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Zaccaro v. Cahill, 2003 N.Y. Int. 0115 (Oct 21, 2003).




Whether the statutory notification provisions of the Freshwater Wetlands Act satisfied Appellant's due process rights where Appellant did not receive actual notice before the New York State Department of Environmental Conservation designated his property as a wetland.


Yes. While Appellant did not receive actual notice from the Department of Environmental Conservation that his property had been designated a wetland, the methods used were reasonably calculated to provide notice and therefore satisfied the requirements of due process.


The Freshwater Wetlands Act ("FWA"), ECL Art. 24, authorizes the Commissioner of the New York State Department of Environmental Conservation ("DEC") to prepare a freshwater wetlands map that identifies properties subject to the FWA's regulatory scheme, potentially restricting the owner's usage of the land. Under ECL Art. 24-0301, the DEC must provide written notice of a public hearing after developing both a tentative and final map of potential wetlands, and must publish this notice in at least two newspapers. Appellant's land was designated as a wetland by the DEC. The written notice, sent to each owner of record as shown on the latest completed tax assessment rolls, did not reach Appellant due to an error in the tax maps. Appellant was charged with engaging in prohibited activities on his land without a permit. Appellant commenced a CPLR Art. 78 proceeding to challenge the Commissioner's determination, where he unsuccessfully argued that actual notice was necessary. The Appellate Division confirmed the determination. Before the Court, Appellant contended that the DEC should only have prospective regulation of the property due to the faulty notice. The Court acknowledged that the DEC's methods were not successful in this case, but affirmed the holding of the Appellate Division.

Following Mullane v. Central Hanover Bank & Trust Co., 339 US 306 (1950), the Court stated that notice must be reasonably calculated under the circumstances to alert property owners that government action might affect their property. After discussing the history of their decisions regarding the due process rights of property owners, the Court also reaffirmed its most recent holding that "due process is a flexible concept that requires balancing the owner's interests against the government's interests." Kennedy v. Mossafa, 100 N.Y.2d 1 (2003). Thus, actual notice is not necessary if the notice provisions of ECL Art. 24-0301(4) and (5) were "reasonably calculated" to provide Appellant with notice that his property had been designated a wetland. In determining reasonableness, the Court looked to whether the mapping "substantially affected" Appellant's interests, and, if so, whether Appellant's identity was "reasonably ascertainable." While the wetlands map did substantially affect Appellant's property, Appellant's identity was not reasonably ascertainable from the tax assessment roll, on which DEC reasonably relied. As in Kennedy, the error was in the tax map, not in DEC's actions, which complied with the statutory notice provisions of ECL Art. 24-0301(4) and (5).Therefore, the Court affirmed the decision of the Appellate Division.

Prepared by the liibulletin-ny editorial board.