[*1]
| State of New York v White Oak Co., LLC |
| 2004 NY Slip Op 50934(U) |
| Decided on May 28, 2004 |
| Supreme Court, Suffolk County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Suffolk County
THE STATE OF NEW YORK, ERIN M. CROTTY, as Commissioner of Environmental Conservation and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Plaintiffs,
against
WHITE OAK CO., LLC, and GEORGE H. GREENE, Defendant.
|
00491-2004
Norman Spiegel, Assistant Attorney General for Elliott Spitzer Attorney General
Attorneys for Plaintiffs
120 Broadway
New York, New York 10271
Glenn B. Gruder, Esq.
Attorneys for Defendant
1393 Veterans Memorial Highway
Hauppauge, New York 11788
Robert Webster Oliver, J.
This case involves land in Ridge, Suffolk County, New York allegedly the habitat and breading ground of the endangered species known as the Tiger Salamander.
The State of New York by its agency, the Department of Environmental Conservation, (hereinafter sometimes referred to as the State or DEC) is represented by the Attorney General of the State of New York, Eliot Spitzer, and the defendants are represented by Certilman, Balin, Adler & Hyman.
After a hearing wherein the State sought to extend a Temporary Restraining Order granted by Honorable Emily Pines, dated January 23, 2004 for a preliminary injunction enjoining the defendant's (hereinafter sometimes referred to as the Property Owners or developers) from conducting any activity that would modify or destroy the alleged habitat or that portion of the subject land which is the subject of this litigation. By Order of this Court dated February 25, 2004, the Temporary Restraining Order and all stays were vacated and the State's application was denied.
In the interim, the State by Order to Show Cause dated March 26, 2004 has moved this Court to leave to renew its motion and to reargue same.
By notice of Cross Motion, the Property Owner opposes the State's motion and moves for summary judgment.
First a brief review of the lengthy process. For a more particularly through history, the Court refers to pages 7 et seq of the affirmation of Glen B. Gruder, Esq. annexed to defendant's Cross Motion entitled "History of Property 1974-1995 and SEQRA History 1996-2000 page 13 et seq of the same affirmation. The issues have been litigated since 1988. The State has not denied this history although it contests certain conclusions.
The motion to Renew
The State bases its present motion "upon new facts not offered on the prior motion that would change the prior determination."
The decision of this Court dated February 25, 2004 was based primarily on the State's failure to meet its burden of proof in that the Court found that it failed to prove that there were any Tiger Salamanders on the subject property. The "new facts" now alleged by the State consist of evidence that Tiger Salamanders were found on March 3, 2004 and on March 27, 2004, a short time after the [*2]eight (8) day hearing and the decision of February 25, 2004. Therefore, within less than a month, the "new facts" were found. They must be examined.
It cannot be said that the evidence "did not exist at the time of the hearing" which resulted in the February 25, 2004 decision, since the State has been saying almost since WWII that Tiger Salamanders have inhabited the subject premises. The evidence produced at the February hearing, was woefully lacking. The experts produced by the State had not even visited the property before giving their educated opinions in February.
The State excused its failure on the fact that the pond was covered with ice and bad visibility. Yet, the State had been arguing that the pond is a Tiger Salamander habitat since 1988 and before. However, through the years and until the Hearing, the State did not disclose what was to become at Hearing, plaintiff's Exhibit 8 which were Field Notes of DEC investigations of the "Tiger Salamander Breading Pond Survey" of the subject property, which disclosed: in 1991 - no evidence of Tiger Salamanders; same in 1992; same in 1993 (ice blamed for no survey); 1994 - no evidence; 1995 - 1 mass of eggs containing ten (10) eggs, one half of which appeared alive; 1996 - no evidence; 1997 - no evidence, 1998 to 2001 no annual report; 2002 - no evidence.
Therefore, with the exception of a small find in 1995, no evidence of Tiger Salamanders were found by the State in it Annual Field Review. The Court notes that all this time, the DEC was vigorously defending this alleged habitat and breading pond for the benefit of Tiger Salamanders that by the DEC's own reports were not there. Full disclosure, especially by the State and its agencies in litigation with its citizens is a "square corner" the State must adhere to.
The State and the property owner consistently refer to discussions of the existence of Tiger Salamanders in the area and how to protect this endangered species. The State constantly defended the Tiger Salamanders through at least fifteen (15) years of litigation. For the State to now come forth and claim that proof of the existence of the Tiger Salamanders is "new evidence" is fatuous. To deprive a citizen of the use of his land and put him through fifteen (15) years of expenses and litigation and then fail to prove these Tiger Salamanders exist on this land, while having in it possession Field Notes of no finding of the Tiger Salamanders makes one question the integrity of the entire process.
The Court finds the State's argument that it could not "focus" its limited resources on an intensive investigation of this one particular pond is not a meaningful argument. In the affidavit of the Property Owner, George H. Green (speaking for the defendant White Oak Company, LLC), testified that defendant had expended, not including the three million three hundred and sixty-four thousand dollar purchase price of the property, and over three hundred and forty thousand dollars ($340,000) in costs and expenses of this long drawn out proceeding. The cost to the tax payers is unknown but is probably substantial. That money could have been much better spent if State employees throughly examined the property and made a cognizable determination as to "this one particular pool. As the State discusses its acting in its "sovereign capacity to protect the public interest" it is overlooking the fact that the Property Owner has the right to use its property absent verifiable reasons prohibiting [*3]him from doing so. The State had a full evidentiary hearing to expose its case and failed. Most importantly, this process took about fifteen (15) years, and the SEQRA process alone took ten (10) years. The Town Board of Brookhaven was the "lead agency" but all during the process, DEC was an "involved agency" receiving copies of plans and documents and it does not deny that DEC knew of the alleged existence of the Tiger Salamander. The DEIS (Draft Environmental Impact Study) was sent to the DEC which corresponded and met with representatives of the Property Owner, as well as the Town
As an admittedly "involved agency," DEC had responsibilities codified in 6 NYCRR § 617.3 (e)
Each agency involved in a proposed action has the responsibility to provide the lead agency with information it may have that may assist the lead agency in making its determination of significance, to identify potentially significan adverse impacts in the scoping process, to comment in a timely manner on EIS if it has concerns which need to be addressed and to participate as may be needed, in any public hearing. Interested agencies are strongly encouraged to make known their views on the action, particularly with respect to their areas of expertise and jurisdiction. (Emphasis added)
Yet, the record before the Court does not disclose any assisting information disclosed to the "lead agency" by DEC or any concerns that need be addressed. Apparently, DEC just sat back and watched and waited.
After every other agency had its say, and after conferences and writings, and after numerous trips to Court involving approximately five (5) litigations, all involving the Tiger Salamander, and after the Property Owner had complied with all demands and request made of them, and had received all final approvals and resolved a frivolous and questionable delay affecting the Property Owners due to Town Board inaction (which required two mandamus proceedings before the Supreme Court) and a direction by the Court (Jones, J) to the Town to sign the subdivision maps pursuant to Town Law §276(7)(e) on August 18, 2003, the subdivision maps were signed and filed with the Suffolk County Clerk.
After further bureaucratic delay, in December 2003 the Property Owner had satisfied all subdivision conditions and all necessary municipal approvals and prepared to commence the project. It is important to note that DEC had not yet sought to establish jurisdiction of the project or made any complaint. DEC did not involve itself in the long project approval process. All it did was inform the Property Owner that the project, upon surrendering the right to develpe five (5) more buliding lots, "the entire subdivision project is out of New York State DEC jurisdiction," and provided the Property Owner of a "Notice of No Permit Necessary/Letter of No Jurisdiction."
All this while, until service by the State on the Property Owner of a Summons, Complaint and Temporary Restraining Order, DEC sat silent. There was no demand for a endangered specieis permit nor was there reference to "takings" of the Tiger Salamander by the DEC nor was there a allegation by DEC that the plans that all parties had finally approved, violated ECL (Environmental [*4]Conservation Law) Article 11 without any specifics.
As said, after all approvals had been obtained, plans filed and Property Owner ready to commence, DEC, having been on notice at all times in the process as an "involved agency" first speaks up with a Summons, Complaint and Temporary Restraining Order by service on January 26, 2004.
What is more interesting is the demands of the State in its complaint:
It seems that DEC regulations are not all reduced to writing. They treat each project ad hoc, but its regulations in cases such as this seem to be varying:
1. It is agreed that you cannot "take" (i.e. kill) Tiger Salamanders. All the approvals and fifteen (15) years of efforts were to protect the Tiger Salamander and all municipal agencies fully agreed that the Tiger Salamanders were fully protected. Again and again and again, the Property Owners were informed that DEC "recommends that 50% of the upland area within 1000 feet of the Tiger Salamanders breeding ponds which have been documented on the site remains (sic) natural and undisturbed to protect the Tiger Salamanders breeding habitat. All this the Property Owner accomplished.
Yet, the complaint alleges that "defendant's construction plans in the short term would kill a significant portion of the Tiger Salamander on the site."
Why were all the agencies involved fully satisfied that the long approval process and the revised requirements, plans finally filed with the County Clerk, which would prevent the "killing" of Tiger Salamanders? DEC merely alleges this without adequate proof and provides the Court with unproven assumptions.
The process started in 1980's. Although the plans were finally filed after full approval on August 18, 2003, the DEC for the first time stepped in January 26, 2004.
2. DEC's unwritten policy "recommends" that 50% of the upland area within 1000 feet of the Tiger Salamanders breeding ponds which have been documented on the site remains (sic) natural and undisturbed to protect the Tiger Salamanders breeding habitat.
The filed plans do this and more and all agencies, including the lead agency (Town Board) agree. Yet, the State claims that the project will "take" Tiger Salamanders but no proof has been adduced that the project will kill Tiger Salamanders. The project is elaborately designed to avoid it. There is a 500,000 improvement bond to assure that all agencies are satisfied with what was finally accomplish protects the Tiger Salamander by setting aside the "recommended" 50% of the upland area within 1000 feet of the Tiger Salamanders breeding ponds. Thus, the State got all that the agencies wanted to protect the Tiger Salamander and, in cases, more.
Why, after some fifteen (15) years, when the Property Owners have fully complied with all requirements demanded of them does the State suddenly, after years of silence, step in voicing [*5]unsubstantiated visions of doom?
The State admits it wants to continue a "status quo" imposed for fifteen (15) years, at great cost to the Property Owner. If it is assumed that Tiger Salamanders reside near the subject property, all the labors of all the involved agencies directed to protecting the Tiger Salamander have resolved any problems.
Now, DEC wants to start this review all over again and, in the meantime, continue its "status quo" by means of injunctive relief staying the Property Owner from proceeding. What does the complaint seek? Its whole thrust is to make Property Owner apply for and get an endangered species permit pursuant to ECL §11-0535. That is what the complaint asks for, except some money in the form of penalties. Of course, also Property Owner is further delayed at its cost and none to the State.
The Property Owner proceeded under color of right and has the right to proceed. With all the studies performed, obtaining an endangered species permit is not sufficient reason for an injunction delaying the project further. Except for unproven assumptions, all the State argues is that the Property Owner didn't apply for a permit. What more could DEC learn? This is a procedural device used to further delay a fully approved project. The State, as Javier so often said, is saying "the law is the law." Nowhere does the State give a reason for its sudden appearance excpet that the Property Owner did not obtain a permit. The Court recalls the Property Owner was misled by DEC as to the need for a permit.
Being unable to use its land the monies expended by the Property Owner are unfairly placed upon the citizen, voter and taxpayer. If the State sincerely wants to maintain a status quo, it should try to use its eminent domain power and stop imposing upon the Property Owner.
As to the Property Owners' motion for Summary Judgment, the volume of paperwork culminating in full approval of all agencies and filing of the subdivision plans in the office of the Suffolk County Clerk pursuant to Town Law §276 (7)(e) is prima facie proof that the Property Owner has down all required by the State and municipal agencies to protect the endangered Tiger Salamander.
Now, with no prior warning DEC demands a further Temporary Restraining Order and more study. In its complaint other than seeking injunction relief, the State seeks only monetary penalties and requiring Property Owner apply for an endangered species permit that DEC told Property Owner was not necessary.
Again, and again, and again, DEC has stated to the Property Owner and applicants in other cases, that its request or recommends, that 50% of the upland area within 1000 feet of the Tiger Salamander breeding ponds which have been documented on the site remains natural and undisturbed to protect the Tiger Salamander's breeding habitat. This is in the letter of the DEC dated June 20, 2000 entitled "Notice of No Permit Necessary/Letter of Non-Jurisdiction." By letter of January 1, 2000 DEC stated "it was determined that the 5 lots currently within Freshwater Wetlands jurisdiction will be reconfigured or deleted so that the entire subdivision project is out of NYSDEC jurisdiction. Not [*6]just wetlands jurisdiction but DEC jurisdiction without limitation.
The State's main complaint is that the Property Owner did not apply for permit. But now DEC wants to renew and reargue the project resulting in more delay and expense without reason.
After advising the Property Owner that no permits were necessary and that DEC had no jurisdiction, it would seen reasonable not to apply for an endangered species permit pursuant to DEC § 11-0535 (b) in the first place.
If the State's argument that its failures such as "no permit" letters were "mistakes," it would seem that State's obligation was to correct them, in writing, and warned the Property Owner that it needed an endangered species permit. But until the summons and complaint were served, no correction was issued nor was a request for an endangered species permit made.
The State claims that "with due diligence" the Property Owner should have known such permit was needed. The Court finds that, in the face of no permit and no jurisdiction letters such as set forth above, Property Owner acted perfectly reasonably. The State has an obligation to deal fairly with its citizens, and the Court finds that the State did not act fairly therein.
The DEC also failed in another responsibility. As an involved agency, the State has a statutory obligation which it ignored:
Each agency involved in a proposed action has the responsibility to provide the lead agency with information it may have that may assist the lead agency in making its determination of significance, to identify potentially significant adverse impacts in the scoping process, to comment in a timely manner on EIS if it has concerns which need to be addressed and to participate as may be needed, in any public hearing. Interested agencies are strongly encouraged to make known their views on the action, particularly with respect to their areas of expertise and jurisdiction. (Emphasis added)(6 NYCRR § 617.3 (e)).
Yet the record shows that DEC played dog in the manger until service of the Summons, Complaint and Temporary Restraining Order on the Property Owner in January 2004 when for the first time (save only one reference in the proceeding concerning old debris removed not pertinent here), DEC raised the issue of the Tiger Salamander Endangered Species Permit, and asserted jurisdiction. Most importantly, DEC never claimed that the Tiger Salamander was not fully protected by the approved project in which DEC was an involved agency. It just pleads that Property Owner didn't get a permit.
There is an old legal maxim that the law does not require a litigant to do something just for form. What would the Sate learn that is not already in the records? It does not tell us.
When offered a hearing or oral argument by the Court on these motions, both counsel advised the Court that everything that they presented to the Court was already set forth in the motion papers. By [*7]pure volume, the Court is inclined to agree.
The State claims the approved project does not adequately protect the Tiger Salamander. All other agencies have found Tiger Salamanders fully protected and approved the sub-division plans filed with the County Clerk. The State fully fails to enlighten us as to the failure in the approved permits. Again, the State has failed in presenting its case.
So all the State's case is concerned with comes down to failure of the Property Owner to obtain an endangered species permit pursuant to DEC § 11-0535.
The Court finds that after all the proceedings and filings and approvals, the lack of probative evidence from the State in support of its illogical demands without substantiation of its claims or even its specification of allegations, renders the complain meaningless except as to the permits application.
The Court is also concerned about DEC's good faith in dealing with a citizen of our State and the Republic. It all that is between Property Owner and proceeding, pursuant to his approvals, is the lack of permit, with this voluminous record before it, the Court finds that pleading a lack of a permit under DEC §11-0535 no persuasive. Whatever would be discovered in the permit application is certainly already in the record. The States complaint must be balanced against all that has gone before and against the failures of the DEC, especially in view of notices which DEC now claims were issued in error, and to long ago notify Property Owner of the requirement for such permit is equitable and ample reason to waive the requirement of the permit. The Court is aware of the legion of cases protecting the sovereign against errors by its agents. Much has been spent assuring that the Tiger Salamanders receive their full protection and rights of procedural due process. After fifteen (15) years the Court believes its time to give the Property Owner full due process rights to which he is also entitled.
It is the decision of this Court that;
a) The States motion to renew and reargue is denied in full and
b) Granting the Property Owners motion for summary judgment, lifting any and all stays that would prevent defendant from proceeding with the project.
Settle Judgment.
Dated:
ROBERT WEBSTER OLIVER, J.S.C.