Matter of Gowanus Indus. Park Inc. v Grannis

[*1] Matter of Gowanus Indus. Park Inc. v Grannis 2009 NY Slip Op 50313(U) [22 Misc 3d 1127(A)] Decided on February 26, 2009 Supreme Court, Kings County Miller, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2009
Supreme Court, Kings County

In the Matter of the Application of Gowanus Industrial Park, Inc., Petitioner,

against

Pete Grannis, as Commissioner of The Department of Environmental Conservation, Respondent.



25257/08



The petitioner is represented by the law firm of Paykin Mahon Rooney & Krieg, LLP, by Joseph N. Paykin, Esq., of counsel, the respondent is represented by Andrew M. Cuomo, Attorney General, by Yueh-ru Chu, Esq., of counsel.

Robert J. Miller, J.

This is a proceeding pursuant to CPLR article 78 to review a June 18, 2008 determination (the determination) of Alexander B. ("Pete") Grannis, the Commissioner of the New York State Department of Environmental Conservation (the DEC), pursuant to the order on consent dated May 14, 2007 (the consent order) between Gowanus Industrial Park, Inc. (the Owner) and the DEC, which found, among other things, that the Owner violated Environmental Conservation Law (ECL) § 15-0503 (protection of water bodies; permit) and 6 NYCRR § 608.4 (docks and moorings) and directed it to remove a certain fence.[FN1] The Owner requests, by order to [*2]show cause dated September 4, 2008, that the court stay, pending the adjudication of the petition, the enforcement of that portion of the determination which relates to the fence. The Owner also requests that the court sever, for purposes of discovery and trial, the DEC's counterclaims asserted against the Owner. For the reasons set forth below, the petition is denied, the Owner's motion for a stay is dismissed as moot, and the Owner's request for severance of the DEC's counterclaims is granted.

Factual and Procedural Background

The Fence

The petitioner is the owner of certain waterfront property, identified as Block 614, Lot 1 on the Kings County Tax Map with the mailing address of 685-747 Columbia Street in Brooklyn (the site) (Consent Order, ¶¶ 7-8). The eastern portion of the site abuts Henry Street Basin and the southern portion of the site abuts Gowanus Bay (¶ 9). The water at the northern end of Henry Street Basin, also referred to as the "head of Henry Street Basin," is mapped as littoral zone on the official tidal wetlands maps Nos. 582-502 and 584-502 (¶ 10). The shoreline at the head of Henry Street Basin is approximately 200 feet wide and stabilized by a bulkhead (i.e., a retaining seawall) (¶ 11). The western shoreline of the site along Gowanus Bay is approximately 920 feet long (¶ 12).

In March 2001, the Owner applied to the DEC for a permit to "repair existing sheeting" on the bulkhead (Consent Order, ¶ 15). In April 2001, the Owner obtained DEC permit 2-6102-00483/00001 for the "[r]epair of bulkhead section above mean high water" at the site (the permit) (¶ 16). Plans that were part of the application and referenced in the permit specified that no work was to occur above the elevation of the then-existing concrete curb on the landward side of the bulkhead, which was located no more than 18 inches above the existing grade (¶ 17). The permit expired in December 2001 (¶ 18).

In February 2002, the Owner erected a 200 linear foot long, 18-foot high fence made of corrugated metal on and along the length of the bulkhead at the site (Consent Order, ¶ 18). The fence runs along the site's northern shoreline. Sometime thereafter, the Owner reduced the height of the fence to 15 feet (Quadrozzi Affidavit dated March 10, 2008, ¶ 5). The purpose of the fence is to prevent intruders from entering the site (¶ 4).

The Process for Obtaining a DEC Permit

The State of New York (the State) has "[t]he sovereign power to regulate and control the water resources of this state ever since its establishment . . ., except to the extent of any delegation of power to the United States . . ." (ECL § 15-0103 [1]). The DEC is charged with "planning for the protection, conservation and development of the water resources of the state" (ECL § 15-0103 [12]), and "shall exercise its powers and perform its duties in any matter affecting the construction of improvements to or developments of water resources for the public health, safety or welfare . . ." (ECL § 15-0109).

The DEC's powers for the protection of the State's water resources are set forth in article 15, title 5 of the ECL, which, as is relevant to this case, requires a permit to erect, place, construct, reconstruct, or expand a "dock, wharf, platform, breakwater, mooring, or other structure in, on or [*3]above waters" in New York (ECL § 15-0503 [1] [b] [emphasis added]).[FN2] The parties do not dispute that the fence is "other structure" within the meaning of the statute and thus requires a DEC permit.

To issue a permit, the DEC must "ascertain the probable effect on the health, safety and welfare of the people of the state, and the effect on the natural resources of the state likely to result from the proposed project or work" (ECL § 15-0503 [2] [a]).

The implementing regulations (6 NYCRR § 608.8) establish a three-part test that must be satisfied before the DEC may issue a permit: "The basis for the issuance . . . of a permit will be a determination that the proposal is in the public interest, in that:"(a)the proposal is reasonable and necessary;"(b)the proposal will not endanger the health, safety or welfare of the people of the State of New York; and"(c)the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, including soil, forests, water, fish, shellfish, crustaceans and aquatic and land-related environment."[FN3][*4]

It is undisputed that the Owner has neither applied for nor been issued a permit for the fence under article 15 of the ECL and its implementing regulations (6 NYCRR part 608) (Consent Order, ¶¶ 19 and 48).

The Owner's Retroactive Request for a Permit

The Owner was allowed by the consent order to apply for a DEC permit, subject to fulfilling certain conditions. First, the Owner was required to comply with the DEC's "final determination concerning the fence, which may encompass the removal of the fence . . ., within forty-five (45) days after being notified of the final determination" (Consent Order, Schedule A, §§ 7, 7.1 and 8). Second, the Owner was required to remove the fence, if the DEC so determined, prior to appealing the final determination (Schedule A, § 8). Third, the Owner waived its right to a hearing before the DEC and, thus, no administrative hearing was held in this matter (Consent Order, at 19-20).

In accordance with the consent order, the Owner submitted its statement to the DEC, contending that the fence complied with all of the Section 608.8 requirements, as follows:

(1)The fence was reasonable and necessary because its installation was required by the rules and regulations of the City of New York (the City), which owns and operates the Red Hook Recreational Area (the Red Hook park) adjacent to Henry Street Basin.

(2)The fence promoted the safety of the people of the State, especially the neighborhood children, by protecting them from many attractive nuisances located at the site, such as materials piles, ships, barges, cranes, excavators, payloaders, concrete crushers, and other heavy equipment. The fence also promoted the health of the people of the State by preventing the spread of the ambient dust produced by the operation of the bulk-aggregate facility at the site. In addition, the fence promoted the welfare of the people of the State by creating numerous jobs because, when fully operational, the Owner's facility will create full-time employment for over 250 workers.

(3)The fence did not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State because its location in relation to the rising and setting sun resulted in little or no shading of Henry Street Basin or the underlying benthic [relating to the water bottom] habitat.

The Owner then discussed but rejected the following alternatives to the fence:

AlternativeReason for Its Rejection

Installation of a fence along the western shoreline of Henry Street Basin.

This would cause significant shading in the afternoon hours.

It would be impossible to use the waterfront to accept delivery of materials from arriving vessels.

Reducing the height of the fence to less than 15 feet.

A 15-foot fence is necessary to conceal the attractive nuisances from children and lessens their desire to explore them.

Although a razor wire along the length of a shorter fence would likely discourage intruders, trespassing children would be hurt.

Removal of the fence altogether.

Prior to the erection of the fence, children would regularly dive from the bulkhead into the water, which was dangerous as it contains many submerged piles. [*5]

The City's rules and regulations require that the site be enclosed by a fence.

The Homeland Security Act also requires a fence.

In accordance with the consent order (Schedule A, § 7.2), the Owner copied the City on its submission to the DEC. The City rejected the Owner's position that the fence was required by the City's rules and regulations.[FN4]

The DEC's Denial of the Permit

The DEC, acting through its Assistant Regional Attorney, issued its written determination on June 18, 2008 in which it rejected the Owner's arguments and concluded that the fence must be removed (Petition, ¶ 13). Initially, the DEC rejected the Owner's argument that the fence was mandated by city law because the same would not, in and of itself, be sufficient to supersede state law and, in any event, the City refuted the Owner's arguments that the fence was mandatory under its rules and regulations (Determination, at 3).

While the DEC recognized the Owner's legitimate interest to prevent trespassing on its upland lot, the DEC reasoned that such: "objective can be accomplished through alternatives to the currently existing fence, which will have a lesser impact on the natural resources at issue. Aside from alternative structural or technological solutions consideration could also be given to the use of canines. Moreover, as currently established the subject site is unprotected against unauthorized access from the water" (Determination, at 3).

In addition, the DEC found the Owner's claim that the fence promoted the health of the people of the State by curtailing a spreading of dust, to be "a stretch at best" and a self-inflicted condition at worst: "First, material would have to be carried through the air the distance to where the fence is located. Second, if material would indeed become airborne and travel that far it would also end up in the (unprotected) Henry Street Basin as fill. That is not an acceptable situation. [The Owner] must either suppress dust on site or move any dust-causing activities inside a fully enclosed structure."In this context [the DEC] note[d] that the International Salt Company, LLC is apparently leasing 1.37 acres of the subject site for a deicing salt storage operation, apparently along Henry Street [*6]Basin right in the area of the fence. . . That company has obtained coverage under SPDES [State Pollutant Discharge Elimination System] industrial general permit . . . for its operation. It indicated as part of its application that it would use Rayneguard' cover system, manufactured by Rayner Covering Systems Inc., a woven of 14-mil thickness polyethylene material, designed to withstand wind shears of up to 50-70 mph, so as to prevent salt from becoming airborne" (Determination, at 4).

Finally, although the DEC did not directly respond to the Owner's contention that the fence caused little or no shading, the DEC rejected the Owner's position that an alternative fence along the western shoreline of the site would create shading issues. The DEC opined that "any shading impacts could be avoided or minimized through proper design, e.g. combining a more solid containment system that is set back from the top or the existing slope in that area with a transparent fence that runs along portions of the slope. . . " (Determination, at 3).

The DEC then rejected the Owner's remaining arguments that no viable alternatives to the fence existed: "Similarly, the claim that water-based transport of material would conflict with an alternative method to prevent trespass is presented as a cursory statement without any factual support. Loading and unloading mechanisms do exist that allow the lifting or other conveyance of material over barriers. [The Owner] fail[s] to demonstrate why this would not be possible here."Moreover, it is unclear why a lower fence would create or foster an attractive nuisance condition. The [newspaper] article enclosed [with the Owner's] submission suggests that the most attractive feature on the property is the historic grain elevator. That structure, however, would remain visible even if a much higher fence were installed."

(Determination, at 3).

The DEC concluded that: "there are various, more suitable alternatives to the currently existing fence. The current fence has impacts on the aesthetic use of the waterway, which is a benefit recognized by the legislature in, for example, ECL § 25-0302 (1) [land-use regulation of tidal wetlands], which recognizes the value of tidal wetlands for, inter alia, recreation, education and research. This encompasses not only the ability to have visual access to the tidal wetland but also to engage in other recreational uses, such as fishing."

(Determination, at 4).

The Instant Proceeding

By verified petition dated August 27, 2008, the Owner seeks an order, pursuant to CPLR 7801, reversing the DEC determination, which the Owner contends, "was affected by errors of law, was arbitrary and capricious, and was not supported by substantial evidence." The DEC answered the petition and asserted as an affirmative defense that the consent order required that the Owner [*7]remove the fence before appealing the DEC determination (Answer ¶ 21). The DEC further interposed counterclaims for an order directing the Owner to: (a) perform the shoreline stabilization measures along Gowanus Bay as more fully set forth in the consent order, and (b) remove the fence (¶¶ 37-55). By way of counterclaims, the DEC also sought a judgment against the Owner in the amount of $10,000 in suspended penalties under the consent order and a total of $10,500 per day for each day since May 23, 2007 for the Owner's alleged continuous violations of the consent order, inclusive of the Owner's failure to remove the fence (Answer, at 10). The Owner replied to the DEC's counterclaim and asserted that it should be severed from the main proceeding (Reply, ¶ 6).

Pending the adjudication of the petition, the Owner seeks a temporary restraining order and a preliminary injunction staying the enforcement of the DEC determination that the Owner must remove the fence. The Owner's request for a stay is supported by a March 10, 2008 affidavit of Mr. Quadrozzi, who avers that the fence is necessary to deter children and others from trespassing onto the site and to prevent further pollution of Henry Street Basin (¶ 4).

Letters from Community Groups and Owner's Tenants

In support of its request for a stay, the Owner submits letters from three community groups and twelve tenants of the Owner, as well as a petition signed by over 200 community residents and tenants' employees in favor of the fence (Paykin Affirmation, Ex. F).[FN5] The letters from the community groups, Red Hook Rise, Red Hook East Tenant Association, and Red Hook West Resident Association, assert that the fence protects the children from harm and does not interfere with the residents' use of the Red Hook park. The letters from the Owner's tenants, Best Trail and Travel Corp., Bett-A-Way Distributors, Brimily Logistics, Inc., Coppola Paving & Landscaping Corp., International Salt, Lucky River Transportation Corp., Metroliner, Inc., S & J Tour & Bus, Inc., Sun Link USA, Inc., Tri-State Biodiesel, WNS Service, Inc., and Yee On Management, Inc., unanimously request that the fence remain in place. Moreover, several of the tenants state that the existing 15-foot fence is inadequate to completely prevent vandalism. Bett-A-Way Distributors recites that it "had a couple of incidents with vandalism . . . caused by children scaling the 15' walls." Tri-State Biodiesel describes that it "experienced two incidents of trespass within our 1.5 year tenure. One where our brand new trucks were graffitied and another when a discharge valve was opened releasing oil onto the grounds. Both created a disruption to our business as well as a high clean up cost."

The Parties' Contentions

The Owner

As an initial matter, the Owner attacks the validity of the consent order. The Owner contends that the terms of the consent order, insofar as they relate to the fence, were extracted from the Owner under duress (Paykin Affidavit, ¶ 6). Furthermore, when the Owner entered into the consent order, it believed that if it were directed to remove the fence, the City would step in and erect a substitute barrier, but that the City has not offered to do so (Quadrozzi Affidavit dated Jan. 7, 2009, ¶ 3).

The Owner next argues that it is entitled to an order staying the DEC determination that the fence must be removed until the court determines the instant petition. The Owner faults the DEC [*8]for its failure to give adequate weight to the fact that the fence was built to prevent trespassers, especially children, from obtaining access to the site that houses salt piles, barges, grain terminal, earth movers, cranes, trucks, and other hazards. According to the Owner, given the City's refusal to install a substitute barrier at the site, the demolition of the fence would create an immediate hazard to the public safety. The Owner contends that a stay is appropriate because the Owner is likely to prevail on the merits. In that regard, the Owner asserts that the DEC determination is erroneous for the following reasons:

1.The DEC did not state any possible alternatives to the existing fence, other than the use of canines. According to the Owner, guard dogs are inadequate to prevent trespassers from entering the site and will expose the Owner to liability for dog attacks (Petition, ¶ 14, First and Third Unnumbered Bullet Points). 2.The DEC failed to adequately consider the Owner's interest in preventing trespassers from entering the bulkhead and land under water of Henry Street Basin and only made findings concerning trespassing to the land portion of the site (Petition, ¶ 14, Second and Fourth Unnumbered Bullet Points).3.The DEC erred in finding that a fence along the western shoreline of the site would not cause disruption to the Owner's use of the property for water-based transport of material, and its finding that loading mechanisms permitted the lifting over barriers was not supported by evidence (Petition, ¶ 14, Fifth Unnumbered Bullet Point).4.The DEC also erred in finding that "it is unclear why a lower fence would create o[r] foster an attractive nuisance condition" because the grain elevator would still be visible over a higher fence. The DEC did not give due consideration to the fact that a higher fence would prevent trespassers from obtaining access to the grain elevator (Petition, ¶ 14, Sixth Unnumbered Bullet Point).5.Finally, the DEC erred in finding that the park goers "have an aesthetic interest in the view of the waterway, which is an industrial site of no aesthetic value, and also because the portion of the park that is adjacent to the waterway is the outfield of a baseball field, and persons attempting to view the waterway would be at risk for being hit by baseballs . . . Moreover, [the Owner] already provides the public with over 1,200 feet of waterfront views along the western side of its property" (Petition, ¶ 14, Seventh Unnumbered Bullet Point).

The DEC

The DEC characterizes the Owner's claim of economic duress as unfounded. The consent order includes the provisions concerning the fence because the Owner erected it without a DEC permit. Moreover, the Owner has not raised the issue of economic duress until after the commencement of this proceeding.[FN6] [*9]

The DEC offers evidence that the City's practice is to build 4-foot high fences around its parks in general and approximately 8-foot high fences around its pools, and that the City does not install metal sheeting around its parks. Thus, the DEC argues, the City could not have promised the Owner to replace the fence with a comparable structure.

The DEC contends that the Owner has failed to demonstrate the irreparable harm and/or the likelihood of success on the merits to be entitled to a stay. According to the DEC, the Owner's agreement in the consent order to remove the fence before it could appeal the DEC determination is its implicit concession that no irreparable harm would result from the fence removal.

The DEC further contends that the Owner failed to justify its arguments that alternatives, including a fence along the western shoreline, would prevent the Owner from unloading the incoming ships. The DEC asserts that, based on the Owner's photograph of the site (Paykin Affidavit, Ex. 1), a crane could easily unload salt over a fence along the western shoreline if such a fence were erected in that location.

The DEC concludes that, based on the administrative record, it rationally and lawfully determined that the Owner must remove the fence and that its determination was not arbitrary or capricious, or constituted an abuse of discretion.

Law and Analysis

The Standard of Review

The standard for evaluating the DEC's determination is whether it "was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]).[FN7] To find that an agency determination is arbitrary and capricious or constitutes an abuse of discretion, the court would have to determine that the action taken was without sound basis and without regard to the facts. The question for the court is, therefore, whether the agency determination has "a rational basis" (Pell v Board of Education of Union Free School District No. 1, 34 NY2d 222, 231 [1974]).

"[W]here . . . the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference" (Flacke v Onondaga Landfill Sys., Inc., 69 NY2d 355, 363 [1987]). Furthermore, it is well established that: "It is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. The . . . agency, after all, has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, while judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the [*10]desirability of any action or to choose among alternatives" (Riverkeeper, Inc. v Planning Bd. of Town of Southeast (9 NY3d 219, 232 [2007] [internal quotation marks, brackets and citations omitted]).

Based on these well-established principles of the courts' role in reviewing agency determinations, the issue is whether the DEC acted irrationally or in an arbitrary and capricious manner in determining that the Owner should remove the fence. The court concludes that the DEC determination has a rational basis.

The validity of the consent order cannot be seriously disputed. The consent order is a contract between the Owner and the DEC, to be performed in accordance with its terms (see BICC Cables Corp. v Akzo America Inc., 227 AD2d 425, 426 [2d Dept 1996]). The Owner's claim that it accepted the terms of the consent order relating to the fence under economic duress is specious. The Owner, which was represented by counsel, negotiated the terms of the consent order with the DEC for a period of at least three months and, thereafter, caused and directed the activities aimed at potential compliance with its terms. Thus, the Owner has ratified the consent order (see Leader v Dinkler Mgt. Corp., 26 AD2d 683 [2d Dept 1966], affd 20 NY2d 393 [1967] [contract or release, the execution of which is induced by economic duress, is voidable, not void, and the person claiming duress must act promptly to repudiate the contract or release or he will be deemed to have waived his right to do so]).

Next, Mr. Quadrozzi's alleged belief that the City would erect a substitute barrier if the Owner removed the fence, is baseless. The Owner has not produced a shred of the evidence suggesting the City's intention in that regard. In opposition, the DEC has submitted an affidavit of the Brooklyn Borough Commissioner of the City's Department of Parks and Recreation, Julius Spiegel, stating that the City's practice is to build 4-foot high fences around its parks in general and approximately 8-foot high fences around its pools, and that the City does not install metal sheeting around its parks (Spiegel Affidavit dated Sept. 12, 2008, ¶¶ 15-16).

Turning to the merits of the petition, the court notes that the determination is based on the three-part test of Section 608.8. With respect to the first requirement of Section 608.8 that the fence must be reasonable and necessary, the DEC correctly rejected the Owner's argument that the fence was mandated by city law. The court, in its prior decision, ruled that the fence violated city law.

With respect to the second requirement of Section 608.8 that the fence shall not endanger the health, safety or welfare of the people of the State, the DEC found that the Owner's objective of protecting its property "can be accomplished through alternatives to the currently existing fence." The DEC noted the existence of "alternative structural or technological solutions." Although the DEC did not expressly enumerate such solutions, the court can easily envision that one of such solutions may involve a split rail fence, which will be aesthetically pleasing and, at the same time, will protect the site from intruders. That the DEC did not specifically reference a split rail fence in its determination is not dispositive. The DEC was not required to enumerate in its determination all alternative structural or technological solutions for the Owner, which bore the burden of proposing them to the DEC in the first place. Moreover, the DEC properly rejected the Owner's argument that the fence promoted the health of the people of the State by preventing a spreading of dust. As the DEC correctly noted, the fence, which runs on only one side of the site, cannot serve as a substitute [*11]for suppression of dust for the entire site.[FN8]

With respect to the third and final requirement of Section 608.8 that the fence shall not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, the DEC did not directly respond to the Owner's argument that the fence caused little or no shading. While the fence apparently caused no shading problems, the DEC noted that the fence adversely affected the aesthetic and recreational uses of Henry Street Basin. The record reflects that in constructing the fence, the Owner gave no consideration to the recreational functions of Henry Street Basin.

In sum, the DEC rationally concluded that all three requirements of Section 608.8 weighed in favor of removing the fence. The DEC's well-reasoned analysis, coupled with the mandate that the court must not substitute its judgment for that of the DEC, compels the conclusion that the DEC's decision was rational.

Furthermore, the Owner's papers lack supporting expert affidavits and are otherwise devoid of proof. There is no expert evidence that waters in Henry Street Basin are not biologically functioning and productive.

With respect to the alleged need for security at the site, the court noted in its prior decision that the Owner: "alleg[ed], in conclusory fashion, that the fence has reduced criminal activity in the fenced corner of the Red Hook Park and has eliminated trespassing on the nearby properties owned by [the Owner]. These statements are not supported by either sworn statements or security inspection reports by the New York Police Department describing the impact that the fence allegedly has had on criminal activity, nor has [the Owner] offered any admissible evidence of the allegedly beneficial effect of the fence on the environment generally. [The Owner] has failed to rebut the City's case, nor has it satisfied its burden of proof to be entitled to summary judgment on this issue.

(City of New York v Gowanus Indus. Park, 2008 WL 2572853, *6 [footnote omitted; emphasis added]). Nevertheless, the Owner again failed to submit the requisite evidence.

Assuming that the letters from the Owner's tenants demonstrate the need for a fence or other barrier to prevent intruders, the burden to provide such protection, subject to compliance with applicable laws, has always been with the Owner. The Owner's failure to comply with such laws in erecting the fence cannot be attributed to the State or the City.

Accordingly, the petition is denied. In light of this determination, the Owner's request for a stay is dismissed as moot.

Severance of the Counterclaims

The Owner also requests that the court sever the DEC's counterclaims. As a matter of law, counterclaims are permitted in article 78 proceedings (see CPLR 7804 [d]). However, pursuant to CPLR 407, "[t]he court may at any time order a severance of a particular claim, counterclaim or cross-claim, or as to a particular party, and order that, as to such claim or party, the special proceeding continue as an action or as a separate special proceeding." [*12]

The DEC's counterclaim for the Owner's alleged failure to perform the shoreline stabilization work is unconnected to the dispute over fence removal which is the subject of this proceeding. According to the Owner and uncontroverted by the DEC, the counterclaim for the shoreline stabilization work is contested and will require discovery (Quadrozzi Affidavit dated Jan. 7, 2009, ¶¶ 4-9). Consequently, the DEC's counterclaims are severed from the article 78 proceeding (see Newell v Town of Clifton Park, 172 AD2d 928, 929 [3d Dept 1991]; District Council No. 9 v Metropolitan Transp. Auth., 115 Misc 2d 810, 812 [1982], affd 92 AD2d 791 [1st Dept 1983], appeal withdrawn 61 NY2d 761 [1984]).

Conclusion

In accordance herewith, it is hereby:

ORDERED that the relief requested in the petition is denied in its entirety and the clerk is directed to enter a judgment in favor of respondent and against the Owner dismissing the petition; and it is further

ORDERED that Owner's motion for a temporary restraining order and a preliminary injunction staying, pending the adjudication of the petition, the enforcement of the determination that the Owner must remove the fence is dismissed as moot; and it is further

ORDERED that the DEC's counterclaims are severed from the article 78 proceeding and shall be tried in a plenary proceeding.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The consent order was entered into as part of an administrative proceeding commenced by the DEC against the Owner and its president, John Quadrozzi, Jr. (Quadrozzi), in 2004, seek-ing, among other things, to compel them to remove the fence (DEC File nos. R-2-20060804-332 and R-2-20040113-9) (Petition, ¶ 10). Mr. Quadrozzi is not a co-petitioner in this proceeding.

The consent order submitted by the Owner is a draft, unsigned version dated February 16, 2007 (Petition, Ex. B). The court relies on the final, signed consent order dated May 14, 2007 submitted by the DEC with its answer (Answer, Ex. A).

Footnote 2: 6 NYCRR § 608.4 provides, in relevant part:

"(b) Permit required. . . [N]o person or public corporation may . . . construct, reconstruct, modify, repair or change the use of any dock, pier, wharf, platform, breakwater or other structure in, on or above the navigable waters of the State . . . without a permit issued pursuant to this Part. . ."

Footnote 3: The DEC further explains on its website that in considering whether to issue a permit, it examines the following:

"1.The effect of a proposal on natural resources such as fish and wildlife habitat, water quality, hydrology, and watercourse and water body integrity.

2.Adequacy of project design and construction techniques.

3.Operational and maintenance characteristics.

4.Safe commercial and recreational use of water resources.

5.The water dependent nature of a use.

6.The safeguarding of life and property.

7.Natural resource management objectives and values.

8.Importance of the area for spawning or nesting."

(Protection of Waters: Standards for Issuance

[available at http://www.dec.ny.gov/permits/6329.html] [last accessed Feb. 24, 2009]).

Footnote 4: The City also commenced an action against the Owner seeking removal of the fence (Index No. 19083/04). By decision and order dated June 27, 2008 (the prior decision), this court granted the City's motion for summary judgment and held, in pertinent part, that the fence wrongfully and unreasonably interfered with the City's riparian rights to Henry Street Basin and ordered that the fence shall be removed and the bulkhead shall be restored to its original condition, subject to prior written approval of the DEC (City of New York v Gowanus Indus. Park, Inc., 20 Misc 3d 1110 [A], 2008 WL 2572853, *9, 2008 NY Slip Op 51300 [U] [2008]). The court, however, expressly declined to rule on whether the Owner had been required to obtain a DEC permit with respect to the fence (id.). This decision in no way affects the City's and the Owner's rights and obligations inter se concerning the fence.

Footnote 5: The Owner also submits a letter from Southwest Brooklyn Industrial Development Corporation which does not address the fence.

Footnote 6: The claim of economic duress is not raised in the petition.

Footnote 7: The Owner also argues that the DEC determination was not supported by substantial evidence, which is the standard utilized in CPLR 7803 (4) in instances where an administrative determination was made after a hearing required by law and at which evidence was taken. Because there was no administrative hearing in this matter, the substantial evidence standard is inapplicable (see Ball v New York State Dept. of Envtl. Conservation, 35 AD3d 732, 733 [2d Dept 2006]).

Footnote 8: The DEC's statement that "consideration could also be given to the use of canines" was merely a suggestion of one of the possible alternatives and was not integral to its overall determination.