Development

Jurisdictional Dispute Not Ripe for Judicial Review

Application of Grahel Associates, LLC v. New York State Department of Environmental Conservation

NYLJ 2/14/11

Supreme Ct., Queens Cty.

(Markey, J.)

Landowner brought an article 78 proceeding challenging a determination by the state Department of Environmental Conservation (DEC) that DEC has jurisdiction over landowner's parcel. The court dismissed the petition as unripe for review.

Landowner owns a parcel of land adjacent to the East River in White-stone, Queens. Landowner filed plans with the city to subdivide the site into ten separate parcels for industrial use, and the city approved the plans. DEC staff then inspected the site and concluded that landowner was conducting activities in a regulated area without the necessary permit, and mailed a notice of violation, contending that landowner was wrongfully filling tidal wetlands and adjacent area. Landowner contended that DEC had no jurisdiction because his parcel was not a wetland or adjacent area. DEC disagreed and determined that a wetlands permit is required. Landowner then brought this article 78 proceeding challenging the determination.

In dismissing the proceeding, the court concluded that DEC's jurisdictional determination did not inflict the type of concrete injury required for a finding of finality. The court noted that DEC had not imposed any fines or initiated any enforcement proceedings, and concluded that the proceeding was premature. As a result, the court dismissed the petition.

Jurisdictional Dispute Not Ripe for Judicial Review

Application of Grahel Associates, LLC v. New York State Department of Environmental Conservation

NYLJ 2/14/11

Supreme Ct., Queens Cty.

(Markey, J.)

Landowner brought an article 78 proceeding challenging a determination by the state Department of Environmental Conservation (DEC) that DEC has jurisdiction over landowner's parcel. The court dismissed the petition as unripe for review.

Landowner owns a parcel of land adjacent to the East River in White-stone, Queens. Landowner filed plans with the city to subdivide the site into ten separate parcels for industrial use, and the city approved the plans. DEC staff then inspected the site and concluded that landowner was conducting activities in a regulated area without the necessary permit, and mailed a notice of violation, contending that landowner was wrongfully filling tidal wetlands and adjacent area. Landowner contended that DEC had no jurisdiction because his parcel was not a wetland or adjacent area. DEC disagreed and determined that a wetlands permit is required. Landowner then brought this article 78 proceeding challenging the determination.

In dismissing the proceeding, the court concluded that DEC's jurisdictional determination did not inflict the type of concrete injury required for a finding of finality. The court noted that DEC had not imposed any fines or initiated any enforcement proceedings, and concluded that the proceeding was premature. As a result, the court dismissed the petition.