3 No. 114
In the Matter of Louise Zaccaro,
as Executor of the Estate of
Frank Zaccaro,
Appellant, v. John P. Cahill, as Commissioner
of Environmental Conservation,
Respondent.
2003 NY Int. 115
October 21, 2003
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Stephen R. Angel, for appellant. Peter Lehner, for respondent.
READ, J.:
The principal issue in this appeal is whether due
process requires actual notice before the New York State
Department of Environmental Conservation (DEC) designates a
landowner's property as a wetland and places it on a freshwater
wetlands map. We hold that actual notice is not required so long
as DEC complies with the statutory notice provisions of ECL 24-
0301(4) and (5), which are reasonably calculated to inform
affected landowners that their property is located in a protected
wetland. We further conclude that substantial evidence supports
the DEC Commissioner's determination that DEC complied with these
statutory notice provisions in the facts of this case. I. In 1975, the Legislature enacted the Freshwater
Wetlands Act (ECL art 24), which protects the State's freshwater
wetlands by prohibiting landowners from engaging in certain
activities on property designated as a wetland unless they first
obtain a permit from DEC (ECL art 24, tit 7). To this end, the
Act authorizes the Commissioner to prepare a freshwater wetlands
map which, once finalized, identifies those properties subject to
the Act's regulatory scheme (ECL 24-0301). In the interim period
between the Act's effective date (September 1, 1975) and final
mapping, all wetlands were already subject to DEC's jurisdiction
( Matter of Wedinger v Goldberger, , 71 NY2d 428, 439 [1988]). Mapping is carried out in two stages: first, DEC
develops a tentative map, subject to a public hearing at which
additions or deletions may be proposed, which is followed by a
final map (ECL 24-0301). DEC must provide written notice of the
public hearing to "each owner of record as shown on the latest
completed tax assessment rolls, of lands designated as such
wetlands as shown on [the tentative] map"[1]
and to the affected
local governments, and it must cause notice of the public hearing
to be published in two local newspapers at least once (ECL 24-
0301[4]). Second, after the public hearing, DEC must promulgate
the final wetlands map by order, and again give notice to "each
owner of lands, as shown on the latest completed tax assessment
rolls, designated as such wetlands" and to the affected local
governments by mailing a copy of the order, and it must cause the
order's publication in local newspapers (ECL 24-0103[5]). DEC
must also file the final map in the office of the clerk of
affected local governments. As we have previously recognized, the Act's mandate to
map wetlands statewide presented DEC with a "formidable task"
( Wedinger, 71 NY2d at 436). In Columbia County alone, DEC
devoted considerable resources throughout the early 1980's to the
mapping enterprise. DEC staff examined aerial photographs of the
entire county to identify potential wetlands. Field checks were
performed to verify whether the areas preliminarily identified
from the photographs were actually wetlands. Then the boundaries
of field-verified wetlands were transferred from the photographs
to small-scale ground maps. These maps became the tentative
freshwater wetlands maps for purposes of notification of the
public hearing. While the Act directs DEC to notify landowners "as
shown on the latest completed tax assessment rolls," it does not
instruct DEC how to find out which landowners listed on the tax
assessment rolls are the owners of lands identified as wetlands
on the tentative wetlands maps. To bridge this gap between the
tentative maps and the tax rolls, DEC staff compared the
tentative maps to Columbia County's tax maps in order to find the
block and lot number of parcels affected by the mapping, and DEC
then notified the owners of those parcels as their names and
addresses appeared on the most recent tax assessment roll. This method of identifying affected landowners is not
foolproof. Tax maps are only updated every four to five years.
Tax rolls are also outdated to the extent they reflect the owners
of parcels at the end of the year preceding the tax bill, and do
not contain information concerning title changes occurring mid-
year. In addition, the information in the tax maps or tax rolls
may be incomplete or inaccurate, as was the case here. Decedent Frank Zaccaro[2]
and his predecessor in title,
Joseph A. Lauri (a relative), owned property in the wetlands
mapping area, and their names and addresses were accurately
listed on the tax assessment roll during the relevant time
periods. Nonetheless, Mr. Lauri did not receive actual notice of
the tentative map and public hearing, and decedent did not
receive actual notice of the final map. Neither decedent nor his predecessor was actually
notified because the tax maps did not show their parcel in the
correct location. Specifically, the wetland at issue, "H-12,"
was located in the area depicted on tax map 143. Decedent's
parcel was shown on tax map 133, not tax map 143. Accordingly,
he was listed on the tax assessment roll as the owner of a parcel
located on tax map 133,[3]
which apparently depicts the area just
north of the area depicted on tax map 143. In 1997, 12 years after the final freshwater wetlands
map for Columbia County was promulgated and filed, decedent was
charged with violating the Act by engaging in numerous prohibited
activities on his land without a permit. After an administrative
hearing, at which decedent asserted the defense of lack of actual
notice, the Commissioner sustained certain of the charges. He
ordered decedent to implement remedial measures aimed at
restoring the wetland, and imposed a penalty of $8,000, $6,000 of
which was to be forgiven if decedent completed the remedy within
60 days of the order's receipt. Decedent commenced a CPLR article 78 proceeding in
Supreme Court to challenge the Commissioner's determination.
Upon transfer of the proceeding, the Appellate Division confirmed
the determination and dismissed decedent's petition (298 AD3d 671
3d Dept [2002]). On this appeal pursuant to CPLR 5601(b) 1),
appellant argues that DEC violated decedent's constitutional and
statutory rights to actual notice of the wetland mapping because
of its reliance on inaccurate tax maps and, in light of the
absence of actual notice, DEC should be limited to prospective
regulation of the property. II.
The general rule concerning the due process rights of
property owners derives from Mullane v Central Hanover Bank &
Trust Co. (339 US 306, 314 [1950]). There, the United States
Supreme Court reaffirmed that prior to taking action affecting
life, liberty or property, the government must give "notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections." Later, in Mennonite
Bd. of Missions v Adams (462 US 791 [1983]), the Supreme Court
applied this principle to an action concerning land, and held
that notice by publication alone was insufficient to protect the
due process rights of a mortgagee. Rather, a mortgagee who was
"reasonably identifiable" was entitled to actual notice, by mail
at the mortgagee's last known address or through personal service
( id. at 798). While we have not considered the notice provisions
of the Freshwater Wetlands Act in light of these principles, we
have applied them in other contexts involving real property,
including tax liens and special assessments.
In Congregation Yetev Lev D'Satmar, Inc. v County of
Sullivan (59 2 418 [1983]), the assessor mailed notice of a
tax sale to the last record owner of the land. Accordingly, a
property owner who had obtained title by adverse possession did
not receive actual notice of the sale. We found that due process
"requires the assessor to give personal notice to all parties
readily ascertainable who have a substantial interest in the
property and the assessor is charged with knowledge of facts
which an examination of the real property and tax records
reveals" ( id. at 425, citing Mennonite Bd. of Missions).
Constructive notice was acceptable in this circumstance because
the address of the owner by adverse possession was not
"reasonably identifiable," and the assessor was not required to
undertake "extraordinary efforts" to discover the claim of
adverse possession ( id. at 426). In Matter of McCann v Scaduto (, 71 NY2d 164 [1987]), we
expanded our holding in Congregation. In McCann, property owners
challenged a local law concerning tax lien sales, which provided
that publication in a "newspaper of general circulation" was all
that was required ( id. at 170). Reaffirming Congregation, we
held that "where the interest of a property owner will be
substantially affected by an act of government, and where the
owner's name and address are known, due process requires that
actual notice be given" ( McCann, 71 NY2d at 176). We noted the
importance of this rule given that "the [tax] sales create
immediate, substantial adverse consequences for the property
owner" ( id.). We next addressed the due process rights of property
owners in Matter of ISCA Enters. v City of New York (77 2 688,
699 [1991]), holding that "notice by mail is a constitutional
precondition to a proceeding that will adversely affect the
property interest of any party whose name and address are
reasonably ascertainable." There, property owners had challenged
the constitutionality of a New York City Code provision, which
required publication; mail notification to all owners, mortgagees
and lienors who had filed "owner's registration" cards (the list
used for generating tax bills); and mail notification to those
listed on the latest annual record of assessed valuations. The
property owners claimed that they had not received actual notice
of the tax delinquencies because their addresses were not up to
date on the latest annual record of assessed valuations. We concluded that while notice by publication alone
would be inadequate, the Code provision satisfied the minimum
requirements of due process. In finding that the petitioners had
received all the process that was their due, we balanced the
needs of the government with the rights of property owners. We
rejected plaintiffs' request that the City be required to search
all property tax records to locate actual affected parties
because such an effort would "impose a very substantial burden on
the City" ( id. at 701). While the burden did not excuse the City
from meeting its notice requirements, it was a valid
consideration when assessing the reasonableness of the City's
actions. Moreover, a search of the public records would not have
yielded the addresses of the property owners, who themselves had
some obligation to maintain their records with the City for tax
billing purposes. We next considered the due process rights of property
owners in Garden Homes Woodlands Co. v Town of Dover (95 2 516
[2000]). There, a town board imposed a special assessment on
property owners and provided notice only by publication, as
required in the town law. We found that the special assessment
"substantially affected" the property owner's interest in the
land, and that publication alone was insufficient notice:
without notice of the hearing, a property owner could not
challenge the special assessment, and a failure to challenge the
assessment would result in imposition of a lien on the land ( id.
at 520). Thus, Garden Homes instructs that special assessments,
like tax liens, substantially affect the rights of property
owners. Most recently, in Kennedy v Mossafa (, 100 NY2d 1
[2003]), we reaffirmed that due process is a flexible concept
that requires balancing of the owner's interests against the
government's interests. In Kennedy, the town sent the property
owner's tax bill to the address in the tax roll. The owner
claimed that she did not receive the notice because she had
moved. She also claimed that she had notified the town of her
new address, but that the town had neglected to update its tax
rolls. The owner failed to pay the bill, and the property
ultimately was sold in a delinquency proceeding. In holding that the procedures used by the town
satisfied due process, we observed that the reasonableness of the
town's actions had to be looked at in light of the property
owner's actions, and that the property owner bore some
responsibility for keeping her address up to date with the town.
Further, the property owner had paid other tax bills sent to the
allegedly wrong address, and at least one of these tax bills
disclosed the delinquent taxes. Thus, Kennedy teaches that
actual notice is not always required, and that the key
consideration is whether the notification procedures employed are
reasonable in view of all the circumstances. Thus, the issue here is whether the notification
provisions of ECL 24-0301(4) and (5) -- as carried out by DEC in
this case -- were "reasonably calculated" to provide decedent
with notice that his property was within the boundaries of
wetland H-12. To determine reasonableness, we must first decide
whether the wetlands mapping "substantially affect[ed]"
decedent's interests and if so, whether his identity as an
affected landowner was "reasonably ascertainable."
Designation on a wetlands map substantially affects the
landowner's rights by restricting the property's use.
Nonetheless, this designation is considerably less intrusive than
is the filing of a tax lien ( see Wedinger, 71 NY2d at 439
[holding that designation as wetland does not amount to a taking
as a property owner may still develop land subject to an
administrative permit]). Here, decedent's identity as an affected landowner was
not reasonably ascertainable from the tax assessment roll. As
previously discussed, DEC was required to draft maps of wetlands
and then to relate the wetlands represented on these draft maps
to the tax assessment roll. DEC reasonably relied on the county
tax maps to identify the block and lot number of the parcels
affected by the wetland mapping as a means to cull from the tax
assessment roll the names and addresses of those landowners to be
notified. As was the case in Kennedy, the error was in
decedent's parcel number. Accordingly, there is no reason to
suspect that a search of public records would have identified him
as the owner of property within the boundaries of wetland H-12.
DEC was not required, as appellant suggests, to hire a surveyor
or title searcher to satisfy due process. Moreover, DEC did not disregard the statutory notice
provisions in ECL 24-0301(4) and (5) by virtue of its use of tax
maps in addition to the tax assessment roll. Again, the tax
assessment roll alone was insufficient to identify the owners of
properties within the boundaries of tentatively mapped wetlands.
Article 24 provides no direction on how to connect such a wetland
to a property owner listed in the tax assessment roll, and DEC
used the tax maps as a reasonable way to accomplish the linkage.
Indeed, tax maps are intended to be integrated with tax
assessment rolls (see RPTL 502[2] [providing that a parcel's
"lot, block and section number or other identification numbers"
on an approved map "shall be deemed a sufficient description of
such parcel" on the tax assessment roll]). In summary, DEC mailed notices to all the potentially
affected landowners who could be identified from the tax
assessment roll, and published notice of the tentative and final
wetlands maps in local papers. In so doing, the requirements of
due process and of ECL 24-0301(4) and (5) were met
notwithstanding the absence of actual notice to decedent. Finally, appellant argues that DEC may not
"retroactively" regulate the property because decedent did not
receive actual notice that his land was on the wetlands map until
1997. We need not address this argument, which conflates notice
and jurisdiction, because it presupposes a failure to comply with
constitutional and statutory notice requirements, a claim that we
have rejected. Accordingly, the judgment of the Appellate Division
should be affirmed, without costs.
Footnotes
1 Prior to 1977, the Act only required notice to the "owner of record."
A 1977 amendment (L 1977, ch 654) added the language "as shown on the latest
completed tax assessment rolls."
2 Mr. Zaccaro died during the pendency of this appeal. The Appellate
Division substituted his executor, Louise Zaccaro, as petitioner-appellant.
3 In the administrative proceedings below, Mr. Lauri submitted copies of
the property tax bills for the land in question for the years 1981-1986, 1988,
1990-1991 and 1994-1998. The tax bills for 1981-1986 identify the property as
30 acres located at block 2, lot 57 of tax map 133; the later tax bills
identify the property as 28.30 acres located at block 1, lot 39 of tax map
143. Each of these tax bills describes the property as bounded by State Route
23 and lists the same neighboring property owners. There was no lot 39 on the
1978 and 1984 versions of tax map 143 examined by DEC staff.