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In re Town of North Elba

Supreme Court of New York, Third Department

March 1, 2018

In the Matter of TOWN OF NORTH ELBA, Petitioner,

          Calendar Date: January 17, 2018

          Briggs Norfolk LLP, Lake Placid (Matt Norfolk of counsel), for petitioner.

          Eric T. Schneiderman, Attorney General, Albany (Susan L. Taylor of counsel), for New York State Department of Environmental Conservation, respondent.

          Young Sommer LLC, Albany (J. Michael Naughton of counsel), for Adirondack Council, Inc., respondent.

          Before: Egan Jr., J.P., Devine, Mulvey, Aarons and Rumsey, JJ.

          Mulvey, J.

         Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Essex County) to review a determination of respondent Joseph J. Martens finding, among other things, that the subject road had been abandoned.

         The dispute at the heart of this proceeding is whether a 3½-mile unimproved thoroughfare known as Old Mountain Road ceased to be a public road within the meaning of Highway Law § 215 (1) as a result of abandonment through nonuse. The road, which traverses the Towns of North Elba and Keene in Essex County, passes over the Sentinel Range of the Adirondack Park and is located in an area of the Forest Preserve. In 2003, James McCulley, a resident of the Town of North Elba, intentionally drove his snowmobile on a portion of Old Mountain Road in an effort to set the stage for a legal challenge to the asserted jurisdiction of respondent Department of Environmental Conservation (hereinafter DEC) over the road. McCulley was thereafter issued an appearance ticket charging him with a violation of 6 NYCRR 196.2, which limits the use of snowmobiles on Forest Preserve land to trails designated and marked by DEC or to frozen ponds accessible by such trails. Following a bench trial in the Town of Keene Justice Court, McCulley was found guilty of this charge. On appeal, the Essex County Court found legally insufficient evidence to support the charge and overturned McCulley's conviction (People v McCulley, 7 Misc.3d 1004 [A], 2005 NY Slip Op 50439[U] [2005]). Specifically, the court found that the evidence adduced at trial established that Old Mountain Road was a town road that had not been abandoned by the public through nonuse and, as such, McCulley had the right to use the road (id. at *16).

         Two months after the reversal of his conviction, McCulley was contacted by a DEC Forest Ranger inquiring whether he had any plans of operating a motor vehicle on Old Mountain Road. Interpreting this as a challenge, McCulley responded that he did in fact intend to do so and followed through with that promise the following day. DEC answered by commencing an enforcement proceeding alleging that McCulley violated 6 NYCRR 196.1, a distinct regulation that prohibits operation of a motor vehicle within the Forest Preserve except, as relevant here, on roads under the jurisdiction of a municipal highway department or those burdened by a public right-of-way [1]. Following a three-day hearing, an Administrative Law Judge (hereinafter ALJ) issued a lengthy hearing report recommending dismissal of the charge against McCulley. Therein, the ALJ concluded that Old Mountain Road was undisputedly a town road and that the evidence of heavy recreational use of the road precluded a finding of abandonment pursuant to Highway Law § 215 (1). In May 2009, Alexander Grannis, a former Commissioner of Environmental Conservation, adopted the findings and recommendation of the ALJ with additional comments.

         The following month, DEC filed a motion seeking "clarification" of five discrete aspects of the 2009 determination as it pertained to Old Mountain Road, including whether Grannis had properly analyzed the statutory criteria for abandonment of a highway and whether he had correctly analyzed the towns' legal obligations to maintain the road. Soon thereafter, respondent Adirondack Council and the Adirondack Park Agency moved to intervene in support of DEC's application, asserting, insofar as is relevant here, that the 2009 determination failed to take into account the Adirondack Park State Master Plan (hereinafter the Master Plan), which stated that Old Mountain Road had been "closed" by 1987. In December 2010, respondent Peter Iwanowicz, then-Acting Commissioner of Environmental Conservation, granted the intervention motions and set a briefing schedule limited to the issues identified in the motion for clarification.

         Nearly five years later, in July 2015, respondent Joseph J. Martens, a former Commissioner of Environmental Conservation, issued a determination largely vacating the 2009 determination. In his ruling, Martens found that the failure of DEC to offer the Master Plan into evidence during the administrative hearing, or to otherwise rely upon such document in support of its argument that the road was abandoned, warranted reconsideration of the issues presented. Upon consideration of the Master Plan, "as well as the record below, " Martens concluded that Old Mountain Road was an abandoned town road and that no legal right-of-way for public use existed. Petitioner then commenced this CPLR article 78 proceeding challenging the 2015 determination as, among other things, unlawful, irrational and in excess of authority. The proceeding was subsequently transferred to this Court.

         Of the several issues raised by petitioner, we need only address its contention that DEC lacked the authority to reconsider its 2009 determination. Initially, we agree with petitioner that DEC's motion was improperly denominated as one for "clarification" of the 2009 determination. A motion to clarify is a procedure designed solely "to correct errors or omissions in form, for clarification or to make the order conform more accurately to the decision" (Simon v Mehryari, 16 A.D.3d 664, 666 [2005]; accord Matter of Torpey v Town of Colonie, N.Y., 107 A.D.3d 1124, 1125-1126 [2013]; see Elson v Defren, 283 A.D.2d 109, 113 [2001]; Gannon v Johnson Scale Co., 189 A.D.2d 1052, 1052 [1993]). Such a motion "may not be used to effect a substantive change in or to amplify the prior [determination]" (Foley v Roche, 68 A.D.2d 558, 566 [1979]; see Joseph v Baksh, 137 A.D.3d 1220, 1221 [2016]; Matter of Torpey v Town of Colonie, N.Y., 107 A.D.3d at 1125-1126; Simon v Mehryari, 16 A.D.3d at 666; Gormel v Prudential Ins. Co. of Am., 167 A.D.2d 829, 829 [1990]).

         Here, DEC's motion and the submissions in support thereof plainly sought to amplify and substantively amend, not merely to clarify, the 2009 determination with regard to the issue of abandonment of Old Mountain Road. Indeed, the gravamen of the motion was that the evidence of recreational use of Old Mountain Road should not have precluded a finding of abandonment and that Grannis gave insufficient consideration to the Master Plan in rendering the 2009 determination. The fact that DEC was not seeking reinstatement of the enforcement proceeding against McCulley is of no moment, because the ultimate relief sought "would clearly have altered a substantial right of the parties" (Matter of Torpey v Town of Colonie, N.Y., 107 A.D.3d at 1126 [internal quotation marks, brackets and citations omitted]; see Gannon v Johnson Scale Co., 189 A.D.2d at 1052).

         The motion was, in effect, one to reconsider the 2009 determination. Yet, no statutory authority exists for DEC to reconsider a final determination issued in an administrative enforcement proceeding. Nor do DEC's regulations sanction the action taken by Martens. While the regulations governing enforcement proceedings allow a Commissioner to reopen the hearing record to consider "significant new evidence, " the Commissioner may only do so ...

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