| Matter of Town of Hunter v City of New York |
| 2007 NY Slip Op 10016 [46 AD3d 1197] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Town of Hunter, Respondent, v City of New Yorket al., Appellants. |
—[*1] Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Jeffrey S. Baker ofcounsel), for respondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered June 19,2007 in Greene County, which, among other things, granted petitioner's application, in acombined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annulrespondents' adoption of certain recreational use rules.
In August 2006, respondent New York City Department of Environmental Protection(hereinafter DEP) adopted new rules governing the recreational use of water supply lands andwaters. These rules applied to all recreational use of New York City lands, lakes and reservoirsowned for water supply purposes, including lands located outside of the metro New York areaknown as the Watershed.[FN1] The stated purpose of the new rules was to safeguard an adequate [*2]supply of high quality water to respondent City of New York.
Petitioner, a community located within the Watershed which relies on tourism as a primaryindustry, commenced this combined CPLR article 78 proceeding and declaratory judgment actionseeking to annul DEP's action in adopting these rules. Supreme Court determined that, becausethe subject rules were promulgated without prior approval by the Department of Health asrequired by Public Health Law § 1100 (1), petitioner was entitled to relief pursuant toCPLR article 78. Thus, the court granted the petition, prompting this appeal. We affirm.
Public Health Law § 1100 (1) authorizes DEP, subject to Department of Healthapproval, to adopt rules and regulations for the protection of the quality of its water supply (see Ryder v City of New York, 32AD3d 836, 838 [2006], lv dismissed 8 NY3d 896 [2007]; City of New York vMancini-Ciolo, Inc., 188 AD2d 633, 634 [1992]). DEP readily concedes that the subjectrules were not approved by the Department of Health. However, it argues that such approval wasnot necessary because it was acting pursuant to Administrative Code of the City of New York§ 24-315, which grants it authority to issue and renew temporary permits for use oroccupation of any city property. To this end, DEP disputes that the subject rules are "watershedprotection rules, regulating land use throughout the watershed" but, instead, portrays them as "amanagement tool" for city-owned property.[FN2] Notably, despite taking a contrary position before Supreme Court, the DEP now concedes that itspredecessor recreational rules were in fact submitted to the Department of Health for approval.
In our view, the attempt to disavow the Watershed protection aspect of the subject rules, andthus the application of Public Health Law § 1101 (1), is belied by the "statement of basisand purpose" contained within both the "notice of public hearing and opportunity to comment"and the "notice of adoption of rules," as well as the stated "scope and purpose" of the rulesthemselves. The notice of public hearing states that "[t]he purpose of the proposed rules is toprovide further protection to the New York City drinking water supply" and further notes thatone component of the new rules (i.e., access permits) "will greatly assist [DEP] in itsresponsibility to safeguard the integrity of the water supply." The notice of adoption of rulessimilarly notes that the proposed access permit component of the new rules "will benefit theintegrity of the water supply." Most significantly, the rules themselves state that they "are in[*3]furtherance of the City's goal of safeguarding an adequatesupply of high quality drinking water while allowing compatible recreational use andenjoyment." Because the subject rules have the purpose and effect of protecting the City's watersupply in the Watershed, we find that approval by the Department of Health was requiredpursuant to Public Health Law § 1101 (1). DEP's action in adopting these rules withoutsuch approval was therefore in violation of lawful procedure (see CPLR 7803 [3]).
As a final matter, to the extent that DEP expands the position it originally took beforeSupreme Court by arguing that Public Health Law § 1100 (5) exempts its compliance withPublic Health Law § 1100 (1), we have reviewed its arguments in this regard and findthem to be unpersuasive.
Crew III, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed,without costs. [See 2007 NY Slip Op 31708(U).]
Footnote 1: Respondent City of New Yorkacquired property within the Watershed pursuant to the 1997 New York City WatershedMemorandum of Agreement. The purpose of these land acquisitions was to protect the City'sWatershed and water supply. Under the agreement, DEP agreed to make land within theWatershed open to various recreational uses to preserve the economic viability of the Watershedcommunities.
Footnote 2: In particular, DEP argued thatthe new rules were "simply a management tool, efficiently establishing conditions under which[it] allows members of the public to enter city-owned lands in the Watershed, for purposes ofpromoting safety, preventing liability claims, protecting the land against damage, and avoidingconflicts among different recreational uses."