2017 NY Slip Op 50898(U)


Supreme Court, Essex County.

Attorney(s) appearing for the Case

FitzGerald Morris Baker Firth P.C., ( Thomas A. Ulascewicz, Esq. , Michael Crowe, Esq. , of counsel), Glens Falls, New York, for Petitioner.

Eric T. Schneiderman , New York State Attorney General, ( Joshua M. Tallent, Esq. , Susan L. Taylor, Esq. , Marie Chery-Sekhobo, Esq. , Christopher C. Gore, Esq. , Assistant Attorneys General, of counsel) Albany, New York for Respondent.


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 Marina1 made a written request to the APA for a jurisdictional determination as to whether a variance from the APA was required for a conceptual plan to install a floating dock system in Crescent Bay consisting of 26 double slips, arranged in two rows of 13 slips separated by a 6 foot wide walkway and with each slip being 20 feet wide and 23 feet in length. The covered dock system measured 316 feet in length and 52 feet in width and was to be connected to the existing boat livery building by a 6 foot wide walkway approximately 40 feet long. By letter dated September 10, 2013 the APA Project Administrator notified LS Marina that a variance from the APA would be required for the proposed project because it did not comply with the requirements for a boathouse. Dissatisfied with that decision, LS Marina filed a petition with the APA requesting a declaratory ruling2 reversing the decision to require a variance. The petition was premised upon the claims that, inter alia, the September 10, 2013 determination erroneously deemed the proposed floating dock system as a "boathouse" and instead should have considered the project to be an expansion of a pre-existing "commercial marina", the result of which would be that no APA variance is required. The APA Executive Director3, in a letter dated October 4, 2013, denied that request, declined to reverse the jurisdictional determination, and concurred in the determination that the proposed project required a variance. Specifically, the Executive Director held that the project involved an "accessory structure" and was not a "boathouse" or "dock" within the ambit of the APA regulations.

LS Marina thereafter filed an application for a variance from the APA on April 15, 2014.4 At about the same time, LS Marina submitted the proposed project to the town of Harrietstown Planning Board. In April 2015, the town planning board approved the project on certain conditions, including, as relevant here, that LS Marina secure "[a]ny required Adirondack Park Agency variance and/or wetlands permits/approvals, and/or other required APA permits or approvals."5

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"6 and "commercial use"7 when applied to a "marina"8 and to a "dock"9, and argued that the proposed project does not involve or constitute and "accessory structure" and does not require a variance for the same reasons that the APA did not require a variance for three similar projects at three separate marinas in the Saranac Lake — Lake Placid area. The APA Executive Director replied to the petition for a declaratory ruling by a letter dated January 5, 2017, stating in pertinent part,

"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 representative10 may obtain a determination from the APA relative to whether the APA has or will exercise permit or variance jurisdiction over a proposed project before a permit application is filed. First, the project sponsor or representative may seek a declaratory ruling under the State Administrative Procedure Act (SAPA)11 by filing a petition with the agency's executive director12. "A declaratory ruling shall be binding upon the agency unless it is altered or set aside by a court"13. A valid declaratory ruling may not be changed retroactively but an agency may prospectively change one. A project sponsor or representative may seek review of an adverse declaratory ruling "in the manner provided for in . . . CPLR article 78"14. Second, the project sponsor may file a written request15 for a determination, referred to as a "jurisdictional inquiry", to which the APA "will endeavor to respond . . ., in writing, within 15 days of receipt"16. "The agency will be bound by any determination made pursuant to this Part when signed by its executive director . . . [or] project administrator . . ., and when there has been material detrimental reliance thereon" (9 NYCRR §571.5[b]). If a determination is not to the liking of the project sponsor or representative, it "may be appealed to the agency by the person who requested it under the procedures set forth in section 588.2 of these regulations" (9 NYCRR 571.5[d]), governing declaratory rulings. A subsequent declaratory ruling on the adverse determination may be reviewed pursuant to CPLR article 78 (SAPA §204[1]; 9 NYCRR §588.2[g]).

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[1]; see, Essex Cty. v. Zagata, 91 N.Y.2d 447, 672 N.Y.S.2d 281, 695 N.E.2d 232 [1998]). 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[1]). 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 [1998]).

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.

It so Ordered and Adjudged.


1. The jurisdictional request was made on behalf of "CB Marina, LLC", the purchaser under contract with Crescent Bay Holdings, LLC. The record reveals that after closing on the sale CB Marina, LLC transferred the property to the petitioner. (see Exhibit F to petition, page 2).
2. "A determination made pursuant to subdivision (b) of this section may be appealed to the agency by the person who requested it under the procedures set forth in section 588.2 of these regulations." (9 NYCRR 571.5[d]). "On petition of any person, submitted in accordance with this section, the agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it." (9 NYCRR §588.2[a]).
3. "Declaratory rulings may be issued by the executive director, or may be referred by him to the operations, regional planning, legal affairs, or other agency committee, which may issue the ruling or may refer it to the full agency at its next scheduled meeting." (9 NYCRR §588.2[f]).
4. For reasons unknown and unexplained, the variance application remains pending before the APA for more than three (3) years.
5. Exhibit A to petition. The resolution granting site plan approval appears to have been filed with the deputy town clerk on April 6, 2015.
6. "Accessory structure" means any structure or a portion of a main structure customarily incidental and subordinate to a principal land use or development and that customarily accompanies or is associated with such principal land use or development, including a guest cottage not for rent or hire that is incidental and subordinate to and associated with a single family dwelling." (Executive Law §802[5]).
7. "Commercial use" means any use involving the sale or rental or distribution of goods, services or commodities, either retail or wholesale, or the provision of recreation facilities or activities for a fee other than any such uses specifically listed on any of the classification of compatible uses lists." (Executive Law §802[17]).
8. "Marina means any facility providing boat docks or moorings or a fee or other consideration and often offering supply, storage, repair and other services." (9 NYCRR §570.3[u]).
9. "Dock means a floating or fixed structure that:(1) extends horizontally (parallel with the water surface) into or over a lake, pond or navigable river or stream from only that portion of the immediate shoreline or boathouse necessary to attach the floating or fixed structure to the shoreline or boathouse;(2) is no more than eight feet in width, or in the case of interconnected structures intended to accommodate multiple watercraft or other authorized use, each element of which is no more than eight feet in width; and(3) is built or used for the purposes of securing and/or loading or unloading water craft and/or for swimming or water recreation. A permanent supporting structure located within the applicable setback area which is used to suspend a dock above water level for storage by means of a hoist or other mechanical device is limited to not more than 100 square feet, measured in the aggregate if more than one such supporting structure is used. A dock must remain parallel with the water when suspended for storage, unless the size of the total structure does not exceed 100 square feet. Mechanisms necessary to hoist or suspend the dock must be temporary and must be removed during the boating season." (9 NYCRR §570.3[j]).
10. Requests pursuant to this Part may be made by any person having a legal interest in the property in question, including a landowner, tenant, mortgagee, contract vendee or optionee." (9 NYCRR §571.5(a).
11. On petition of any person, an agency may issue a declaratory ruling with respect to (i) the applicability to any person, property, or state of facts of any rule or statute enforceable by it, or (ii) whether any action by it should be taken pursuant to a rule. Each agency shall prescribe by rule the form for such petitions and the procedure for their submission, consideration and disposition." (SAPA §204[1]; see, also, 9 NYCRR §588.2[a]).
12. 9 NYCRR §588.2(b).
13. SAPA §204(1).
14. SAPA §204; 9 NYCRR §588.2[g]).
15. "The agency will, upon request of any person having a legal interest in property and contemplating land use or development or subdivision thereon, determine whether an agency permit is required, or whether a variance is required from the shoreline restrictions or other restrictions of these regulations." (9 NYCRR §571.1).
16. 9 NYCRR §571.5(a).


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