Stonehill v New York State Dept. of Envtl. Conservation

[*1] Stonehill v New York State Dept. of Envtl. Conservation 2009 NY Slip Op 52787(U) [30 Misc 3d 1206(A)] Decided on June 5, 2009 Supreme Court, Suffolk County Pitts, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2009
Supreme Court, Suffolk County

David Stonehill, Petitioner,

against

New York State Department of Environmental Conservation, Respondent,



7606/08



LTF'S/PET'S ATTY

KELLY & HULME, P.C.

By: James N. Hulme, Esq.

323 Mill Road

Westhampton Beach, NY 11978

DEFT'S/RESP'S ATTY:

ANDREW M. CUOMO

Attorney General

By Kevin G.W. Olson, Esq.

120 Broadway, 26th Floor

New York , New York 10271-0332

Arthur G. Pitts, J.

Upon the following papers numbered 1 to 37 read on this motion article 78

Notice of Motion/OSC and supporting papers_1-11_ Notice of Cross-Motion and supporting papers; Affirmation/affidavit in opposition and supporting papers 12-13- ; Affirmation/affidavit in reply [*2]and supporting papers 14-25/26-29/30-31/32-34/ Other 35/36/37; (and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the petition for a judgment, pursuant to CPLR Article 78 annulling and vacating

the respondent New York State Department of Environmental Conservation's ("DEC") ruling dated September 11, 2008 which denied his appeal of the location of the Coastal Erosion Hazard Area ("CHEA") line designated on the subject property in 1988 on the grounds that it is arbitrary and capricious, is not based upon substantial evidence, is an abuse of discretion and is unauthorized by law is denied under the circumstances presented herein and accordingly, the petition is dismissed.

Petitioner David Stonehill, who acquired title on or about May 10, 2007, is the owner of certain improved real property located at 361 Dune Road, Village of Westhampton Beach, Suffolk County, New York. At the time of the purchase of the subject property it was improved with a two story residence, a deck and pool, a play area, a stone wall and lawn area. The property also contains two dunes ( a northerly dune closer to the property's improvements and a southerly dune closer to the ocean) and a beach area.

On September 21, 2007 the petitioner was issued a Notice to Cure from the Village of Westhampton Beach asserting that the lawn and play area was installed entirely inside the CHEA in an area that was part of a sand dune that the DEC designated it as protected land after it was mapped in 1988. In response to the Notice to Cure the petitioner filed a Coastal Erosion Permit Application to remove a portion of the lawn area and play area so that it extended up to but not beyond the line located 25 feet from the landward dune toe as depicted in a survey proffered by the petitioner dated November 8, 2007. Thereafter he also submitted an application to the DEC appealing the CHEA designation on the property pursuant to 6 NYCRR 505.10. The Village of Westhampton Beach Buildings Department denied the petitioner's application for a Coastal Erosion Permit and the appeal to the Zoning Board of Appeals was discontinued without prejudice pending the outcome of the instant proceeding.

The petitioner's CEHA line designation appeal dated October 2, 2007 seeks to have the CEHA line on his property moved seaward and therefore, allow additional land on his property available for development. The CHEA law of the State of New York limits the construction in protected areas for the purpose of preserving dunes and safeguarding oceanfront structures from storm and erosion damage. ( see 6 NYCRR 505.1 ( c ); 6 NYCRR 505.3 ) " All development is prohibited on primary dunes unless specifically allowed by the CEHA" ( see 6 NYCRR 505 .8 (d)(5). In applying the aforesaid provisions the DEC uses the following terms: "primary dune" and "toe" of the primary dune which is the lowest point on the slope of the dune. The definition of "primary dune" includes the provision that "the landward limit of a primary dune is 25 feet landward of its landward toe." ( 6 NYCRR 505.2 [*3](dd) ) The effect of said regulations is that no development is permitted 25 feet inland from the toe of the primary dune without prior approval of the DEC. In 1988 the DEC issued the CEHA map setting forth the primary dune and toe of the primary dune on the petitioners property. The petitioner appeals the designations set forth on said map averring that the subject area was erroneously identified as a natural protective feature area.

In response to the petitioner's appeal the respondent did an on site inspection of the property conducted by a member of its staff, Robert McDonough, a specialist from the Coastal Erosion Management Unit together with the Buildings and Zoning Administrator from the Village of Westhampton Beach. By way of his affidavit dated January 2, 2009 he states that a portion of the property inside the CEHA had been altered since the DEC had mapped it in 1988 in order to install a level turf lawn and play area. However, by using the toe of the primary dune on the adjacent properties and using a tape measure to find a point 25 feet inland from the toe, he confirmed the landward limit of the natural protective feature area as set forth on the 1988 map. He also concluded that the dune on the petitioner's property had been artificially manipulated in that its contours were unnaturally steep and windblown sand on Stonehill's property fell where the dune would otherwise be located if it had not been excavated. McDonough concluded that the dune on the petitioner's property is the primary dune, there is no secondary dune and the CEHA line was properly drawn.

In support of the instant petition, the petitioner avers that the respondent in establishing the CEHA line did so while referencing a secondary dune on the property as opposed to the primary dune which located seaward of that dune. Annexed thereto is a survey of the subject property dated November 8, 2008 which shows the landward limit to be different than the line designated by the respondent DEC as well as affidavits of Aram Terchunian, a coastal geologist and David Fox, a licensed surveyor. Terchunian after reviewing aerial photographs of the area from 2004 and superimposing over the photograph a 1995 topographic map concluded that the CEHA line was incorrectly located. There are two dunes on the property, the southerly dune is the primary dune The petitioner argues that based upon there being two dunes on the property, the DEC has erred in that it has designated the secondary dune as the primary dune. Although in and of itself as such it does not alter the location of the CEHA line, it does impact what would be allowed to be done at the location of the lawn and play area.

" In article 78 proceedings, 'the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; * * * 'the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence.' (Cohen and Karger, Powers of the New York Court of Appeals, s 108, p. 460; 1 N.Y.Jur., Administrative Law, ss 177, 185; see Matter of Halloran v. Kirwan, 28 NY2d 689, 690, 320 N.Y.S.2d 742, [*4]743, 269 N.E.2d 403 (dissenting opn. of Breitel, J.)). 'The approach is the same when the issue concerns the exercise of discretion by the administrative tribunals [34 NY2d 231] The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious.' (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460461; see, also, 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7803.04 Et seq.; 1 N.Y.Jur., Administrative Law, ss 177, 184; Matter of Colton v. Berman, 21 NY2d 322, 329, 287 N.Y.S.2d 647, 650651, 234 N.E.2d 679, 681). The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact.' (1 N.Y.Jur., Administrative Law, s 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. In Matter of Colton v. Berman (Supra, p. 329, 287 N.Y.S.2d p. 651, 234 N.E.2d p. 681) this court (per Breitel, J.) said 'the proper test is whether there is a rational basis for the administrative orders, the review not being of determinations made after quasi-judicial hearings required by statute or law.' Where, however, a hearing is held, the determination must be supported by substantial evidence (CPLR 7803, subd. 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination (CPLR 7803, subd. 3; Matter of Procaccino v. Stewart, 25 NY2d 301, 304 N.Y.S.2d 433, 251 N.E.2d 802; but see Matter of Picconi v. Lowery, 35 AD2d 693, 314 N.Y.S.2d 606, affd. 28 NY2d 962, 323 N.Y.S.2d 703, 272 N.E.2d 77). Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. ( Matter of 125 Bar Corp. v. State Liq. Auth., 24 NY2d 174, 178, 299 N.Y.S.2d 194, 197198, 247 N.E.2d 157, 158159; 1 N.Y.Jur., Administrative Law, s 184.)" ( Pell v. Board of Education, 34 NY2d 222, 356 N.Y.S.2d 833, 839-840 [1974] )

Herein, upon review of the record before the Court, it cannot be held that there is not a rational basis to support the finding of the respondent in denying the petitioner's appeal. An agency has great discretion in deciding which evidence to accept and how much weight should be accorded particular documents and its determination in that respect is subject only to the legal requirement that the administrative finding being rationally based, or where appropriate, supported by substantial evidence. ( see i.e. Koan v. Popolizio, 141 AD2d 339, 529 N.Y.S.2d [1st Dept 1988] ) The choice of conflicting expert testimony rests in the discretion of the administrative agency. ( Power Authority of the State of New York v. Williams, 101 AD2d 659, 475 N.Y.S.2d 901 [ 3rd Dept 1984] ) Where the determination of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, the court must accord such determination great weight.( Palmer v. New York State Department of Environmental Conservation, 132 AD2d 996, 518 N.Y.S.2d 523 [ 4th Dept 1987] ) Based upon the foregoing standard, the determination by the respondent [*5]denying the petitioner's appeal was not arbitrary and capricious and accordingly, the petition on such grounds is denied.

The petitioner further seeks a judgement vacating the respondent's finding on the grounds that he did not receive due process under the law as a result of the manner in which the site visit took place and the lack of clarity as to whether or not the original determination was a final determination. It has consistently been held that there can be no finding of violations of due process when a petitioner has the recourse of an Article 78 hearing following an administrative determination. ( see i.e.Velella v. New York City Local Conditional Release Commission., 13 AD3d 201, 788 N.Y.S.2d 8 [1st Dept 2004] ; Estate of Kadin v. Bennett, 163 AD2d 310, 559 N.Y.S.2d 650 [ 2nd Dept 1990 ] ) As such, the petition on such grounds is also denied.

This shall constitute the decision and order of the Court.

Settle judgment.

So ordered.

Dated: Riverhead, New York__________________________

June 5, 2009J.S.C.