Appellate court sides with DEP against Windham developer

Yesterday, a five-judge panel of the state's intermediate appeals court handed a victory to the New York City Department of Environmental Protection in a fight with a Windham landowner over watershed development regulations.

According to the decision, which you can read below, Eagles Landing LLC was planning to develop 50 acres of forested land in a Windham subdivision located in the New York City watershed in 2005.

But just as construction was beginning, a neighbor reported the developer to the DEP for not installing wastewater pollution controls. The neighbor invited a DEP official to inspect the site and gave him access codes to the subdivision's gate.

The DEP issued Eagles Landing a notice of violation of its watershed regulations. Eagles Landing parried with a barrage of applications for stormwater pollution prevention plans. The DEP rejected all of them as incomplete, prompting the developer to challenge the DEP's regulations themselves.

The fight wound up before a state Supreme Court judge in 2008, who sided with the DEP, ruling that there was "reasonable cause to believe [that Eagles Landing had] violated watershed regulations."

Eagles Landing appealed to the Appellate Division of the state Supreme Court, arguing that the DEP was irrationally interpreting its watershed rules and overstepping its authority. (Eagles Landing also argued that by entering the gated development, the DEP inspected its property without a warrant.)

But in their decision issued yesterday, the judges of the Third Judicial Department of the Appellate Division sided with the lower court judge and picked off each of Eagles Landing's arguments one by one:

In our view, given NYCDEP's express authority to promulgate rules and regulations for the protection of the City's water supply and to "enforce the rules and regulations . . . in a manner consistent with applicable" state law ... we cannot conclude that its application of a strict literal interpretation of the regulation as prohibiting modification of slopes greater than 15% without a variance is irrational. Similarly lacking in merit are plaintiff's claims that NYCDEP violated 42 USC § 1983 by issuing the notice of violation without authority, inspecting its property without a search warrant, and depriving it of substantive due process.

Read the decision on the New York State law Reporting Bureau's website.