The opinion of the court was delivered by: Richard B. Meyer, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Consolidated proceeding pursuant to CPLR Article 78 challenging a determination by the Respondent Adirondack Park Agency (Agency) dated March 25, 2008 which, inter alia, directed Petitioner Lewis Family Farm, Inc. (LFF) to apply to the Agency for a permit for three new single-family dwellings and a four-lot subdivision, pay a $50,000 civil penalty, and not to occupy the dwellings until a permit was issued, and an action by the Agency to enforce the determination and enjoin LFF from working on or using the dwellings and further violating the Executive Law.
The essential facts are, for the most part, not in dispute. LFF owns and operates an eleven hundred acre organic farm in the Town of Essex, Essex County, New York designated as a single parcel of land on the official county tax maps and town tax rolls. The property lies wholly within the Adirondack Park and within Essex County Agricultural District No. 4. The subject parcel is classified on the Adirondack Park Land Use and Development Plan Map as resource management, rural use and hamlet. In or about November 2006, LFF commenced construction of three single family dwelling units, to be used by employees working on the farm, on a portion of its property classified as resource management, one of which would replace an adjacent pre-existing dwelling scheduled for removal upon completion of the new homes. The dwellings are arranged in a cluster at a site located immediately north and east of the intersection of the Whallons Bay Road and Christian Road, and approximately eight hundred feet (but less than one quarter of a mile) from the Boquet a/k/a Bouquet River, a designated recreational river (ECL §15-2714[e]) under the Wild, Scenic and Recreational Rivers Act (the "Rivers Act") (ECL §15-2701 et seq.).
Subsequently, on March 14, 2007, LFF submitted an application to the Agency seeking a permit to construct "three single family dwellings in a farm compound to be used by farm employees exclusively." The next day, the Agency issued a notice of incomplete application and requested additional information. Over the next three months, the parties and their representatives engaged in unsuccessful negotiations over disputed issues, including the Agency's threatened enforcement action and a proposed settlement agreement (9 NYCRR §581-2.5) which called for LFF to apply for after-the-fact permits for the subdivision and the single family dwellings, as well as pay a $10,000 civil penalty. On June 27, 2007 the Agency's acting executive director issued a cease and desist order (9 NYCRR §581-2.4) to LFF prohibiting "any and all land use and development related to the construction of the single family dwellings . . . until this matter is resolved and the enforcement case is concluded." The following day, LFF commenced a declaratory judgment action against the Agency challenging jurisdiction.
After LFF filed an amended complaint and applied for a temporary restraining order, the parties exchanged motions to dismiss under CPLR 3211. LFF claimed the Agency lacked jurisdiction over its farm worker housing project because the structures were "agricultural use structures" (Executive Law §802) in a "resource management area" (Executive Law §805[g]), and also that any assertion of jurisdiction by the Agency violated Agriculture and Markets Law §305-a. The Agency, citing CPLR §7801(1), moved to convert the action to an Article 78 proceeding and for dismissal on the grounds that the action was "premature and not ripe for judicial review because the State defendant has not issued a final determination", and for failing to state a cause of action "because Agriculture and Markets Law §305-a does not preclude the APA from requiring a permit for subdivision of land and construction of single family dwellings". On August 16, 2007, Supreme Court (Ryan, J.) dismissed the proceeding as premature and not ripe for judicial intervention, and also held that Agriculture & Markets Law §305-a did not apply to a state agency. LFF filed a notice of appeal, and the appeal is pending.
Following dismissal of the converted Article 78 proceeding, LFF continued to construct the single family dwellings. One of the Agency's associate attorneys served a letter on LFF's counsel on August 31, 2007 advising that the previous cease and desist order remained in effect. On or about September 2, 2007, the Agency's acting executive director issued a notice of apparent violation (9 NYCRR §581-2.3), thereby initiating an enforcement proceeding before the Agency's enforcement committee (9 NYCRR §581-2.6[b]).
The enforcement committee, consisting of six of the Agency's eleven members (Executive Law §803), convened on March 13, 2008 to "hear an oral presentation or argument by the agency's staff and by the respondent and deliberate in executive session and subsequently make a determination as provided in" (Record Document No.2, pg. 2) 9 NYCRR §581-2.6(d). Also in attendance were the remaining five members of the Agency. In that hearing, Agency staff conceded that LFF was "clearly using the land for agricultural use purposes", and that "[t]he agricultural use of resource management lands is listed by law as a primary compatible use and does not require an agency permit" (Id., pg. 6). Staff argued, however, that a "single family dwelling" could not be an "agricultural use structure" under the Adirondack Park Agency Act (the "APA Act")(Executive Law Article 27) (Record Document # 2, pgs. 8, 13), and that therefore permits for the three single family dwellings on land classified as resource management, as well as for subdivision of that land, were required under the APA Act and the Rivers Act (Id., pgs. 7-11). In so concluding, Agency staff contended that statutory construction favored specific over general definitions, and that the APA Act's definition of a "single family dwelling" was specific, while that of "agricultural use structure" was general (Id., pg. 10). Staff also asserted that because the APA Act's definition of "principal building" included reference to both agricultural use structures and single family dwellings, the Legislature intended them to be "separate and different types of structures for purposes of agency jurisdiction" (Id., pg 11). Counsel for LFF argued that the language of the APA Act supported a conclusion that a single family dwelling used for agricultural purposes could be an agricultural use structure and exempt from Agency jurisdiction. Moreover, no subdivision permit would be required since the three dwellings would constitute a single principal building under the APA Act.
On March 25, 2008, the Agency's Enforcement Committee, made up of a quorum of the Agency (Executive Law §803), issued a unanimous determination (the "Agency's determination") that LFF violated the APA Act by failing to obtain a subdivision permit and a permit authorizing construction of two of the dwelling units. Since the determination was approved by the "affirmative vote by a majority of the members of the agency" (Executive Law §803), it constitutes an action by the Agency (Id.; see also General Construction Law §41; Rockland Woods, Inc. v. Incorporated Village of Suffern, 40 AD2d 385, 340 NYS2d 513). In arriving at its determination, the Agency held that "farm worker dwellings are single family dwellings' (or possibly multiple family dwellings' or mobile homes,' depending upon the type of dwelling structure), and not agricultural use structures'" under the APA Act (Record Document # 1, pg. 8). The Agency also determined that the APA Act's definition of " agricultural use structures' does not include, and was not intended to include, the farm owners' or farm workers' dwellings", was only "intended to include other structures of an accessory nature" (Id., pg. 9), and that single family dwellings and agricultural use structures "are treated as separate and distinct uses under the . . . [APA] Act" (Id.). Based upon its finding of violations, the Agency directed LFF to pay a $50,000.00 civil penalty, apply for a permit for three new dwellings and a four-lot subdivision no later than April 14, 2008 by submitting a major project application and reply to requests for additional information within thirty days of receipt. Additionally, LFF was directed to submit to the Agency no later than April 28, 2008 a detailed description of the use of each dwelling and its connection to agricultural operations plus as-built plans for the septic system and an evaluation by a state-licensed professional engineer regarding whether the installed septic system shared by the three dwellings complied with state Department of Health and Agency standards and guidelines. Finally, the Agency's determination provided that LFF relinguished its right to challenge Agency jurisdiction but retained the limited right to appeal the project review process, and prohibited LFF from occupying the three new buildings until permits were issued and the penalty paid.
LFF commenced this Article 78 proceeding on April 8, 2008, and sought a stay of enforcement of the Agency's determination. Following oral argument, this court granted a partial stay on April 11, 2008. Specifically, a stay was granted as to enforcement of the Agency's determination except for the prohibition against occupying the dwellings and payment of the civil penalty. That same day, the Agency commenced the enforcement action by filing a summons and complaint. LFF served an amended petition on April 14, 2008. It also moved to consolidate the two cases, which motion was granted without opposition on April 24, 2008. An order of consolidation was issued on June 10, 2008. Meanwhile, LFF paid the civil penalty into court (CPLR §2601) and the Agency served an amended complaint for enforcement on May 14, 2008.
The parties thereafter filed motions addressed to the pleadings. The Agency sought dismissal of at least some of LFF's Article 78 claims on the grounds of, among other things, collateral estoppel. LFF moved to dismiss the Agency's causes of action against certain individual defendants. By decision and order dated July 2, 2008 (20 Misc 3d 1114(A), 2008 WL 2653236 [Table] [NY Sup], 2008 NY Slip Op 51348[U]), this court dismissed two of LFF's causes of action but denied all other relief sought by the Agency. As to LFF's motion, the court dismissed the Agency's causes of action against the individual defendants, thereby removing them from the case.
The Agency then filed an answer and return (CPLR §7804[e]) in response to LFF's Article 78 claims. The parties also each filed motions for summary judgment relative to the Agency's causes of ...