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Bradley Corporate Park - Ruling 2, January 18, 2001

Ruling 2, January 18, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

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

- by -

BRADLEY CORPORATE PARK and
JOHN MAGEE and PATRICK MAGEE,
individually and as general partners of
BRADLEY CORPORATE PARK,

Respondents

RULING ON MOTIONS FOR
ORDER WITHOUT HEARING AND
TO STRIKE AFFIRMATIVE DEFENSES

DEC File No.3-2000-0424-43

January 18, 2001

SUMMARY

This matter involves an allegation by the Staff of the New York State Department of Environmental Conservation ("DEC Staff") that Bradley Corporate Park, John F. Magee and Patrick Magee ("Respondents") have unlawfully undertaken construction activity in a regulated freshwater wetland and adjacent area without a permit.

This Ruling denies DEC Staff's Motion for an Order Without Hearing because at least one material dispute of fact exists, namely, the location of the boundary of the DEC freshwater wetland NA-4. In addition, this ruling strikes twelve of the Respondents' thirteen Affirmative Defenses.

PROCEEDINGS

This action was commenced by DEC Staff by service of a Notice of Hearing and Complaint, dated May 11, 2000. Respondents denied the allegations in their Answer, dated May 15, 2000. The Answer also contained 13 affirmative defenses and a counterclaim. Since that time, discovery demands and responses have been provided by both parties in preparation for an expedited fact finding hearing pursuant to section 622.13 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). The hearing is now scheduled to begin on January 29, 2001. The subject of this hearing was decided in a ruling by Administrative Law Judge ("ALJ") Susan J. DuBois on August 15, 2000. The threshold issue is whether the Respondents unlawfully conducted an activity without the required permit.

By Notice of Motion dated December 15, 2000, DEC Staff moved for an Order Without Hearing pursuant to 6 NYCRR 622.12 on the issue of the Respondents' liability for the violations alleged in the Complaint. DEC Staff is seeking a Commissioner's Order requiring the Respondents to immediately place erosion controls at the site, remove steelwork already erected and submit a plan regarding the removal of footings and foundations at the site. By this same Notice of Motion, DEC Staff also seeks to have the affirmative defenses raised by the Respondents struck and a ruling amending the pleadings so that all references to "BRADLEY CORPORATE PARK" and "BRADLEY INDUSTRIAL PARK" shall be deemed to refer to "BRADLEY INDUSTRIAL PARK d/b/a BRADLEY CORPORATE PARK."

On January 5, 2001, Respondents filed papers in opposition to DEC Staff's motion, including an affirmation, various affidavits, a memorandum of law and various exhibits. The Respondents argue that DEC Staff's motion should be denied because there are material issues of fact outstanding or in the alternative, that summary judgment should be granted in favor of the Respondents.

THE FOLLOWING FACTS ARE NOT IN DISPUTE:

  1. Bradley Industrial Park ("Bradley") is a New York State partnership that is also known as Bradley Corporate Park.
  2. John F. Magee and Patrick Magee are general partners in Bradley.
  3. Bradley is the owner of several parcels of real property located in the Towns of Clarkstown and Orangetown, Rockland County, State of New York, known as Bradley Corporate Park.
  4. The property which is the subject of this action is part of Bradley Corporate Park, located in the Town of Clarkstown and is depicted on Tax Map Section 88, Block A, Lot 11, as maintained by the Town of Clarkstown.
  5. A portion of the site of Bradley Corporate Park is a freshwater wetland. Some or all of the wetland on the site has been designated as NYSDEC Freshwater wetland NA-4, which is a duly designated freshwater wetland as defined in Article 24 of the Environmental Conservation Law and is entitled to the protections established therein.
  6. On February 27, 1996 by Robert Torgersen, a consultant in the employ of the Respondents, visited the site and placed flags along the boundary of the wetland. On April 11, 1996, Joseph Corless, a licensed land surveyor hired by the Respondents, produced a document known as "Site Plan for Bradley Corporate Park" depicting the boundaries of the wetland. This map identified 5.075 acres of wetlands.
  7. On May 31, 1996, representatives of the U.S. Army Corps of Engineers ("ACE") visited the site and conducted a field verification of the wetland boundary. Following this visit, the ACE requested modifications to the wetland boundary to include three additional areas in the wetland.
  8. On June 13, 1996, Mr. Torgersen produced a revised site plan incorporating the changes to the boundaries of the wetland requested by the ACE. This revised site plan resulted in identification of 5.535 acres of wetlands on the site under the jurisdiction of ACE.
  9. By letter dated July 2, 1996, Mr. Torgersen informed Dr. Theodore Kerpez, a member of DEC Staff, of the changes to the wetland boundary requested by the ACE. Mr. Torgersen also included copies of the revised site plan, dated June 13, 1996, and requested that Dr. Kerpez review the wetland boundaries depicted thereon. Mr. Torgersen also requested that Dr. Kerpez certify the boundaries, sign the copies of the revised site plan and then send copies back to Mr. Torgersen.
  10. On July 8, 1996, Dr. Kerpez signed and dated the Revised Site Plan in a signature block. The language within the signature block reads "The freshwater wetland boundary as represented on these plans accurately depicts the limits of freshwater wetland NA-4 as deliniated by Robert G. Torgersen on 2/27/96."
  11. On June 11, 1999, Lance Kolts, a member of DEC Staff, again signed and dated the Revised Site Plan in signature block. The language within the signature block reads "The freshwater wetland boundary as represented on these plans accurately depicts the limits of freshwater wetland NA-4 as deliniated by Robert G. Torgersen on 2/27/96."

Issue #1: Should DEC Staff's Motion for Order without Hearing be granted?

In papers dated December 15, 2000, DEC Staff has moved under 6 NYCRR 622.12 for an Order Without Hearing in this matter. In papers dated January 5, 2000, Respondents opposed the granting of an order without hearing.

The standard for granting a Motion for Order Without Hearing is "a contested motion for order without hearing will be granted, if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party" (622.12(d)). The CPLR states that the "motion shall be granted, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR §3212(b)).

In this case, there remains at least one central factual dispute, namely: are the boundaries of the freshwater wetlands on the site as determined by the ACE the same as those established by DEC Staff? The Respondents claim that the boundaries are not the same, while DEC Staff contends that they are. Both the Respondents and DEC Staff have submitted the Revised Site Plan prepared by Mr. Torgersen on June 13, 1996 and approved by Dr. Kerpez on July 8, 1996 (and reconfirmed by Mr. Kolts on June 11, 1999) as proof of their respective positions. The Revised Site Plan is not conclusive one way or the other. The existence of this material dispute compels the denial of the motion for order without hearing.

To support their position, the Respondents point to the language contained within the signature blocks where the DEC employees, Dr. Kerpez and Mr. Kolts, signed. This language reads "the freshwater wetlands boundary as represented on these plans accurately depicts the limits of freshwater wetland NA-4 as deliniated by Robert G. Torgersen on 2-27-96." It is undisputed that the wetlands deliniated on this date are not the same as the ACE boundaries revised as a result of a site visit on May 31, 1996. Thus, Respondents argue, DEC Staff deliniated 5.075 acres of wetland on the site.

DEC Staff disagrees and argues that boundaries of the DEC wetland and the ACE wetland are congruent. To support this contention, DEC Staff asserts that the Revised Site Plan depicts a buffer area consistent with its position and that the July 2, 1996 cover letter from Mr. Torgersen to Dr. Kerpez states that wetland.

6 NYCRR 622.11(a)(9) states that "all maps, surveys and official records affecting real property, which are on file in the State in the office of the registrar of any county, county clerk, any court of record or any department of the State or City of New York are prima facie evidence of their contents". The Revised Site Plan, dated June 13, 1996 is a map and or survey which is on file with DEC Staff. Thus, 6 NYCRR 622.11(a)(9) may apply to the Revised Site Plan.

Black's Law Dictionary defines "prima facie evidence" as "evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient." Thus, if 622.11(a)(9) applies, the Revised Site Plan, as signed by the DEC employees, may establish the boundaries of the DEC wetland NA-4, unless its contents are rebutted or contradicted by DEC Staff at hearing. If the Respondents' arguments prevail, the revised site plan would show that the boundary of DEC Wetland NA-4 is that established in February, 1996, not that established at a later date.

However, there is not enough evidence before us now to conclude that either party's position regarding the location of the boundary of wetland NA-4 is correct. The revised site plan as approved by DEC Staff contains at least one internal inconsistency between the February 27, 1996 boundary line and the boundary of the buffer area. As stated in the regulations, at the hearing scheduled to commence on January 29, 2001, DEC Staff will be afforded the opportunity to rebut the apparent boundary depicted on the Revised Site Plan with other evidence.

Issue #2: Should the Respondents' Affirmative Defenses be struck?

The Respondents have raised thirteen affirmative defenses in their answer, dated May 15, 2000. DEC Staff in its December 15, 2000 Motion seeks to have each affirmative defense stricken as a matter of law. Each is dealt with below.

Respondents First Affirmative Defense

The Respondents claim that the DEC Staff "has failed to state a cause of action as required by 6 NYCRR §622.3(a)(1) and should be dismissed pursuant to CPLR 3211(a)(7)."

DEC Staff asserts that this defense has no merit and should be stricken because DEC Staff's jurisdiction and statutory and regulatory bases involved in this matter are specified in the complaint and the factual matters asserted have been set out sufficiently to apprize the Respondents of the alleged violation.

A cause of action is a situation or state of facts which entitles a party to sustain an action and give him the right to seek judicial redress. (Thompson v. Zurich Ins. Co., D.C. Minn., 309 F.Supp. 1178, 1181). Section 622.3(a)(1) requires DEC Staff to include in its complaint a statement of the legal authority and jurisdiction under which the proceeding is to be held.

Ruling 2A: The Respondents' first affirmative defense is stricken. DEC Staff has sufficiently stated a cause of action in its complaint and the Respondents are on notice as to the facts and legal authority surrounding the alleged violations.

Respondents Second Affirmative Defense

The Respondents claim that DEC Staff "failed to name a necessary and indispensable party, more particularly the TOWN of CLARKSTOWN and should be dismissed pursuant to CPLR 3211(a)."

DEC Staff responds that the Town of Clarkstown did not perform any activity at the site and has not interest or responsibility for activities that occurred at the site. Therefore, DEC Staff asserts that the Town of Clarkstown is not a necessary and indispensable party.

Ruling 2B: The Respondents' second affirmative defense is stricken. The alleged violations in this matter occurred wholly on land owned by the Respondents. Further, there is no allegation that any of the actions underlying the alleged violation were undertaken by the Town.

Respondents Third Affirmative Defense

The Respondents claim that they "were not engaging in any 'activity' that impinges upon or otherwise substantially affect the wetlands' and therefore, a permit is not required pursuant to New York Environmental Conservation Law §24-0701(1)(2)" (sic).

DEC Staff asserts that much of the site in question is either a regulated wetland or adjacent area. Thus the activities of the Respondents by allegedly filling, grading and constructing on the parcel are activities that by definition require a wetland permit.

Ruling 2C: This affirmative defense is not stricken. As found in Ruling 1, above, the question of the location of the boundary of wetland NA-4 is in dispute and the merits of this affirmative defense cannot be reached until that factual dispute is resolved.

Respondents Fourth Affirmative Defense

The Respondents claim that DEC Staff "has created the wetlands as a result of its direction in the Record of Decision dated November 28, 1995 directing the Town of Clarkstown to cap the adjacent wetlands and redirect a stream onto Respondents' property."

DEC Staff asserts that the mapping of the wetland NA-4 in May 1996 is unrelated to the closure of the landfill which was directed in November 1995. This is because the construction at the landfill did not commence until October 1996, after the wetland NA-4 was mapped.

Ruling 2D: The Respondents' fourth affirmative defense is stricken. Why a wetland exists in a particular location is irrelevant in deciding whether a violation of laws and regulations to designed protect such wetlands occurred.

Respondents Fifth Affirmative Defense

The Respondents claim that DEC Staff "has been fully aware of the proposed construction for approximately ten (10) years and has not objected to the construction of the premises in its present location" and that "the filings within the Department of Environmental Conservation and the review by the permitting director constitutes sufficient activity to deem the permit granted."

DEC Staff asserts that it was first made aware of the activities of Bradley regarding the construction of Building 20A at a February 20, 2000 meeting and that prior to that they had no knowledge of the proposed construction prior to this. DEC Staff also assert that no wetland permit application was received from the Respondents until March 16, 2000.

Ruling 2E: The Respondents fifth affirmative defense is stricken. When DEC Staff had knowledge of the activity at the site may be relevant for calculating the appropriate penalty, should a violation be found, but it is not relevant to the question of did a violation occur. In addition, the review of the project by DEC Staff does not equate to an approval.

Respondents Sixth Affirmative Defense

The Respondents claim that DEC Staff "has wilfully frustrated the joint permit application of the Town of Clarkstown and Respondents, more particularly filing and serving two (2) criminal appearance tickets on Respondents that were dismissed."

DEC Staff assert that it did issue two criminal appearance tickets on the Respondents. While both tickets dealt with alleged violations at Bradley Corporate Park, only one dealt with the alleged violations at issue here and thus the other ticket is irrelevant. Regarding the ticket issued in this matter, DEC Staff asserts that after the ticket was issued, a number of factors arose that lead it to proceed with this matter administratively and not criminally. The decision to change approaches to prosecution of this alleged violation was not improper nor did it constitute the wilful frustration of the permit application process. Rather, the suspension of the permitting process is authorized by law in situations were an outstanding violation is present.

Ruling 2F: The Respondents' sixth affirmative defense is stricken. The alleged actions of DEC Staff do not affect whether the alleged violation occurred or not. The actions of DEC Staff may be relevant at hearing regarding the issues of credibility and penalty assessment.

Respondents Seventh Affirmative Defense

This defense is closely related to the sixth defense, discussed above. The Respondents claim that "specific employees of the Department of Environmental Conservation have acted with prosecutorial misconduct and willful bad faith, more particularly, William Steidle and Steven Goverman."

DEC Staff asserts that the election to proceed administratively in this matter, and not in a criminal forum, does not constitute prosecutorial misconduct. Rather, it is a reasonable exercise of enforcement discretion.

Ruling 2G: The Respondents' seventh affirmative defense is stricken. The alleged actions of DEC Staff do not affect whether the alleged violation occurred or not. The actions of DEC Staff may be relevant at hearing regarding the issues of credibility and penalty assessment.

Respondents Eight Affirmative Defense

The Respondents claim that DEC Staff "has unclean hands".

This defense is also closely related to the Respondents sixth and seventh affirmative defenses.

Ruling 2H: The Respondents' eighth affirmative defense is stricken. The alleged actions of DEC Staff do not affect whether the alleged violation occurred or not. The actions of DEC Staff may be relevant at hearing regarding the issues of credibility and penalty assessment.

Respondents Ninth Affirmative Defense

The Respondents claim that the "permit is 'deemed approved' and therefore Respondents are not in violation".

DEC Staff asserts that there is no applicable section of law that would allow the permit to be deemed approved and even if there were such a provision, the issuance of a permit subsequent to a violation does not constitute a defense to the alleged violations.

Ruling 2I: The Respondents' ninth affirmative defense is stricken. Respondents fails to explicitly assert a statement of facts which constitute the grounds for this affirmative defense as required in 6 NYCRR 622.4(c).

Respondents Tenth Affirmative Defense

Respondents claim that "there is another action pending and this matter should be dismissed pursuant to CPLR 3211(a)(4) and Environmental Conservation Law.

DEC Staff assert that the Respondents made a motion in the Rockland County Supreme Court for a preliminary injunction staying this proceeding and that this motion was denied on July 21, 2000 by Justice Bergerman.

Ruling 2J: The Respondents' tenth affirmative defense is stricken. 6 NYCRR 622.4(c) requires the Respondents "to explicitly assert any affirmative defenses together with a statement of the facts which constitute the grounds of each affirmative defense asserted." The Respondents have not done this and do not specify what other action is pending in their Answer so it is impossible to know what the Respondents are asserting.

Respondents Eleventh Affirmative Defense

Respondents claim that the complaint "should be dismissed as a result of the Respondent's (sic) performing construction pursuant to a lawfully issued building permit and site plan approval."

DEC Staff assert that the actions of the Town of Clarkstown in approving the site plan and issuing a building permit does not supercede the Freshwater Wetland Law or otherwise obviate the requirement that the Respondents needed a wetland permit before commencing construction activities at the site.

Ruling 2K: The Respondents' eleventh affirmative defense is stricken. The issuance of a valid building permit by the local government does not remove the burden upon the Respondents to comply with applicable state environmental laws.

Respondents Twelfth Affirmative Defense

Respondents claim to "incorporate each and every allegation contained in the affidavits of MICHAEL BONTJE, ROBERT G. TORGERSEN and JOHN MAGEE as incorporated herein."

DEC Staff asserts that while the affidavits of these individuals do appear to restate assertions of other affirmative defenses, there are no new specific affirmative defenses plead in these affidavits.

Ruling 2L: The Respondents' twelfth affirmative defense is stricken. This affirmative is too vague and does not assert the facts which constitute the grounds of this affirmative defense. The opposing party and the ALJs should not have to search for affirmative defenses through affidavits of witnesses (6 NYCRR 622.4(c))

Respondents Thirteenth Affirmative Defense

Respondents claim that "all actions undertaken by the Respondents were pursuant to and required by a Federal Court Order which Order and proceedings govern all matters which are alleged to be improperly done by" DEC Staff and that the "Federal Court Order was contained in 'JOHN F. MAGEE and PATRICK MAGEE, BRADLEY INDUSTRIAL PARK, against, TOWN OF CLARKSTOWN and CHARLES HOLBROOK as Supervisor of the Town of Clarkstown' Docket No.:99 CIV 1519, before the HON. BARRINGTON D. PARKER."

DEC Staff disputes this claim and assert that the Order of the federal court is irrelevant because DEC Staff is not a party to the order, the Respondents represented to the federal judge that they would apply for a wetland permit and nothing in the order required, authorized, or even addressed the Respondents' performance of unpermitted work at the site.

Ruling 2M: Respondents' thirteenth affirmative defense is stricken. The Federal Court Order does not authorize the actions that are the basis for DEC Staff's complaint.

Issue #3: Should the pleadings be amended so that all references to "BRADLEY CORPORATE PARK" and "BRADLEY INDUSTRIAL PARK" shall be deemed to refer to "BRADLEY INDUSTRIAL PARK d/b/a BRADLEY CORPORATE PARK?

In its December 15, 2000 papers, DEC Staff has moved to amend the pleadings so that all references to "BRADLEY CORPORATE PARK" and "BRADLEY INDUSTRIAL PARK" shall be deemed to refer to "BRADLEY INDUSTRIAL PARK d/b/a BRADLEY CORPORATE PARK.

The Respondents have stated no objection to this request.

Ruling 3: The pleadings are amended so that all references to "BRADLEY CORPORATE PARK" and "BRADLEY INDUSTRIAL PARK" shall be deemed to refer to "BRADLEY INDUSTRIAL PARK d/b/a BRADLEY CORPORATE PARK.

FURTHER PROCEEDINGS

The crux of this matter seems to be what is the boundary of DEC wetland NA-4. This can be the subject of testimony at the hearing currently scheduled for January 29, 2001. Once this fact is determined, it would seem that the parties might resolve any remaining disputes through settlement discussions.

_____________/s/_____________
By: Susan J. DuBois
Administrative Law Judge

_____________/s/_____________
P. Nicholas Garlick
Administrative Law Judge

Dated: Albany, New York
January 18, 2001

TO: Steven Goverman, Esq.
Burton I. Dorfman, Esq.

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