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Conesus, Town of - Ruling, May 3, 1994

Ruling, May 3, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

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

- by -

THE TOWN OF CONESUS
RON CRAVER, Superintendent of Highways of the Town of Conesus
WILLIAM F. "KAT" GANNON,
individually and as past Superintendent of Highways of the Town of Conesus, and
JOHN AMES,

Respondents

May 3, 1994

RULINGS

Case No.

R8-0786-90-02

These rulings are in response to the Department Staff's February 4, 1994 Motion for Summary Order and in response to Mr. Ames's February 22, 1994 motion to amend the answer, for an order requiring other Respondents to answer interrogatories, and to deny the Motion for Summary Order.

Procedural Background

The May 18, 1993 complaint in this matter was addressed to all four Respondents. The complaint sought an order which would find that the Town of Conesus and Mr. Gannon had violated the Environmental Conservation Law by conducting regulated activities in a freshwater wetland and its adjacent area without a permit from the Department, and which would direct the Town, Mr. Gannon and Mr. Craver to restore the affected wetland and adjacent area. The complaint also sought that the order direct Mr. Ames to permit the other Respondents and the Department to access his property in order to carry out the restoration work and to inspect the work. The complaint sought imposition of a civil penalty against the Town and Mr. Gannon.

The regulated activities consisted of grading, filling, and construction of a road with a bus turnaround within freshwater wetland CO-1 and its adjacent area. These activities took place in 1989. The location where these regulated activities took place is at the south end of Conesus Lake in the Town of Conesus, Livingston County. The regulated activities took place on property belonging to Mr. Ames.

On June 2, 1993, Mr. Ames submitted an answer which admitted or denied knowledge of the allegations in the complaint, but stated that not all of Mr. Ames's property was mapped as freshwater wetland and that not all of the area where the violations were alleged to have occurred was wetland. Mr. Ames stated as an affirmative defense that for many years he has had a road bed in the center of the area where the alleged violations occurred and that he has used the road to access land which he has farmed. The answer requested that the Commissioner not issue any order affecting the 50 by 400 foot right of way or the improvements on it and dismiss the complaint as it relates to Mr. Ames's property, or in the alternative, that the Commissioner deny the requested relief to the extent that it relates to a bus turnaround or issue a permit for the turnaround.

On January 19, 1994, the Department and Mr. Gannon signed a stipulation which resolved the Department's allegations against Mr. Gannon. On January 19, 1994, the Town and Mr. Craver signed both a stipulation and an order on consent. The Department signed the stipulation on January 25, 1994 and the order on consent on February 3, 1994. The order on consent resolved the Department's allegations against the Town and Mr. Craver. The order on consent required the Town and Mr. Craver, in his capacity as Town Highway Superintendent, to remove fill and debris from areas designated in the order on consent, to grade certain areas and to let the graded area revegetate naturally. A roadway a maximum of ten feet in top width would remain, and a newly constructed turn-around area plus 80 feet of newly constructed road would remain.

On February 4, 1994, the Department made a motion for summary order against Mr. Ames, seeking an order that Mr. Ames allow the Town and Mr. Craver to access Mr. Ames's property to carry out the remedial work, and that Mr. Ames allow the Department Staff to access his property in order to determine compliance with the remedial requirements of the order on consent.

On February 22, 1994, Mr. Ames moved for leave to amend the answer, for an order requiring the Town, Mr. Craver and Mr. Gannon to answer interrogatories regarding the work which had been done, and for dismissal of the motion for summary order since it would not be applicable to the amended answer. Along with a number of other changes, the proposed amendment of the answer would include a reference to a wetland boundary delineation prepared by the Department in 1982 which shows less area as being in the wetland, when compared with the approximate wetland boundary depicted in attachment 11 of the motion for summary order. The proposed amended answer would also expand on the discussion of affirmative defenses, which in the original answer pertained mainly to Mr. Ames's longstanding use of an access road at the location where the Town's road work took place. The amended complaint would add to this, including to state that since the pre-existing roadway is a farm road, "the road improvement which respondent enjoyed prior to the road changes complained of is exempt under ECL 24-0701 and the official Regulations" and to state that the materials placed on his property were "non-hazardous and harmless to wetland CO-1 or any adjoining land." The interrogatories would request information about the road construction including whether the Town had placed any hazardous materials in the wetland.

On March 4, 1994, the Department Staff submitted correspondence opposing Mr. Ames's motions. This correspondence also included a modification of the relief requested by the Department. With regard to two areas north of the road which had apparently been filled before the 1982 map was prepared (and before the alleged violations took place), the Department Staff stated that the Town and Mr. Craver would not be required to implement the portions of the order on consent which required excavation of the fill in these two areas.

The Town and Mr. Craver submitted correspondence on March 9, 1994 which opposed the interrogatories. On March 14, 1994, Mr. Ames submitted a reply brief and two additional affidavits.

Motion to Amend Answer

Mr. Ames made the motion to amend the answer after the Town, Mr. Craver and the Department had entered into an order on consent. The motion was made on the basis that an error had been made in drafting the answer, and that Mr. Ames had not intended to mean that restoring part of the affected area while leaving the bus turnaround as it had been built would be an acceptable alternative. Mr. Ames argued that leave to amend pleadings should be freely given, that there was no excessive delay in requesting the amendment, and that the Department has not shown that it would actually be prejudiced by the proposed amendment of the answer.

The Department Staff opposed the amendment of the answer since it was requested after the settlement with the other parties was final. This objection was based primarily on the Department Staff's position that the Department Staff would be prejudiced by amendment of Mr. Ames's answer after the settlement had been reached with the other parties, but Staff did not elaborate on the nature of the prejudice except to suggest that the decision to settle the matter would have been effected by the amendment had it been made earlier. The Department Staff did state that the parties relied on Mr. Ames's original answer in preparing the settlement, that the remedial plan in the order on consent was in accordance with the alternative request in Mr. Ames's answer, and that Mr. Ames was notified of the proposed settlement.

The Town and Mr. Craver, through an affirmation by their attorney, stated that although counsel for Mr. Ames was aware that the other parties were in the process of resolving the case on the terms contained in "the Stipulation of the Consent Order", Mr. Ames did not move for amendment of his answer until after the other parties' positions had substantially and materially changed by execution of the stipulation and entry of the order on consent.

Information submitted both by the Department Staff and by Mr. Ames See particularly the letters of August 19, 1993 and January 11, 1994 attached with the Department Staff's March 4, 1994 correspondence and the letter of June 30, 1993 attached with the March 14, 1994 correspondence on behalf of Mr. Ames. is consistent with the arguments that Mr. Ames was notified of the settlement proposals as the negotiations proceeded, that the other parties changed their positions in order to arrive at the settlement, and that the settlement is in accordance with Mr. Ames's original answer. The modifications included the Department Staff agreeing to the turnaround area being left in place.

In addition, the Department Staff agreed to let the ten foot wide roadway remain, omitted a requirement for planting certain vegetation, and did not include in the order on consent the penalty which they had originally sought from the Town and Mr. Gannon. Although the information in the record at present is less clear regarding changes in the positions of the Town and Mr. Craver, they did agree to carry out the remedial work described in the order on consent. If the 1982 wetland delineation is accepted as the wetland boundary, this remedial work would include grading an area which the 1982 map depicts as adjacent area, and bringing it to the same elevation as the wetland. In the order on consent, the Town and Mr. Craver also waived their rights to a hearing.

To allow the proposed amendment of the answer, which was not requested until after the other parties had changed their positions and settled the matter, would be prejudicial to the other parties.

In addition, the proposed amendment of the answer would not raise a question of the Department's jurisdiction over the regulated activities which were carried out, even assuming that Mr. Ames uses his land for growing crops and that the regulated activities were carried out for agricultural purposes. The agricultural exemption from the Freshwater Wetlands Act does not apply to "filling activities" (ECL Section 24-0701.4). The road construction done by the Town would also be excluded from "agricultural activity" as defined in 6 NYCRR Section 663.2(c).

Ruling: The motion to amend Mr. Ames's answer is denied.

Interrogatories

Mr. Ames also requested an order directing the other Respondents to answer interrogatories. The interrogatories inquire about the general nature of the road work which was done (types of trucks and equipment used, names and addresses of the Town employees who did the work) and about whether any "hazardous substances" were used in the road construction. The interrogatories relate to subjects that are not material to the allegations or which are not in dispute. The Department has not alleged that any of the Respondents placed hazardous substances in the wetland or its adjacent area.

Ruling: The motion that the Town, Mr. Craver and Mr. Gannon be required to answer interrogatories is denied.

Motion for Summary Order

In response to the Department Staff's February 4, 1994 motion for summary order, Mr. Ames moved to amend the answer. The correspondence regarding the motion to amend the answer contained assertions which were related to the motion for summary order, but procedurally this correspondence was not "answering papers on the motion" for summary order as provided for in 6 NYCRR Subdivision 622.10(b). The correspondence was on the question of whether the answer would be amended, not on the questions of whether any material issues of fact were in dispute and whether the motion for summary order should be denied.

Mr. Ames may submit answering papers on the motion for summary order, on or before the date which is 20 days from his receipt of the present rulings. If I do not receive any answering papers, I will make a ruling based on the existing record.

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

Dated: Albany, New York
May 3, 1994

TO: Leo J. Bracci, Esq.
Robert M. Schantz, Esq.
John J. Kelley, Esq.
William F. Gannon

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