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Zaccaro, Frank - Ruling, January 21, 2000

Ruling, January 21, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of
Alleged Violations of Article 24 of the Environmental Conservation Law and 6 NYCRR Part 663 by:

FRANK ZACCARO,
Respondent.

RULING OF THE
ADMINISTRATIVE
LAW JUDGE

File No. R4-2083-98-08

Background

By papers dated November 19, 1999, Staff of the Department of Environmental Conservation ("the Department" or "DEC") moved for an order without hearing against the Respondent, Frank Zaccaro. Staff alleged various violations of Section 24-0701(1) of the Environmental Conservation Law and Section 663.4 of Title 6 of the New York Codes, Rules and Regulations ("NYCRR").

Pursuant to 6 NYCRR 622.12(b), the Respondent was afforded 20 days from receipt of the papers to make a response. The papers were received by the Respondent's attorney, Stephen Angel of Riverhead, on December 6, 1999. Mr. Angel requested and received from Department Staff counsel Ann Lapinski an extension of time to respond, as confirmed in Mr. Angel's letter of December 23, 1999. As the parties' counsel agreed, Mr. Zaccaro's response to the motion was mailed by Federal Express on January 7, 2000, and received by the Department's Office of Hearings and Mediation Services on January 10, 2000.

Position of Department Staff

Department Staff alleges that Mr. Zaccaro undertook various prohibited activities on property he owns in and around freshwater wetland H-12, on the north side of Route 23, 1.7 miles east of the Taconic State Parkway in the Town of Claverack, Columbia County. These activities, alleged to have occurred during 1997, consist of:

  1. Deepening a drainage ditch in the wetland;
  2. Filling the wetland with dirt from the drainage ditch;
  3. Filling the wetland to construct a field;
  4. Grading the wetland's adjacent area;
  5. Constructing a roadway through the wetland; and
  6. Placing a trailer/camp in the wetland's adjacent area.

All these activities are alleged to constitute violations of ECL Section 24-0701(1) and 6 NYCRR 663.4, which require Department permission prior to the conduct of certain activities in officially mapped freshwater wetlands or their regulated adjacent areas.

Department Staff requests a Commissioner's order assessing a civil penalty of $18,000 ($3,000 for each of the six alleged violations) and directing the following remedial action:

  1. Pushing back into the drainage ditch all soil that was removed from it;
  2. Removing from the wetland and its adjacent area all fill that was used to construct the roadway and field;
  3. Moving the trailer that was placed in the wetland to a location at least 100 feet from the wetland's edge; and
  4. All other and further relief that may be deemed just and proper.

Department Staff has moved for a motion for order without hearing because it contends that the Respondent is in clear violation of the law and there are no material issues of fact that would require adjudication.

Staff's papers include an affirmation of Ms. Lapinski and an affidavit of Maynard Vance, a wildlife biologist employed in DEC's Division of Fish and Wildlife.

Position of the Respondent

The Respondent requests that the motion for order without hearing be denied and the proceeding dismissed.

The Respondent contends that he bought the subject property on February 6, 1982, several months before the Department began the process leading to the official mapping and designation of wetland H-12 in 1985. The Respondent claims that he was never notified of the wetland mapping and designation at the time it occurred and did not become aware of it until March or April of 1998, when he was first cited for the alleged violations.

The Respondent argues that the subject property was not properly mapped as freshwater wetland because no notice of the mapping was sent to the owner of record when the mapping was proposed or at the time it was completed. The Respondent attributes the failure to make proper notifications, as required by ECL Section 24-0301, to the Department, since he claims that the tax assessment rolls the law requires the Department to use have always contained accurate ownership information.

Because of the Department's alleged failure to comply with statutory notice requirements, the Respondent contends that his property was not properly mapped as freshwater wetland, and remains unregulated. Furthermore, he claims that any attempt by DEC to question activities undertaken on the property prior to March or April of 1998, when he was mailed an appearance ticket, should be dismissed.

Finally, the Respondent claims that when he acquired the subject property in 1982, it was farmland, and it already contained a roadway, a drainage ditch, a field and a trailer. The Respondent claims he never did anything to alter the subject property.

The Respondent's papers include an affidavit of Mr. Zaccaro himself, an affidavit of his attorney Mr. Angel, an affidavit of Joseph A. Lauri, who says he was the owner of the property from 1980 to 1982, and an affidavit of James M. Monahan, who searched the local tax assessment rolls on behalf of the Respondent.

Discussion

Department regulation provides that a contested motion for order without hearing will be granted if, upon all the papers and proof filed, a cause of action is established sufficiently to warrant granting summary judgment under the Civil Practice Law and Rules ("CPLR"). On the other hand, the motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing. [See 6 NYCRR 622.12(d) and (e).]

CPLR 3212(b) states that a motion for summary judgment "shall be granted if, 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." Summary judgment is granted sparingly and is inappropriate if there is any doubt regarding the existence of a triable issue. Summary judgment should be denied if any fact on which liability depends is genuinely controverted.

In this case, summary judgment on behalf of the Department would not be appropriate because there are factual conflicts that must be addressed by a hearing. The most obvious conflict concerns when the activities which are alleged to be violations occurred. Department Staff's affidavit of Maynard Vance indicates that all the activities occurred in 1997, when there is no question that the Respondent owned the property. However, the affidavits of the Respondent and Mr. Lauri, from whom the Respondent bought the property, indicate that the activities occurred sometime before 1982.

The Respondent's affidavit states that when he acquired the property, it was farmland, it already had a roadway, a drainage ditch, a field and a trailer on it, and he never did anything to alter the property. Mr. Lauri, who says he owned the property from December 26, 1989, to February 2, 1982, also claims that at the time he purchased it, there already was a roadway, a drainage ditch and a field. Mr. Lauri also acknowledges that he, not the Respondent, placed a trailer on the property. Mr. Lauri says he has remained familiar with the property since 1980, and occasionally uses it, with others, as a hunting camp. He claims from personal knowledge that the Respondent did not perform the activities charged to him by Department Staff.

The conflicting affidavits of Mr. Vance on the one hand and Mr. Zaccaro and Mr. Lauri on the other raise factual issues as to when the activities alleged by Department Staff were conducted and whether the Respondent is responsible for them. The doubts on these issues are heightened by the fact that Mr. Vance's affidavit provides no basis for his conclusion that the activities occurred in 1997. Mr. Vance's affidavit includes as attachments copies of various photographs he says that he took during an inspection of the property on March 9, 1998. But it is not known whether or to what extent Mr. Vance was at the property before that date, or how he knows what took place there on any prior occasion.

The Respondent contends that the inclusion of his property on the official map for wetland H-12 is ineffective because DEC failed to comply with notice requirements that relate to the mapping process. ECL Section 24-0301(4) requires that the Department use "the latest completed tax assessment rolls" to alert affected property owners by mail of the mandated hearing on a tentative freshwater wetland map. Also, ECL Section 24-0301(5) requires the Department to use those same rolls to send the property owners copies of the order promulgating the final maps.

The Respondent has provided copies of tax assessment rolls showing that for the year 1982, when the mapping hearing was held, Mr. Lauri was the listed owner of the subject property, and for the year 1985, when the order was issued, Mr. Zaccaro was the listed owner. The affidavits of Mr. Lauri and Mr. Zaccaro indicate that neither one ever received notice from DEC of any intention to map the subject property as freshwater wetlands, or of DEC's mapping order of 1985.

On behalf of the Department, Mr. Vance admits that though the Respondent was the owner of the property at the time the wetland was mapped, he was not notified by mail of the hearing or the mapping because the county tax maps did not have him listed as the owner of a parcel impacted by wetland H-12. The Respondent claims this admission is telling because it acknowledges that the DEC relied on county tax maps and not the tax assessment rolls, as required by the ECL.

Because of the failure of notice, the Respondent claims that in 1997, when the violations are alleged to have occurred, his property could not have been considered to be regulated wetland. This claim should be treated as an affirmative defense to be addressed at hearing. The cases cited by the parties in their papers are not dispositive.

The Respondent relies on the Commissioner's August 2, 1990, decision and order in an enforcement matter, Spectrum Associates, L.P. On page 2, in paragraph 5, the order refers to language in 6 NYCRR 664.7(a)(2)(i) that no activity which has already been initiated at the time of announcement of a proposed amendment to a freshwater wetland map, within an area proposed to be added to the map, will be subject to regulation pursuant to ECL Article 24. However, Department Staff, by charging the Respondent, is not proposing a map amendment; from its point of view, wetland H-12 already is properly mapped, so the Respondent's analogy of the appearance ticket to notice of a proposed mapping change is misplaced.

Also misplaced is the Department's reliance on the June 22, 1989, order and decision of the Freshwater Wetlands Appeal Board in Vito and Isabelle Basile v. Jorling, Docket No. 87-14. In that case, the Basiles' attorney argued that inclusion of any part of their property on a tentative wetland map was invalid because they were not provided notice of the mapping. To identify affected property owners, the Department had used the tax assessment rolls, as required by ECL Section 24-0301(4), but the rolls were inaccurate. Even so, the board ruled, by using the rolls, the Department had fulfilled its statutory duty.

In her affirmation supporting the motion for summary order, the Department attorney, Ms. Lapinski, argues that the facts of Basile are like those here, since in both cases the Department followed the procedure required by ECL Section 24-0301, but the notification was not made because the information in the tax rolls was incorrect. Actually, the facts are different, as Mr. Angel, Respondent's counsel, points out in his answering affidavit. In Basile, notice of the mapping was properly sent to the owner of record as shown in the tax assessment roll, but the roll itself was inaccurate. Here, notice was not sent to the owners as shown on the tax assessment roll, and, the Respondent claims, the tax assessment roll was correct.

Even if a notice failure would not provide the Respondent an affirmative defense in this case, it may possibly have some bearing on the penalty to be assessed for any violations that are established, since it could relate to the issue of culpability. Of course, even without the personal notice required by ECL Section 24-0301, the Respondent may have known or had reason to think that his property contained regulated wetlands, and this can be developed at hearing as well.

Ruling

The motion for order without hearing is denied on all causes of action. Pursuant to 6 NYCRR 622.12(e), the moving and responsive papers will be deemed the complaint and answer, respectively, and a hearing will be held pursuant to Part 622 procedures. I shall schedule a conference call with counsel for the parties to establish hearing dates and address any pre-hearing matters.

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
January 21, 2000

TO: Ann Lapinski
Assistant Regional Attorney
NYSDEC Region 4
1150 North Westcott Road
Schenectady, New York 12306

Stephen R. Angel
Esseks, Hefter & Angel
108 East Main Street
P.O. Box 279
Riverhead, New York 11901-0279

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