Opinion
Index No. 900460-23
08-03-2023
In the Matter of the City of New York, Petitioner, v. Richard A. Ball, as Commissioner of Agriculture and Markets of the State of New York, and the NEW YORK STATE DEPARTMENT OF AGRICULTURE AND MARKETS, Respondents, and LA BELLE FARM, INC. and HVFG, LLC d/b/a Hudson Valley Foie Gras, Intervenor-Respondents.
Pease Law, APC Attorneys for Voters for Animal Rights, amicus curiae (Bryan W. Pease, of counsel) Sylvia O. Hinds-Radix, Corporation Counsel Attorney for the City of New York (Aimee Lulich, of counsel) Letitia James, Attorney General Attorney for State Respondents (Matthew J. Gallagher, of counsel) Jessica H. Zafonte, Esq. Attorney for They All Want to Live, Inc., amicus curiae Keane & Beane, P.C. Attorneys for Intervenor-Respondents (Edward J. Phillips, of counsel)
Pease Law, APC Attorneys for Voters for Animal Rights, amicus curiae (Bryan W. Pease, of counsel)
Sylvia O. Hinds-Radix, Corporation Counsel Attorney for the City of New York (Aimee Lulich, of counsel)
Letitia James, Attorney General Attorney for State Respondents (Matthew J. Gallagher, of counsel)
Jessica H. Zafonte, Esq. Attorney for They All Want to Live, Inc., amicus curiae
Keane & Beane, P.C. Attorneys for Intervenor-Respondents (Edward J. Phillips, of counsel)
RICHARD M. PLATKIN JUDGE.
New York City Local Law No. 2019/202 (see Administrative Code of City of NY § 17-1901 et seq. ["Local Law 202"]) prohibits restaurants and food retailers within the City of New York from selling or serving foie gras and other force-fed products.
In this special proceeding brought pursuant to CPLR article 78, petitioner City of New York ("City") challenges the determination of respondents Richard A. Ball, as Commissioner of Agriculture and Markets of the State of New York ("Commissioner"), and the New York State Department of Agriculture and Markets ("Department") (collectively, "State Respondents") that Local Law 202 unreasonably restricts or regulates farming operations within two agricultural districts in Sullivan County in which foie gras is produced, in contravention of Agriculture & Markets Law ("AML") § 305-a.
The State Respondents oppose the petition (see NYSCEF Doc No. 1 ["Petition"]) through an answer. The Petition also is opposed by intervenor-respondents La Belle Farm, Inc. and HVFG, LLC d/b/a Hudson Valley Foie Gras (collectively, "Farms"), the Sullivan County producers of foie gras who initiated the administrative review process under AML § 305-a giving rise to the challenged determination.
Amici curiae Voters for Animal Rights ("VFAR") and They All Want to Live, Inc. ("TAWL") have submitted memoranda of law in support of the Petition.
BACKGROUND
A. Local Law 202
Local Law 202 was adopted on November 25, 2019 (see Petition, ¶ 9; NYSCEF Doc No. 3 [text]).
Local Law 202 was scheduled to "take[] effect 3 years after it [became] law" (NYSCEF Doc No. 3), but its effectiveness was stayed by a preliminary injunction entered in an action brought by the Farms against the City (see La Belle Farm, Inc., et al. v City of New York, Sup Ct, NY County, Index No. 656399/2022, NYSCEF Doc No. 61). That action currently is stayed "pending entry of a final, non-appealable disposition in [this] Proceeding" (id., NYSCEF Doc No. 95).
Under Local Law 202, "[n]o retail food establishment or food service establishment" in the City "shall store, keep, maintain, offer for sale, or sell any force-fed product or food containing a force-fed product" (Administrative Code of City of NY § 17-1902). "Force-feeding" is defined as "the practice of forcing, by any means, food or supplements into the throat or esophagus, crop or stomach of an animal" (id. § 17-1901), and a "force-fed product" is one produced by "force-feeding a bird... with the intent to fatten or enlarge the bird's liver" (id.).
The Petition explains that foie gras is produced by "inserting a foot-long metal or plastic pipe down the... esophagus" of a male goose or duck as young as 8 to 10 weeks (Petition, ¶ 15). "Two to four pounds of grain and fat are forced down the birds' esophagus at least two to three times per day" (id., ¶ 16). "The objective... is to produce a liver ten times the size of a non-force-fed bird" (id., ¶ 18).
B. AML § 305-a
AML § 305-a is part of article 25-AA of the AML ("Article 25-AA"), "a locally-initiated mechanism for the protection and enhancement of New York state's agricultural land as a viable segment of the local and state economies and as an economic and environmental resource of major importance" (AML § 300).
Article 25-AA was enacted in 1971 to implement the State's constitutional policy of "encourag[ing] the development and improvement of its agricultural lands for the production of food and other agricultural products" (NY Const, art XIV, § 4). "[T]he Legislature found that 'many of the agricultural lands in New York state are in jeopardy of being lost for any agricultural purposes' due to local land use regulations inhibiting farming, as well as various other deleterious side effects resulting from the extension of nonagricultural development into farm areas" (Town of Lysander v Hafner, 96 N.Y.2d 558, 563 [2001], quoting AML § 300).
"When nonagricultural development extends into farm areas, competition for limited land resources results. Ordinances inhibiting farming tend to follow, farm taxes rise, and hopes for speculative gains discourage investments in farm improvements, often leading to the idling or conversion of potentially productive agricultural land" (AML § 300). "It is, therefore, the declared policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products... [and] to conserve and protect agricultural lands as valued natural and ecological resources" (id.).
Article 25-AA authorizes a county legislature to establish "an agricultural district within [the] county" (AML § 303 [1]), following a process of public notice, comment and hearing (see id. § 303 [2-9]). Once created and approved by the Commissioner, the farmland and "farm operations" within the "agricultural district" receive various benefits and protections aimed at preserving and improving the lands for agriculture (see Town of Lysander, 96 N.Y.2d at 563).
At issue in this proceeding is AML § 305-a, which limits the powers of local governments "to enact and administer comprehensive plans and local laws, ordinances, rules or regulations" (AML § 305-a [1] [a]). Section 305-a provides that local governments "shall exercise these powers in such manner as may realize the policy and goals set forth in [Article 25-AA], and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of [Article 25-AA] unless it can be shown that the public health or safety is threatened" (id.).
For purposes of AML § 305-a, "farm operations" is defined as "the land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise" (AML § 301 [11]).
"Upon the request of any municipality, farm owner or operator..., the commissioner shall render an opinion to the appropriate local government officials, as to whether farm operations would be unreasonably restricted or regulated by proposed changes in local land use regulations, ordinances or local laws pertaining to agricultural practices and to the appropriate local land use enforcement officials administering local land use regulations, ordinances, or local laws or reviewing a permit pertaining to agricultural practices" (id. § 305-a [1] [b]).
There are no agricultural districts within the City (see Petition, ¶ 40). However, the Farms produce foie gras in two agricultural districts within Sullivan County (see id., ¶ 41).
C. Proceedings Before the State Respondents
The Farms requested review of Local Law 202 under AML § 305-a, claiming that "it was the express intention of the [City] to restrict [the Farms'] practices" through the use of its power as "the largest market for the [Farms'] foie gras products" (NYSCEF Doc No. 16, Attachment 4, at 1-2; see NYSCEF Doc Nos. 17-18; see also Petition, ¶ 42).
By letter dated August 4, 2020, the Department advised the City that, upon initial review, Local Law 202 "appeared to violate 'State agricultural policy and the provisions of AML Article 25-AA'" (Petition, ¶ 43, quoting NYSCEF Doc No. 4 ["Interim Determination"]). Specifically, the Department concluded that the provisions of Local Law 202 "banning the sale or provision of certain 'force-fed' poultry products... violate[] the policy and goals of [Article 25-AA] and unreasonably restrict[]... farm operations" located within an agricultural district, "in possible violation of AML § 305-a (1) (a)" (Interim Determination at 6).
After finding that the City's sales restrictions would "threaten the viability of [the Farms]," the Interim Determination focused on the legislative history of Local Law 202, which "reveals that the City Council both recognized the economic impact of the prohibition of sales on the [Farms] and its use as a tool to either end or change the on-farm feeding practice to which the City objects" (id. at 5). The Interim Determination quotes the sponsor of the local law, who "described as its objective the end of the feeding method used in [foie gras] production because it is 'clearly an inhumane practice'" (id. [citation omitted]). The Interim Determination further recites:
[T]he City's law was adopted as an animal "welfare" measure; and the legislative record indicates that the ban was adopted to end or discourage an animal husbandry practice which the City legislators view as "inhumane." Nothing in the legislative record indicates that [Local Law 202] was intended to address a public health or safety concern (id. at 6).
The Interim Determination concluded by inviting the City to respond "on the issues raised" therein, particularly with any "further documentation and other evidence" showing that the sale of force-fed products in the City poses a threat to public health or safety (id.).
The City responded with an eight-page letter taking the position that Local Law 202 does not fall within the ambit of AML § 305-a, a statute "intended to protect agricultural districts from laws, ordinances, or regulations of the local governments in which the farms are located that impact farm operations" (Petition, ¶ 48 [emphasis added]; see also NYSCEF Doc No. 5 ["City Response"]). The City argued that Local Law 202 does not "have a direct impact" on the Farms' operations in Sullivan County, and it observed that "[t]he law resulted from a policy decision that reflects the research of the City Council and testimony received at its public hearings detailing what it concluded is a cruel and inhumane treatment of birds that are force-fed for the sole purpose of providing a culinary delicacy for human consumption" (City Response at 1-2). The City further argued that the Commissioner's expansive reading of AML § 305-a impinged on the broad home rule powers of local governments (see id. at 7-8).
On December 14, 2022, the Commissioner issued a Final Determination and Order, declaring that Local Law 202 violates AML § 305-a (1) and the policy and goals of Article 25-AA (see NYSCEF Doc No. 6 ["Final Determination"]). The Final Determination was based on an investigation of the materials submitted by the Farms, site visits by Department staff, review of the City Response, and the State Respondents' "review of Local Law 202 and its legislative history" (id. at 2).
At the outset, the Commissioner observed that the City had not challenged the Interim Determination's findings that "(1) the feeding practices of [the Farms] are customary agricultural practices; (2) there are currently no commercially viable alternatives to [force-feeding] to produce foie gras; (3) [the Farms] are in compliance with the laws of New York State; and (4) there are no federal or State prohibitions on the production or sale of the farm products produced by [the Farms] due to their feeding practices" (id.).
The Final Determination recites that "there are no federal or State prohibitions on the production or sale of the farm products produced by [the Farms] due to their feeding practices" (id.), but "California prohibits the in-state sale of products that are 'the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size'" (Association des Éleveurs de Canards et d'Oies du Québec v Bonta, 33 F4th 1107, 1112 [9th Cir 2022], cert denied - U.S. - 143 S.Ct. 2493 [May 22, 2023], quoting West's Ann Cal Health & Safety Code § 25982 [California sales ban, passed in 2004 and became effective on July 1, 2012]). "After nine years of litigation and [a] third set of appeals," the Ninth Circuit held in 2022 that "the sales ban is neither preempted nor unconstitutional" (id.; see also Evolution Fast Food Gen. Partnership v HVFG, LLC, 2017 WL 4516821, *1-2, 2017 U.S. Dist LEXIS 161129, *1-4 [SD NY, Sept. 27, 2017, No. 15 Civ. 6624 (DAB)]).
Next, the Commissioner determined that the Farms' "ability to market their livestock products in the City supports their viability," and "a statute-based sales ban will directly and severely impact their ability to operate" (id.). "Indeed, the very purpose of Local Law 202's denial of access to the City market is to induce [the Farms] to adopt feeding practices that the City deems acceptable, or to force them out of business by rendering them unviable" (id. at 2-3; see also id. at 2 [describing "the City's intent and purpose" in adopting Local Law 202]).
The Commissioner also found that producing foie gras through force-feeding did not threaten the public health or safety (see id. at 2-3). "The only reason proffered for the ban is the City's view that the on-farm animal husbandry practices used to produce foie gras constitute[] animal cruelty" (id. at 3). "The City does not contend that Local Law 202 is designed to address a threat to public health or the safety of anyone residing in the City or elsewhere" (id.). In fact, the Final Determination criticized the City for failing to "address the legislative history surrounding the adoption of Local Law 202" recited in the Interim Determination (id.).
The Commissioner then rejected the City's jurisdictional challenge, concluding that "AML § 305-a (1), by its plain terms, reaches unreasonable local restrictions on farm operations operating in agricultural districts without regard to where the local governments are located" (id. at 4). The Commissioner reasoned that the City's sales ban was an indirect form of regulation that "unreasonably restricts farm operations within agricultural districts from selling into the local government's market. To argue otherwise substantially erodes the State statutory protections afforded to farm operations in agricultural districts from unreasonable local government[] restrictions, whether those restrictions are achieved by direct regulation or a sales ban" (id. at 6).
Finally, the Commissioner was unpersuaded by the City's argument that all reported administrative and judicial decisions under AML § 305-a "involved local laws adopted by governments affecting farms in agricultural districts located within their borders":
... [I]t should come as no surprise that most, if not all, of the Department's AML § 305-a proceedings involving agricultural districts arise out of challenges to laws adopted by jurisdictions with farms operating within agricultural districts. No conclusions can be legitimately drawn from the City's small sample of cases that have little or no relevance to the issues in this proceeding.
What is unusual, however, is the City's effort to use its police powers and business regulatory authority to bar the sale of a lawfully produced farm product - not for reasons of the health, safety, or welfare of its citizens - but to change animal husbandry practices occurring on farms outside its jurisdiction to which it objects. That this issue appears to be one of "first impression" simply indicates that few, if any, local governments have had the desire or the market power to engage in this type of legislative overreach to change conduct beyond its jurisdiction that poses no threat to the health or safety of its residents or visitors (id.).
Having concluded that Local Law 202 "violates Section 305-a (1) of the [AML], and the policy and goals of... Article 25-AA," the Department directed the City to "immediately comply with the provisions of Section 305-a... and not take any action, whether direct or indirect, in the administration of or pursuant to Local Law 202... that would restrict [the Farms'] ability to sell their product in the New York City market due to their on-farm gavage feeding practices" (Final Determination, Order).
D. This Proceeding
The City commenced this CPLR article 78 proceeding on January 13, 2023 (see NYSCEF Doc Nos. 1-11), alleging three causes of action. First, the City contends that Local Law 202 does not "directly restrict or regulate farm operations within an agricultural district" (Petition, ¶ 68). According to the City, the Farms remain free to continue producing foie gras in Sullivan County agricultural districts by force-feeding birds: Local Law 202 merely restricts retail food establishments and food service establishments within the City from selling force-fed products to consumers (see id., ¶¶ 61-62, 73).
Next, the City contends that the Final Determination was rendered in contravention of the Municipal Home Rule Law, which gives broad police powers to local governments (see id., ¶¶ 76-80).
Finally, the City alleges that the Final Determination is arbitrary and capricious. The City alleges, among other things: (i) the legislative history of Local Law 202 includes testimony regarding the adverse health effects of consuming foie gras (see id., ¶ 88); (ii) the Commissioner failed to give adequate consideration to the evidence adduced before the City Council (see id., ¶¶ 89-92); and (iii) there is no basis for finding that the financial impact of the challenged sales restrictions would "'restrict' [the Farms'] 'on-farm practices'" (id., ¶ 93).
On April 19, 2023, the Court granted the Farms' unopposed application to intervene (see NYSCEF Doc No. 62). On the same date, the Court denied VFAR's application to intervene, but granted amicus curiae status to VFAR and agreed to "consider the arguments made in its written submissions..., without allowing it to participate in this proceeding as a party" (NYSCEF Doc No. 63; see also NYSCEF Doc No. 89 [denying reconsideration]). The Court also granted amicus curiae status to TAWL (see NYSCEF Doc No. 88).
Oral argument was held on July 14, 2023, an expedited transcript of the argument was filed on July 18, 2023 (see NYSCEF Doc No. 95 ["Transcript"]), and this Decision, Order & Judgment follows.
DISCUSSION
A. Standard of Review
In reviewing administrative action taken by a government agency, the Court's role is limited to determining whether the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231-232 [1974]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 N.Y.3d 424, 431 [2009], citing Pell, 34 N.Y.2d at 231).
B. Oral Argument / Legislative History of Local Law 202
At oral argument, the focus was on the City's first cause of action, challenging the Commissioner's jurisdiction to supersede Local Law 202 under AML § 305-a.
After a colloquy about the City's position that AML § 305-a is limited to regulations that directly restrict or regulate conduct within agricultural districts, the Court asked the City whether a local law having the purpose and effect of a regulation could be deemed to "restrict or regulate" farming operations within the meaning of AML § 305-a under precedents of the New York Court of Appeals said by respondents to "have similarly considered the practical, indirect effects of legislation in various contexts" (NYSCEF Doc No. 66 ["Farms Opp"] at 18; see Transcript at 14-16).
The City responded that the purpose of Local Law 202 is to prevent City businesses from selling a "luxury item" within the geographic confines of the City that involves "per se, animal cruelty" (Transcript at 17). The Court then asked about the Commissioner's finding that the purpose of the local law "was to either induce the farms to adopt, to change their practice of force feeding or... financially drive them out of business," and whether the City was challenging that aspect of the determination (id.).
The City responded to the latter question in the affirmative, and it began by observing that the State Respondents, "both [in their] interim determination and final determination, quoted from and specifically stated that they considered the legislative history of Local Law 202 and [made] findings based upon quotes from that [history]," but then failed to annex that legislative history to their answers (id.; see NYSCEF Doc Nos. 15-26). Nonetheless, the City maintained that the legislative history of Local Law 202 "is part of the administrative record," given that the State Respondents explicitly relied on it throughout the administrative process (Transcript at 17-18; see Petition ¶ 13 [hyperlinking to the legislative history of Local Law 202]).
VFAR made a similar point in its amicus brief supporting the Petition (see NYSCEF Doc No. 43), complaining that "[r]espondents selectively quote sentence fragments out of context from the legislative record" of Local Law 202, while failing "to submit a complete record for review," including "transcripts of the legislative hearings from which Respondents selectively quote" (id. at 17-18). "Respondents purport to have performed a 'comprehensive review of Local Law 202.' Thus, there is no excuse for Respondents failing to include all facts included in that review - including the full legislative history - in the administrative record" (id. at 19, quoting NYSCEF Doc No. 27 ["State Opp"] at 18).
As to the City Council's intent, the City took the position that Local Law 202 was not intended to regulate conduct within Sullivan County, but rather was an exercise of the City's police power to withdraw local support, including licensure and regulation, for the sale of a luxury item objected to by the City and its residents on moral grounds (see Transcript at 18-19).
Much later in the argument, the Court returned to the legislative history of Local Law 202 in a colloquy with the State Respondents' counsel. After observing that the Final Determination was based on the Commissioner's review of the legislative history of Local Law 202 and the parties were "arguing about what the purpose of the [City's] statute is," the Court asked why "shouldn't it have a record of [that] history" (id. at 49-50).
Counsel to the State Respondents conferred with his clients and reported that the "Court has in the record what was actually considered by the Department" (id. at 50). "The Department did not do a full review of every single part of the legislative history. It did a very concise, directed review of what the purpose of this law was, and what they found was included in their interim determination, as well as their final determination" (id.). "So, those are the portions that they considered and they are in the record to the extent they are in the interim determination and final determination" (id.).
The Court then asked whether it ought to review the legislative record of Local Law 202, given the parties' divergent understandings of the law's purpose(s). Counsel answered that "we would have no problem with it," and referred the Court to a portion of "one of the [City Council] hearings that... the City [or an amicus ]... relied upon... where [the testimony] makes it very clear that the purpose of [Local Law 202] is to affect farming practices" within Sullivan County (id. at 50-51).
However, when the Court inquired whether the State Respondents had any objection to making the legislative history of Local Law 202 part of the record of this special proceeding, counsel declined to consent: "It's not part of the record.... It was not brought up... by the City when they had an opportunity to respond to the interim determination.... We would prefer to stick to exactly what was referenced in the interim determination and the final determination by the agency" (id. at 52).
The City responded that the Final Determination should be annulled as arbitrary and capricious based on the undisclosed failure of the State Respondents to undertake a meaningful examination of the legislative history of Local Law 202:
Given that the State has now indicated that they did not, in fact, review the legislative record of the Local Law, I believe that the City is learning that for the first time now.
Both in the interim determination and the final determination they stated that they have reviewed it and they have quoted from it.
So, the City believes that at this point the fact that they did not review the entire record... would be a ground to find that this is arbitrary and capricious and remand for full development of the record considering the legislative history of Local Law 202.
There was no reason the City should know based on the statements in the interim determination that the Department of Agriculture and Markets was not reviewing the legislative record. They said they were (id. at 54-55).
The State Respondents invoked exhaustion and/or preservation principles in opposition: "The City was invited to respond to the interim [determination]... and they were invited to provide any information that they thought would be relevant to the investigation and ultimately to the State's determination" (id. at 59). "No response was given by the City" (id.). "Nothing regarding the legislative history that they wanted to highlight" (id. at 60).
C. Analysis
The Interim Determination expressly relied on the "legislative history" of Local Law 202 in finding "that the City Council both recognized the economic impact of the prohibition of sales on the [Farms] and its use as a tool to either end or change the on-farm feeding practice to which the City objects" (Interim Determination at 5). As support, the Interim Determination referred to and briefly quoted from two pages of legislative history, in which the sponsor "described as [the bill's] objective the end of the feeding method used in [foie gras] production because it is 'clearly an inhumane practice'" (id. [citation omitted]).
The Interim Determination also relied on legislative history in determining that Local Law 202 did not fall within AML § 305-a's exception for threats to public health or safety. According to the State Respondents:" Nothing in the legislative record indicates that [Local Law 202] was intended to address a public health or safety concern" (id. at 6 [emphasis added]).
The Interim Determination gave no indication that the Department's examination of the legislative record of Local Law 202 was limited to the two brief quotes appearing therein. And by stating that "[n]othing in the legislative record" supported a health or safety rationale for Local Law 202 (id.), the Interim Determination affirmatively created the appearance that a comprehensive review of the legislative history had been conducted.
The Final Determination similarly recited that it was based on "review of Local Law 202 and its legislative history" (Final Determination at 2), and the State Respondents relied on that "review" in finding that the "very purpose of Local Law 202's denial of access to the City market is to induce [the Farms] to adopt feeding practices that the City deems acceptable, or to force them out of business" (id. at 2-3). Legislative history also informed the Commissioner's determination that Local Law 202 had not been adopted by the City to address a threat to public health or safety (see id. at 3-4).
Notwithstanding the foregoing, the State Respondents disclosed at oral argument that they had not reviewed the legislative history of Local Law 202, beyond the two brief quotations in the Interim Determination, which are partially reiterated in the Final Determination.
Although the text of AML § 305-a did not explicitly require the State Respondents to review the legislative history of Local Law 202, the parties agree that it was proper for the State Respondents to have considered that history in determining whether the City's local law unreasonably restricts or regulates farming operations within Sullivan County agricultural districts for reasons other than a threat to public health or safety (see AML § 305-a [a] [1]).
But having exercised their discretion to consider the legislative history of Local Law 202 in applying AML § 305-a, the State Respondents were obliged to conduct a meaningful review of that history. The Final Determination is arbitrary and capricious because its findings are based on a review of legislative history confined to two brief quotes culled from a voluminous legislative record.
VFAR attempted to put into the record of this special proceeding more than 1,600 pages of the legislative history of Local Law 202 (see NYSCEF Doc Nos. 39-42), to which the Farms responded that VFAR's materials "represent an incomplete presentation of the public hearing record, as they do not include committee reports or written comments" (Farms Opp at 25 n 5 [emphasis added]).
In fact, the Final Determination criticized the City's construction of AML § 305-a for the very same error of construing a statute by relying on "selective[] cites [to] portions of the legislative history" (Final Determination at 4).
And the Farms leveled the same criticism at the City's reading of the legislative history of Local Law 202:
The public hearing record is replete with statements by City Councilmembers championing the proposed law as an animal rights measure. None of the committee reports prepared in connection with Local Law 202 mentions public health as a legislative goal. Against this record, neither of the isolated citations proffered by the City (City Br. p. 22) can be afforded any weight in determining legislative intent. See Kuzmich v. 50 Murray St. Acquisition LLC, 34 N.Y.3d 84, 94 (2019) (' [T]he isolated statements of... individual legislators... contained within the legislative history cannot establish legislative intent') (citation omitted) (Farms Opp at 25 [emphasis added]).
Finally, considering the unusual circumstances presented here, the Court finds respondents' invocation of exhaustion and/or preservation principles to be unavailing.
The Interim Determination gave the City every indication that the State Respondents had undertaken a comprehensive review of the legislative history of Local Law 202, and the Court is unconvinced by respondents' argument to the contrary - that "at no point in time did [the State Respondents] say that they reviewed the entire legislative history. They said they reviewed the legislative history" (Transcript at 61 [emphasis added]).
Even in their written submissions in opposition to the Petition, the State Respondents represented that they "reviewed... the legislative history of Local Law 202" (State Opp at 8) and conducted a "comprehensive review of Local Law 202" (id. at 15) - clearly creating the impression that a meaningful examination had been conducted.
As the State Respondents correctly observe, "allowing a party to raise issues for the first time in an Article 78 proceeding deprives an agency [of] the opportunity to prepare a record reflective of its expertise and judgment," and "those challenging agency action... cannot offer proof outside the administrative record upon which the findings are based" (id. at 19 [internal quotation marks and citations omitted]; see Matter of Coalition of Concerned Citizens v New York State Bd. on Elec. Generation Siting & the Envt., 199 A.D.3d 1310, 1314 [4th Dept 2021], appeal dismissed 37 N.Y.3d 1168 [2022]).
But given the misimpression created by the Interim Determination, which was carried forward into the Final Determination and even the briefing of this matter, the City had no reason to believe that the full legislative history of Local Law 202 was" further documentation" or" other evidence" (Interim Determination, p. 6 [emphasis added]) that needed to be submitted to the Department for incorporation into the administrative record.
It also bears emphasis that the State Respondents' reliance on legislative history is woven throughout their determination that Local Law 202 unreasonably restricts or regulates farm operations within agricultural districts for reasons other than a threat to public health or safety, a determination to which the City did object. The legislative purpose of Local Law 202 also may be implicated by respondents' arguments and authorities concerning indirect regulation (see Transcript at 15-16).
In the Court's view, the public interest would not be served by attempting to adjudicate the merits of the novel and important issues raised by the Petition based on an understanding of legislative history formed solely by review of two brief quotations drawn from a multi-thousand page record. Thus, insofar as the issue is one of preservation, the interests of justice warrant review of the "questions of legislative intent" raised by the City (Matter of Woodin v Lane, 119 A.D.2d 969, 970 [3d Dept 1986]; see also Petition, ¶¶ 88-92).
Based on the foregoing, the Final Determination must be annulled as arbitrary and capricious, and the Farms' applications under AML § 305-a (see NYSCEF Doc Nos. 16, 18) remitted to the State Respondents for further proceedings not inconsistent herewith.
CONCLUSION
Based on the foregoing, it is
ORDERED and ADJUDGED that the Petition is granted, the Final Determination is annulled as arbitrary and capricious, and the Farms' applications under AML § 305-a (see NYSCEF Doc Nos. 16, 18) are remitted to the State Respondents for further proceedings not inconsistent herewith.
This constitutes the Decision, Order & Judgment of the Court, the original of which is being uploaded to NYSCEF for entry by the Albany County Clerk. Upon such entry, counsel for the City shall promptly serve notice of entry upon all parties entitled thereto.