53 N.Y.2d 537 | NY | 1981
OPINION OF THE COURT
The issue presented in this case is whether the Commissioner of the Department of Environmental Conservation may, by means of an article 78 proceeding, seek review of a determination of the Freshwater Wetlands Appeals Board reversing a determination of his department. A State agency, of course, has only those powers conferred upon it by the Legislature. We conclude today that the Legislature has so empowered the commissioner to challenge an adverse determination of the Freshwater Wetlands Appeals Board.
The Freshwater Wetlands Act (ECL art 24) was promulgated in 1975 to preserve, protect and conserve this State’s freshwater wetlands through regulation of their use and development (ECL 24-0103). Once property has been identified as a freshwater wetland covered by the act, virtually all forms of development are prohibited without first obtaining a permit from the Department of Environmental Conservation. In this case, respondent Meadow Run Development Corporation (Meadow Run) requested the
The commissioner then brought the present article 78 proceeding seeking reinstatement of his determination. After concluding that the commissioner had standing to challenge the determination of the board, Special Term upheld its determination on the merits. On appeal, however, the Appellate Division reversed the order and judgment of Special Term denying respondent board’s motion to dismiss the petition on the ground that the commissioner lacks standing to commence the instant proceeding, and dismissed the petition.
Preliminarily, we note our continued adherence to the principles set forth in Matter of Pooler v Public Serv. Comm. (58 AD2d 940, affd 43 NY2d 750), where it was held that the Executive Director of the State Consumer Protection Board did not have the capacity to commence an article 78 proceeding against the Public Service Commission for judicial review of its order in a rate case. The Appellate Division there noted that although the Legislature had conferred upon the director of the board power to participate in certain rate cases before the commission, it did not confer authority upon the Consumer Protection Board or its director to maintain a suit. This court then affirmed on the memorandum of the Appellate Division.
Respondents now urge that the principles stated in Pooler require a determination in this case that the commissioner is without power to challenge by way of an article 78 proceeding a determination of the Freshwater Wetlands Appeals Board. We cannot agree with this position, for we hold this power is found within the express language of the Freshwater Wetlands Act.
This result is consistent with the general legislative scheme for the protection of this State’s vital freshwater wetlands. It is the responsibility of the Department of Environmental Conservation and of its commissioner to carry out the environmental policy of this State (ECL 3-0301)
Accordingly, the Appellate Division having erroneously determined that the commissioner lacked standing to maintain the present proceeding, the matter should be reversed, with costs, and the matter remitted to the Appellate Division for a determination of the issues not reached by that court.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.
Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.