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Greenman, A. Beecher - Ruling, February 13, 1997

Ruling, February 13, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Alleged Violations of Environmental Conservation Law
Articles 15, 25 and 71 and Parts 608 and 661 of Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

A. BEECHER GREENMAN,

Respondent

February 13, 1997

RULINGS File No. R1-5787-95-12

Summary

The present rulings address a motion for a protective order which the Department Staff submitted regarding the Respondent's two discovery demands, and the Respondent's cross-motion to compel discovery. These motions were submitted in an administrative enforcement action in which the Department Staff is alleging that the Respondent undertook regulated construction activities in the adjacent area of a tidal wetland, in the wetland and in navigable waters of the State without the necessary permits from the Department.

The Respondent's request to dismiss the motion for a protective order based on untimeliness is denied. The Department Staff's motion for a protective order is: granted for documents about other tidal wetland enforcement actions involving reconstruction after fires; denied for documents regarding the Respondent's application to reconstruct a bulkhead, except that the Department Staff need not provide privileged materials; and granted for privileged portions of notes from two conferences. The Respondent's motion to compel discovery is granted for final, but not draft, policy and guidance memoranda and written directives used in the Department's review of tidal wetlands permits since 1977, to the extent that the Department Staff has not already provided these. The parties are directed to confer about locating any additional photographs or similar depictions which the Department may have of the site where the violations allegedly took place.

Background

The notice of hearing and pre-hearing conference and the complaint in the above matter were issued by the Department Staff on August 13, 1997. In the complaint, the Department Staff alleged that the Respondent undertook certain regulated activities, including substantial restoration or reconstruction of a house and installation of other structures, in the area adjacent to a regulated tidal wetland and/or in the wetland, without having a DEC permit for these activities. The Department Staff also alleged that the Respondent substantially reconstructed a dock in and above the navigable waters of the State without having a DEC permit for this work. The site at which the work allegedly took place is 28 Captree Island, Babylon, New York (Suffolk County).

The Respondent's answer denied the allegations and presented affirmative defenses including that the structures in question are not within the adjacent area of a wetland pursuant to 6 NYCRR 661.4(b)(2) or are not activities for which permits would be required and that the Department's prosecution of this matter constitutes a violation of the Respondent's constitutional rights to equal protection.

The Respondent has made two discovery demands of the Department Staff. On January 17, 1997, the Department Staff submitted a motion for protective order to the Department's Office of Hearings and Mediation Services. On January 27, 1997, the Respondent submitted a notice of cross-motion to compel discovery. These motions are subject to 6 NYCRR 622.7.

The Department Staff requested a protective order with regard to the following items:

"copies of all enforcement actions taken by the Department within the Towns of Babylon, Brookhaven, East Hampton, Islip, Riverhead, Shelter Island, Smithtown, Southampton and Southold against any landowner for the alleged failure to obtain a tidal wetlands permit to reconstruct a fire-destroyed or fire-damaged structure, whether such enforcement action was concluded by settlement or otherwise."

information beyond that which the Department Staff had already provided in response to the Respondent's request for identification of DEC employees involved in reviewing permit or enforcement actions involving the site or the Respondent, and to the subsequent request for documents regarding the Respondent's permit application for a bulkhead. (The complaint does not allege that the bulkhead was built, nor is the bulkhead mentioned in the complaint.)

portions of notes, taken by Department employees at two conferences with the Respondent, which portions are exempt from discovery under the attorney-client privilege.

The Respondent moved for an order compelling discovery of the files regarding enforcement actions involving fire damage, as described above, and for two additional items:

"All photographs, slides or films, videotapes or aerial surveys of the parcel or the conditions on the parcel of land located at 28 Captree Island within the possession of the Department, regardless of whether the Department intends to introduce such materials at the hearing."

"Copies of any and all policy and guidance memoranda, whether draft or final in form, and any written directives for the processing and reviewing of tidal wetlands applications, if used by the Department or its employees in assessing, reviewing, authorizing or denying any tidal wetlands permit between the years 1977 to present," beyond the three guidance documents which the Department Staff provided and identified as relevant to the case.

The Respondent also argued that the Department Staff's motion should be dismissed based on untimeliness.

Timeliness

The Department Staff received the Respondent's first discovery demand on November 20, 1996. The Department Staff responded on December 13, 1996, providing some of the requested information and objecting to other of the requests. The Department Staff then received the Respondent's second discovery demand on January 7, 1997. The second discovery demand reiterated or expanded on a number of the requests that had been in the first one. The Department Staff submitted a motion for a protective order to the Office of Hearings and Mediation Services on January 17, 1997.

The Respondent's January 27, 1997 memorandum of law argued that the Department Staff had waived any right to oppose the requested document production by failing to seek a protective order by December 13, 1996, the date which the parties had agreed on as the Department's deadline for response to the first demand. The memorandum cited 6 NYCRR 622.7(b) and (c) as requiring the requested documents to be furnished within 10 days of receipt of the discovery request unless a motion for protective order is made.

Ruling: The motion for a protective order is not being dismissed.

The motion was for a protective order was timely with regard to the second and third items (additional discovery about the bulkhead application and copies of notes regarding admissions) since the Respondent first made these requests in his second discovery demand. The first demand had only sought the names, addresses and telephone numbers of DEC employees involved in reviewing any DEC permit application related to the site or to the Respondent, and of witnesses to any admissions made by the Respondent.

The first item for which the Department Staff has requested a protective order (tidal wetlands enforcement actions involving reconstruction after fires) was requested in both the Respondent's first and second discovery demands. Even if the Department Staff's motion for a protective order is untimely with regard to this item, the Department Staff is not prevented from making the motion. "[T]he failure to make a timely motion for a protective order forecloses inquiry into the propriety of a notice for discovery and inspection and the information sought to be discovered thereunder except as to requests which are palpably improper or as to privileged matter [citations omitted]." Sprague v. International Business Machines, 114 A.D.2d 1025, 495 N.Y.S.2d 462 (2nd Dept. 1985). This exception applies to discovery requests which are over broad or lack specificity (id., see also Park Knoll Associates v. Schmidt, 99 A.D.2d 772, 472 N.Y.S.2d 19 (2nd Dept. 1984)). For reasons discussed below, the request falls within this exception for "palpably improper" requests.

As noted in Cecunjanin v. Rock McGraw Inc. (209 A.D.2d 571, 619 N.Y.S.2d 97 (2nd Dept. 1994)), CPLR 3122 was amended effective January 1, 1994 to place the burden of moving on the party seeking discovery, rather than the former 10 day time limit for making a motion for protective order or being foreclosed from doing so. The present motion is governed by the procedures of 6 NYCRR 622.7, which still requires that a party which is opposing a discovery request make a motion for a protective order within 10 days of the discovery demand, similar to the former CPLR procedure. The consequences, however, of failing to do so would still not be dismissal of the motion in situations where the information sought was an improper request or privileged.

In the present case, it is unclear what agreements the parties made regarding a schedule for discovery. In the Respondent's affirmation in support of the cross-motion, at paragraph 5, a letter of October 7, 1996 is identified as confirming the discovery schedule which the parties agreed to on that date at a pre-hearing conference. The letter is said to be attached as Exhibit 1. Exhibit 1, however, is a letter of November 26, 1996 which discusses extension of two deadlines and does not appear to be the discovery schedule referred to in the affirmation.

Enforcement actions involving fires

The Department Staff's response to this request stated that the files are organized by names of respondents and that it would be necessary to go through all of the files to look for the requested documents. They stated that in addition, the documents do not necessarily say how the old structures were removed (i.e., by fires or otherwise). In their motion, the Department Staff stated that they were willing to search for specific files if the Respondent provided names of owners of properties which he suspects had been burned down and replaced.

The Respondent stated that the requested information is material and necessary to rebut the allegations in the complaint and to sustain his affirmative defense of discriminatory enforcement. He argued that since the Department is the only party capable of identifying these files, they should be required to do so, and that the case cited by the Department Staff is inapposite since the Respondent does not have the right to depose the Department's personnel.

The Department Staff replied that the Respondent could narrow the request by reviewing fire department or police department records and that the Department Staff can only recall one enforcement case involving a house that was destroyed by fire, which was not in any of the towns listed in the discovery demand.

Ruling: The motion for a protective order is granted with regard to this item of the request.

The request is over broad and not specific. It could be made more specific by the Respondent, through fire or police department records as suggested by the Department Staff. The request would require that the Department Staff review extensive records which might or might not even contain enough information to identify whether a given file involved reconstruction after a fire. The research of reviewing other agencies' records to identify which properties were affected by fires would need to be done by the Respondent, who is proposing the related affirmative defense, rather than by the Department Staff in order to respond to a discovery demand.

The primary reason for which the Respondent is seeking this information is also not an issue which would be adjudicated in the present administrative hearing. A claim of discriminatory enforcement would need to be made before a court, not in the administrative hearing (303 West 42nd Street Corp. v. Klein, 46 N.Y.2d 686, p.693 n.5, 416 N.Y.S.2d 219, 389 N.E.2d 815, (1979), citing DiMaggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161, 225 N.E.2d 871).

Additional information about bulkhead permit application

In the second discovery demand, the Respondent is seeking to obtain copies of documents regarding his permit application to reconstruct a bulkhead, "regardless of the Department's belief as to its relevance to this enforcement action."

The Department Staff has provided copies of the documents from the permit file which would be available to the public under the Freedom of Information Law, but is asking that the request for more extensive discovery on the processing of the permit application be vacated on the basis of not being material or necessary to the Respondent's defense. The Department Staff had argued, in their response to the first discovery demand, that the processing of the application was not relevant to the enforcement action except for the fact that it was the filing of the application that led to discovery of the alleged violation (emphasis added).

It is not clear exactly what additional documents are in dispute under this item of the motion for a protective order, but it would appear to be documents regarding the bulkhead permit application that would be obtainable through discovery but not through the Freedom of Information Law. Privileged materials would not be obtainable either through discovery or FOIL.

The circumstances under which the Department Staff discovered the alleged violation are likely to be relevant in this enforcement hearing.

Ruling: The motion for a protective order for documents regarding the bulkhead application is denied, with the exception that the Department Staff need not provide privileged materials. This denial is without prejudice to further motions by either party regarding specific documents.

Notes

The Department Staff has provided to the Respondent copies of notes from conferences held on November 3 and December 16, 1996, with the exception of redacted paragraphs that are subject to attorney-client privilege. The Department Staff has asked that the request for the complete set of notes be partially vacated as to that portion which is exempted under the attorney-client privilege.

Ruling: The motion for a protective order regarding the privileged portion of these notes is granted.

Photographs

The Respondent has moved to compel discovery of all photographs and similar visual images of the site which are within the possession of the Department, on the basis that these would show the condition of the site before the "1986 fire." The Department Staff provided access to all photographs in the permit and enforcement files for the site, plus the tidal wetland map, but argued that any other photographs would be impossible to find without searching through almost every file in the Department's Bureau of Marine Habitat Protection. In their reply, the Department Staff argued that any photographs that may exist in the Marine Division's files are irrelevant to this action.

Photographs of the site would be relevant to showing what structures existed there at various times. They may also be relevant to the affirmative defenses regarding the location of the boundary of the adjacent area of the wetland as this may be affected by the location of structures.

The Department Staff's response does not describe how these other files are organized. It appears likely that there would be some categories of files which would not need to be searched, for example, if there are files regarding projects or controversies that are clearly in another geographic area. It also appears likely, however, that a search of the files would be burdensome without additional information from the Respondent to narrow the search, and that even a diligent search could fail to identify every photographic or video image that shows the site somewhere in the background.

Ruling: The parties are to confer regarding what files or categories of files might contain any additional photographs or other images of the site. This would include any photographs which the Department may have in connection with the coastal erosion hazard area maps. If it would assist in locating photographs which might depict the site, the Respondent is to provide the names of owners or past owners of land around his property at 28 Captree Island, or any other identification of persons or place names that would assist in narrowing the search. If any additional photographs, slides, etc. are identified by the Department Staff reviewing the files after conferring with the Respondent, the Department Staff will need to make these materials available to the Respondent for review by appointment.

Guidance memoranda

The Respondent requested any tidal wetlands guidance memoranda, as quoted on page 3 of these rulings, regardless of whether the Department Staff believes they are relevant. In their reply to the Respondent's motions to compel discovery, the Department Staff stated that they had satisfied this request and suggested that their reference to "relevant" documents had led the Respondent to believe that additional documents existed but were not being provided.

Ruling: The Department Staff is to confirm that the policy and guidance memoranda that they have provided are all of the final policy and guidance memoranda and written directives which the Department has used in the processing and reviewing of tidal wetland applications between 1977 and the present.

The Respondent's cross-motion to compel discovery stated that he is trying to obtain only those guidance and policy memoranda used by the Department to process or analyze tidal wetland applications. Production of draft documents would not be necessary for this and I am not directing that the Department Staff provide any draft versions.

It will be necessary, however, for the Department Staff to confirm that they have provided any such tidal wetland policies which were in effect in the past, as well as the ones currently in effect, since there appears to be a dispute about what review and/or penalty policies were in effect at the time when violations allegedly took place. The date or dates of the construction activities is unclear in the correspondence at present, and the parties have cited dates ranging from 1986 to 1993 for the fire and the construction or reconstruction activities.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge
Albany, New York

Dated: February 13, 1997

TO: Gail M. Hintz, Esq.
Stephen B. Latham, Esq.

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