New York Blue Line Council, Inc. v. Adirondak Park Agency

Briefly described, the first challenged regulation now requires a variance for any expansion of preexisting structures that do not comply with shoreline set-back requirements (see 9 NYCRR 575.5 [b] [2]); the prior regulation permitted unlimited lateral and rearward expansion, as long as the expansion did not bring such structures closer to the shoreline (see 9 NYCRR former 575.5 [b] [2]; Brown v Glennon, 203 AD2d 846 , 849 [1994]). With regard to wetlands, the APA’s regulations formerly provided that the subdivision of a parcel containing wetlands was not subject to review if the wetland was located entirely on a parcel retained by the owner (see 9 NYCRR former 573.3 [b]); the new amendment provides for APA review of any proposed lot containing a wetland or adjoining a lot containing a wetland unless the boundary is 200 feet from the wetland (see 9 NYCRR 578.3 [n] [3]). Petitioners also challenged the APA’s repeal of a regulation that excepted property traversed by a roadway from the general rule that adjoining lots under single ownership are treated as one lot and, thus, considered to be subdivided when either lot is sold (see Executive Law § 811 ^[1] [a]; 9 NYCRR former 573.4 [b]). Finally, petitioners challenged the APA’s revised

Supreme Court determined that the municipal petitioners lacked capacity to sue on all claims except that related to the alleged violation of their home rule powers and, as to that issue, their arguments lacked merit. With respect to the substantive arguments of the Blue Line petitioners, the court upheld the APA’s regulatory amendments relating to the expansion of shoreline structures and jurisdiction over subdivisions involving wetlands. The court struck down the amendment concerning hunting and fishing cabins, and declared that the repeal of the regulation regarding parcels divided by roads did not eliminate a so-called “natural subdivision rule.” The parties cross-appeal, and we now hold that both petitions should be dismissed in their entirety.

Initially, we agree with Supreme Court that the municipal petitioners lack capacity to sue on all claims other than that alleging a violation of their home rule powers. “[CJapacity concerns a litigant’s power to appear and bring its grievance before the court” (Matter of Graziano v County of Albany, 3 NY3d 475 , 478-479 [2004] [internal quotation marks and citation omitted]).^[2] As relevant here, it is well settled that “municipal corporate bodies, as subdivisions of the state, cannot contest the actions of the state which affect them in their governmental capacity or as representatives of their inhabitants” (Matter of County of Oswego v Travis, 16 AD3d 733 , 735 [2005]; accord Matter of Bethpage Water Dist. v Daines, 67 AD3d 1088 , 1090 [2009], Iv denied 14 NY3d 707 [2010]; see City of New York v State of New York, 86 NY2d 286 , 290-292 [1995]). Contrary to the municipal petitioners’ argument, this rule applies with equal force to the actions of state agencies: “a municipality lacks the capacity to challenge a state agency’s interpretation of statutes and regulations where . . . the result impacts the municipality in its governmental capacity” (Matter of Bethpage Water Dist. v Daines, 67 AD3d at 1091 ; see City of Utica v Daines, 53 AD3d 922 , 923-924 [2008]; Matter of County of Seneca v Eristoff, 49

Here, the municipal petitioners assert that the challenged amendments affect them in their governmental capacity. Indeed, they maintain that the amendments “directly steal . . . their legislative capacity for enacting land use controls.” Thus, they must demonstrate the applicability of one of the recognized exceptions to the general rule regarding lack of capacity (see City of New York v State of New York, 86 NY2d at 291-292 ).^[3]

To that end, the municipal petitioners argue that they have express statutory authorization to sue under Executive Law § 818 (1), which provides that “[a]ny act” of the APA may be challenged in a CPLR article 78 proceeding by “any aggrieved person.” This provision, however, merely authorizes proceedings against the APA and, thus, is not dispositive on the question of the municipal petitioners’ capacity to sue. That is, as Supreme Court concluded, there is no indication that section 818 (1) was intended to trump the requirement that an aggrieved party must otherwise have the capacity to sue (see Matter of Adirondack Park Local Govt. Review Bd. v Adirondack Park Agency, 89 AD2d 642 [1982]). Nor does Executive Law § 818 (2) provide authorization to commence this proceeding, as the municipal petitioners urge. That provision confers “standing” upon “[a]ny local government which appears as a party in any proceeding before the agency” to challenge the APA’s decision on “such project” (Executive Law § 818 [2]), with “project” separately defined as “any new land use and development or subdivision of land” (Executive Law § 802 [52]). The definition of “project” does not, on its face, encompass the substantive challenges to the APA’s rule-making raised here.

While the municipal petitioners do have capacity to raise their claims insofar as they argue that the 2008 amendments violated the home rule protections contained in article IX of the NY Constitution (see Town of Black Brook v State of New York, 41 NY2d 486 , 488-489 [1977]; see also City of New York v State of New York, 86 NY2d at 292 ), their arguments lack merit. It is well settled that the Act, “addressed to an issue of substantial

With respect to the Blue Line petitioners, we agree with the APA that their claims are not justiciable inasmuch as they are not ripe for review and, thus, their petition must be dismissed in its entirety.^[4] In “determining whether a preenforcement challenge to an administrative regulation is ripe for judicial review,” we must first consider “whether the administrative action being reviewed is final and whether the controversy may be determined as a ‘purely legal’ question” (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 , 519 [1986], cert denied 479 US 985 [1986]). Then, we must evaluate whether the anticipated harm “is sufficiently direct and immediate,” as opposed to merely “insignificant, remote or contingent” (id. at 520 [internal quotation marks and citation omitted]). A challenge to a regulation “cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” (id.) accord Matter of Gordon v Rush, 100 NY2d 236 , 242 [2003]; Matter of Essex County v Zagata, 91 NY2d 447 , 453 [1998]). Moreover, the fact that the Blue Line petitioners possess a “sufficient interest in the [matter] to be accorded standing to maintain the [proceeding] is but part of the equation”; the proceeding is nevertheless “premature and as a matter of law may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” (American Ins. Assn. v Chu, 64 NY2d 379 , 385 [1985], appeal dismissed and cert denied 474 US 803 [1985]; see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233 , 240 [1984]).