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Jones, Timothy - Ruling, January 4, 1996

Ruling, January 4, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of

the Adirondack Park Agency Act, Freshwater Wetlands Act,
and Wild, Scenic and Recreational Rivers System Act

- by -

TIMOTHY P. JONES,
Respondent.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

(APA Enforcement File No. E92-053)

Background

The Respondent, Timothy P. Jones, is charged with the unpermitted construction of a single-family dwelling on property constituting a regulated wetland area, recreational river area, and low-intensity land use area, as defined by the Adirondack Park Agency ["APA"]. The Respondent's property consists of a one-acre lot on Dugal Road in the Town of Altamont, Franklin County.

A hearing on the alleged violations was held on November 15, 1995. APA Staff was represented by Barbara A. Rottier, associate counsel. The Respondent appeared personally and was represented by Howard L. Aubin of Au Sable Forks. Mr. Aubin is not an attorney, but I allowed him to speak for Mr. Jones in the interest of hearing efficiency, at Mr. Jones' request and without objection by APA Staff.

APA Staff presented its evidence of the alleged violations, which are outlined in a notice of apparent violation dated June 1, 1995 (Hearing Exhibit No. 6). I then directed that Mr. Jones provide a written statement of his position, identifying all of his defenses, witnesses and proposed exhibits. Witnesses and documents which would need to be subpoenaed were to be identified as such, with reference to particular defenses.

Mr. Aubin made a submittal, dated November 18, 1995, which was co-signed by Mr. Jones. Ms. Rottier provided a response, dated December 7, 1995, on behalf of APA Staff. I had a conference call with Mr. Aubin and Ms. Rottier on December 14, 1995.

Discussion

These rulings address the defenses raised in the Respondent's November 18, 1995, submittal, and indicate which ones will be entertained, and in what manner, when the hearing resumes.

Exemption from APA Regulation

The Respondent contends that the construction of his single-family dwelling is exempt from regulation under APA's statutes and regulations since his lot is part of a subdivision that existed prior to the effective date of the Adirondack Park Agency Act. APA Staff responds that a permit is required for the dwelling even if it is on a lot in a pre-existing subdivision, since the subdivision did not have approval of the state's Department of Health (DOH).

At the hearing, APA Staff stipulated on behalf of the agency's enforcement committee that it would treat the Jones lot as if it were in a pre-existing subdivision. APA Staff also presented testimony from William Amberman, DOH district manager, that his agency had never approved either the Jones lot or the subdivision of which it is part. Mr. Amberman conceded not knowing whether such approval would have been needed.

The Respondent cites to Executive Law 811(3), which provides in part that any individual single-family dwelling, erected or placed on any lot, parcel or site in any pre-existing subdivision which has been approved by DOH, shall not be subject to APA project review under Section 809 as a class "A" regional project. The Respondent also cites to similar language in APA's regulations governing wild, scenic and recreational rivers. That language provides that one single-family dwelling may be constructed, without agency review, on any lot in a subdivision lawfully in existence on April 19, 1976 which has been approved by DOH [9 NYCRR 577.7(b)(2)].

Whether these provisions are valid defenses for the Respondent is a question of law for the enforcement committee to answer. In doing so, the committee must find, consistent with its staff's stipulation, that the Jones lot is in a pre-existing subdivision. The committee should also find that neither the subdivision nor Mr. Jones' own lot received DOH approval, since this was Mr. Amberman's testimony and because Mr. Jones has offered no proof to the contrary.

These defenses do not require further factual development since all relevant facts have been addressed either by stipulation of the parties or uncontested testimony. Therefore, these defenses shall be referred to the enforcement committee based on the existing record.

Collateral Estoppel

The Respondent contends that a prior APA decision in another matter confirmed that a house on a lot in his subdivision does not require a permit, and that APA's only jurisdiction concerns the placement of fill in a wetland. The decision referred to concerned an application by Raymond and Catherine LaMora for a single-family dwelling on an existing lot in the Madore subdivision, where Mr. Jones' property is also located.

The Respondent contends that in its notice of apparent violation, APA is now taking a position inconsistent with that expressed in the LaMora decision. Furthermore, he contends that APA's determinations in the LaMora matter must apply in this case as well according to the doctrine of collateral estoppel. Generally speaking, collateral estoppel bars the relitigation of issues between the same parties or their privies if a judgment on the merits has been rendered in a prior proceeding.

Documents provided in the Respondent's submittal (Jones Exhibits "N" and "O") indicate that the LaMora project was approved by APA's operations committee during a meeting in January, 1982. The project was approved pursuant to a draft order whose findings and conclusions were that the project site is a lot in a pre-existing subdivision and therefore, that the house does not require a permit under the APA Act, and that APA's jurisdiction is limited to the filling of the wetland.

Responding to this defense, APA argues that while the order contains an "incomplete" statement of the APA's jurisdiction, it is clear that both a permit and variance were required for the project. Also, APA states it is clear from the January 21, 1982, report of its legal affairs committee, that the agency considered the LaMora house jurisdictional. In fact, that report (which is attached to APA's submittal) states APA counsel's interpretation of 811(3) that if DOH has not reviewed a subdivision, for whatever reason, a single-family dwelling on a lot therein is subject to review if otherwise jurisdictional.

The Respondent's defense may be considered by the APA enforcement committee based on the existing documentation referred to by the parties (Jones exhibits "M", "N", and "O", as well as APA's legal affairs committee report) without the need for additional adjudication. Based on my conference call with the parties' representatives, there is no dispute about the authenticity of any document attached to the parties' submittals. Therefore, to the extent any document relates to this argument, it can be admitted, and the parties may argue their points in writing to the enforcement committee.

Laches - - Unreasonable Agency Delay

The Respondent contends that the issues APA is raising against his lot should have been raised in the form of an injunction against the subdivider, Mr. Madore, back in 1974. The Respondent claims that by failing to take action then, the agency has allowed some 22 years to elapse, during which Mr. Madore and Mr. LaMora have died and a map of the subdivision once in APA's custody has apparently been lost.

Laches - - which requires a showing of delay with prejudice - - does not apply in this matter according to well-settled law. [See, Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, at 177 (n.2) (1985), which states that laches may not be interposed against the state when acting in a governmental capacity to enforce a public right.] However, the APA still has a statutory duty to afford the opportunity for hearing within reasonable time. [State Administrative Procedure Act (SAPA) 301(1).]

In determining whether such an opportunity has been provided, "An administrative body in the first instance, and the judiciary sitting in review, must weigh . . . (1) the nature of the private interest allegedly compromised by delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by governmental regulation" [Cortlandt, at 178]. In assessing a claim under SAPA 301(1), it is "critical" to consider whether delay has caused "substantial prejudice" to the private party because "the agency . . . is authorized to dismiss the proceeding . . . where administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary proceeding" [Cortlandt, at 180] (emphasis added).

The prejudice alleged by Mr. Jones relates to the apparent loss of a subdivision map and unspecified other information, and the death of two prospective witnesses, Mr. Madore and Mr. LaMora. Whether these things have significantly and irreparably prejudiced the Respondent's ability to defend himself must still be addressed at the hearing. Preliminarily, however, it appears that the map was being offered only to prove that the Jones lot is part of a pre-existing subdivision, a point on which the APA has already stipulated and which therefore is no longer in contest.

Also, the hearing must consider who is responsible for the delay in bringing this case to hearing. The relevant time to be considered would appear to be that period since the APA became aware of the alleged violations, and would not extend back to 1974, contrary to Mr. Jones' assertion. [See, Liberty Lines Express, Inc. v. New York City Environmental Control Board, 160 AD2d 295 (1st Dept., 1990), in which the Appellate Division, citing Cortlandt, appeared to measure the time between the city's receipt of citizen-initiated complaints and its action to enforce the city's air pollution code.]

In summary, the hearing shall not address laches as a defense, but will consider whether the Respondent has been afforded an opportunity for hearing within reasonable time, as required by SAPA 301(1). The burden of going forward and the burden of proof shall be on the Respondent, since this is an affirmative defense and not directly related to proof of the alleged violations.

Waiver

The Respondent alleges that the APA waived its right to pursue this action, apparently by failing to move against Mr. Madore despite knowledge of his subdivision. Regardless of whether this claim has any merit, it is well-established that public officers have no power or authority to waive law enforcement on behalf of the public, and that their acts in this respect are not binding upon the public [57 NYJur 2d, Estoppel, Ratification and Waiver, Section 77]. As there is no legal basis for relief to be granted, this defense shall not be pursued when the hearing resumes.

Discriminatory Enforcement

The Respondent alleges that it is grossly unfair to "ignore" Mr. Madore, and then try to enforce the APA Act against the people who subsequently purchased lots in the subdivision. This defense fails to distinguish between the creation of the Jones lot (which APA claims to accept, and admittedly has never cited as a violation) and the construction of a dwelling on the lot (which is a different act, and which forms the basis of all violations that are alleged in this matter).

Even were there any merit to this defense, it is not properly before me as an administrative officer, as I have already said at the hearing. This claim is constitutional in nature and must be raised in a court of law, in accordance with Matter of 303 West 42nd Street v. Klein, 46 NY2d 686, 693 n.5 (1979), citing Matter of DiMaggio v. Brown, 19 NY2d 283, 291-292 (1967).

"Unclean Hands"

The Respondent alleges that by failing to act against Mr. Madore, the agency allowed the lots in the subdivision to continue to be sold and therefore assisted in the violations alleged here. This claim is advanced under the heading of "unclean hands," but is not explained further in the Respondent's submittal.

To demonstrate "unclean hands," the Respondent would have to show some wrongdoing or unconscionable conduct on the part of APA which is proximately related to his own alleged violations. This cannot be shown in relation to the agency's exercise of its prosecutorial discretion in another matter. Government authorities are accorded latitude when making law enforcement decisions, so long as they do not act with an "evil eye" against a class that has been selected for some reason other than effective regulation. [Matter of 303 West 42nd Street v. Klein, 46 NY2d 686, 694-5 (1979).] Even where such discrimination occurs, it raises a constitutional issue which belongs in court, not here. Therefore, this defense, like the claim of discriminatory enforcement, shall not be pursued in this hearing.

Malicious Prosecution

This defense is not explained in the Respondent's submittal, although in our conference call Mr. Aubin said it was based on the APA's using the enforcement process as "revenge" for the Respondent's apparent defiance of an APA inspector during APA's initial investigation of site activities.

Malicious prosecution is not cognizable as a defense in an administrative proceeding. Instead, it is a remedy Mr. Jones would have to pursue in court, assuming first that this proceeding is terminated in his favor. Even then, he would have to show an absence of probable cause for this proceeding and some improper purpose behind APA's enforcement action. Any claim of malicious prosecution is premature, at least until this hearing is completed.

Abuse of Process

This defense is also not explained in the Respondent's submittal. However, in our conference call Mr. Aubin said it related to the APA's alleged withholding of documents about the Madore subdivision, pursuant to the Freedom of Information Law (FOIL), as a form of punishment, and its past refusal to recognize Mr. Aubin as the Respondent's authorized representative.

Regarding FOIL, the statute provides its own remedies for the failure to disclose releasable documents and, at any rate, there do not appear to be any relevant documents still within the agency's custody which have not been produced on demand. (For that matter, there is no pending request that I issue subpoenas for agency documents.)

Regarding Mr. Aubin, I have recognized him as Mr. Jones' authorized representative in the interest of hearing efficiency and without objection by APA Staff, regardless of its policy on this issue. Any previous agency failure to deal with Mr. Aubin in this manner is not a matter before me and, even if it were, certainly would not be a defense to the charges, since it has been cured by my action in this hearing.

Rulings

The hearing shall reconvene so that the record can be completed on the defenses of collateral estoppel, in relation to APA's permitting of the LaMora dwelling, and unreasonable delay with resulting prejudice, which shall be heard in relation to the requirement of SAPA 301(1). The defense of exemption from APA regulation, based on the laws cited above, shall be referred to the enforcement committee based on the existing record. All remaining defenses referred to above shall not be entertained unless the enforcement committee, in reviewing the hearing record, remands the case for their consideration.

On issues related to the charges themselves, the Respondent seeks to call two witnesses, Mr. Lawrence Reandeau and Mr. Eugene Jones. He indicates that a subpoena is not necessary for either individual. To the extent they have relevant testimony, these witnesses shall also be heard when the hearing reconvenes.

I expect the hearing can be completed in one day. I will arrange for a conference call with Ms. Rottier and Mr. Aubin to fix a date in January for this purpose. Mr. Aubin should check now with the Respondent and his prospective witnesses to see when they are available this month.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
January 4, 1996

TO: Barbara A. Rottier, Esq.
Howard L. Aubin
Timothy Jones

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