Appellate Division Rules on Challenge to Construction of Sand Dunes on a Public Beach

In Agoglia v. Benepe, et al., 2010 WL 4244132, the Appellate Division, Second Department, recently ruled on a challenge to actions of the New York City Department of Parks and Recreation (NYC Parks) and the New York State Department of Environmental Conservation (DEC) relative to the construction in March 1997 of sand dunes at Rockaway Beach, a public beach in Queens.   The petitioner lives adjacent to the beach and, in 2006, had asked NYC Parks to remove the dunes because he objected to the way they were constructed and alleged that they had grown in size, had become a safety hazard and were blocking access to the beach.  NYC Parks responded by sending two letters to petitioner in 2006, stating that DEC had inspected the beach and was in the process of preparing a report.  NYC Parks also stated that no action could be taken on the dunes until a meeting with DEC was held to resolve issues between the agencies and until it reviewed and understood DEC’s report and recommendations. Petitioner then commenced an Article 78 seeking to review NYC Park’s determination not to remove the dunes and to compel NYC parks and DEC to do so.  Petitioner also alleged that the dunes adversely affected property values on nearby streets and asserted a cause of action seeking to abate and recover damages for a public nuisance created by the dunes.  The Supreme Court dismissed, ruling that petitions lacked standing.  Petitioner appealed.

The Second Department reversed the ruling on petitioner’s lack of standing citing, Save the Pine Bush v. Albany, a recent ruling by the Court of Appeals which clarified the standing rules in New York.  The Court also dismissed petitioner’s cause of action against DEC seeking to compel its enforcement of permit regulations on the ground that it involved performance of a duty that is “discretionary, as opposed to ministerial” and, therefore, was inappropriate for “resolution in a judicial arena.”  The Court dismissed petitioner’s cause of action to compel NYC Parks to remove the dunes on the same grounds.  Petitioner also alleged violations by NYC Park of the New York City Charter and permit regulations when it initially constructed the dunes in 1997.  The Appellate Division ruled that this cause of action was time-barred, finding that the agency action was “final and binding” when, at the latest, the dunes were constructed.  

In contrast, the Court ruled that petitioner’s cause of action seeking judicial review of NYC’s Parks’ determination relative to removal of the dunes was premature.  The Court noted that an Article 78 proceeding can be brought only after an agency determination is “final and binding upon petitioner.” The Court made clear that an agency determination is deemed final and binding when the agency has reached a definitive position on an issue that “inflicts actual, concrete injury” and where the injury cannot be “prevented or significantly ameliorated by further administrative action…”   The Court found that neither of the 2006 letters from NYC Parks to the petitioner were final agency action because NYC Parks had not reached a definitive position on whether the dunes should be removed and because the letters clearly indicated that further agency action was forthcoming.  Thus, the Second Department ruled that this part of the petition should be dismissed as not being ripe for judicial review.

Finally, the Court ruled that petitioner sufficiently pled a cause of action seeking to abate and recover damages for a public nuisance.  The Court noted that a public nuisance exists when there is substantial interference with the exercise of a “common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons.”  Moreover, a private action to abate a public nuisance exists only if a petitioner can show that is suffered a “special injury” different in kind (not just in degree) than that suffered by the entire community. The Court upheld the petitioner's public nuisance claim, finding that the petitioner’s allegation that the dunes adversely affected property values on nearby streets was a harm not suffered by the community as large.  In addition, the Court ruled that since the public nuisance is a continuing harm, damages incurred within three years prior to commencing the proceeding are recoverable. 

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