This is a special proceeding pursuant to CPLR article 78, specifically section 7803 (3)^[FN1] , [*2]whereby petitioner requests the court to review a denial or non-renewal of his previously issued license under article 11 of the Environmental Conservation Law, and a corresponding companion license under 6 NYCRR 180.1. The verified petition (Dkt. No. 1) sets forth a set of historical facts and circumstances that go back nearly 30 years regarding the petitioner's lawful possession of an American alligator ("Albert") under a special license given to permit the "exhibition" of Albert as an "endangered/threatened species" which was issued to petitioner in December of 1995 pursuant to ECL sections 11-0535 and 11-0536, and the corresponding administrative Regulations posted in 6 NYCRR 175 and 182 (the "Original License"). The Original License is displayed at page 4 of the Certified Administrative Record of the Respondent (Dkt. No. 16-sometimes referred to simply as the "Record").^[FN2] It is undisputed that the Original License was originally granted to allow the petitioner to "exhibit" Albert under the terms, conditions and regulatory protocols of the Regulations promulgated by the respondent pursuant to the wide-sweeping statutory authority granted to it by the State Legislature and embedded in the ECL. See ECL § 11-0305, (particularly subd. 2 with respect to the Department's license and permit issuance authority), and § 11-0511.

Though the Record does not include copies of all the subsequent applications for renewal and reissuance of the Original License, it is undisputed that it was annually re-applied for by the petitioner and formally processed and reissued by the respondent without objection, modification or any curative requirements to its continued legitimacy up through September 18, 2020. A copy of the last documentary form of the annually renewed and reissued version of the Original License is set forth at pages 6-10 of the Record. The same statutory and regulatory provisions recited in the Original License at the time it was first issued in December of 1995 are reiterated in the reissued version dated September 18, 2020.^[FN3]

Subsequent to the issuance of the last renewed special license in September of 2020, the respondent sent a letter dated November 6, 2020, to the petitioner informing him that a new regulation had been "recently" adopted by amendments to 6 NYCRR 180.1 which were applicable to petitioner's continued permissible possession of Albert, particularly the obligation to obtain a "Dangerous Animal" license. The letter enclosed and included a copy of the recently adopted amended Regulation (hereafter referred to as Reg. 180.1 or Section 180.1), along with a blank form of the Dangerous Animal License Application for the petitioner's use to fill out and submit. Dkt. No. 16 (Record at pgs. 12-19).

The respondent adopted Reg. 180.1 in accordance with the State Administrative Procedures Act beginning with its publication in the New York Register of its "Proposed Rulemaking" and the posting of a "Public Notice" on its website on September 18, 2019, followed by a Press Release on September 19, 2019. See Dkt. Nos. 26, 27 and 28. Respondent's [*3]informational outreach to holders of licenses of "dangerous animals" covered under Reg. 180.1, included a form letter mailed to all such licensees dated October 2, 2019, informing them of their right to "provide comments on the proposed rulemaking." Dkt. No. 32. The letter included the following: "The rulemaking will not change the application or license renewal processes and will not impose any additional requirements relating to the possession and exhibition of animals for which you are currently licensed (italics added)." The respondent's internal records reference the mailing of this letter to all "interested stakeholders and interested licensees," including the petitioner at his address shown in all the papers filed in this proceeding. See Therrien Affirmation dated January 10, 2025 (Dkt. No. 24, ¶¶ 15, 17). The petitioner has not denied having received this letter, and it is presumptively deemed to have been received in the ordinary course of mailed delivery in the absence of any substantiated claim and evidence that it was not received. Nassau Insurance Company v. Murray, 46 NY2d 828 (1978). After expiration of the comments period and other requisite time compliance with the SAPA, Reg.180.1 was adopted as proposed on April 22, 2020. Dkt. No. 29.

The first "bump in the road" on the chronological spectrum of what transpired between the parties in this matter is the undisputed fact that the respondent received and accepted the petitioner's application for the September 2020 renewal of the originally issued special license and GRANTED the renewal on September 18, 2020, without conditioning its issuance at that time to any explicit reference or imposition of Reg. 180.1 which had been formally adopted five months earlier. Dkt. No. 16, Record, pgs. 6-10).^[FN4] Except for the below-noted General Conditions which were not notated in the form of a "Warning," or any other explicit restriction on its issuance, the Original License was renewed and continued in petitioner's favor in the same usual and customary course of dealing and practice with the respondent since 1995.

The background leading up to the present legal calamity comes about following the issuance of the September 2020 renewal. As noted above, the respondent sent the petitioner a letter dated November 6, 2020, informing him of the need to prepare and submit the Dangerous Animal License Application enclosed with the letter. The petitioner received the letter and promptly acted upon it by completing the enclosed Application for compliance with Reg. 180.1 (the "Reg. 180.1 Application") and mailing it to the respondent with a letter dated December 7, 2020 (Dkt. No. 16, Record, pgs. 17-20). Petitioner's transmittal letter with the accompanying Reg. 180.1 Application is date-stamped as received by the respondent on December 14, 2020. See Record, pg. 20.

Nothing further occurred with the Reg. 180.1 Application until the respondent sent a [*4]letter dated January 29, 2021, captioned in bold capital letters as a "NOTICE OF INCOMPLETE APPLICATION . . . This is NOT a License" (the "Notice Letter"). Dkt. No. 16, Record, pgs. 37-38. The record is somewhat mixed on whether or when the petitioner received the Notice Letter. In the verified petition it is plainly recited that the letter was received (see Dkt. No. 1, ¶¶ 12-13), but in the e-mail thread between the parties contained in respondent's Record (Dkt. No. 16, pgs. 43-46), when asked by a representative of the respondent on September 27, 2021, "Did you receive this?" referring to "[a]n incomplete notice . . . sent" (to wit, the Notice Letter) the petitioner said, "No, I did not." Dkt. No. 16, Record, pg. 45.

Petitioner's admission of receipt in the verified petition is binding and controlling . . . he received the Notice Letter at or near the time it was originally sent on January 29, 2021, and thus he was "on notice" of the requirements (three bullet points) which the letter said needed to be completed by June 1, 2021. However, no limitation or restriction was affirmatively recited or implied in the Notice Letter affecting the petitioner's previously granted rights under the renewal of the Original License issued on September 18, 2020. Nothing further occurred by June 1, 2021 . . . the petitioner submitted nothing in furtherance of the bullet point requirements set forth in the Notice Letter and the respondent did nothing along the way to follow-up on the Notice Letter requirements, including taking no affirmative action to inquire or determine if any attempted efforts had been taken by petitioner to come into compliance by June 1, 2021.^[FN5]

The next chronologically relevant event occurred on July 20, 2021. Without anything else being done with respect to the requirements set forth in the Notice Letter or any other affirmative action being taken on the Reg. 180.1 Application received by the respondent on December 14, 2020, respondent sent another "Notice of License Renewal" to the petitioner, once again requesting the petitioner if he wanted to file the standard form of renewal for his Original License that had been granted over the preceding 26 years. Dkt. No. 16, Record, pgs. 39-41. Petitioner, once again, promptly completed the renewal form and mailed it with an accompanying letter to the respondent on July 26, 2021 (Dkt. No. 16, Record, pgs. 40-42). There is, however, a substantive wrinkle created by the petitioner with the manner by which he completed this form. In the two sections (A and B) where the licensee must check-off one or the other to seek renewal of the license, or alternatively allow it to expire (i.e., "A. I DO NOT WANT TO RENEW MY LICENSE or B. I WANT TO RENEW MY LICENSE WITH NO CHANGES"), the petitioner checked-off BOTH sections. For reasons unknown from the filings maintained in the Record, no response has ever been sent (up to the present time) by the respondent to petitioner rejecting the dichotomous renewal form or declaring it "incomplete" or issuing any other formal handling or notification of its status.

Though the above-referenced renewal form was left in an officially unanswered vacuum as far as any response to it by the respondent, it nevertheless did not go quietly into the night from the petitioner's side of this saga. The email thread referred to previously (Dkt. No 16, [*5]Record, pgs. 43-46) was initiated by the petitioner on September 26, 2021, with the following message (in part): "Hi (sic) I'm writing this email in reference to my renewal for license #322 (sic) I sent my license renewal for my Alligator permit over two months ago and still haven't received it . . . I would appreciate a response . . . It expires this month." Record, pg. 46. After several more messages between petitioner and one of respondent's Fish and Wildlife Technicians, the Technician sent a reply on October 4, 2021, as follows: "We are currently reviewing your materials and paperwork. If we need anymore information regarding your animal, we will reach out to you." Petitioner replied to that message the same day with a brief "Thank you." After October 4, 2021, the email thread continued from the petitioner's side only (messages sent on 10/20/2021, 10/25/2021 and 10/31/2021), expressing ongoing attempts by him to get a status update on both applications he had submitted, to wit, the recent renewal form for the Original License and the Reg. 180.1 Application filed in December of 2020. Dkt. No. 16, Record, pg. 43.

The factual background chronology stops there . . . no further communication(s) from either party through the remainder of 2021, and all of 2022 and 2023. The legal imbroglio got sparked with respondent's unannounced arrival at petitioner's home on March 13, 2024, pursuant to a search and seizure warrant granted by the Hamburg Town Court authorizing ECL law enforcement officers (assisted by others) to seize and remove Albert from his abode at petitioner's home.^[FN6]

The verified petition seeks a vacatur of the respondent's "Decision" made in the form of a letter dated May 24, 2024, to treat the petitioner's Reg. 180.1 Application filed on December 14, 2020, and returned on or about January 29, 2021, with the "Notice Letter" ("Notice of Incomplete Application"), as being "deemed withdrawn" pursuant to 6 NYCRR 175.4 (b), or in the alternative, if the Application "were to be considered still active and pending" it was the respondent's position that it failed to comply with 6 NYCRR 180.1 (as well as other statutory and regulatory compliance grounds) and thus was denied. The court's review over state agency rulemaking, license/permit issuance and compliance determinations relative to its interpretation of its own regulations in the area of expertise which it oversees for the state is very narrow, and the agency's action is entitled to deference in the absence of an unreasonable or irrational determination. Andryeyeva v. New York Health, Inc., 33 NY3d 152, 172 (2019) ("As a general rule, "courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" (Matter of Peckham v. Calogero, 12 NY3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 [2009] ). Thus, an agency's construction of its regulations " 'if not irrational or unreasonable,' should be upheld" (Samiento v. World Yacht Inc., 10 NY3d 70, 79, 854 N.Y.S.2d 83, 883 N.E.2d 990 [2008], quoting Matter of Chesterfield Assoc. v. New York State Dept. of Labor, 4 NY3d 597, 604, 797 N.Y.S.2d 389, 830 N.E.2d 287 [2005]"). Overall, [*6]"[o]ur review of this administrative determination is limited to whether the determination 'was affected by an error of law or was arbitrary and capricious or an abuse of discretion' " (Matter of Erie County Sheriff's Police Benevolent Assn., Inc. v. Howard, 159 AD3d 1561, 1562, 74 N.Y.S.3d 432 [4th Dept. 2018], quoting CPLR 7803[3] )." Brennan v. Green, 167 AD3d 1482 (4th Dept. 2018).

With the above baseline principles of law being binding on the review and relief sought by the petitioner, the two avenues of adverse treatment on the petitioner's Reg. 180.1 Application set forth in the Decision will be addressed separately, as follows:

1. Respondent's initial reference to 6 NYCRR 175.4 (b) as grounds for deeming the Reg. 180.1 Application as "withdrawn" was misapplied by reason of the fact that the amendatory history of Section 175.4. subsection (b) as noted in respondent's "Decision," did not go into effect until January 18, 2023. The applicable version of Section 175.4 relative to any claim of an "incomplete or vague application[s]" that was in effect as of December 14, 2020 (and until 1/17/2023), was pre-existing subsection (a) of 175.4 which provided as follows: "(a) The department will determine if an application is complete for review. Incomplete or vague applications will be returned to the applicant with a request for additional information within 30 calendar days after receipt of the application. The application review time period will not begin until the department has determined that an application is complete." (italics added)

In this case the subject Reg. 180.1 Application was not returned to the petitioner within 30 days and then remained in a dormant coma-like state of no administrative action for two (2) years before the amendment of Section 175.4 (b) relied upon by respondent became effective. Based on the foregoing the respondent's threshold Decision that petitioner's Reg. 180.1 Application should be "deemed withdrawn" is reversed and vacated as having been "affected by an error of law." CPLR § 7803 (3).

2. The respondent's Decision to alternatively deny petitioner's Reg. 180.1 Application addresses a compendium of issues, the first of which is the specific relief requested in the notice of petition and verified petition. Petitioner is asking explicitly for a vacatur of the denial of the Application pursuant to ECL § 11-0512, on the grounds that Albert qualified and was licensed as a "pet" under § 11-0512 (3). This, however, was not the statutory grounds upon which petitioner was ever licensed to possess Albert. The special license issued in 1995 and then renewed annually thereafter was granted as an "endangered/threatened species" license under ECL §§ 11-0535 and 11-0536.

All dangerous or wild animals are prohibited to be possessed under ECL § 11-0511, except as exempted under § 11-0512 (2) (setting forth ten specialized "persons or entities") or subd. (3) which provided the following "grandfathered" exception that petitioner appears to be relying upon:

"3. Any person who possesses or harbors a wild animal for use as a pet at the time that this section takes effect may retain possession of such animal for the remainder of its life, provided that such person:

a. Has not been convicted of any offense relating to cruelty to animals or under a judicial order prohibiting possession of animals;

b. Applies to the department within six months of the effective date of this section, and obtains from the department, a license pursuant to subdivision four of this section;

c. Complies with all applicable federal, state, or local laws, including any ordinance, rule [*7]or regulation adopted by a local board of health, or any rules and regulations established by the department as requisites for ownership of such wild animal; and

d. Reports a release to the local police department and animal control immediately upon discovery of the release. Each escape during a twelve month period of time will subject the possessor to penalties by the department pursuant to subdivisions eight and nine of this section" (all bold and italics added for emphasis).

Subsection 3 was passed into law and became effective on March 15, 2005. Even if Albert enjoyed the dual status of being licensed for exhibition purposes under § 11-0535 and simultaneously embraced by petitioner as his "pet," the petitioner never applied for a license to continue possession of him in the capacity of being a "pet" and the opportunity to do so expired forever as of September 15, 2005. Accordingly, the relief sought in the petition for vacatur of the respondent's Decision to deny the Reg. 180.1 Application on the grounds that said Decision was based on legal error or was arbitrary and capricious or an abuse of discretion of petitioner's claimed rights of "pet" possession under ECL 11-0512(3), must be denied.

The above determination by the court on the inapplicability of ECL § 11-0512(3) is not fully conclusive of this matter, however, inasmuch as the petitioner has made a general request for "such other and further relief the court may deem just and proper." As set forth above, the subject Reg. 180.1 Application is not "deemed withdrawn" and therefore, is still pending for consideration on grounds unrelated to § 11-0512, and consistent with the special license previously issued to the petitioner which has remained in a dormant state of no administrative treatment by the respondent since the date of its technician's email on October 4, 2021. ("We are currently reviewing your materials and paperwork. If we need anymore information regarding your animal, we will reach out to you.")

In this case, the excessive duration of inaction by the respondent on the predicate renewal application of the Original License created an implied "holdover" consent and acquiescence of the Original License being legally in effect for a reasonable period of time which the petitioner reasonably relied upon to believe he was in lawful possession of Albert. Indeed, even if the respondent were to take the position that its extensive non-action on the renewal application was equivalent to a denial at some point in time (which is incapable of being determined), by January of 2023, the law on reissuance or renewal of existing licenses set forth in 6 NYCRR 175.7, eff. January 18, 2023, subd. (e) came into effect and provided as follows:

"(e) Pursuant to section 401(2) of the State Administrative Procedure Act, when a license or permit holder has submitted a timely and sufficient application for renewal of a license or permit for an activity of a continuing nature, the existing license or permit does not expire until the department has made a final decision on the renewal application and if such application has been denied, then not until the last day for seeking review of the agency order or any later date fixed by a court. Projects or activities of a continuing nature are those involving an ongoing operational activity." (emphasis added)

The pause incurred with respect to no action being taken on the renewal application is inextricably woven into the substantive treatment and determination of this matter vis-à-vis the full and fair treatment of the Reg. 180.1 Application. Though estoppel is not generally chargeable to the respondent as a state agency under New York law (Notaro v. Power Authority of State of New York, 41 AD3d 1318 [4th Dept. 2007]), in the court's view, respondent's neglect to act affirmatively as otherwise set forth generally to all forms of permit and license [*8]applications under 6 NYCRR 175, constituted "unusual circumstances . . . where a governmental subdivision acts wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice (internal citations and quotation marks omitted," id. at 1319-1320.

Correspondingly, the dormant non-action on the Reg. 180.1 Application for more than two years after the Notice Letter in January of 2021, which was bolstered by the email of October 4, 2021 from respondent's representative that "[w]e are currently reviewing your materials and paperwork" and "we will reach out to you" if anything more was needed, spawned a sense of compliance and ultimately prejudiced petitioner's efforts to know where he stood until he was forced to send the letter of May 15, 2024 (Dkt. No. 16, Record, pg. 47). Under the forgoing circumstances, the petitioner's May 15, 2024, letter effectively reset all the applicable timelines for appropriate action to be taken on the Reg. 180.1 Application as a "pending" application and for final treatment action to be made on the predicate renewal application.

Taking the renewal application first, notwithstanding the confusing content of Sections A and B (electing to not renew or renew) both being checked off, the respondent's non-action from the time it was received in or around July 29, 2021 (see Record, pgs. 39-42), triggers a fairness factor to reasonably view and treat the renewal application as being submitted consistent with petitioner's true and undeniable intention to maintain the legally authorized status he had been granted for the lawful possession of Albert since 1995. Since it appears that in order to satisfy the "dangerous animal" licensing of 6 NYCRR 180.1 it is essential to be the holder of an underlying form of license for lawful possession (in this case the "exhibition" license granted to petitioner in 1995 and previously renewed and reissued without difficulty), the first order of business is for the respondent to finally review and act on that renewal application.

The second stage of addressing the petitioner's status to recover and retain possession of Albert encompasses the full and fair compliance with 6 NYCRR 180.1. The possession of a dangerous animal under any other form of license granted to a license holder (such as the subject license issued to the petitioner for exhibition purposes) is nevertheless prohibited without an overarching license being granted under Section 180.1 (c), (see Section 180.1 [b], inter alia, "Notwithstanding any other provision of this Chapter . . . ). There is no avoidance of compliance with Section 180.1 and petitioner's efforts or expressions of self-determined compliance are not the basis upon which compliance is established.^[FN7]

While 6 NYCRR 180.1 clearly sets forth the prohibitions and the available license that may be applied for with the respondent, it is not as plain and clear as to what the "terms, conditions and standards" are for such licensing, except that "[a]pplications for, or renewal of, a license must be made on forms provided by the department." 6 NYCRR 180.1 (c). The regulation leaves the specific "terms, conditions and standards" for a license undefined and subrogated to the open-ended drafting of the respondent. This is in direct contravention to the notices published by the respondent during the pre-adoption stage of Section 180.1 which fundamentally informed current license holders that Section 180.1 would not impose or require any changes to their licensed status to comply with the new regulation (see Dkt. Nos. 26, 28, 32).

Co-extensively, the "Comments and Responses" published on the final notification of the adoption of Section 180.1 (Dkt. No. 29), confirmed the marginal, if any, imposition of any new [*9]or additional licensing requirements. Several of those "Comments and Responses" are set forth below:

The Rule adoption notice published in the New York Register on 4/22/2020 (Dkt. No. 29) included the following:

Comment: One writer asked what are DEC's plans for permitting some facilities, and further stated that the new regulations are ambiguous and do not clearly spell out who is going to be permitted. Response: The amended rule only expands the list of animals that the department has found to be a danger to the health and welfare of the people of the state or indigenous wildlife. DEC is not changing the current requirements for possession of regulated species. All applications requesting possession of a dangerous animal will be reviewed using the department's current license application requirements.

Comment: One commenter asked if these changes are necessary? How will they minimize the risk dangerous animals pose to public and native wildlife?

Response: The regulations apply to facilities which possess these animals in captivity for exhibition purposes where these animals will be in close proximity to the public. By expanding the list of dangerous animals in the regulation, DEC will now be able to apply current application review requirements to all the listed dangerous animals ensuring that dangerous animals are held at facilities with housing, holding, and caging sufficient to protect the health and welfare of the public.

Comment: The new rule does not provide any substantive requirements that the agency could use to assess whether the exhibitor is qualified to care for or handle dangerous animals. DEC should instead require accreditation by AZA or the Global Federation of Animal Sanctuaries (GFAS). There is nothing in the new rule that would have prevented the previous incidents in NYS. "The proposed regulation is simply administrative, designed for the NYSDEC to issue licenses for any facility exhibiting dangerous animals that fills out the proper paperwork."

Response: The amended regulation only expands the list of animals found to be a threat to the health and safety of the public or indigenous wildlife. All applications received requesting possession of dangerous animals for exhibition purposes will be reviewed using current application requirements which address the stated concerns.

The Dangerous Animal License Application (the "Reg. 180.1 Form Application") that was drafted and implemented afterward contained multiple new terms and conditions impacting the compliance viability of the petitioner's 25+ year licensed status in significant ways. The bullet points laid out in the Notice Letter of January 29, 2021, imposed major structural and schematic changes to the add-on room at petitioner's premises that served as Albert's home. The Reg. 180.1 Form Application offered no latitude or discretion to review and consider acceptable alternatives with the license applicant to potentially satisfy the well intentioned purposes of the law and the regulation (i.e., to protect the general public from "species of animals which present a danger to the health or welfare of the people of the State, individual residents, or indigenous [*10]wildlife populations," Section 180.1 [a]), through reasonable safety and security compliant physical alterations to Albert's existing sanctuary abode that had already been built by the petitioner to the tune of $140,000.00, without burdening the petitioner with a new set of extraordinary expenses to remodel Albert's current living space (sometimes referred to as the "sanctuary" or "sanctuary space").

It must be noted that the petitioner does not dispute that he did not (and has not to date) made any attempt to remodel Albert's sanctuary space to meet the respondent's terms and conditions of licensing under Section 180.1 (c), but it is also relevant to note that the respondent has made no reasonable effort to reach out to the petitioner to at least entertain a dialogue on what, if any, restructuring plans for physical alterations of the existing premises or the installation of additional (but slightly different or more up to date) safety hardware features, could have potentially been sufficient and satisfactory to qualify for a license being granted, all of which contradicted the pre-adoption public notices that no major changes would be required to maintain the current licensed possession of the subject animal.

As noted above, while the agency's promulgation and interpretation of its own rules to implement the purpose of its authorized responsibilities are entitled to great deference (see also Queens Boulevard Extended Care Facility, Inc. v. Whalen, 15 AD3d 378, 380 [2nd Dept. 2005]). Nevertheless, "courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language." Andryeyeva, supra, at 172.

The unusual facts of this case, give rise to a valid question of whether the respondent's draftsmanship of the Dangerous Animal License Application that included stringent measures of undefined and potentially exorbitant expense being imposed on existing licensees before ever coming close to being granted a license, was consistent with the well-intentioned purpose of ECL § 11-0511 and a fair interpretation of the licensing availability set forth in 6 NYCRR 180.1 (c) pursuant to its pre-adoption published notices and confirmatory commentary responses expressed by the respondent at the time of its adoption. If imposing a set of "terms and conditions" that required existing licensees to incur the financially daunting and burdensome expense of going through a wholesale reconstruction of their existing (and previously authorized) sanctuary space to ever come close to qualifying for and receiving a license under Section 180.1, then this case transcends into the realm of being subject to examination under the rare and limited perspective of,

"However if, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight" (Matter of Lighthouse Pointe, 14 NY3d at 176, 897 N.Y.S.2d 693, 924 N.E.2d 801)."

The legislative purpose of prohibiting the possession of dangerous animals from coming into contact with the general public and empowering the respondent to develop and impose reasonable regulations to require well-designed and secure physical safeguards to be constructed and maintained by all parties who may seek to house one of those animals is legitimate and [*11]indisputably valid. It seems improbable, however, that the Legislature intended to vest the respondent with the unlimited power to impose excessive "blank slate" compliance requirements on existing licensees that would, in effect, result in a quasi "inverse condemnation" of the licensee's property rights by allowing a "taking" of the animal upon a desperate failure or incapability to satisfy the unreasonably costly requirements to avoid a forfeiture of the petitioner's possessory property rights.^[FN8]

The issue of "open-ended" agency rulemaking beyond the scope of legislative authorization was thoroughly digested and summarized by the court in Matter of Allen v. New York State Department of Motor Vehicles, 45 Misc 3d 475 (Sup. Ct. Albany County, 2014), relying extensively on the principal guidance provided by the Court of Appeals in Boreali v. Axelrod, 71 NY2d 1 (1987). In Allen, the petitioner challenged the propriety and breadth of the authorization given to the DMV to promulgate rules relating to the issuance of driver licenses, particularly those implemented by the department relating to the revocation of licenses using a 25 year look back period of the driver applicant's violation record and history. In examining whether the DMV's regulations in creating the 25-year look back was within the scope and context of the Legislature's delegation of authority on this subject matter, the court found that "[t]he respondent did not "wr[ite] on a clean slate" by creating "its own set of rules without . . . legislative guidance" (Boreali at 13), and found that "the adoption of [DMV] part 136 did not [*12]overstep the line between administrative rulemaking and legislative policymaking" (id. at 500-501). Equivalently, the court also found "that public safety and welfare with regard to the operation of motor vehicles upon state roadways is a matter within the technical competence of the Commissioner" (id. at 500).

The court's reasoning and analysis in Allen was on point for the disposition reached in that proceeding. In this case, the respondent's formal rulemaking was also performed consistent with the legislative authorization given to it to advance the protection of public safety and welfare from threats of harm from dangerous animals. The problematic disconnect comes from the manner by which the statutory and rulemaking prerogatives were articulated and imposed by the excessive (and previously unknown) compliance requirements laid out in the Reg. 180.1 Form Application.

The respondent's preclusionary requirement that an existing licensee, in this case the petitioner, must pre-emptively take on the significant expense of attempting to meet the facility structural requirements laid out in general descriptive terms without being given any specific guidelines of what type of structural construction and/or installation of safety and public security features would be acceptable to satisfy the respondent's compliance requirements, put the petitioner in the unenviable position of attempting to make those structural changes, only to potentially being informed by the respondent that they were not adequate or quite good enough to satisfy its discretionary granting of a license.

There was (and is) a more reasonable methodology for imposing the guidelines for licensing compliance that could be articulated in the Reg. 180.1 Form Application, which petitioner should be expected to accept and comply with. For example, rather than putting the petitioner into the unknown realm of incurring the significant work and expense to construct entrances of the existing "facility" (Albert's add-on room at petitioner's home) to have "a double door entry system constructed so that the outside entry door can be securely closed prior to the opening the interior door and access to the dangerous animal," without knowing in advance whether his design, materials, work, craftsmanship and other reasonable remodeling of the existing entrances would be viewed as satisfactory by the respondent after the work and installation was performed, the whole process could be much more fairly undertaken if respondent's license requirement was that the applicant/licensee must submit photos of the existing facility with a description of its current specifications and a set of proposed plans, specifications and drawings showing the work that the applicant intended to perform to meet the "standard" of safety expected under Section 180.1 in accordance with fairly matching that standard with the physical character of petitioner's premises that had been openly approved and accepted for the preceding 26 years. Respondent would then have the right to either approve those plans or explicitly and pointedly set forth rudimentary changes or revisions that would be required for the final work product to be accepted.

The same process could be similarly employed for the "public barrier" that "must be present within the room to prevent visitors from having direct physical contact with the dangerous animal or be in proximity to the animal where direct contact is possible". Quite simply, the petitioner should be allowed to know in advance what public safety and security features would be acceptable to satisfy respondent's requirements . . . e.g., what type of barrier(s) — concrete abutments, iron fencing, or framed reinforced plexi-glass — and at what distance within the room is the barrier required to be placed from the space occupied by the animal, to fairly and effectively prevent the animal space from being accessible to any exhibition [*13]sightseeing visitor(s).

The above rudimentary and generalized elements of public safety and protection, much better known to the respondent than to the court, are entirely within the "technical expertise" of the respondent to fairly layout in accordance with its legislative authorization on this subject matter, but they need to be articulated in a plain, upfront and reasonably achievable manner consistent with the prior license approvals given to the petitioner.^[FN9] In many respects, that's what the petitioner was asking to be afforded to him throughout the course of his multiple communications with the respondent to get this situation satisfactorily settled (Record, pgs. 43-46), which communications were not, unfortunately, constructively answered in like kind by the respondent (with the exception of the previously noted emails from the technician in September/October 2021).^[FN10]

Pursuant to the above factual background of the matters put before the court in petitioner's verified petition and as fully opposed and answered by the respondent, and in accordance with the applicable legal standards of review and analysis required to be given, it is the court's determination, decision and disposition of this matter as follows:

1. ORDERED, ADJUDGED and DECREED, that the relief sought in the verified petition pursuant to ECL § 11-0512 (3) is DENIED. In rendering said determination it is expressly noted that respondent's "Decision" in its letter dated May 24, 2024, that petitioner's dangerous animal license application was "deemed withdrawn" is found to be misplaced and held to be vacated as an error of law. The respondent's denial of said application in the alternative on the "pet" possession grounds for relief sought by petitioner, however, is sustained, subject to the succeeding paragraphs of this Decision; and it is further

2. ORDERED, ADJUDGED and DECREED, that the petitioner's ad damnum request for such other and further relief the court may deem just and proper is GRANTED IN PART, as follows:

a. First, respondent is hereby directed to act upon petitioner's underlying renewal application of his Original License mailed by petitioner with an accompanying transmittal letter dated July 26, 2021 (and date stamped as received by respondent on an undecipherable date in July 2021 [Record, pgs. 39-42]) within 30 days from the date of filing with notice of entry of this order and as provided in Section 175.7 (b). Said renewal application shall be received and accepted by respondent consistent with all of [*14]petitioner's renewal applications for the preceding 25 years, to wit, as one seeking renewal without changes of the Original License pursuant to the check-off of Section B on page 2 of the application and the check-off of Section A shall be disregarded as a mistaken and unintended non sequiter; and

b. Upon any granting and reissuance of petitioner's renewal application of the Original License, then petitioner's Reg. 180.1 Form Application initially received by and filed with respondent on or about December 14, 2020, shall be deemed filed as of the date of reissuance and respondent shall act upon the same, including having the right to send a notice of incomplete application within 30 days thereafter setting forth a revised set of steps and measures required of petitioner to complete said Reg. 180.1 Form Application. Those "steps and measures" are rightfully chargeable to and in the reasonable discretion of the respondent which the court is confident will be exercised within the scope of measured consideration to fairly balance the goals of properly protecting public safety under the safeguards required by Section 180.1 and achieving those goals at Albert's longstanding approved and previously permitted sanctuary space at petitioner's home without imposing stringent or unduly burdensome and costly measures to satisfy the reasonable requirements of Section 180.1; and it is further

c. ORDERED, ADJUDGED, and DECREED, that so long as the respondent acts in accordance with subsections a. and b. above, and implements its version of a revised reasonable set of Section 180.1 compliance requirements for petitioner to satisfy, Albert will remain in the possessory care, custody and control of the respondent pursuant to the authorized seizure permitted to be made on or about March 13, 2024, pursuant to ECL § 11-0511, and 6 NYCRR 175.5 (g) and/or 6 NYCRR 175.6 (e) until an approved Dangerous Animal License is issued to the petitioner. If respondent fails to take either of the actions required by subsections a. and b. above within the time(s) set forth therein, then both of petitioner's pending license applications shall be deemed approved and issued (or reissued) by respondent and Albert shall be returned to the petitioner within 10 days of the expired date of non-action; and it is further

d. ORDERED, ADJUDGED, and DECREED, that this court retains jurisdiction to address, review and/or reconsider the subject matter of this proceeding in all respects.