Opinion
32063/2010.
Decided November 28, 2011.
In 2006, DSNY issued a Comprehensive Solid Waste Management Plan to address the long-term exportation and disposal of municipal solid waste from metropolitan New York City. This plan proposed refurbishing four closed marine transfer station (MTS) facilities previously operated by DSNY. One of the four proposed facilities, the North Shore MTS, would be located in the College Point section of Queens, New York, 2,206 feet from the landing threshold of Runway 13/31 at LaGuardia Airport. The proposed MTS would be a three-level, over-water, fully enclosed facility explicitly designed for the indoor transfer of solid waste from collection vehicles into sealed leakproof containers. Each container would be sealed and cleaned within the transfer station building and then loaded onto barges for transfer to a final disposal site. No solid waste would be stored or processed outside of the fully enclosed MTS building.
In January 2007, the DEC received the final permit application for the North Shore MTS for review and public comment. The DEC issued a notice of completed application on May 16, 2001, and following a period for public comments and a public meeting, the DEC issued the DSNY a Part 360 permit on September 14, 2007 for the construction and operation of the North Shore MTS.
Due to the proximity of the proposed location to LaGuardia Airport, the Federal Aviation Administration (FAA) evaluated its impact on air navigation and issued a determination of "No Hazard to Air Navigation", pursuant to Title 14 Code of Federal Regulations Part 77, Objects Affecting Navigable Airspace, on September 18, 2006. Port Authority of New York and New Jersey(Port Authority) submitted a petition raising certain objections to the FAA and DSNY, in response, revised its proposal and modified the building height to 100 feet above mean sea level. The Port Authority withdrew its petition, and DSNY submitted the revised plan to the FAA for approval in March 2007.
The Port Authority, in July 2007 submitted a letter to the FAA indicating that in the future it may seek to install a Category II Instrument Landing System on Runway 31, and the FAA notified DSNY that it was required to conduct a further study to determine whether the construction of the North Shore MTS might adversely affect the Port Authority's plans, before it could issue a No Hazard Determination. DSNY's consultants conducted a study which found that irrespective of the MTS, a Category II Instrument Landing System could not be installed on Runway 31, for a variety of factors. The FAA reached the same conclusion and the Port Authority withdrew its plans for the installation of such a system. On September 19, 2008, the FAA issued a second "No Hazard to Air Navigation" determination.
On May 5, 2009, United States Department of Agriculture, (USDA), met with representatives from the FAA, the Port Authority, and DSNY to review the wildlife hazard attractant potential of the proposed MTS. Based on review of operational procedures in the Part 360 Engineering Report, a visit to the Staten Island Transfer Station, and conversations with DSNY
personnel, the USDA determined that the North Shore MTS did not inherently conflict with safe aircraft operations at LaGuardia Airport, provided certain recommendations were met. In particular, the USDA recommended that DSNY hire or contract with an airport biologist to conduct weekly surveys and inspections of the North Shore MTS for two years, and if no consistent threat was documented, to conduct annual inspections thereafter. It was also recommended that DSNY meet regularly with representatives from LaGuardia Airport to address wildlife hazards and solutions. In June and July 2009, both the FAA and DSNY's Deputy Commissioner, acknowledged the USDA's findings and recommendations, and DSNY agreed to implement USDA's recommendations.
A collision between migratory birds and US Airways Flight 1549 on January 15, 2009 (the "Miracle on the Hudson" event}, resulted in increased Congressional and public scrutiny of the proposed North Shore MTS. In the Fall 2009, Ray LaHood, the United States Secretary of Transportation, held a series of meetings with the New York Congressional delegation, the City of New York, the FAA, and the USDA. The FAA and USDA, at the direction of Secretary LaHood, engaged in a joint study of the topic, and a Technical Panel of wildlife hazard mitigation experts, including representatives from the FAA and the USDA, reviewed current and historical wildlife data and surveys, the history of bird-aircraft collisions (bird strikes) at LaGuardia Airport, and the proposed MTS building design plans, specifications, and operational parameters.
The Technical Panel released a draft version of its report for public review and comment from April 23 to May 24, 2010, and a final report was issued in August 2010. It is noted that Kenneth Paskar, petitioner herein, was one of five separate respondents who provided comments, and these comments were categorized and addressed by topic in an addendum to the final report. The final report was presented to Secretary LaHood on September 2, 2010. The Technical Panel concluded that the proposed North Shore MTS is compatible with safe air operations at LaGuardia Airport, provided that specific recommendations contained in the report were implemented.
DSNY's Deputy Commissioner, in a letter dated September 3, 2010, informed the FAA that it is committed to implementing the recommendations of the technical panel.
The demand letter:
Kenneth Paskar, a licensed pilot and resident of the borough of Manhattan, on behalf of himself and as a member of Friends of LaGuardia Airport, Inc., (Friends) in an 18 page letter dated November 12, 2010, addressed to the DEC and the Commissioner of the DSNY, demanded that "1. DEC issue an order revoking the Permit for the North Shore marine transfer station; 2. DEC, in the alternative, suspend the Permit pending DSNY's application for a modified permit, that at a minimum incorporates the recommendations of the Evaluation Report; 3. DEC treat any proposed application for modification of the permit as an application of the permit; 4. DEC issue an order directing DSNY, in connection with any application for a modified permit, to prepare and present for DEC's approval an engineering study that (i) details the steps DSNY commits to take with respect to retaining a qualified wildlife biologist to perform a full year, four-season field observation of bird activity in accordance with FAA guidelines, (ii)includes an integrated wildlife hazard management plan detailing its proposed mitigation measures in connection with the North Shore marine transfer station an its wildlife management plan to manage the BASH [bird aircraft strike hazard] risk during the operation of the facility; and (iii) includes a Safety Program' for the monitoring and assessing the risks inherent in every phase of the construction and operation of the North Shore marine transfer station; and 5. DEC convene public hearings in connection with any application for a modified permit for the purpose of taking expert testimony concerning whether DSNY's proposed modification will effectively mitigate the BASH risk to public safety".
Mr. Paskar claimed that the final report issued on September 2, 2010 by the FAA/USDA, including the study and recommendations contained therein, constituted "newly discovered material information" pursuant to 6 NYCRR § 621.13, and that he had standing, individually and as a member of Friends of LaGuardia Airport, to make his demands, pursuant to 6 NYCRR § 621.13(b). He asserted that despite DSNY's letter of September 3, 2010, construction at the North Shore MTS is ongoing, without any evidence of changes made in response to the recommendations, and claimed that DSNY is disregarding the FAA's recommendations. Mr. Paskar, citing public safety concerns, requested a response to his demand letter no later than November 30, 2010.
The Article 78 petition:
Mr. Paskar did not receive a response to his letter, and on December 30, 2010 he and Friends commenced the within Article 78 proceeding, against respondent DEC, Peter M. Iwanowicz, the then Deputy Commissioner of DSNY, and the DSNY. Petitioners allege that the DSNY is disregarding the FAA's recommendations, and that the ongoing construction of the North Shore MTS without any application for a modified permit is inconsistent with the recommendations in the Evaluation Report. Petitioners allege that DSNY's refused to acknowledge or respond to the November 12, 2010 demand letter and seek a judgment annulling the DEC's denial of the demand letter; (2) declaring that the DEC's refusal to respond to, or take action in response to petitioners' demand letter of November 12, 2010, was arbitrary and capricious, irrational and contrary to law; (3) directing the DEC to revoke or suspend the permit for the North Shore marine transfer station until the New York City Department of Sanitation (DSNY) applies for and receives a modified permit; (4)directing the DEC to treat any proposed application for modification of the permit as an application for a new permit;(5) directing the DEC to require the DOS, in connection with any application for a modified permit, to prepare and present for DEC's approval an engineering study;(6)directing the DEC to convene public hearings in connection with any application for a modified permit; (7)entering a temporary restraining order and preliminary injunction enjoining the DSNY from continuing the construction of the North Shore marine transfer station during the pendency of this proceeding; and (8) awarding petitioners costs, disbursements and attorney's fees.
Respondent DEC's motion and respondent DSNY's cross motion to dismiss the petition:
Respondent DEC asserts that petitioners lack standing to sue, and question the existence of Friends. It is asserted that Friends merely alleges that its members reside in Queens and Manhattan, that they have a direct and immediate interest in aviation public interest safety issues, and live within the zone of danger presented by the MTS. It is asserted that this description is applicable to virtually any resident of New York City who lives, works, or commutes anywhere near LaGuardia Airport, or its flight patterns. It is further asserted that as of February 25, 2011, the records of the Secretary of State is devoid of any evidence of incorporation; that the identity of any single member of this putative organization has not been provided; and that there has been no showing of particularized exposure to direct harm or injury that differentiates this purported organization and its members from the public at large.
With respect to Kenneth Paskar, respondents assert that he has failed to demonstrate that he would suffer direct harm or injury that is in some way different from that of the public at large who fly into or out of LaGuardia Airport, or lives, works, or commutes anywhere near LaGuardia Airport, or its flight patterns.
Petitioners, in opposition, assert that they have sufficiently demonstrated that they have standing to bring this Article 78 proceeding. Mr. Paskar asserts that as a pilot who has piloted many general aviation aircraft into and out of LaGuardia Airport over the last decade, the construction of the North Shore MTS will create significant safety risks that will endanger him every time he uses the airport, and he will suffer an injury that is different from that of the public at large, and from that of someone who occasionally uses the airport for travel. It is asserted that Friends has standing, because Mr. Paskar is its President and a member of the organization, and has been identified as such in his verification of the petition.
To establish standing, an association or organization "must show that at least one of its members would have standing to sue" (New York State Assn. of Nurse Anesthetists v Novello , 2 NY3d 207 , 211, [2004]). In other words, petitioner must show that one or more of its members — as distinct from the general public — has suffered an injury in fact, and must demonstrate that the injury falls within the zone of interests protected by the legal authority being invoked ( Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 771-774, [1991]).
Here, petitioner Friends has failed to demonstrate that it has standing to commence and maintain this action. The petition recites that Friends "is a New York association also being incorporated as a New York non-profit corporation for, among other reasons, the purpose of has addressing public safety issues relating to LaGuardia Airport"[emphasis added]. Since the corporate petitioner Friends was admittedly was not incorporated at the time it commenced this proceeding, it lacks standing to commence and maintain this action. Furthermore, even if Friends was an unincorporated association, or subsequently incorporated, it has not moved for leave to amend the petition.
The petition's sole cause of action is based upon the DEC's failure to respond to Mr. Paskar's demand letter of November 12, 2010. Respondent DEC asserts that it has no obligation to respond to Mr. Paskar's November 12, 2010 letter, as he failed to comply with the requirements of 6 NYCRR § 612.13(b), in that said letter was not sent to the DEC's regional permit administrator for the City of New York. It is further asserted that as Section 612.13(b)does not set forth any time limit for the agency to respond to requests by interested parties, petitioner cannot impose a time limit on the DEC or assert that the failure to respond constituted a denial of his request.
6 NYCRR § 612.13(b)provides that: "The department may consider requests from any interested party for modification, suspension or revocation of permits based on reasons given in paragraphs 621.13(a)(1) through (6) above. Requests must be in writing, contain facts or reasons supporting the request and be sent to the regional permit administrator as listed in section 621.19 of this Part. The department must decide whether the request is justified and the action to be taken in response to the request. A brief response giving the reason(s) for the department's decision must be sent to the party making the request. Rejection of interested party requests for modification, suspension or revocation are not subject to public notice, comment or hearings."
The regional permit administrator for the five boroughs of the City of New York is located at the following address:
"NYS Department of Environmental Conservation, Division of Environmental Permits, One Hunters Point Plaza, 47-40 21st Street Long Island City, NY 11101-5407" ( 6 NYCRR § 621.19).
The documentary evidence submitted herein establishes that Mr. Paskar's November 12, 2010 letter was addressed to Mr. Iwanowicz, the Acting Commissioner of the DEC at an address in Albany, New York, to "Susan Y. Mattei, Regional Director" of the DEC at the Long Island City address, and to John Doherty, the Commissioner of the DSNY. There is no evidence that Ms. Mattei was the regional permit administrator on November 12, 2010. However, the DEC does not claim that its regional permit administrator did not receive the November 12, 2010 letter, and concedes that it intended to reply to said letter. The court, therefore, finds that Mr. Paskar complied with the mailing provisions of 6 NYCRR 612.13(b), and that the DEC is required to respond to his letter of November 12, 2010.
Petitioner Pasker's assertion that the DEC had a 15-day time limit in which it was required to respond to his letter, is rejected. Contrary to petitioner's claims, the court's determination in Patrolman's Benevolent Assoc. of Southampton Town, Inc. v Town of Southampton, ( 2009 NY Slip Op 32660U; 2009 NY Misc. LEXIS 4965), is irrelevant to the issues presented here, and is not binding on this court. The governing regulations do not set any time limit for the DEC to respond to requests made pursuant to 6 NYCRR § 612.13(b). Nor was Mr. Pasker entitled to set a deadline for the DEC's response, or deem the lack of response within his self-imposed deadline to be a denial of his request. Rather, where as here, the regulations fail to set a time period for a response, the DEC will be afforded a reasonable time in which to respond. Although Mr. Pasker has standing to commence an Article 78 proceeding seeking mandamus compelling the DEC to respond to his letter of November 12, 2010, he does not seek such relief in his petition, and does not seek to amend his petition.
Mr. Paskar's contention that the construction of the North Shore MTS poses a greater risk of injury to himself, and therefore he has standing to compel the DEC to revoke or suspend the subject permit, is rejected. The purported risk of injury is no greater for Mr. Paskar, a general aviation pilot, than that of the general public including other pilots, airlines personnel, passengers, and those who live, work or commute in the vicinity of LaGuardia Airport, and its flight paths.
The court further finds that the petition fails to state a cause of action, as the mandamus relief sought is unavailable. A proceeding pursuant to CPLR article 78 in the nature of mandamus is used to compel the performance of a duty which is ministerial in nature and involves no exercise of judgment or discretion (see Matter of Hamptons Hosp. Med. Ctr. v Moore, 52 NY2d 88, 97; Matter of Meyer v Hogan , 84 AD3d 1383 ) A party seeking relief in the nature of mandamus must show a "clear legal right" to that relief ( Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16; Matter of National Equip, Corp. v Ruiz , 19 AD3d 5 , 15). Here, petitioner Paskar seeks to compel the DEC to perform acts that are within the agency's discretion, and thus are not ministerial in nature. In addition, petitioner has not demonstrated a clear right to the relief he seeks, as he was not the permit applicant, nor was not required to act in any manner in connection with the permit. Petitioner, thus, cannot seek to compel the DEC or the DSNY to act in any particular manner in connection with the subject permit.
Although petitioner Paskar claims that he also seeks judicial review of the DEC's failure to respond to his November 12, 2010 demand letter, the petition in essence seeks to have the court review and determine the same arguments raised in the demand letter. However, it is for the DEC, and not the court, to determine, whether a permit issued by said agency should modified, suspended or revoked(see 6 NYCRR 612.13). Therefore, in the absence of any such determination by the DEC, there is nothing for this court to review.
The documentary evidence submitted herein establishes that on February 23, 2011, the DSNY submitted a request to the DEC for minor alterations or the North Shore MTS permit, pursuant to Special Condition 28(b) of said permit, in order to incorporate the FAA/USDA's recommendations into the permit. On April 8, 2011 the DEC granted DSNY's request for said minor modification. The North Shore MTS is presently under construction with an expected completion date of mid-2013, and respondent DSNY states in an affidavit that it is implementing all of the recommendations of the Technical Panel.
On April 8 2011, the DEC responded to Mr. Paskar's November 12, 2010 letter, stating that it had approved the modifications requested by DSNY which incorporated the recommendations of the FAA/USDA into the subject permit. The DEC further stated that none of the issues raised in Paskar's letter, three years after the subject permit was issued, required the DEC to suspend or revoke said permit. Petitioner Paskar's claim that the DEC failed to respond to his November 12, 2010 demand letter, therefore, is now moot.
Petitioner, in opposition to respondents' motion and cross motion to dismiss, argues that the DEC acted arbitrarily and capriciously in determining that minor alterations of the subject permit were appropriate, rather than requiring a formal permit modification, or in the alternative, an application for a new permit. This claim was not alleged in the petition, and petitioner does not seek to amend the petition.
Petitioner, in opposition, also asserts that the court should stay the determination of respondents' motion and cross motion to dismiss the petition, and stay the determination of its petition on the merits, pending the determination of an action commenced by petitioners in federal court on October 29, 2010 challenging the FAA's endorsement of the September 2010 Technical Report, and the determination of a FAA administrative proceeding commenced by Mr. Paskar on February 12, 2011. Petitioner, however, has not moved for a stay, and the court will not engage in speculation regarding the resolution of the federal action and FAA administrative proceeding. Furthermore, the resolution of the federal action and FAA proceeding has no bearing on the issues presently before this court.
In view of the foregoing, respondents' motion and cross motion to dismiss the petition are granted.