
    The People of the State of New York, Respondent, v Genesee Lime Products, Inc., Appellant.
    Argued October 18, 1988;
    decided November 29, 1988
    APPEARANCES OF COUNSEL
    
      Thomas G. Collins for appellant.
    
      Howard R. Relin, District Attorney (Robert Mastrocola and Alan Cruikshank of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

In 1962, défendant purchased land to mine lime for agricultural purposes, and to that end it obtained an excavation permit from the Town of Wheatland. The town ordinance provided that no excavation was to be made to "a depth which, after the expiration of the permit, cannot be leveled to provide adequate drainage over contiguous land and not allow a pool of water to accumulate.” (Code of Town of Wheatland § 4-4 [A] [2].) Defendant’s first permit expired July 14, 1963, the second December 31, 1963, and the third December 31, 1965; each permit incorporated the town ordinance by reference. Excavation stopped by 1965, but backfilling of portions of the excavated land has continued into the present decade..

In 1975 the Freshwater Wetlands Act (ECL art 24) went into effect. On this appeal it is undisputed that the premises in issue became wetlands subject to the ECL. What is disputed is whether defendant’s continued activity in 1985 of backfilling approximately two to three acres of the excavated land to its prior level constitutes the misdemeanor of altering a freshwater wetland area without a permit from the Department of Environmental Conservation (DEC) (ECL 24-0701 [1]). Defendant was convicted in Justice Court and fined $500, and County Court affirmed.

Defendant’s central argument is that backfilling was authorized by the town excavation permits, and it was therefore exempt from the DEC permit requirement by virtue of the "grandfather clause” contained in ECL 24-1305. That statute provides an exemption for "any land use, improvement or development for which final approval shall have been obtained prior to the effective date of [the Act] from the local governmental authority or authorities having jurisdiction over such land use.” (ECL 24-1305.)

The town excavation permits issued to defendant between 1962 and 1965 do not require or authorize defendant to restore the premises to their original level. There is no provision to be found in the permits, in the town ordinance, or in the record before us that permitees fill back the excavated areas; indeed, in the decades since expiration of the permits the town has never taken any action to compel restoration of the premises. The omission of any provision for backfilling from the pertinent paragraph of the town ordinance (Code of Town of Wheatland § 4-1 [A] [2]) is particularly striking when contrasted with the very next paragraph of the ordinance, dealing with gravel pits. With respect to gravel pits only, the ordinance specifies that the area is to be covered, reseeded and restored to pasture land at the conclusion of the excavation (Code of Town of Wheatland § 4-4 [A] [3]).

Nor can the courts imply the missing authorization. Courts are not free to speculate or assume that backfilling is an expected incident of excavation operations (see, dissenting opn, at 778). Judicial determinations can only be based on the record made by the parties. In this case, the record contains no evidence to support an assumption that backfilling is expected, or that it was contemplated by the ordinance or permits. The record supports only the contrary conclusion.

Similarly, the handwritten notation on one of the permits— "surplus of spoils to be stockpiled and used to fill excavation areas in future” — does not constitute approval for backfilling wetlands. The notation appears on but one of defendant’s three permits; contrary to the dissent (at 777), that permit does not on its face require or even authorize backfilling, but only limits defendant to the use of spoils in the event that there is later backfilling; and it would in any event be unavailing to this defendant, because there is an undisturbed factual finding that it was backfilling the wetlands with offsite material, and therefore violated the permit.

The dissent’s reliance on the intent of the "grandfather clause” to avoid severe hardship (dissenting opn, at 776) also is misplaced here. The "grandfather clause” was motivated by legislative recognition that real injustice could result if approved projects — particularly ongoing construction projects— suddenly had to be halted in midstream because of the new law. Here, however, defendant not only lacked approval for backfilling the wetlands, but also its activity takes place a full 20 years after the expiration of one-year permits. This is not the picture of hardship that gave rise to the "grandfather clause”. Moreover, defendant acknowledged before the trial court that it knew it could have sought a permit for its recent operations from the DEC (see, 6 NYCRR 662.2 [dl; and 663.3 [o]), yet it chose not to do so. Whether or not defendant’s deliberate failure to follow the administrative permit procedure should preclude judicial review — as the DEC urges— defendant cannot be heard to complain of inequity it might have avoided.

Titone, J.

(dissenting). Since one of Genesee’s permits required Genesee "to fill excavation areas in [the] future”, I believe defendant’s backfilling activities obtained "final approval” within the meaning of ECL 24-1305. Therefore, Gene-see’s backfilling activities are exempt from the Freshwater Wetlands Act and, accordingly, I would reverse the order of the County Court and dismiss the charges against defendant.

The Freshwater Wetlands Act (ECL art 24) (the Act) became effective on September 1, 1975, and was enacted to protect and conserve freshwater wetlands. Less than a year later, the Legislature added ECL 24-1305 in order to ameliorate the stringent requirements of the Act as applied to preexisting nonconforming uses. This "grandfather clause” provides that, "[t]he provisions of [the Act] shall not apply to any land use, improvement or development for which final approval shall have been obtained prior to the effective date of [the Act] from the local governmental authority or authorities having jurisdiction over such land use” (ECL 24-1305).

The legislative intent of the "grandfather clause” is clear. It was designed to remedy the gross inequity and severe hardship incurred by owners and developers whose previously authorized and commenced projects suddenly became subject to the requirements of the Act (see, Mem of Assemblyman Lee, 1976 NY Legis Ann, at 212-213; Budget Div Mem, Bill Jacket, L 1976, ch 771; Department of Environmental Conservation Mem, Bill Jacket, L 1976, ch 771). Prior to the enactment of the "grandfather clause”, such individuals were forced to stop their projects, and seek a permit from the Department of Environmental Conservation (see, ECL 24-0701 [1]). Through the enactment of ECL 24-1305, the Legislature has unequivocally exempted from the Act any land use that received final approval from the appropriate local government body prior to September 1, 1975 (see, Matter of Miracle Mile Assocs. v Department of Envtl. Conservation, 98 Misc 2d 519, affd 73 AD2d 807; Dwight Enters., DEC Declaratory Ruling 24-03 [1979]).

Against this backdrop, the sole inquiry is whether Genesee obtained "final approval” by the local government prior to the effective date of the Act. Final approval is defined to include, "the issuance of a building permit or other authorization for the commencement of the use, improvement or development for which such permit or authorization was issued” (ECL 24-1305 [c] [emphasis added]). Through a simple application of the statute to the facts, I believe it is beyond question that Genesee obtained "final approval”, "for the commencement of the use”, prior to the effective date of the Act.

It is undisputed that Genesee obtained three separate permits between 1962 and 1965 from the Town of Wheatland. These excavation permits constitute "final approval” because they authorized Genesee to commence mining for marl prior to the effective date of the Act. When the last permit technically expired on December 31, 1965, Genesee no longer had the authority to continue mining the land for marl. However, one of the permits specifically required Genesee to stockpile surplus spoils so that they could be "used to fill excavation areas in [the] future”. Thus continued backfilling was part of the authorized activity; the expiration date in the permit applied only to the authorization to excavate, not the subsequent reclamation of the land. Further as the language of the permit makes clear, the restoration of Genesee’s property after the expiration of the permit was not just permitted, but required. Therefore, Genesee’s "use”, for which "final approval” was obtained, included restoration of the land in the form of backfilling.

Further support that restoration is contemplated after the expiration of the permits is found in a provision of Wheat-land’s excavation ordinances, which are expressly incorporated into the terms of the permits. One of the ordinances provides that no excavation is to be made to "a depth which, after the expiration of the permit, cannot be leveled to provide adequate drainage over contiguous land and not allow a pool of water to accumulate” (Code of Town of Wheatland § 4-4 [A] [2]; emphasis added). While the majority contrasts this paragraph with an inapplicable paragraph of the town ordinance pertaining to gravel pits (majority mem, at 775), they have ignored the fact that the ordinance also contemplates some kind of activity following the official expiration of the permits. In fact, the activity contemplated is the backfilling for which defendant is being prosecuted. Thus, even though the other two permits are silent on the question of backfilling, there is no reason to assume that Genesee could have excavated the land and then simply walked away leaving large cavities to collect rain water.

In the face of the clear mandate to backfill contained in one of the permits, the majority somehow concludes "[t]here is no provision * * * in the record before us that [excavation] permitees fill back the excavated areas” (majority mem, at 774). To support this view, the majority points to the fact that the town has never taken formal action to compel defendant to backfill. This argument misses the point for two reasons. First, the "grandfather clause” exempts activities which have been permitted by the local authority. The fact that a locality may not be affirmatively requiring the activity has no impact on whether "final approval” has been obtained. Second, the town has never taken formal action to curtail defendant’s operation. Actually, by all indications, the town was aware of the backfilling and approved of it. In fact, in 1978 and 1983, the town granted variances to allow construction on newly filled areas of Genesee’s land. Had the town not approved of Gene-see’s activities, it does not require a great leap of faith to believe that the variances would not have been granted.

The majority also believes defendant should not be allowed to backfill in perpetuity. Although this concern is laudable, the majority’s argument is misplaced. The "grandfather clause” on its face indicates no concern with how long it takes to complete a land use or development given final approval by a local government (see, Dwight Enters., DEC Declaratory Ruling 24-03, at 101 [1979]). Indeed, as stated previously, the "grandfather clause” simply requires that the town permits authorized Genesee to commence its mining prior to the effective date of the Act.

Moreover, the majority has forgotten that the DEC, not the town, has brought this prosecution. The present criminal prosecution should not concern whether Genesee has violated town permits or local ordinances. Such an action, if one exists, should be brought by the Town of Wheatland. It was the town that granted Genesee the prior authorization .to excavate, and it should be the town that decides whether the backfilling is improper or untimely. While the DEC is empowered to monitor wetlands, the “grandfather clause” precludes DEC action in the face of “final approval”. Since Genesee obtained the permits prior to the Act, and one of the permits specifically required Genesee to backfill, Genesee is exempt from the Wetlands Act. That defendant might have sought an additional permit from the DEC (majority mem, at 775-776) is of no legal consequence since the “grandfather clause” does not require such action.

Finally, I am most concerned that the DEC has chosen a criminal prosecution to challenge Genesee’s activities which have been ongoing for more than 20 years. At the very least, a valid question exists concerning the application of the “grandfather clause” to Genesee’s activities. That being so, resolution of the singular legal question involved by subjecting defendant to the stigma of a criminal conviction instead of proceeding civilly or administratively hardly seems appropriate or fair.

For the foregoing reasons, I conclude that Genesee’s backfilling activities fall within the protection of the “grandfather clause”, and I would reverse the order of the County Court and dismiss the charges against defendant.

Chief Judge Wachtler and Judges Kaye, Alexander and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion in which Judges Simons and Hancock, Jr., concur.

Order affirmed in a memorandum. 
      
       Without a DEC permit, ECL 24-0701 prohibits "any form of dumping, filling, or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly” (ECL 24-0701 [2]).
     