The opinion of the court was delivered by: David R. Demarest, 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.
This Article 78 special proceeding seeks to annul determinations of the Adirondack Park Agency ("APA"), dated June 25, 2008. Respondent interposed its Answer with a counterclaim and seeks dismissal of the Petition. In its simplest form, this lawsuit arises out of the parties' initial dispute as to whether an assembly of rocks measuring 100-feet in width and 12-feet in height at the center, tapering to several feet at either end, installed on the Harringtons' shoreline of Rainbow Lake, is a "retaining wall" and, thus, within Respondent's jurisdiction, or a "rock garden" which falls within the landscaping exemption under Executive Law §802(28). The dispute placed before the APA Enforcement Committee focused not on whether the rock assembly functioned as a retaining wall,' but rather whether the assembly of rocks constituted a prohibited structure located on low intensity use' lands within 35 feet of the mean high water mark. Petitioners argue the rock garden constitutes exempt landscaping activities over which Respondent has no jurisdiction by virtue of New York Executive Law Article 27.
In pertinent part, New York Executive Law §806(1) prohibits new land use or development involving any shoreline within the Adirondack Park which does not comply with statutory restrictions, such as a minimum 75-feet setback requirement (from mean high-water mark) for accessory structures (excluding docks and boathouses) exceeding one hundred square feet. Executive Law §802(28) defines "land use or development" or "use" as "construction or other activity which materially changes the use or appearance of land or a structure" but exempts from its definition activities of "...landscaping or grading which is not intended to be used in connection with another land use, or ordinary repairs or maintenance or interior alterations to existing structures or uses." The term "structure" is defined as "...any object constructed, installed or placed on land to facilitate land use and development....such as buildings, sheds, single family dwellings, mobile homes, signs, tanks, fences and poles and any fixtures, additions and alterations thereto." NY Executive Law §802(62). Violations of Article 27 of the Executive Law and any rules or regulations promulgated by the APA or the terms or conditions of any APA order or permit issued pursuant to Article 27 allow imposition of civil penalties in the amount of $500 per day and/or enforcement proceedings. An APA Enforcement Committee's determination of enforcement proceedings pursuant to 9 N.Y.C.R.R. §581-2 constitutes a final determination.
The parties engaged in settlement negotiations from August 2004 to March 2007 to no avail. In May 2007, a Notice of Apparent Violation was sent to Petitioners' counsel who responded in writing on June 28, 2007. Thereafter, on June 25, 2008, the parties' counsel appeared before the APA Enforcement Committee, resulting in a June 25, 2008, determination adverse to Petitioners' interests, which required removal or burial of the rock wall structure by December 31, 2008, or proposal of an alternative remediation plan within sixty days together with payment of a $15,000 civil penalty payable to New York State by July 31, 2008. Petitioners neither removed nor buried the offending condition nor paid the civil penalty, but, instead, commenced this special proceeding on August 20, 2008, objecting to the determination as being arbitrary, capricious, in excess of prevailing law, and inconsistent with the plain meaning of the statute. Likewise, Petitioners argue the APA Enforcement Committee's applications and interpretations of the statutory provisions are unreasonable, contrary to the express provisions of the statute and irrational. Additionally, Petitioners seek an Order: directing APA Enforcement Attorney Paul VanCott be barred from any participation or involvement - retroactively and prospectively - with Petitioners' property due to personal bias and direct or indirect conflict of interest; and annulling and vacating the $15,000 civil penalty as it was imposed without evidence warranting the penalty and was so disproportionate to the alleged offense as to shock one's sense of fairness.
It is Respondent's position that the slope of the land which prompted Petitioner's creation of the so-called rock garden was the direct result of Petitioner's building site work - namely, grading a level terrace -in preparation for their single-family dwelling construction activities. For this reason, it is Respondent's position that the landscaping exemption does not apply. Characterizing the rock wall construction as a land use and development activity, as a structure in excess of 100 square feet, it is subject to the shoreline setback requirements. Respondent moves for dismissal of the special proceeding and interposes its objections in point of law, verified answer, verified counterclaim (compelling payment of $15,000 civil penalty) and return. Specifically, Respondent seeks dismissal of Petitioners' fourth cause of action (removal of Attorney VanCott for bias and/or conflict of interest) for failure to state a cause of action, citing the absence of proof of bias adverse to Petitioners or improper influence upon the Agency, and that the Enforcement Order was issued by the Agency.
Thereafter, Petitioners submit a Reply to Counterclaim with Defense and Objection to Respondent's incomplete Return since the verbatim transcripts of the parties' counsel before the APA Enforcement Committee were not submitted. In reply, Respondent argues it did not create such a transcript insofar as counsels' presentations to the APA Enforcement Committee consist of legal argument, but submits a DVD of the webcast' recording (in excess of 5 hours). The pertinent portion of the DVD (less than one hour) was viewed and considered in rendering this Decision.
Petitioners characterize the man-made rock assembly as strictly landscaping: a rock garden, not a retaining wall. They do, however, note that their landscaping efforts resulted from their building site grading activities which created a sloped area on the lake side portion of their property, resulting from their efforts to create a "flat terrace [of earth] on top of which the house was constructed." It is averred that the structure is not a retaining wall since it does not support a mass of soil, but rather was placed upon a portion of a graded slope with a rise over run ratio of one vertical on one horizontal such that the graded slope does not exceed its angle of repose. To this end, Petitioners note that the one-on-one graded slope which has been seeded and mulched (west of the rock garden), does not show any indication of slope failure over the past three years. William J. Curran, Petitioner's expert, former APA Deputy Director of Regulatory programs with Associate's and Bachelor's degrees in landscaping, was retained in 2004 to render landscape and development advice on this project. Curran opines the rock garden "...is not now a structure or subject to APA jurisdiction because as a rock garden is landscaping it is exempt." [sic]. Curran Affidavit, sworn to May 21, 2008, par. 4.
Respondent's employee, Shaun Lalonde, a professional engineer, opined that:
"[t]he linear, constructed, dry laid stones with vertical components depicted in the photographs attached as exhibits to the affidavits of Emily Tyner and John Burth [APA Enforcement Officers] support, or hold in position, the mass of soil comprising the terrace, thereby resulting in a structure which meets the Agency definition of retaining wall. The particular type of structure utilized at the site is a toe-wall. The toe wall placed at the foot of the terrace helps stabilize the slope against mass movement and protects the toe against scour and undermining. *** dry laid stones were utilized to support vertical components and the final steep slope of 1:1. As a result, in my professional opinion, the dry laid stone retaining wall is a structure constructed to facilitate new land use and development."
(Lalonde Affidavit, February 27, 2008, pars. 4,5)
He also went on to opine that, considering the factors outlined in 9 N.Y.C.R.R. §576.1(c)(1)-(6), had Petitioners sought a variance, Agency staff would not have recommended its approval. Id. par. 6.
Petitioners argue that Lalonde's opinion is speculation since his affidavit fails to present evidence "developed by testing or other method," inclusive of interviews with the construction entity which assembled the rock garden, that the rock garden supports a mass of soil so as to constitute a "retaining wall" as defined by APA regulations at 9 N.Y.C.R.R. §570.3(ac). To this end, Petitioners aver that had the entire slope been seeded and mulched, the entire landscaping treatment would neither be a structure nor subject to APA shoreline requirements. For this reason, it is argued, the rock garden - as a landscaping treatment - is exempt under §802(28) and does not constitute a "structure constructed to facilitate new land use and development" under §802(62), (28). Since the burden was on the APA to support its claims by competent evidence, Petitioners argue the underlying administrative proceeding should have been dismissed.
Curran opines the composition of elements constitutes a rock garden which is a landscaping treatment, not a retaining wall or other land use and development. On this point, he takes issue with the insufficiency of definition for "retaining wall" found at APA regulations §570.3(ac) and the absence, altogether, of definition for "landscaping." He states that the closest point of the toe of the slope, measured horizontally to the shore of the Lake, is approximately 37 feet and that the slope is 1 on 1. Curran also challenged Lalonde's affidavit, citing the absence of testing or interviews with construction personnel. He also notes that Lalonde's opinion was expressed on the basis of photographs, whereas Curran's opinion is based upon personal inspection and testing. Notably, Curran disputes the existence of a toe-wall since the base ...