Petition pursuant to CPLR art 78 for a writ in the nature of certiorari to review a determination of respondent Adirondack Park Agency (hereinafter APA), dated February 22, 2021, which found petitioners to be in violation of Executive Law §806, required remediation and imposed penalties (see CPLR 408, 409 [b]; 410, 7804 [a], [g], [h]). Petitioners are the owners of a certain 0.24-acre parcel of land that is located in the Hamlet land use area on Kibler Point Road in the Town of Wells, Hamilton County, New York. The parcel has shoreline on Lake Algonquin and is thus subject to the shoreline restrictions of Executive Law §806. Thereunder, a variance from the APA is required for construction of a structure greater than 100 square feet within 50 feet of the mean high-water mark, referred to as the shoreline setback (see Executive Law §806 [1] [a] [2]). In July 2017 petitioners submitted a jurisdictional inquiry form to the APA seeking a determination of whether their proposed construction of a single-family home on the parcel would require a variance or permit. As the proposed structure did not encroach on the shoreline setback, the APA determined that no variance or permit was required. Thereafter, petitioners’ surveyor staked out a footprint for the proposed structure, and petitioners applied for a building permit. Although willing to issue the building permit, the Town of Wells expressed concern to petitioners about the proximity of the proposed structure to Kibler Point Road and urged them to relocate it, if possible. In an effort to do so, petitioners contacted the APA to inquire about applying for a variance allowing them to locate the structure partially within the setback. This prompted a preapplication site visit in which the APA sent an engineer and enforcement officer to inspect the site and see if the footprint of the structure could be relocated to move it further from the road without encroaching on the shoreline setback. The APA states that staff arrived at the site to find that petitioners had staked out a footprint for the structure that was partially within the setback, measured the dimensions of the footprint and staked out a new location for the structure, of the same dimensions, that would remove it from the setback and keep it further from Kibler Point Road. The APA further states that staff then advised petitioners that building entirely within the footprint that they had flagged, which bordered on the setback line, would not require a variance, but warned them that any deck to be built on the shoreline side of the structure would encroach on the setback and require a variance. Petitioners claim that APA staff staked out locations for both the single-family home and deck portions of the structure, the deck encroached upon the setback as staked by APA staff, and APA staff knew this because they had also determined the mean high-water mark and flagged the setback line 50 feet beyond that. Petitioners further claim that APA staff told them that there was “leeway” with the deck encroachment such that, as flagged, the project would not require a variance notwithstanding the encroachment, but nonetheless asked petitioners to reduce the size of the deck to reduce the encroachment, which they did. Petitioners then obtained their building permit and commenced construction. The APA thereafter received a complaint alleging that petitioners were building a singlefamily home within the shoreline setback. Staff therefore conducted a second visit to the site to investigate the complaint. They found that construction of a foundation for the single-family home had begun approximately within the footprint that staff had staked out in the prior visit. Thus, no violation was found and the matter was closed. The APA claims that staff again reminded petitioners that attaching a deck to the shoreline side of the structure would require a variance. Petitioners claim that APA staff said nothing of a need for a variance for the construction of a deck, even though footings for the deck were already in place within the setback, consistent with the location that petitioners claim staff had staked out in the prior visit. The APA later received a second complaint regarding petitioners’ property, in which it was alleged that they were building a deck within the shoreline setback. Upon APA staff’s ensuing third visit to the site, they found that a deck approximately 336 square feet in size had been attached to the shoreline side of the single-family home, located mostly within the shoreline setback. Petitioners had not obtained a variance. The parties thereafter discussed the APA’s proposed settlement of the apparent violation, but such was ultimately not acceptable to petitioners. The APA therefore referred the matter to its enforcement committee (hereinafter “the committee”) and petitioners were served with a notice of apparent violation (see 9 NYCRR 581-2.1, 581-2.6 [b]). Petitioners filed a response in which they claimed, among other things, that the APA should be estopped from enforcing Executive Law §806 because petitioners detrimentally relied on the representations that petitioners claim the APA staff members made to them regarding the location of the deck and the need for a variance. The matter proceeded to enforcement proceedings that were attended by counsel for the APA, petitioner Jay Cotazino, Jr. (hereinafter Cotazino when referred to individually) and petitioners’ counsel, in which they each offered presentations to the committee that submitted their respective positions as summarized above. The committee determined that petitioners had violated the shoreline setback restriction of Executive Law §806, ordered petitioners to remove the deck and imposed a civil penalty. Petitioners then commenced this proceeding pursuant to CPLR art 78 for review of the APA’s determination, seeking a declaration that the APA’s actions and determination were in violation of lawful procedure, and arbitrary and capricious. Specifically, they claim that APA staff was not legally authorized to re-site petitioners’ house and deck, the enforcement proceedings should have been in the form of an evidentiary hearing and petitioners’ rights to due process of law were therefore violated, the APA’s determination was irrational for failing to credit Cotazino’s statements over those presented in the affidavits of the APA staff members that were submitted in support of the violation, and the APA should be equitably estopped from enforcing the shoreline setback provision against petitioners because they were the sole cause of the violation. They alternatively seek vacatur of the APA’s determination and remittal to the committee for a full evidentiary hearing. The APA joined issue by the filing of an answer, a memorandum of law, and a certified administrative record comprised of 299 pages of documents and an audio/video recording of the entire enforcement committee proceeding. This court thereafter denied petitioners subsequent motion for full discovery pursuant to CPLR 408 and a plenary trial of the issues presented herein. Oral argument on the petition was held on September 21, 2021. Upon the court’s review of the verified petition and the exhibits attached thereto; the verified answer and the exhibits attached thereto; the affirmation of petitioners’ counsel in support of the motion; the affirmation of the APA’s counsel in opposition to the motion; a memorandum of law in opposition to the petition; and the certified administrative record, including the audio/video recording of the APA enforcement committee proceedings; and a reply memorandum of law in further support of the petition; the court having heard oral argument on the petition; and the court having duly deliberated upon all the foregoing, decision is hereby rendered as follows. The only issues that may be raised in a CPLR art 78 proceeding are, as relevant here, “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see Matter of Dugan v. Liggan, 121 AD3d 1471, 1473 [3d Dept 2014]). Thus, petitioners’ claims here distill to whether APA staff’s re-siting petitioners’ planned structure was in violation of lawful procedure; whether the enforcement proceedings were conducted in violation of lawful procedure; and whether the APA’s determination that a violation of Executive Law §806 occurred — which necessarily entailed crediting the APA staff affidavits over Cotazino’s affidavit and statement and rejecting petitioners’ equitable estoppel defense — was irrational. Petitioners assert that APA staff’s re-siting was a violation of lawful procedure in the absence of any statute, regulation or written policy authorizing the agency to so act. The APA observes that this argument was not presented to the committee and claims that it is therefore unpreserved. It also points to information contained in its shoreline restriction variance application as its written statement of policy. Petitioners counter that this information is not properly before the court since it was presented for the first time, not at the enforcement proceeding, but in an affidavit from one of the APA staff members who re-sited petitioners’ proposed building footprint that was filed with the APA’s answer. Indeed, petitioners assert that this and another such answering affidavit should not be considered by the court because they contain information that was relevant to the issues presented for the committee’s consideration but not submitted to the committee during the enforcement proceeding. Initially, the court agrees that, to the extent that the facts recited in the answering affidavits go beyond the mere illumination of the materials that are contained within the certified administrative record, they should not be considered. However, the court has considered the affidavits to the extent that they serve this proper purpose, and in response to the petitioners’ argument against the legality of APA staff’s re-siting, as such was also not presented to the committee. An argument not raised before an agency in an administrative hearing is unpreserved for review under CPLR art 78 (see Matter of Khan v. New York State Dept. of Health, 96 NY2d 879, 880 [2001]; Matter of Stasack v. New York State Dept. of Envtl. Conservation, 176 AD3d 1456, 1459-1460 [3d Dept 2019]). As such, petitioners’ argument that the lack of a written policy governing APA staff’s re-siting petitioners’ building footprint is unpreserved. Were the court to reach this issue, it would find that the re-siting was not in violation of lawful procedure. The policy statements in the variance application — which include that a variance application should demonstrate that “the application requests the minimum relief necessary” and “[w]hether the difficulty [that occasions the application] can be obviated by a feasible method other than a variance”; and the requirement of a pre-application site visit or meeting that “provides an opportunity for initial analysis of the proposal and potential alternatives that may eliminate the need for a variance” — demonstrate the propriety of the APA’s actions. The re-siting, which was undertaken with petitioners’ consent, was a reasonable and proper step, taken pursuant to these policies and in an effort to further their purposes. Nor can it be said that the enforcement proceedings were in violation of lawful procedure. Regulations governing APA enforcement proceedings do not provide for the full, plenary hearing to which petitioners claim they were entitled. Rather, all that is required is notice of the apparent violation, an opportunity to respond the allegations therein and the ability to appear at proceedings before the committee with counsel to be heard concerning “any disputed matter of fact or law or with respect to the nature of any proposed resolution” (9 NYCRR 581-2.6 [b], [c]). Petitioner was afforded these due process rights and meaningful review in the proceedings herein. Finally, the committee’s determination was neither arbitrary and capricious nor affected by an error of law. “‘An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. If [an] agency’s determination has a rational basis, it will be sustained, even if a different result would not be unreasonable” (Matter of Adirondack Wild: Friends of The Forest Preserve v. New York State Adirondack Park Agency, 161 AD3d 169, 176 [3d Dept 2018], affd 34 NY3d 184 [2019], quoting Matter of Fuller v. New York State Dept. of Health, 127 AD3d 1447, 1448 [3d Dept 2015]). It is not the role of this court to substitute its judgment for that of the APA (see Adirondack Wild, 161 AD3d at 176). There is no dispute as to the APA’s jurisdiction in this matter or that a portion of the deck was constructed in the shoreline setback. The material issue here is whether the committee’s determination that APA staff “identified where the dwelling, absent the deck, could be located without needing a variance” lacks a rational basis — in other words, whether it was arbitrary and capricious for the committee to credit the affidavits of APA staff over Cotazino’s affidavit and statement. The court answers this question in the negative. The affidavits from APA staff in the certified administrative record support the APA’s position that staff merely relocated a building footprint that petitioners had laid out to a position further from Kibler Point Road that still did not violate the shoreline restriction, while maintaining the dimensions of the original footprint. Upon the first report of a violation, staff found no violation but observed that a foundation had been built in the approximate dimensions of the re-sited footprint and warned petitioners that a deck on the shoreline side of the structure would require a variance. And, upon the second report of a violation, staff returned to find the deck constructed within the setback, notwithstanding the APA’s prior warnings that construction within the shoreline setback was not permitted. Cotazino’s factual allegations to the contrary — i.e., that APA staff sited his proposed house and deck such that the deck would encroach on the setback but still advised that a variance would not be necessary due to “leeway” — do not undermine this finding. It was rational for the committee to credit the APA’s allegations over Cotazino’s, notwithstanding that reasonable minds may differ over which set of allegations was the more believable (see Supkis v. Town of Sand Lake Zoning Bd. of Appeals, 227 AD2d 779, 781 [3d Dept 1996]). Turning to petitioners’ equitable estoppel argument, the court first notes that their assertion at oral argument that the committee did not address the argument is not supported in the record. Concededly, the committee did not specifically discuss this defense in its written determination. However, it was addressed at length during the enforcement proceedings and the committee’s rejection of the defense is implicit in its findings and determination. Thus, the record reflects that the defense was considered. The equitable estoppel argument is unavailing to petitioners in any event. The doctrine of equitable estoppel may not be invoked against a government entity except in “‘exceptional cases in which there has been a showing of fraud, misrepresentation, deception or similar affirmative misconduct, along with reasonable reliance thereon’” (see Matter of Atlantic States Legal Found., Inc. v. New York State Dept. of Envtl. Conservation, 119 AD3d 1172, 1173 [3d Dept 2014], quoting Stone Bridge Farms, Inc. v. County of Columbia, 88 AD3d 1209, 1212 [3d Dept 2011] [internal quotation marks and citations omitted]). The court initially notes that granting relief to petitioners upon this defense would require the committee to have credited Cotazino’s allegations over those of APA staff, which it ostensibly did not do. However, even crediting those allegations, the defense is unavailable here since APA staff’s alleged conduct did not rise to the level of misconduct akin to fraud or deception (see id. at 1173-1174). Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the petition is denied, the determination of the APA is confirmed and this proceeding is dismissed. The within constitutes the decision, order and judgment of this court. The court is uploading the decision and order to the New York State Courts Electronic Filing System (NYSCEF). Such uploading does not constitute service with notice of entry (see 22 NYCRR 202.5-b [h] [2].) Dated: December 17, 2021
