| Matter of New York Blue Line Council, Inc. v Adirondack ParkAgency |
| 2011 NY Slip Op 05920 [86 AD3d 756] |
| July 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of New York Blue Line Council, Inc., et al.,Appellants-Respondents, v Adirondack Park Agency, Respondent-Appellant. (Proceeding No. 1.)In the Matter of Clinton County et al., Appellants-Respondents, v Adirondack ParkAgency et al., Respondents-Appellants. (Proceeding No. 2.) |
—[*1] McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (Dennis J. Phillips of counsel), forClinton County and others, appellants-respondents. Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers of counsel), forrespondents-appellants.
Mercure, J.P. Cross appeals from a judgment of the Supreme Court (Muller, J.), enteredDecember 2, 2009 in Essex County, which, among other things, partially dismissed petitioners'applications, in two combined proceedings pursuant to CPLR article 78 and actions fordeclaratory judgment, to, among other things, review certain regulations promulgated byrespondent Adirondack Park Agency.
Respondent Adirondack Park Agency (hereinafter APA) is charged with regulating land useand development within the Adirondack Park and, in connection with that function, isempowered "[t]o adopt, amend and repeal . . . such rules and regulations, consistentwith" the Adirondack Park Agency Act (hereinafter Act), "as it deems necessary to administer"the Act (Executive Law § 804 [9]). In 1994, a task force created at the request ofthen-Governor Mario Cuomo recommended a major revision of the APA's regulations. Since thattime, the APA has engaged in a series of rulemakings, most recently in 2008, when it adoptednine regulatory amendments. Shortly thereafter, petitioners[FN1]commenced these two hybrid CPLR article 78 proceedings and declaratory judgment actionschallenging four of the 2008 amendments—those affecting (1) the expansion ofpreexisting, nonconforming shoreline structures, (2) subdivisions involving wetlands, (3) parcelsdivided by roads, and (4) hunting and fishing cabins.
Briefly described, the first challenged regulation now requires a variance for any expansionof preexisting structures that do not comply with shoreline set-back requirements (see 9NYCRR 575.5 [b] [2]); the prior regulation permitted unlimited lateral and rearward expansion,as long as the expansion did not bring such structures closer to the shoreline (see 9NYCRR former 575.5 [b] [2]; Brown v Glennon, 203 AD2d 846, 849 [1994]). Withregard to wetlands, the APA's regulations formerly provided that the subdivision of a parcelcontaining wetlands was not subject to review if the wetland was located entirely on a parcelretained by the owner (see 9 NYCRR former 573.3 [b]); the new amendment provides forAPA review of any proposed lot containing a wetland or adjoining a lot containing a wetlandunless the boundary is 200 feet from the wetland (see 9 NYCRR 578.3 [n] [3]).Petitioners also challenged the APA's repeal of a regulation that excepted property traversed by aroadway from the general rule that adjoining lots under single ownership are treated as one lotand, thus, considered to be subdivided when either lot is sold (see Executive Law §811 [1] [a]; 9 NYCRR former 573.4 [b]). Finally, petitioners challenged the APA's reviseddefinition of "hunting and fishing cabins," which now sets forth five specific, structural criteriathat must be met, along with the requirement that the structure be used only "occasional[ly]" and"primarily for hunting, fishing, and similar purposes" (9 NYCRR 570.3 [m]).
Supreme Court determined that the municipal petitioners lacked capacity to sue on all claimsexcept that related to the alleged violation of their home rule powers and, as to that issue, [*2]their arguments lacked merit. With respect to the substantivearguments of the Blue Line petitioners, the court upheld the APA's regulatory amendmentsrelating to the expansion of shoreline structures and jurisdiction over subdivisions involvingwetlands. The court struck down the amendment concerning hunting and fishing cabins, anddeclared that the repeal of the regulation regarding parcels divided by roads did not eliminate aso-called "natural subdivision rule." The parties cross-appeal, and we now hold that bothpetitions should be dismissed in their entirety.
Initially, we agree with Supreme Court that the municipal petitioners lack capacity to sue onall claims other than that alleging a violation of their home rule powers. "[C]apacity concerns alitigant's power to appear and bring its grievance before the court" (Matter of Graziano v County ofAlbany, 3 NY3d 475, 478-479 [2004] [internal quotation marks and citationomitted]).[FN2]As relevant here, it is well settled that "municipal corporate bodies, as subdivisions of the state,cannot contest the actions of the state which affect them in their governmental capacity or asrepresentatives of their inhabitants" (Matter of County of Oswego v Travis, 16 AD3d 733, 735 [2005];accord Matter of Bethpage Water Dist. vDaines, 67 AD3d 1088, 1090 [2009], lv denied 14 NY3d 707 [2010]; seeCity of New York v State of New York, 86 NY2d 286, 290-292 [1995]). Contrary to themunicipal petitioners' argument, this rule applies with equal force to the actions of state agencies:"a municipality lacks the capacity to challenge a state agency's interpretation of statutes andregulations where . . . the result impacts the municipality in its governmentalcapacity" (Matter of Bethpage Water Dist. v Daines, 67 AD3d at 1091; see City of Utica v Daines, 53 AD3d922, 923-924 [2008]; Matter ofCounty of Seneca v Eristoff, 49 AD3d 950, 950-951 [2008]; Matter of County ofOswego v Travis, 16 AD3d at 735).
Here, the municipal petitioners assert that the challenged amendments affect them in theirgovernmental capacity. Indeed, they maintain that the amendments "directly steal. . . their legislative capacity for enacting land use controls." Thus, they mustdemonstrate the applicability of one of the recognized exceptions to the general rule regardinglack of capacity (see City of New York v State of New York, 86 NY2d at291-292).[FN3][*3]
To that end, the municipal petitioners argue that theyhave express statutory authorization to sue under Executive Law § 818 (1), which providesthat "[a]ny act" of the APA may be challenged in a CPLR article 78 proceeding by "anyaggrieved person." This provision, however, merely authorizes proceedings against the APA and,thus, is not dispositive on the question of the municipal petitioners' capacity to sue. That is, asSupreme Court concluded, there is no indication that section 818 (1) was intended to trump therequirement that an aggrieved party must otherwise have the capacity to sue (see Matter ofAdirondack Park Local Govt. Review Bd. v Adirondack Park Agency, 89 AD2d 642[1982]). Nor does Executive Law § 818 (2) provide authorization to commence thisproceeding, as the municipal petitioners urge. That provision confers "standing" upon "[a]nylocal government which appears as a party in any proceeding before the agency" to challenge theAPA's decision on "such project" (Executive Law § 818 [2]), with "project" separatelydefined as "any new land use and development or subdivision of land" (Executive Law §802 [52]). The definition of "project" does not, on its face, encompass the substantive challengesto the APA's rule-making raised here.
While the municipal petitioners do have capacity to raise their claims insofar as they arguethat the 2008 amendments violated the home rule protections contained in article IX of the NYConstitution (see Town of Black Brook v State of New York, 41 NY2d 486, 488-489[1977]; see also City of New York v State of New York, 86 NY2d at 292), theirarguments lack merit. It is well settled that the Act, "addressed to an issue of substantial [s]tateconcern, relates to" a matter reserved to the state, i.e., a subject " 'other than the property, affairsor government of a local government' " and, thus, does not impermissibly infringe upon the homerule powers of municipalities within the Park (Wambat Realty Corp. v State of NewYork, 41 NY2d 490, 495-496 [1977], quoting NY Const, art IX, § 3 [a] [3]). Like thestatute itself, the regulatory amendments at issue comprise a portion of the "comprehensivezoning and planning program for all of the public and private lands within the [P]ark," a matterof state concern (id. at 492). As such, Supreme Court properly rejected the municipalpetitioners' assertion that the amendments violate their home rule powers.
With respect to the Blue Line petitioners, we agree with the APA that their claims are notjusticiable inasmuch as they are not ripe for review and, thus, their petition must be dismissed inits entirety.[FN4]In "determining whether a preenforcement challenge to an administrative regulation is ripe forjudicial review," we must first consider "whether the administrative action being reviewed isfinal and whether the controversy may be determined as a 'purely legal' question" (Church ofSt. Paul & St. Andrew v Barwick, 67 NY2d 510, 519 [1986], cert denied 479 US 985[1986]). Then, we must evaluate whether the anticipated harm "is sufficiently direct andimmediate," as opposed to merely "insignificant, remote or contingent" (id. at 520[internal [*4]quotation marks and citation omitted]). A challengeto a regulation "cannot be ripe if the claimed harm may be prevented or significantly amelioratedby further administrative action or by steps available to the complaining party" (id.;accord Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]; Matter of Essex Countyv Zagata, 91 NY2d 447, 453 [1998]). Moreover, the fact that the Blue Line petitionerspossess a "sufficient interest in the [matter] to be accorded standing to maintain the [proceeding]is but part of the equation"; the proceeding is nevertheless "premature and as a matter of law maynot be maintained if the issue presented for adjudication involves a future event beyond controlof the parties which may never occur" (American Ins. Assn. v Chu, 64 NY2d 379, 385[1985], appeal dismissed and cert denied 474 US 803 [1985]; see Matter of NewYork State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIOv Cuomo, 64 NY2d 233, 240 [1984]).
Here, as respondents note, the injuries asserted by the Blue Line petitioners involve thepossibility of either indirect economic harm or that future variance and subdivision approvalapplications may be denied. First, none of the Blue Line petitioners alleges any injury resultingfrom the wetlands amendment. As to the expansion of shoreline structures, one of the corporatepetitioners—a construction company that derives income from construction withinshoreline areas—alleges that it will be detrimentally impacted by waning constructionactivities if the APA denies future variance applications or landowners have the perception thatvariances are difficult to obtain. Another corporate petitioner—a timberproducer—and the individual petitioners own preexisting, nonconforming shorelinestructures. These petitioners and one not-for-profit corporation also own structures, or land uponwhich third-party tenants build structures, that may now be classified as "single familyresidences" instead of "hunting and fishing cabins" under the amendments and, therefore, wouldbe subject to stricter regulations. Finally, one of the individual petitioners owns two lotsseparated by a roadway. The Blue Line petitioners allege that they must now seek variances orapproval from the APA if they wish to subdivide or expand their cabins and nonconformingshoreline structures, and that potential tenants may find their property less desirable to lease dueto more onerous regulation.
In our view, none of these allegations constitutes concrete injuries sufficient to state ajusticiable claim. As this Court has held, "[t]he mere fact that petitioners may have to endure theAPA review process is not sufficient, without more, to constitute injury for this purpose"(Matter of Wal-Mart Stores v Campbell, 238 AD2d 831, 832-833 [1997]; see Matterof Essex County v Zagata, 91 NY2d at 455-456; Matter of Hunt Bros. v Glennon, 81NY2d 906, 910 [1993]; Weingarten v Town of Lewisboro, 77 NY2d 926, 928 [1991]).Inasmuch as the harm anticipated by the Blue Line petitioners may be prevented by furtheradministrative action—i.e., the APA may grant any future variance or subdivisionapplications—the alleged injuries are merely hypothetical at this time. In any event, noneof the Blue Line petitioners has claimed that they are seeking to subdivide their land, build newstructures, or expand their cabins and nonconforming structures; indeed, they do not even allegethat they plan to do so. Moreover, the assertions that potential tenants or customers of theconstruction company may become discouraged by the variance and permit requirements involve"future event[s] beyond control of the parties which may never occur" (American Ins. Assn. vChu, 64 NY2d at 385; see Hussein vState of New York, 81 AD3d 132, 135-136 [2011]).
In short, "the harm sought to be enjoined is contingent upon events which may not come topass" and, thus, "the claim[s] . . . [are] nonjusticiable as wholly speculative andabstract" (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist.Council 82, [*5]AFSCME, AFL-CIO v Cuomo, 64 NY2d at240; see Matter of National Fuel GasDistrib. Corp. v Public Serv. Commn. of State of N.Y., 71 AD3d 62, 64 [2009],affd 16 NY3d 360 [2011]). As such, the Blue Line petition (proceeding No. 1) must bedismissed in its entirety, and Supreme Court's declarations regarding the repeal of 9 NYCRRformer 573.4 (b) and the validity of 9 NYCRR 570.3 (m), as amended, must be stricken (seeAmerican Ins. Assn. v Chu, 64 NY2d at 386). Petitioners' remaining arguments are renderedacademic by our determination.
Rose, Kavanagh and Garry, JJ., concur. Ordered that the judgment is modified, on the law,without costs, by striking the declarations and dismissing both petitions in their entirety, and, asso modified, affirmed.
Footnote 1: Petitioners in proceeding No. 1consist of two not-for-profit corporations, a timber producer, a construction company and twoindividuals who own property within the Adirondack Park (hereinafter the Blue Line petitioners).Petitioners in proceeding No. 2 are counties and towns located in the Adirondack Park(hereinafter the municipal petitioners).
Footnote 2: The issue of capacity isconceptually distinct from standing, which requires a showing of injury-in-fact within the zone ofinterests promoted by the statute pursuant to which an agency has acted (see Matter ofGraziano v County of Albany, 3 NY3d at 478-479). To the extent that the municipalpetitioners argue that their claims fall within the zone of interests promoted by the Act, theirarguments are relevant to standing, but not capacity.
Footnote 3: The four exceptions to thegeneral rule are "(1) an express statutory authorization to bring such a suit; (2) where the Statelegislation adversely affects a municipality's proprietary interest in a specific fund of moneys; (3)where the State statute impinges upon 'Home Rule' powers of a municipality constitutionallyguaranteed under article IX of the State Constitution; and (4) where the municipal challengersassert that if they are obliged to comply with the State statute they will by that very compliancebe forced to violate a constitutional proscription" (City of New York v State of NewYork, 86 NY2d at 291-292 [internal quotation marks and citations omitted]).
Footnote 4: "[R]ipeness and justiciability arematters pertaining to subject matter jurisdiction which can be raised at any time" (333 Cherry LLC v Northern Resorts,Inc., 66 AD3d 1176, 1178 n 3 [2009]; see Matter of New York State Inspection, Sec.& Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d233, 241 n 3 [1984]).