State of New York v Stevens

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State of New York v Stevens 2019 NY Slip Op 33393(U) February 1, 2019 Supreme Court, Cortland County Docket Number: EF14-553 Judge: Jeffrey A. Tait Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*!FILED: 1] CORTLAND COUNTY CLERK 02/0l/2019 INDEX NO. EF14-5 53 02:04 PMI RECE IVED NYSCEF: 02/01/2019 NYSCEF DOC. NO . 40 0 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORTLAND STATE OF.NEW YORK and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION1 DECISIO~ AND ORDER Plaintiffs, Index No. EF14-553 - against JAMES C. STEVENS, III,_and LAWRENCE G. HILL,III Defendants. UPON the Affirmation of Assistant Attorney General Joseph M. Kowalczyk, affirmed on January 9, .2019, the Affidavit of Scott Cook, sworn to on January 9, 2019 •. the Affidavit of:Mauricio Roma-Hernandez, .sworn to on .J anuary 23! 2019~ plaintiffs' memorandum oflaw in support of their motion for a preliminary injunction dated January 9, 2019, and proceedings held at the Cortland County Courthouse at 2:00 PM on January 25, 2019, and all of the pleadings previously filed; PURSUANT TO a Notice of Motion dated January9, 2019, plaintiffs State of'New York and New York State Department ofEnvironmerital Conservation (DEC) (collectively. the. State) moved for an order jomtly and. severally enjoining defendant James C. Stevens, IIl(Stevens) and Law.rence G. Hill, III (_Hill) (collectivel):' Defondant~) to' immediately abate a public nuisance relating to unpermitted storm ~vater_ discharges from undeveloped. EF14-553 ·· -----11 11111 II 02/0112019 Pages 5 12:00:00 AM DECISION +ORDER ON MOTION Elizabeth Larkin, County Clerk l. or ::> [*!FILED: 2] CORTLAND COUNTY CLERK 02/0l/2019 INDEX NO. EF14-553 02:04 PMI RECEIVED NYSCEF: 02/01/2019 NYSCEF DOC. NO . 400 agricultural land owned by Hill and located on Ridgeview Avenue in the Town of Cortlandville (the Site); ITIS HEREBY FOUND that pursuant to a Preliminarylnjunction and Consent Order dated December 23, 2014 [NYSCEF Doc. No. 43] (Prelim1nary Injunction), Stevens was ordered to: i) cease discharging water from a stormwater diversion project.on the Site (the Project); ii) restore the Site to pre-Project conditions; and iii) implement a DEC-approved engineering plan with appropriate stormwater controls for abating future_ down-gradient erosion. The Preliminary Injunction remains in effect; IT IS FURTHER FOUND that pursuant to Decision and Order dated December 15, 2015 [NYSCEF Doc. No. 110] (Liability Order), the Court granted the State partial summary judgment establishing Stevens' liability on causes of acti.on for violat'ions of New York State Environmental Conservation Law; Article 17 and public nuisance. The Liability Order found that significant post-construction stormwater discharge from the Project caused extensive damage to St. Mary's Cemetery and flooding within New York State Route 281; IT IS FURTHER FOUND that by Decision and Order dated April 26, 2015 [NYSCEF Doc. No. 167] (Contempt Order), Stevens was found in civil and criminal contempt regarding his failure to comply with the Preliminary Injunction and, as a civil contempt penalty, he was ordered to designl engineer, and construct a DEC-approved stormwater management control 2 2 of 5 [*!FILED: 3] CORTLAND COUNTY CLERK 02/0l/2019 INDEX NO. EF14-553 02:04 PMI RECEIVED NYSCEF: 02/01/2019 NYSCEF DOC. NO . 400 system with two detention ponds. Stevens' engineering firm TDK Engineering Associates, PC (TDK) designed such a system and it was approved by DEC (TDK System). The Contempt Order remains in effect; IT IS FURTHER FOUND that Stevens has not constructed the TDK System and his failure to implement a DEC-approved engineering plan with appropriate stormwater controls for abating further down-gradient erosion has prejudiced the State by delaying abatement of a public nuisance and the State's right to compliance with the lawful orders of the. Court. IT IS FURTHER FOUND that Hill has recorded with the Cortland County Clerk a quitclaim deed dated July 3, 2017 1 in which Stevens transferred his interest in the Site fo Hill; IT IS FURTHER "FOUND that, prior to acquiring title to the Site, Hill knew: i) stormwater discharges from the Site had been found to be a public nuisance; ii) the Preliminary Injunction and the Contempt Order require implementation of a DEC-approved stormwater management control . ~ system designed to abate further down-gradient erosion; and iii) stormwater discharges from the Site are a continuing harm causing further downgradient damage. IT IS FURTHER FOUND that: i) Stevens cannot, avoid liability for the nuisance by transferring title to the Site; ii) Hill is liable for maintaining a public nui.sance on the Site;· and iii) Stevens and Hill are jointly and ~_everally liable for the likely consequences of the nuisance; 3 3 of 5 [*!FILED: 4] CORTLAND COUNTY CLERK 02/01/2019 02:04 PMI INDEX NO. EF14-553 RECEIVED NYSCEF: 02/01/2019 NYSCEF DOC. NO. 400 IT IS FURTHERFOUND that, in the absence of implementation of an adequate stormwater management control system on the Site, it is likely that areas down-gradient of the Site will experience additi.onal damage; IT IS FURTHER FOUND thatan engineer retained by SL Mary's Cemetery; PLS Engineering, PC (PLS), has designed and engineered a single detention pond storm water management control system designed to abate further dovvn-gradient damage at a lower cost than the TDK System (PLS System). The PLS System was designed with input from Hill and has been approved by DEC; IT IS FURTHER FOUND that during oral argument on January 25; 2019, Hill stated that it would be feasible for him to commence construction of the PLS System within one week; and IT IS FURTHER FOUND that during oral argument on January 25 1 2019, Stevens had no comment regarding the State's motion. IT IS HEREBY ORDERED that, as an acceptable lower cost alternative to the TDK System, Stevens and Hill shall: i) commence construction of the PLS System by February 1, 2019; ii) complete construction of the PLS System detention pond and north-south inlet swale by April i, 2019; and iii) complete construction of the PLS System as soon as technically feasible;· IT IS FURTHER ORDERED that Stevens and Hill shall provide PLS and the State, including their employees, agents, and contractors, with 4 4 of 5 [*!FILED: 5] CORTLAND COUNTY CLERK 02/01/2019 02:04 PMJ INDEX NO . EF14-553 RECEIVED NYSCEF : 02/01/2019 NYSCEF DOC . NO . 400 unrestricted access to the Site for purposes such as surveyin g, assessing damage, and inspecting construction activities; and IT IS FURTHER ORDERED that Stevens a nd Hill shall appear before this Court at the Cortland County Courthouse at 2:00 PM on February 26, 2019 and provide status reports on the steps that they h ave each taken, as well as the additional steps they a nticipate taking, toward implementation of this Decision and Order. IT IS SO ORDERED Dated: Ual"\I~ l , 2019 Binghamto~ ew York ENTER 5 5 of 5

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