RICHARD B. MEYER, J.
Motion by the respondent, Adirondack Park Agency (APA), to dismiss the petition of LS Marina, LLC (LS Marina) seeking, pursuant to CPLR article 78, to annul a January 5, 2017 determination of the APA Executive Director refusing to process the Marina's December 20, 2016 request for a declaratory ruling to reverse the APA's October 4, 2013 jurisdictional determination regarding LS Marina's proposed project.
The following papers have been considered by the Court: notice of petition dated March 3, 2017, summons dated March 3, 2017, and petition of Thomas A. Ulasewicz, Esq. verified March 3, 2017 with exhibits A through G; notice of motion to dismiss dated April 6, 2017, affirmation of Joshua M. Tallent, Esq. dated April 6, 2017, memorandum of law dated April 6, 2017, affirmation of Sarah H. Reynolds, Esq. dated April 26, 2017 with exhibit A thereto, and reply memorandum of law dated April 26, 2017, all in support of the motion; affirmation of Thomas A. Ulasewicz, Esq. dated April 24, 2017 and memorandum of law dated April 24, 2017 with attachment 1 thereto, all in opposition to the motion.
LS Marina is the owner and operator of a commercial marina having two separate locations on Lower Saranac Lake in the town of Harrietstown, Franklin County, New York. The main marina site sits in what is commonly known as Crescent Bay and consists of approximately 17 acres with 655 feet of lake frontage, and upon which there are facilities and structures for the docking of 70 boats and moorings for 12 additional boats. The other marina location, referred to as the "annex", is situated in Ampersand Bay and consists of approximately 6 acres with 1,355 feet of shoreline. There are 75 covered and 5 uncovered docking slips at the annex.
In August 2013 LS Marina
LS Marina thereafter filed an application for a variance from the APA on April 15, 2014.
By a petition dated November 29, 2016, LS Marina sought a declaratory ruling from the APA reconsidering and invalidating the September 10, 2013 jurisdictional inquiry and October 4, 2013 declaratory ruling determinations. LS Marina sought a "distinction" between the terms "accessory structure"
"In my view, this is the same request you made on behalf of your client more than three years ago. The issue then is the same today — whether the covered boat slips your client proposed in the jurisdictional inquiry, which became the subject of your September 19, 2013 Petition, are structures within the shoreline setback requiring a variance, or as you argued, are boathouses. My October 4, 2013 Declaratory Ruling concluded, "[B]ecause your client's proposed structure is not a boathouse or a dock, and is greater than 100 square feet in size, a variance must be obtained for its construction."
There are two methods by which a project sponsor or representative
Here, LS Marina failed to seek judicial review of the October 4, 2013 declaratory ruling of the APA Executive Director affirming the September 10, 2013 jurisdictional determination of the APA Project Administrator that a variance was required to be obtained from the APA for the project. The failure to timely seek judicial review of that determination precludes such review by this Court (CPLR §217; Executive Law §818; State Administrative Procedure Act §204; see, Essex Cty. v. Zagata, 91 N.Y.2d 447, 672 N.Y.S.2d 281, 695 N.E.2d 232 ). So, too, the APA was and is bound by that determination and cannot legally alter it since an "agency may not retroactively change a valid declaratory ruling . . ." (State Administrative Procedure Act §204). The January 5, 2017 declaratory ruling by the APA Executive Director is consistent with this statutory mandate. Neither LS Marina nor the APA can retroactively unbind themselves from a valid declaratory determination by a subsequent declaratory determination.
Moreover, LS Marina cannot now challenge the January 2017 declaratory ruling. Its December 2016 petition for a declaratory ruling is not only an impermissible collateral attack on the 2013 declaratory ruling but it also seeks judicial review of non-final issues presently pending before the APA in connection with the application by LS Marina for a variance, and thus those issues, including the question of jurisdiction, are not ripe for judicial determination.
"Although the APA's assertion of jurisdiction may constitute a definitive agency determination, it did not inflict the type of `concrete injury' required for a finding of finality (see, Federal Trade Commn. v. Standard Oil Co. of Cal., supra, 449 U.S. at 242, 101 S.Ct. at 494 [imposition of burden of responding to agency charges may be substantial, but it is `different in kind and legal effect' from the burdens attending what may be considered a final agency action]; see also, Aluminum Co. v. United States, 790 F.2d 938, 941 [D.C.Cir.] [Scalia, J.]).
Indeed, an agency's erroneous assertion of jurisdiction may ultimately never cause any real injury (see, Matter of New York State Inspection, Sec. & Law Enforcement Empls. v. Cuomo, supra, 64 NY2d at 240, 485 N.Y.S.2d 719, 475 N.E.2d 90 [it must be clear that the injury complained of is not `contingent upon events which may not come to pass']; Aluminum Co. v. United States, supra, 790 F.2d at 942 ['The requirement of finality is predicated upon the perception that litigants as a group are best served by a system which prohibits piecemeal appellate consideration of rulings that may `fade into insignificance' by the time the initial decisionmaker disassociates itself from the matter']). To allow immediate article 78 review of such jurisdictional challenges, therefore, would unnecessarily interfere with the agency process and waste judicial resources. Accordingly, they should be reviewed by a court only after a final determination — which might effectively render the dispute academic — is reached by the agency." (Essex Cty. v. Zagata, 91 N.Y.2d 447, 455-456, 672 N.Y.S.2d 281, 285-286, 695 N.E.2d 232, 236-237 ).
LS Marina must first exhaust its administrative remedies before challenging the yet-to-be-made final determination of the APA on the pending variance application. "[O]ne who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law (e. g., Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 375, 372 N.Y.S.2d 633, 635, 334 N.E.2d 586, 588)" (Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 824, 385 N.E.2d 560, 563) in order to relieve "the courts of the burden of deciding questions entrusted to an agency (see 1 NY Jur, Administrative Law, §5, pp. 303-304), [to prevent] premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation[,] and [to afford] the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its `expertise and judgment' (Matter of Fisher [Levine], 36 N.Y.2d 146, 150, 365 N.Y.S.2d 828, 832, 325 N.E.2d 151, 153; see, also, 24 Carmody-Wait 2d, NY Prac, §145:346)" (Id.).
The motion by the respondent Adirondack Park Agency to dismiss is thus granted, without costs, and the petition is dismissed.