Matter of Giorgio v Westchester County Dept. of Health

[*1] Matter of Giorgio v Westchester County Dept. of Health 2010 NY Slip Op 50195(U) [26 Misc 3d 1220(A)] Decided on January 11, 2010 Supreme Court, Westchester County Zambelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 11, 2010
Supreme Court, Westchester County

In the Matter of the Application of Dominick Giorgio, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

Westchester County Department of Health, Respondent.



09/14484



Mark E. Constantine, Esq.

Attorney for Petitioner

65 South Broadway - Suite 101

Tarrytown, New York 10591

Charlene M. Indelicato

Westchester County Attorney

Attorney for Respondent

148 Martine Avenue

White Plains, New York 10601

Attn: Greg A. Ribreau, Esq.

Assistant County Attorney

Barbara G. Zambelli, J.

It is ordered and adjudged that this petition is disposed of as follows:

Petitioner Dominick Giorgio ("petitioner") is the owner of a property located at 9 Tulip Road, Somers, New York and designated on the Tax Map of the Town of Somers as Section 5.15, Block 1, Lots 26 & 38 ("Property"). The Property was vacant land located in a residential neighborhood. On September 29, 2003, the respondent Westchester County Department of Health ("respondent") issued a construction permit (No. S2003-24) to build a sewage system and private water supply for a two bedroom residence being constructed on the Property (Respondent's Exhibit 1). Subsequently, the petitioner applied for, and on August 3, 2005, the respondent granted, a renewal permit (No. S2005-20) for the sewage and water work (Id.).

By letter dated February 7, 2007, respondent was advised by the Somers Town Engineer (Respondent's Exhibit 4) that a neighbor who resides across the street from petitioner ("Pilla property") had an existing septic system that was located within 100 feet of petitioner's proposed well, which is the required minimum distance between fresh water wells and septic systems set forth in the Westchester County Rules and Regulations for the Design and Construction of Residential Subsurface Sewage Treatment Systems and Drilled Wells (Respondent's Exhibit 3). By letter dated February 12, 2007, respondent requested that petitioner cease construction on the Property until the location of the septic system on the Pilla property could be verified (Respondent's Exhibit 5). By letter dated April 22, 2007, respondent was advised by another of petitioner's neighbors ("Decker property") that the neighbor believed that the well on her property was located too close to petitioner's proposed septic system (Respondent's Exhibit 6). In response to the neighbor's complaints, petitioner's engineers wrote to respondent on May 14, 2007, advising that, in regard to the Pilla property, at the time the original permit was sought, petitioner's engineers had been given information that the Pilla septic system was located a sufficient distance away from petitioner's proposed septic and water systems to comply with respondent's rules and regulations (Respondent's Exhibit 7). However, upon being advised that petitioner's proposed locations for his septic system and well "may be within the restrictive distances of the neighboring wells and septics", the petitioner interviewed the Pilla property owner and learned that a repair had been done to the Pilla property septic which moved portions thereof and reduced the distance from the Pilla property septic to petitioner's proposed well location to approximately 76' (Id.). The letter further indicated that, as to the Decker property, the engineers had investigated the actual location of the well on that property and had "confirm[ed]" that the required distances between the well and petitioner's proposed septic were in fact met (Id.). The letter concludes by noting that the petitioner "was eager to resolve the remaining issue (Giorgio well vs. the Pilla [septic system]) and move forward with a solution to allow construction of the proposed septic and well to resume" (Id.). Approximately two weeks later on May 30, 2007, petitioner's engineers again wrote to respondent, stating that "[w]e have concluded that our only proposed well location is now within a restrictive distance from a recent septic repair on the property to the north", ie. the Pilla property, and that "[d]ue to the restrictions of the size of the property we are unable to meet the required distance from [septic system] to well in all directions." (Respondent's Exhibit 8). The letter further proposed that petitioner would seek a waiver from the required 100' separation distance from respondent in exchange for petitioner's execution of a Hold Harmless Declaration in favor of the respondent, as well as his agreement to use a deeper well casing for the construction of his well (Id.). The letter enclosed a draft copy of the Hold [*2]Harmless Declaration for respondent's review (Id.). On June 18, 2007, respondent wrote to petitioner's engineers and petitioner acknowledging receipt of the May 30 letter and the conclusion therein that the required separations between septic and water could not be met on the Property (Respondent's Exhibit 9). As a result of same, and since the situation had not been resolved, respondent revoked permit No. S2005-20 (Id.).

On May 2, 2008, petitioner submitted a new permit application and revised plans for the construction of his septic and well systems (Respondent's Exhibit 10). Accompanying the application was a cover letter which noted that petitioner had "no other choice than to seek administrative relief from the current codes and standards" (Id.). The letter also detailed efforts made to resolve the situation and contained petitioner's offer to increase his well casing depth to 80' and to execute a Hold Harmless Declaration in favor of the respondents (Id.). In response, respondents requested more information and documentation (Respondent's Exhibit 11) and on June 26, 2008, petitioner's engineers complied with respondent's requests (Respondent's Exhibit 12). Thereafter, on September 4, 2008, petitioner executed a Hold Harmless Declaration in exchange for respondent waiving the septic and water distance requirements and filed the same with the Westchester County Clerk on September 18, 2008 (Respondent's Exhibit 13). On September 12, 2008, respondent issued construction permit no. S2008-15, which permit notes that it is "formerly S2005-20 & S2003-24". (Respondent's Exhibit 14). This permit allowed petitioner to construct his septic and water system within the distance requirements but with the agreed to deeper well casing (Id.).

More than four months later, on January 20, 2009, petitioner through his attorney, requested a hearing in regard to the revocation of petitioner's permit on June 18, 2007 (which was identified in the letter as "File Number S2008-15, formerly S2005-20 and S2003-24") (Respondent's Exhibit 15). On April 21, 2009, respondent wrote to petitioner's attorney, noting that subsequent to the June, 2007 revocation of the permit, a new permit had been issued and was still valid (Respondent's Exhibit 16). Accordingly, no hearing was held on the revocation of the permit (Verified Petition, ¶9).

Petitioner brings this Article 78 proceeding seeking to annul, vacate and set aside or amend respondent's revocation of petitioner's construction permit and "denial" of a hearing by letter dated April 21, 2009 and seeking a reinstatement of that permit. Petitioner argues that the Sanitary Code requires that respondent conduct a hearing in connection with the revocation of a permit within 15 days of the revocation, which was not done here. Petitioner contends that the failure to hold this hearing was unlawful and in violation of the Sanitary Code and therefore made in excess of respondent's jurisdiction. Petitioner further argues that there was no change in the circumstances of petitioner's application which justified the revocation of the permit. He contends that respondent had "no direct evidence or first hand knowledge of any of the relevant facts or circumstances when it purported to revoke" the permit (Verified Petition, ¶26). Petitioner alleges that because respondent failed to conduct an independent investigation "to determine the past and present condition of the Petitioner's Septic System and that of his neighbor's Septic System" and failed to "determine the legality and configuration of the neighbor's Septic System" (Id. at ¶29), respondent's decision to revoke the permit was arbitrary and capricious.

Respondent moves to dismiss the petition. Respondent submits that this matter is barred by the four month statute of limitations which applies to Article 78 proceedings. Respondent argues [*3]that the four month statute of limitations must be calculated from the June, 2007 date on which the permit was revoked, which it submits, is the date that petitioner was impacted by the challenged determination. Respondent further argues that, in any event, the revocation of the permit was not arbitrary and capricious, but rather was made based upon facts conceded by petitioner that his project could not meet the distance requirements for septic and water systems. Respondent further notes that a new permit was subsequently issued to petitioner with his cooperation and consent. Lastly, respondent contends that the relief sought by petitioner, that the original permit be reinstated, is unreasonable, as petitioner has conceded that the minimum restrictive distances between septic and water systems are not met on his Property and thus the re-issuance of the original permit would violate public health and safety standards.

An Article 78 proceeding must be commenced within four months from the time the determination challenged by the petitioner becomes final and binding upon him (CPLR §217; Matter of Platt v. Town of Southhampton, 46 AD3d 907, 908 (2d Dept. 2007); Rapoli v. Village of Red Hook, 29 AD3d 1007, 1008 (2d Dept. 2006)). For a determination to be final and binding upon petitioner, it must be clear that he is aggrieved by it, which generally occurs when the challenged action has its impact (Matter of Platt v. Town of Southhampton, supra; Rapoli v. Village of Red Hook, supra). Where a proceeding is based upon a petitioner's claim that a respondent should have held a hearing prior to making the determination that adversely affected the petitioner, it has been held that the statute of limitations begins to run when the determination made without the hearing became effective upon the petitioner (see Rapoli v. Village of Red Hook, supra (holding that where an employee challenges a suspension made without a statutorily required hearing, the statute of limitations began to ran after the suspension without the hearing became effective)).

In the case at bar, petitioner seeks relief from respondent's determination to revoke the permit without affording him a hearing. Pursuant to Sanitary Code §873.306(1), which addresses the revocation of permits and licenses, the revocation of a permit shall become final five days after service of a notice thereof, exclusive of the day of service, upon the application concerned. Here, petitioner was notified by respondent on June 18, 2007 that the permit was revoked. Thus, under the Sanitary Code, that revocation became final on June 23, 2007. Accordingly, pursuant to the four month statute of limitations applicable to Article 78 proceedings, the statute of limitations in this matter ran on October 23, 2007. Having been commenced in 2009, this proceeding is clearly time-barred.

Petitioner's argument that the proceeding is timely because it was filed within four months of respondent's April 21, 2009 "denial" of petitioner's January 20, 2009 request for a hearing is without merit. Assuming, without deciding, that respondent's April, 21, 2009 letter constituted a denial of the hearing request [FN1], it is noted that the action of respondent that petitioner is ultimately challenging is the revocation of the permit; petitioner's request for a hearing necessarily related to [*4]the revocation, which is what aggrieved petitioner in the first instance. His subsequent demand for a hearing did not alter the date from which the statute was deemed to have run (see Rapoli v. Village of Red Hook, supra).

Even it this matter were not time barred, the petition would fail. The revocation of the permit was based upon petitioner's own admissions that he could not locate his septic and water systems on the Property so as to comply with the distances set forth in the regulations. Based upon petitioner's submission of new plans and his agreement with respondent as set forth in the executed Hold Harmless Declaration, a new permit was issued to petitioner. Given these facts, the petition fails to state a cause of action that the respondent acted in an arbitrary and capricious manner in initially revoking the permit.

This Decision constitutes the Order and Judgment of the Court.

Dated:White Plains, New York

January, 2010

____________________________

BARBARA G. ZAMBELLI

A.J.S.C. Footnotes

Footnote 1:In respondent's April 21, 2009 letter, it was pointed out that subsequent to the revocation of permit #S2005-20, an alternate well location was proposed and a new permit issued to petitioner. Thus, this letter may be fairly construed as an explanation as to why a hearing was not necessary in the first instance, given that petitioner was actually in possession of a valid permit, rather than being an outright denial of a request for same. However, for the purposes of this motion, it is a distinction without a difference, as the April 21, 2009 date is irrelevant for statute of limitations purposes.