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Ames, John - Order, December 29, 1994

Order, December 29, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

In the Matter of Alleged Violations of Article 24 of the Environmental Conservation Law of the State of New York and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Part 663

- by -

JOHN AMES

ORDER

December 29, 1994

ORDER

This Order is in connection with the Department's Motion for Summary Order dated February 4, 1994 regarding the captioned matters. After resolving all charges against the Town of Conesus, Ron Craver and William F. Gannon by Order on Consent, the Department Staff moved for a Summary Order directing John Ames to allow the Town access to his property to perform the remediation required in the Order on Consent. Mr. Ames was not charged with any violations of the Environmental Conservation Law ("ECL"). He was named as Respondent solely in order to gain personal jurisdiction further to enabling access to his property to accomplish the remedial work required by the Order on Consent.

The principal issue to be resolved here is whether the ECL provides the Department with authority to require an innocent landowner to allow access to his property for remediating a freshwater wetlands violation. For reasons set forth in his Report (attached) the Administrative Law Judge ruled that the authority did not exist and recommended that I deny the request for an access order and dismiss the Complaint against Mr. Ames.

Requiring a landowner to provide access to third parties to remediate a violation where the landowner has committed no wrongdoing is an extraordinary remedy. Rather than determine whether such authority exists under the Environmental Conservation Law, it is preferable for the Department to pursue whatever remedies it has against the violators themselves. If the violators cannot fulfill their remedial responsibilities because of a failure to obtain the landowners permission to access the site, the consent order may need to be revised and/or renegotiated. At this time, no relief is warranted in this forum.

IN WITNESS WHEREOF the Department of Environmental Conservation has caused this Order to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 29th day of December, 1994

For the New York State Department
of Environmental Conservation

/s/
By: LANGDON MARSH, COMMISSIONER

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

In the Matter of

Alleged Violations of Article 24 of
the Environmental Conservation Law of the State of New York (ECL) and
Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 663

- by -

JOHN AMES

RESPONDENT

DEC No. R8-0786-90-02

HEARING REPORT
- by -

/s/
Daniel P. O'Connell
Administrative Law Judge

SUMMARY

Before the Commissioner can order remediation of the affected wetland, the landowner either must give the violators access to his property voluntarily, or be found liable for the violation. In a Notice of Hearing and Complaint dated May 18, 1993, the Region 8 Staff of the Department of Environmental Conservation (the Department) alleged that the Town of Conesus (the Town), and the Town Superintendent of Highways violated ECL Article 24 (Freshwater Wetlands Act) and 6 NYCRR Part 663. Although not charged with a violation, the Department also named John Ames as a Respondent because Mr. Ames owns the site where the alleged violation took place. The Department requested an Order giving the Town access to the Ames property to restore the wetland. This Hearing Report recommends that the Commissioner deny the Department's request for an access order, and dismiss the Complaint against John Ames.

PROCEEDINGS

These proceedings began when the Department served Notices of Hearing and Complaints dated May 18, 1993 upon the Town of Conesus (the Town); Ron Craver, Superintendent of Highways for the Town; William F. Gannon, individually and as past Superintendent of Highways for the Town, and John Ames. The Complaint alleged that the Town and Mr. Gannon violated ECL Article 24 and 6 NYCRR Part 663 in 1989 when they constructed a road and a bus turnaround in a regulated freshwater wetland without a permit. The Site of the alleged violation is on property owned by John Ames located at the southern end of Conesus Lake in the Town of Conesus, Livingston County. Though not charged with any violation, the Department included Mr. Ames in this enforcement action to obtain an Order from the Commissioner that directs Mr. Ames to give the Town, and Mr. Craver access to the Site to remediate it. Appendix A to this Report is a copy of the Department's Complaint.

Mr. Ames filed an Answer dated June 2, 1993, and admitted that he owns the Site. In addition, Mr. Ames asked the Commissioner not to issue any Order affecting the right of way of the road bed on the Site. Alternatively, Mr. Ames requested that the Commissioner issue a freshwater wetland permit for the bus turnaround, or at least not issue any Order affecting the turnaround.

Mr. Gannon signed a stipulation with the Department on January 19, 1994 thereby resolving the charges alleged against him.

On January 19, 1994, the Town and Mr. Craver signed a stipulation and an Order on Consent which the Department signed on February 3, 1994. The Order on Consent resolved the charges alleged against the Town, and Mr. Craver. In addition, the Order on Consent requires the Town and Mr. Craver, in his capacity as Town Highway Superintendent, to remediate the Site. Appendix B to this Report is a copy of the Order on Consent.

When Mr. Ames did not enter into the Order on Consent, the Department filed a Motion for Summary Order against Mr. Ames on February 4, 1994. With the motion, the Department included an affirmation by Leo Bracci, Esq., affidavits by Matthew Sanderson, Regional Habitat Protection Biologist, and Kathleen G. Kirsch, Senior Fish and Wildlife Technician, as well as numerous attachments. The Department repeated its request for an Order directing Mr. Ames to give the Town and Mr. Craver access to the Site to restore the wetland, and to allow the Department Staff on the Site to inspect the remediation.

On February 22, 1994, Mr. Ames filled three motions. First, he moved to amend his Answer dated June 2, 1993. In his proposed amended Answer, Mr. Ames did not change his original admission about owning the Site, but expanded upon his Affirmative Defenses. Also, Mr. Ames requested leave to serve interrogatories on the Town, and Messrs. Craver and Gannon regarding the work done on the Site. Finally, Mr. Ames moved to dismiss the Department's Motion for Summary Order.

By letter dated March 4, 1994, the Department Staff opposed Mr. Ames's motions. By letter dated March 9, 1994, the Town and Mr. Craver opposed Mr. Ames' request for interrogatories. Mr. Ames submitted a reply brief and two additional affidavits on March 14, 1994.

In a ruling dated May 3, 1994, Administrative Law Judge (ALJ) Susan J. DuBois denied Mr. Ames' requests to amend his Answer and to serve interrogatories. ALJ DuBois also directed Mr. Ames to respond to the Department's Motion for Summary Order within twenty days.

With a cover letter dated May 23, 1994, Mr. Ames replied to the Department's Motion for Summary Order. Mr. Ames' reply included an affidavit by Mr. Ames with some attachments, and a Memorandum of Law by his attorney.

For reasons of administrative efficiency, this matter was transferred to ALJ Daniel P. O'Connell on June 14, 1994. After reviewing the file, ALJ O'Connell determined there was an issue of law about whether the Commissioner has the authority to direct Mr. Ames -- a property owner not charged with a violation -- to give the Town access to his property so that the Town can restore the freshwater wetland.

The Department and Mr. Ames briefed the issue about the Commissioner's authority to issue an access order. With a cover letter dated August 19, 1994, the Department timely filed its Memorandum of Law. Upon the timely receipt of the Respondent's Reply Memorandum, the record of this proceeding closed on September 9, 1994.

Throughout these proceedings, Leo Bracci, Esq., Assistant Regional Attorney, represented the Region 8 Department Staff. Robert M. Schantz, Esq. from the law firm Woods, Oviatt, Gilman, Sturman and Clarke, Rochester, NY., represented Mr. Ames.

FINDINGS OF FACT

  1. John Ames owns property at the southwest end of Dacola Shores Road in the Town of Conesus, Livingston County (the Site). A portion of the Site is regulated pursuant to ECL Article 24 as Freshwater Wetland CO-1.
  2. Before August 22, 1989, William Gannon, Superintendent of Highways for the Town of Conesus, graded, filled and built a road with a bus turnaround on the Site without a permit from the Department. Mr. Gannon engaged in these activities for the Town of Conesus in his capacity as Superintendent of Highways.
  3. The Town and Mr. Craver, the current Superintendent of Highways for the Town of Conesus, agreed to remediate the Site according to the terms of an Order on Consent dated February 3, 1994.
  4. There is no evidence to show that Mr. Ames knew that the Town was going to build the road and bus turnaround on his property, or that Mr. Ames had any agreements with the other Respondents concerning the road and bus turnaround.

DISCUSSION

The stipulations and Order on Consent settled the charges alleged against the Town and Messrs. Gannon and Craver. These Respondents stipulated that they were responsible for the violation, and agreed to remediate the Site. Therefore, the only remaining Parties to this enforcement action are the Department and John Ames.

There are no factual issues about liability concerning the Department's Motion for Summary Order against Mr. Ames. The Town and Messrs. Gannon and Craver have already stipulated that they were responsible for the violation. Moreover, the Department did not charge Mr. Ames with violating any provision of the ECL. Paragraph 6 of the Department's Complaint states that Mr. Ames is a Party to this proceeding solely to obtain access to the Site to implement the remediation plan (Appendix A).

A hearing is not needed to determine who owns the Site. Mr. Ames admitted that he is the landowner.

The only remaining issue is a legal question about whether the Commissioner has the authority to direct Mr. Ames to give the Town access to his property so that the Town can restore the freshwater wetland. The Department asserted the Commissioner does have this authority. Mr. Ames argued the contrary.

The Department's Position

Citing ECL 3-0301(1)(e), (h) and (m); 24-1301(1) and (2); and 71-2303(1) and 71-2307, the Department argued that the Legislature authorized the Commissioner to issue an access order for the Ames property. Furthermore, the Department contended there is implicit authority because the ECL does not expressly restrict or prohibit the Commissioner from issuing an access order. The Department cited Flacke v. Freshwater Wetlands Appeals Board 53 NY2d 537 (1981) to support its theory of implied power. The Department also argued that the Commissioner could order access as long as the Department complied with statutory policy [Occidental Chemical Corp. v. NYS Environmental Facilities Corp. 113 AD2d 4 (3d Dept. 1985)], and acted rationally, reasonably and consistently [Memorial Hospital v. Axelrod 118 AD2d 938, affirmed in 68 NY2d 958 (1986)].

The Respondent's Position

The Respondent argued that the Legislature did not authorize the Commissioner to order access onto his property to remediate the violations. Since the expressed policy of ECL Article 24 is to preserve, protect and conserve freshwater wetlands rather than to restore them, the Respondent contended that an access order would exceed any authority implied by the statute. [Durant v. Motor Vehicle Accident Indemn. Corp. 20 AD2d 242 (2d Dept. 1964), and Boreali v. Axelrod 130 AD2d 107 (3d Dept. 1987)]. The Respondent further argued that ECL Article 24 does not authorize access orders because ECL 24-0901 (Cooperative Agreements) expressly permits only cooperative agreements for access to wetland property.

Ruling

The access order sought by the Department is beyond the scope of the Commissioner's authority. When remediating a wetland is necessary but not under the control of a Respondent, the Commissioner has previously conditioned the remediation order on the Respondent obtaining permission from the property owner not charged with the violation. [Roger Kimball Order dated April 15, 1991 and Robert Scully Order dated May 6, 1992].

The fact pattern in Kimball is nearly identical to this situation. In Kimball, the Commissioner concluded that the Respondent violated ECL Article 24 and Article 27 by depositing solid waste in a freshwater wetland and its adjacent area. The Commissioner found that remediation of the freshwater wetland was necessary, but recognized that Kimball would first have to get permission from the property owners, before Kimball could remediate the wetland. Like Mr. Ames, the Department had not charged the property owners in the Kimball matter with any violations. Also, the Commissioner did not direct the landowners to give Mr. Kimball access to their property to remediate the freshwater wetland. In Scully, the Commissioner concluded that restoring the tidal wetland was justified, and acknowledged the Town of Hempstead's willingness, as the property owner, to give Scully access to the site to do the restoration.

The Decisions in Kimball and Scully are consistent with the language in ECL 71-2303(1) which authorizes the Commissioner to direct the violator to restore the affected freshwater wetland rather than the landowner not charged with a violation. Based on these two precedents, the Commissioner has acknowledged there is no authority to direct Mr. Ames to give the Town access to his property when the Department has not charged Mr. Ames with a violation. Therefore, the Commissioner should deny the Department's request for the access order.

There is no question that the Site is regulated pursuant to ECL Article 24. From a policy perspective, however, the statute may be potentially inadequacy with respect to the Commissioner's authority to order access for wetland remediation when the landowner did not violate the statute or regulations. Here, the Town and Mr. Craver, will not be able to remediate the Site as required by the Order on Consent.

RECOMMENDATIONS

  1. The Commissioner should deny the Department's request for an Order directing Mr. Ames to give the Town and Mr. Craver assess to Mr. Ames' property.
  2. The Commissioner should dismiss the Complaint against Mr. Ames.

Appendices

APPENDIX A: The Department's Complaint dated May 18, 1993

APPENDIX B: Order on Consent

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