a 14.6-acre parcel in the Town of Yorktown, 11 acres of which were located within a 19-acre state-mapped freshwater wetland. He planned to construct and operate a retail nursery on the wetland portion. Ardizzone applied to the Town Zoning Board for a special use permit. After acting as the lead agency under SEQRA, the Zoning Board granted the permit, finding the project minimized adverse environmental effects and noting Ardizzone’s willingness to amend plans to mitigate potential impacts. Ardizzone also obtained a state wetlands permit from the DEC.

    Procedural History

    After receiving the special use permit and state wetlands permit, Ardizzone applied to the Town Board for a local wetlands permit as required by Yorktown’s Wetlands and Drainage Law. The Town Board denied the application. Ardizzone then commenced an Article 78 proceeding challenging the denial. The Supreme Court, Westchester County, upheld the Town Board’s determination, and the Appellate Division affirmed. Ardizzone appealed to the Court of Appeals.

    Issue(s)

    Whether the Town Board of the Town of Yorktown has the power to regulate development in freshwater wetlands that have been mapped by the State Department of Environmental Conservation and that are subject to State regulatory jurisdiction, without complying with the Freshwater Wetlands Act.

    Holding

    No, because the DEC has exclusive authority to regulate state-mapped freshwater wetlands under the Freshwater Wetlands Act unless a local government has expressly assumed jurisdiction over such wetlands by following the statutory and regulatory requirements.

    Court’s Reasoning

    The Court of Appeals reasoned that the Freshwater Wetlands Act establishes a comprehensive regulatory scheme. While the Act allows local governments to enact their own wetlands protection laws, it requires them to comply with specific procedures to assume regulatory authority over state-mapped wetlands. This includes notifying the Department of Environmental Conservation and demonstrating the technical and administrative capacity to administer the Act. “Effective freshwater wetlands management requires uniformity in laws to eliminate inconsistent or conflicting local laws” (ECL 24-0105 [5]).

    The Court emphasized that the Town Board failed to comply with these requirements. The Court rejected the Town’s argument that the Municipal Home Rule Law granted it the power to regulate wetlands independently, stating that local laws cannot be inconsistent with state law, and the state intended to occupy the field unless specific procedures are followed. The court cited ECL 24-0703, which states that review of permit applications is made by the local government or the commissioner, not both, as evidence of this intention. The court also clarified that section 24-0509 of the Act, which states that “[n]o provision of this article shall be deemed to remove from any local government any authority pertaining to the regulation of freshwater wetlands…” only applies to non-State-mapped wetlands. Therefore, the Court concluded that the Town Board lacked jurisdiction to consider Ardizzone’s wetlands application, annulling the Board’s determination. As the Court stated, “We cannot believe that the Legislature’s clearly expressed concern with uniformity of wetlands regulation and its carefully crafted provision for the assumption of local jurisdiction are in effect nullities”.

  • People v. Genesee Lime Prods., Inc., 73 N.Y.2d 773 (1988): Establishing Exemption from Wetlands Act Requirements

    People v. Genesee Lime Prods., Inc., 73 N.Y.2d 773 (1988)

    A general excavation permit from a town, even if issued before the Freshwater Wetlands Act’s effective date, does not automatically exempt subsequent backfilling activities on those lands from the Act’s permit requirements unless the original permit specifically authorized or required such backfilling.

    Summary

    Genesee Lime Products was convicted of illegally altering freshwater wetlands without a permit. The company argued its backfilling activities were exempt under a “grandfather clause” in the Freshwater Wetlands Act because it had obtained excavation permits from the town before the Act’s effective date. The Court of Appeals held that the town’s excavation permits did not explicitly authorize or require backfilling, and therefore the company was not exempt from the Act’s permit requirements. The court emphasized that exemptions must be based on explicit approvals, not implied intentions, and that the company’s failure to seek a DEC permit was a critical factor.

    Facts

    Genesee Lime Products purchased land in 1962 to mine lime and obtained excavation permits from the Town of Wheatland. These permits incorporated a town ordinance that mandated leveling the land after excavation to ensure adequate drainage and prevent water accumulation. The permits expired between 1963 and 1965, and excavation ceased, although backfilling continued intermittently. In 1975, the Freshwater Wetlands Act took effect, classifying the premises as wetlands. In 1985, the company backfilled approximately two to three acres of the land without a permit from the Department of Environmental Conservation (DEC).

    Procedural History

    The company was convicted in Justice Court for violating the Freshwater Wetlands Act and fined $500. The County Court affirmed the Justice Court’s decision. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether Genesee Lime Products’ backfilling activities were exempt from the Freshwater Wetlands Act’s permit requirement under the “grandfather clause” (ECL 24-1305) because it possessed town excavation permits issued before the Act’s effective date.

    Holding

    No, because the town’s excavation permits did not explicitly authorize or require backfilling of the excavated land. The company’s actions were not protected by the grandfather clause.

    Court’s Reasoning

    The Court of Appeals reasoned that the “grandfather clause” in ECL 24-1305 exempts land uses with final approval obtained before the Act’s effective date. However, the town’s excavation permits did not mandate or authorize backfilling. The court noted the absence of backfilling provisions in the town ordinance concerning excavation permits, contrasting this with the specific requirements for gravel pits, which mandated reseeding and restoration. The court refused to imply authorization, stating that “judicial determinations can only be based on the record made by the parties” and that the record lacked evidence supporting an assumption that backfilling was expected or contemplated. The court also dismissed the relevance of a handwritten notation on one permit about stockpiling spoils for future backfilling, as it did not require backfilling and the company used offsite materials. Addressing the intent of the “grandfather clause” to prevent hardship, the court stated that the company’s activity, occurring 20 years after the permits’ expiration, did not represent the type of hardship the clause was designed to prevent. Moreover, the court emphasized the company’s admission that it could have sought a permit from the DEC but chose not to, undermining its claim of inequity. The court found the company’s actions in violation of ECL 24-0701(2), which prohibits filling wetlands without a DEC permit. The court concluded that the excavation permits did not authorize the backfilling, and therefore, the company was in violation of the Freshwater Wetlands Act. The court stated, “Here, however, defendant not only lacked approval for backfilling the wetlands, but also its activity takes place a full 20 years after the expiration of one-year permits. This is not the picture of hardship that gave rise to the ‘grandfather clause’.”

  • Wedinger v. Goldberger, 71 N.Y.2d 428 (1988): Extent of DEC Jurisdiction Under the Freshwater Wetlands Act

    Wedinger v. Goldberger, 71 N.Y.2d 428 (1988)

    The New York State Department of Environmental Conservation (DEC) has continuing jurisdiction under the Freshwater Wetlands Act to identify and map potential freshwater wetlands at least up to and including the promulgation of a final map.

    Summary

    This case addresses whether the DEC’s failure to designate certain properties on a tentative map exempts those properties from DEC jurisdiction and regulation under the Freshwater Wetlands Act. The Court of Appeals held that the DEC’s jurisdiction extends throughout the mapping process, including the period before a final map is promulgated. The Court reasoned that restricting DEC’s jurisdiction to only mapped areas would frustrate the intent of the Act, which is to protect and preserve freshwater wetlands. The Court also addressed the appellants’ claims that the tentative designation of their properties as wetlands constituted a taking without just compensation, finding that the requirement to obtain a permit did not constitute a taking.

    Facts

    Several individuals and corporations purchased land in the Bloeser’s Pond area of Staten Island in 1984. These properties were not designated as freshwater wetlands on the 1981 tentative map issued by the DEC.
    In 1985, the DEC began studying the Bloeser’s Pond area for possible freshwater wetland designation. The DEC discovered that the area qualified as a wetland based on its acreage.
    The DEC notified the landowners that their lands were tentatively identified as freshwater wetlands and that they needed to apply for a permit before developing the land.
    The landowners, instead of seeking permits, challenged the DEC’s jurisdiction over their properties.

    Procedural History

    The landowners initiated Article 78 proceedings challenging the DEC’s attempt to regulate their properties.
    The Supreme Court, Richmond County, granted the petitions, holding that the DEC lacked jurisdiction over the properties.
    The Appellate Division unanimously reversed the Supreme Court’s decision and dismissed the petitions, upholding the DEC’s jurisdiction.
    The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the DEC’s failure to designate the appellants’ properties on a 1981 tentative map exempts those properties from DEC jurisdiction and regulation under the Freshwater Wetlands Act, when subsequent tentative and final maps included the properties.
    Whether the tentative designation of the appellants’ properties as wetlands constitutes a deprivation of property without just compensation.

    Holding

    1. No, because the DEC has continuing jurisdiction under the Freshwater Wetlands Act to identify and map potential freshwater wetlands at least up to and including the promulgation of a final map.
    2. No, because the tentative designation as a wetland does not prohibit development but merely requires that those holding property interests obtain an administrative permit. Further, the landowners failed to exhaust their administrative remedies by seeking a permit before bringing suit.

    Court’s Reasoning

    The Court reasoned that the statutory scheme of the Freshwater Wetlands Act, particularly ECL 24-0703 (5), contemplates DEC jurisdiction during the entire evolving period up to and including final mapping. To hold otherwise would frustrate the intent and purpose of the legislation.
    The Court cited Matter of Tri Cities Indus. Park v Commissioner of Dept. of Envtl. Conservation, 76 AD2d 232, 235-236, stating, “The plain language of this subdivision [ECL 24-0703 (5)] proscribes activity on said lands prior to promulgation of a final wetland map unless a permit has been issued. This clear language, together with the express public policy and intent of the legislation as declared in ECL 24-0103, confers jurisdiction in DEC for the entire period between the effective date of the act and promulgation of a final map. To hold otherwise would frustrate the clear intent and purpose of the legislation”.
    Regarding the taking claim, the Court distinguished French Investing Co. v City of New York, 39 NY2d 587, where a zoning ordinance directly converted private lands into public domain. In contrast, the Freshwater Wetlands Act merely requires landowners to obtain a permit before engaging in certain activities. The Court also emphasized that a taking can only be established after a permit has been sought and denied, and the owner has demonstrated that no permissible use would allow a reasonable return on the property.
    The Court referenced Spears v Berle, 48 NY2d 254, reiterating that a landowner bears a “heavy burden of proof” to establish a taking.
    The court also rejected the landowner’s reliance on First English Evangelical Lutheran Church v. County of Los Angeles because the landowners had not first established that a taking had occurred by seeking a permit.

  • Drexler v. Town of New Castle, 62 N.Y.2d 413 (1984): Local Wetlands Regulation Without a Map

    Drexler v. Town of New Castle, 62 N.Y.2d 413 (1984)

    A town may regulate wetlands not designated on the State Freshwater Wetlands map without filing or promulgating a local map, provided the wetlands do not meet the state’s size or importance criteria for state regulation.

    Summary

    This case addresses whether a town can regulate wetlands not designated on the state’s freshwater wetlands map without creating its own map. The Town of New Castle denied a permit for a tennis court construction on property containing a wetland. The property owner challenged the denial, arguing that the town needed to file a local wetlands map to regulate the area. The Court of Appeals held that because the wetland was less than 12.4 acres and not deemed of unusual local importance by the state, the town had the authority to regulate it without a local map. This decision clarifies the division of regulatory power between the state and local governments regarding wetlands in New York.

    Facts

    In 1979, the petitioner’s predecessors applied for and received a permit from the Town of New Castle to construct a septic system on their property. In 1981, they sought a second permit to build a tennis court on the same property. The Town Conservation Board recommended denying the second permit due to potential damage to the wetlands. The Board ultimately denied the permit, citing violations of the local wetlands law.

    Procedural History

    The petitioner’s predecessors initiated an Article 78 proceeding challenging the permit denial. The Special Term initially ruled in favor of the petitioner, stating the town lacked authority without a wetlands map. The Appellate Division reversed, finding the petitioner had prior notice of the wetland regulation, negating prejudice from the lack of a map. The New York Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    1. Whether a town can regulate wetlands not designated on the State Freshwater Wetlands map without filing or promulgating a local wetlands map.

    Holding

    1. Yes, because the Freshwater Wetlands Act reserves jurisdiction over wetlands not meeting state criteria (size or unusual local importance) to local governments, allowing them to regulate such areas without the requirement of filing a local wetlands map.

    Court’s Reasoning

    The Court reasoned that the Freshwater Wetlands Act distinguishes between wetlands regulated by the state and those regulated by local governments. The state regulates wetlands that are at least 12.4 acres in size or are deemed to be of unusual local importance. Smaller wetlands fall under the exclusive jurisdiction of local governments, as stated in ECL 24-0507: “Except as provided in this article, jurisdiction over all areas which would qualify as freshwater wetlands except that they are not designated as such on the freshwater wetlands map pursuant to section 24-0301 of this article because they are less than twelve and four-tenths acres in size and are not of unusual local importance is reserved to the city, town or village in which they are wholly or partially located”. The court emphasized that the property in question contained a wetland of approximately five acres, which had not been designated as unusually important by the state. Therefore, the town was authorized to regulate it under its local law without needing to file a wetlands map. The court also noted that the petitioner’s predecessors had actual notice of the wetlands on the property because they had previously applied for a permit related to the wetlands. The court found the denial of the permit was rational and supported by evidence indicating that the construction of a tennis court would create a risk of erosion and deterioration. The ruling underscores the importance of understanding the interplay between state and local environmental regulations.

  • Flacke v. Freshwater Wetlands Appeals Board, 53 N.Y.2d 537 (1981): Authority of Environmental Commissioner to Seek Judicial Review

    Flacke v. Freshwater Wetlands Appeals Board, 53 N.Y.2d 537 (1981)

    The Commissioner of the Department of Environmental Conservation has the authority to seek judicial review of a determination made by the Freshwater Wetlands Appeals Board.

    Summary

    This case concerns the scope of authority granted to the Commissioner of the Department of Environmental Conservation (DEC) under the Freshwater Wetlands Act. Meadow Run Development Corporation sought a determination from the DEC regarding whether their property was a protected freshwater wetland. The Commissioner determined that it was, but the Freshwater Wetlands Appeals Board reversed. The Commissioner then initiated an Article 78 proceeding to challenge the Board’s decision. The New York Court of Appeals held that the Commissioner does have standing to seek judicial review of the Board’s determinations, emphasizing the DEC’s primary responsibility for preserving and protecting freshwater wetlands in New York.

    Facts

    Meadow Run Development Corporation wanted to expand its parking facility and requested the DEC to determine if the land was a freshwater wetland protected by the Freshwater Wetlands Act. The Commissioner of the DEC determined that the property was part of a wetland larger than 12.4 acres and thus protected by the Act. Meadow Run appealed this determination to the Freshwater Wetlands Appeals Board.

    Procedural History

    The Freshwater Wetlands Appeals Board overturned the Commissioner’s determination. The Commissioner initiated an Article 78 proceeding seeking to reinstate his determination. Special Term upheld the Commissioner’s standing but affirmed the Board’s determination on the merits. The Appellate Division reversed, holding that the Commissioner lacked standing and dismissing the petition. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Commissioner of the Department of Environmental Conservation has the authority to seek judicial review, via an Article 78 proceeding, of a determination by the Freshwater Wetlands Appeals Board that reverses a determination of the Department.

    Holding

    Yes, because the Legislature empowered the commissioner to institute challenges to the appeals board’s determination as part of the legislative scheme for protecting the State’s freshwater wetlands.

    Court’s Reasoning

    The Court of Appeals found that the Commissioner’s power to bring suit is granted in Section 71-0505(1) of the Environmental Conservation Law, which allows the Commissioner to bring actions necessary to perform duties imposed upon the department, including those under Article 24 (the Freshwater Wetlands Act). The court found further support in Section 24-1105(2), which states that “any” determination of the board may be judicially reviewed, without limiting challenges to those brought by property owners. The court also cited Section 24-1103(2)(e), stating that the “commissioner * * * shall be bound by the decision of the board except to the extent such decision is reversed or otherwise modified by a court of competent jurisdiction pursuant to this article”.

    The Court distinguished Matter of Pooler v Public Serv. Comm., emphasizing that in Pooler, the Legislature had not explicitly granted the Consumer Protection Board the authority to maintain a suit against the Public Service Commission. In contrast, here, the Court found sufficient statutory language to infer legislative intent to grant the Commissioner the power to challenge the Board’s determinations.

    The court emphasized the importance of the DEC’s role in carrying out the environmental policy of the State (ECL 3-0301) and the department’s “primary and over-all responsibility for the preservation and protection of New York’s freshwater wetlands”. The Court rejected the idea that the Legislature intended the Freshwater Wetlands Appeals Board to have final and unreviewable authority over determinations regarding whether land falls within the scope of the Freshwater Wetlands Act. As Special Term recognized, “[i]t is manifest from the provisions of ECL article 24 that the commissioner and the department which he heads have the primary and over-all responsibility for the preservation and protection of New York’s freshwater wetlands”.

  • Matter of Rappl & Hoenig Co. v. NYS DEC, 47 N.Y.2d 925 (1979): Determining Freshwater Wetlands Act Applicability

    47 N.Y.2d 925 (1979)

    The applicability of the Freshwater Wetlands Act to a property must be determined before considering issues related to property use and potential environmental endangerment.

    Summary

    Rappl & Hoenig Co. sought judicial review to determine if the Freshwater Wetlands Act applied to its property. The lower courts held that the Act applied to both artificially and naturally created wetlands. The Court of Appeals affirmed the Appellate Division’s order, but clarified the reasoning. The court emphasized that the primary issue for judicial review was whether the Act applied to the petitioner’s property at all. The case was remanded to Special Term to make the necessary factual findings to determine if the property constituted a wetland under the Act before any further questions regarding property use or environmental impact could be addressed.

    Facts

    The specific facts concerning the nature of Rappl & Hoenig Co.’s property are not extensively detailed in the opinion, but the central point is that a determination needed to be made as to whether the property qualified as a freshwater wetland under the meaning of the Freshwater Wetlands Act (ECL 24-0107, subd 1). The determination of whether petitioner’s property could be drained without endangering the environment or questions concerning the use of the property could only be raised after the determination that the subject property comes within the Freshwater Wetlands Act.

    Procedural History

    The case originated as a proceeding pursuant to ECL 24-1105, initiated by Rappl & Hoenig Co. to challenge the applicability of the Freshwater Wetlands Act to their property. The lower courts initially held that the Act applied to both artificially and naturally created wetlands. The Appellate Division order was appealed to the Court of Appeals, which affirmed the order, but clarified the reasoning and remanded the case to Special Term for factual findings.

    Issue(s)

    Whether the primary issue for judicial review in this proceeding is whether the Freshwater Wetlands Act applies to petitioner’s property, requiring factual findings to determine if the property constitutes a wetland within the meaning of the Act, before questions concerning property use can be considered.

    Holding

    Yes, because the determination of whether the petitioner’s property could be drained without endangering the environment, as well as other issues concerning the use of the property, may be raised only after a determination that the subject property comes within the Freshwater Wetlands Act (ECL 24-0107, subd 1).

    Court’s Reasoning

    The court reasoned that the initial and sole question for judicial review was whether the Freshwater Wetlands Act applied to Rappl & Hoenig Co.’s property. While the lower courts had addressed the applicability of the Act to both artificial and natural wetlands, the Court of Appeals pointed out that the crucial factual findings necessary to determine whether the property actually constituted a wetland under the statutory definition were lacking. The court emphasized a structured approach: first, determine if the property falls under the Act; then, if it does, the Department of Environmental Conservation (or local government) considers property use through a permit application process (ECL 24-0703, subd 1; 24-0705, subd 1); and finally, review of those determinations can be sought administratively or judicially (ECL 24-1105). The court noted, “If it is determined that the property comes within the purview of the act, questions concerning the use of the property must be considered initially by the Department of Environmental Conservation or the duly empowered local government within the confines of an application for a permit.” By remanding the case to Special Term, the court ensured that the foundational question of the Act’s applicability would be resolved before proceeding to secondary issues of property use and environmental impact.