Daily Development for Tuesday, April 27, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ZONING AND LAND USE; CONSTITUTIONAL LAW; DUE PROCESS: Constructive notice of property's inclusion on map of regulated wetlands by publication and mailing to owners of affected land, as shown on most recent property tax rolls, satisfied due process requirements, even though error in tax rolls resulted in affected owner not receiving actual notice.

Zaccaro v. Cahill, 800 N.E.2s 1096 (N.Y. 2003).

The New York State Freshwater Wetlands Act (the "Act") requires the New York Department of Environmental Conservation ("DEC," whose Secretary is the named respondent) to map freshwater wetlands. The map identifies properties subject to the regulatory scheme of the Act. The Act requires the DEC to provide notice to each owner of lands affected by the Act "as shown on the latest completed tax assessment rolls" by mailing a copy of the order promulgating the final map. The Act does not instruct the DEC how to ascertain which landowners listed on the tax rolls are affected by the map.

The DEC compared the map to the tax maps in order to find the block and lot number of tax parcels affected. However, appellant's lot was mis-identified on the tax rolls and he did not receive the order promulgating the map. Twelve years after that order, he was charged with violating the Act by engaging in prohibited activities on his land without a permit, and the DEC imposed a penalty of $8,000.

Appellant filed a constitutional challenge in the Supreme Court, which was transferred to the Appellate Division, where his challenge was dismissed. Applying a test first conceived in Congregation Yetev Lev D'Satmar v. County of Sullivan, 452 N.E.2d 1207 (1983) the appellate court asked whether (1) the promulgation of the map "substantially affected" appellant's property rights, (2) whether appellant's identity as an owner of affected land was "reasonably ascertainable," and (3) whether the procedure the DEC took to notify affected landowners was "reasonably calculated" to provide appellant with notice that his property was affected.

Finding in the affirmative on the first and third questions, the court acknowledged that due to the error in the tax rolls, appellant's address was not "reasonably ascertainable," and refused to place the risk of that error on the government. The DEC, it noted, had followed the statutory notice procedure and had employed a reasonable procedure for matching up the wetlands and tax maps in the absence of statutory direction.

Nevertheless, the court acknowledged that reliance upon tax maps is “not foolproof.”
“Tax maps are only updated every four to five years. Tax rolls are also outdated bo the extent they reflect the owners of parcels at the nd of the year preceding the tax bill, and do not contain information concerning the changes occurring midyear. In addition, the information in the tax maps or tas rolls may be incomplete or inaccurate, as was the case here.”

Reporter’s Comment: Of possible significance is the fact that the appellant submitted tax bills showing both the correct and the erroneous designation of his lot. Other cases discussed by the court found for the administrative agency where the aggrieved owner "had some obligation" or "bore some responsibility" to notify the municipality of errors in the tax records.

Editor’s Comment: Note that the $8000 penalty was imposed for prior conduct at a time when the owner had no knowledge of the requirements. His plea of lack of notice was rejected by the court. The court apparently was of the view that the Mullane constitutional standard was at issue. Had the question simply been one of general awareness of zoning ordinances, then the case would be unremarkable. What is noteworthy is the court’s assumption that the very loose procedure implemented here does satisfy Mullane standards.

This sort of approach is nothing new in New York. In Mosssafa v. Kleiman, 2003 WL 443797 (N.Y. 2/25/03) the New York Court of Appeals upheld a tax foreclosure where mailed notice was returned and county did not check "ordinary sources" for alternative addresses.

Clearly New York officials are not going to be held to a very strong standard in providing notice in any governmental action. The standards are those imposed by other governmental agency leadership. This will go on until either a notorious scandal or a legislator’s relative gets stung by one of these abusive practices, whichever comes first.

Also see: Amresco New England II v. Denino, 725 N.Y.S.2d 78 (A.D. 2 Dept.2001) (the DIRT DD for 10/5/01) (statutory notice defect in judicial mortgage foreclosure a “mere irregularity” and not a “jurisdictional defect,” despite allegations that property sold for 25% less than appraised value at foreclosure.)

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