| Matter of Town of Riverhead v New York State Dept. of Envtl.Conservation |
| 2008 NY Slip Op 03231 [50 AD3d 811] |
| April 8, 2008 |
| Appellate Division, Second Department |
| In the Matter of Town of Riverhead et al.,Appellants, v New York State Department of Environmental Conservation et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek, NormanSpiegel, and Lisa F. Garcia of counsel), for respondents New York State Department ofEnvironmental Conservation and John Pavacic, Regional Permit Administrator, Department ofEnvironmental Conservation. Scheyer & Jellenik, Nesconset, N.Y. (Richard I. Scheyer of counsel), for respondents T.S.Haulers Inc., T.S. Haulers, Edward Partridge, and T.S. Haulers Trucking OperationCorp.
In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the NewYork State Department of Environmental Conservation dated December 9, 2005, which deniedan application to revoke a mined land reclamation permit held by the respondent T.S. Haulers,Inc., the petitioners appeal from an order and judgment (one paper) of the Supreme Court,Suffolk County (Berler, J.), dated November 3, 2006, which, inter alia, denied the petition anddismissed the proceeding.
Ordered that the order and judgment is affirmed, without costs or disbursements.
The petitioners Town of Riverhead and Town Board of the Town of Riverhead (hereinaftertogether the Town) commenced this proceeding pursuant to CPLR article 78 alleging that therespondent New York State Department of Environmental Conservation (hereinafter DEC) actedarbitrarily and capriciously in denying the Town's application to revoke a mined land reclamation[*2]permit that DEC had issued to the respondent T.S. Haulers.DEC moved to dismiss the petition on the grounds that the Town lacked both capacity andstanding to bring this proceeding, that the proceeding is barred by the applicable statute oflimitations, that DEC cannot be compelled to initiate an enforcement proceeding, and that thepetition is academic. The Supreme Court granted the motion and dismissed the proceeding. Weaffirm the order and judgment dismissing the proceeding, but we do so for reasons other thanthose set forth by the Supreme Court.
Contrary to the conclusion reached by the Supreme Court, the Town has the capacity to bringthis proceeding. "Capacity to sue . . . 'concerns a litigant's power to appear andbring its grievance before the court' " (Silver v Pataki, 96 NY2d 532, 537 [2001], quotingCommunity Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155 [1994]; see Matter of Graziano v County ofAlbany, 3 NY3d 475, 478-479 [2004]). The Town has the power to sue and be sued(see Town Law § 65 [1]). DEC argues, however, that because it is an agency of theState of New York, the Town may not sue it without explicit legislative authority to do so. DECis incorrect. "[C]apacity may be inferred as a necessary implication from the powers andresponsibilities of a governmental entity, 'provided, of course, that there is no clear legislativeintent negating review' " (Matter ofTown of Riverhead v New York State Bd. of Real Prop. Servs., 5 NY3d 36, 42 [2005],quoting Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d at 156). Here,that necessary implication is found in the New York State Mined Land Reclamation Law (ECLart 23, tit 27), pursuant to which DEC is prohibited from considering an application for a permitwhere the proposed mining operation is inconsistent with local zoning laws (see ECL23-2703 [3]). Implicit in this recognition of the role of local land use laws in this context, is thecapacity of the municipality that enacted those laws to challenge DEC's failure to comply withthe statutory prohibition.
DEC's contention that the Town is without standing to bring this proceeding falls for similarreasons. The issue presented by the doctrine of standing is whether the litigants "should beallowed access to the courts to adjudicate the merits of [the] dispute" (Society of PlasticsIndus. v County of Suffolk, 77 NY2d 761, 769 [1991]). The inquiry is twofold. "Generally,standing to challenge an administrative action turns on a showing that the action will have aharmful effect on the challenger and that the interest to be asserted is within the zone of interestto be protected by the statute" (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87NY2d 668, 687 [1996]; see Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 10 [1975]).In light of the primacy given by the Legislature to the Town's zoning laws in this context, theTown satisfies this standard (cf. Town of Black Brook v State of New York, 41 NY2d486 [1977]).
Nevertheless, the proceeding was properly dismissed. Assuming the truth of the allegationsin the petition, as we must at this stage in the proceeding (see Matter of Long Is. Contractors' Assn. v Town of Riverhead, 17AD3d 590, 594 [2005]; Matter of10 E. Realty, LLC v Incorporated Vil. of Val. Stream, 17 AD3d 472, 473 [2005];Matter of Zaidins v Hashmall, 288 AD2d 316, 316-317 [2001]), mandamus "will not beawarded to compel an act in respect to which the officer may exercise judgment or discretion"(Klostermann v Cuomo, 61 NY2d 525, 539 [1984], quoting Matter of Gimprich vBoard of Educ. of City of N.Y., 306 NY 401, 406 [1954]; People ex rel. Hammond vLeonard, 74 NY 443, 445 [1878]). The determination to initiate proceedings leading to therevocation of a permit is a discretionary function (see ECL 23-2711 [6]) with respect towhich mandamus does not lie (see Matter of Haydock v Passidomo, 121 AD2d 540[1986]). The Town's attempt to avoid the effect of these principles by characterizing the petitionas seeking mandamus to review is belied by the actual relief it has requested, which is to directDEC to commence a revocation proceeding. To the extent that the petition seeks, in effect, toreview the determination to grant the permit initially, it is barred by the [*3]applicable statute of limitations (see CPLR 217 [1]). Sincethe relief requested by the Town is thus not available on the basis of the allegations in thepetition, the proceeding was properly dismissed (see Matter of Jahn v Town of Patterson,23 AD2d 688 [1965]). Spolzino, J.P., Skelos, Florio and Angiolillo, JJ., concur.