author: Bellacosa, J.

text:
    In the Matter of Parkview Associates, Appellant, v City of New York et al., Respondents, and Civitas Citizens, Inc., Intervenor-Respondent.
    Argued January 11, 1988;
    decided February 9, 1988

      POINTS OF COUNSEL

      Jeffrey L. Braun, Hector Torres and Audry Weintrob for appellant.
    I. Parkview’s permit was issued in conformance with a reasonable interpretation of the zoning ordinance. (Soron Realty Co. v Town of Geddes, 23 AD2d 165; Keeney v Village of LeRoy, 22 AD2d 159; Matter of Allen v Adamik, 39 NY2d 275; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408; FGL & L Prop. Corp. v City of

      Rye, 66 NY2d 111; Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298.) II. Principles of equitable estoppel apply here and preclude the revocation of Parkview’s permit even if the permit’s issuance was erroneous. (Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Shapley v Abbott, 42 NY 443; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Matter of Faymor Dev. Co. v Board of Stds. & Appeals, 45 NY2d 560; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408; Matter of Temkin v Karagheuzoff, 34 NY2d 324; Matter of Pokoik v Silsdorf, 40 NY2d 769; La Porto v Village of Philmont, 39 NY2d 7.) III. Respondents’ actions have violated Parkview’s Federal and State constitutional rights, (de St. Aubin v Flacke, 68 NY2d 66; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990; Euclid v Ambler Co., 272 US 365; McMinn v Town of Oyster Bay, 66 NY2d 544; Nectow v Cambridge, 277 US 183; Usery v Turner Elkhorn Min. Co., 428 US 1; Chevron Oil Co. v Huson, 404 US 97; Welch v Henry, 305 US 134; Blodgett v Holden, 275 US 142; In re U. S. Fin., 594 F2d 1275.)

      Peter L. Zimroth, Corporation Counsel (Phyllis Arnold, Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for respondents.
    I. The challenged determination by the Board of Standards and Appeals must be sustained because it has a rational basis in the record and in law. The partial revocation of the building permits was lawful because when the permits were issued the building failed to conform to applicable law. (Citizens for Preservation of Windsor Terrace v Smith, 122 AD2d 827; Shapiro v Town of Oyster Bay, 27 Misec 2d 844, 20 AD2d 850; La Porto v Village of Philmont, 39 NY2d 7; Matter of Schilling v Dunne, 119 AD2d 179; City of Utica v Paternoster, 64 Misc 2d 749; Miner v City of Yonkers, 19 Misc 2d 321, 9 AD2d 907, 10 AD2d 647, 8 NY2d 705; People v Hartwell, 166 NY 361; American Bank & Trust Co. v Dallas County, 463 US 855; United States v Welden, 377 US 95; Stephan v United States, 319 US 423.) II. Under New York law, municipal respondents cannot be equitably estopped from enforcing the zoning law, where, inter alia, the permits were invalid when issued. In any event, based upon the record, petitioner has failed to demonstrate its good faith, and has available remedies. (Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30; Morley v Arricale, 66 NY2d 665; Collins

      v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361; Public Improvements v Board of Educ., 56 NY2d 850; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 61 NY2d 759; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Matter of Roberts v Community School Bd., 66 NY2d 652; Parsa v State of New York, 64 NY2d 143.) III. The petition fails to state a claim for an unconstitutional taking or deprivation of property without due process. (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Williamson Planning Commn. v Hamilton Bank, 473 US 172; Incorporated Vil. of Upper Brookville v Faraco, 282 App Div 943, 307 NY 642; Hodel v Virginia Surface Min. & Reclamation Assn., 452 US 264; Agins v Tiburon, 447 US 255; Willing v Chicago Auditorium, 277 US 274; Matter of St. Basil’s Church v Kerner, 125 Misc 526; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990; Modjeska Sign Studios v Berle, 43 NY2d 468, 439 US 809; Andrus v Allard, 444 US 51.)

      Robert S. Davis and Karl S. Coplan for intervenor-respondent.
    I. At the time of appellant’s application as well as at the time that appellant’s permit was revoked, the Park Improvement District boundary under the zoning resolution extended 150-feet east of Park Avenue at 96th Street. (People v Hartwell, 166 NY 361; Whelen v Warwick Val. Civic & Social Club, 89 Misc 2d 577, 63 AD2d 646, 47 NY2d 970.) II. The erroneous issuance of a building permit to an applicant charged with knowledge of the requirements of the zoning resolution does not estop the City from enforcing the unambiguous enactments of the Board of Estimate. (Matter of Daleview Nursing Home v Axelrod, 52 NY2d 30; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849; Board of Supervisors v Ellis, 59 NY 620; Albert Simon, Inc. v Meyerson, 36 NY2d 300, 423 US 908; Morley v Arricale, 66 NY2d 665; City of Yonkers v Rentways, Inc., 304 NY 499; Matter of B & G Constr. Corp. v Board of Appeals, 309 NY 730; City of Buffalo v Roadway Tr. Co., 303 NY 453; Matter of Albert v Board of Stds. & Appeals, 89 AD2d 960.) III. Enforcement against appellant of the duly enacted P.I.D. height limitations neither constitutes a deprivation of property without due process nor effects a taking of property which would require compensation. (Euclid v Ambler Co., 272 US 365; Scarsdale Supply Co. v Village of Scarsdale, 8 NY2d 325; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104; Park Ave. Tower Assocs. v City of New York, 746 F2d 135, cert denied sub nom. Eastco v City of New York, 470 US 1087; Matter of Crossroads Recreation v Broz, 4 NY2d 39; Welch v Swasey, 214 US 91; Bi-Metallic Co. v Colorado, 239 US 441; Rogin v Bensalem Twp., 616 F2d 680, cert denied sub nom. Mark-Garner Assocs. v Bensalem Twp., 450 US 1029.)

      Jeremiah S. Gutman, Arthur C. Silverman and Leonard Benowich for the New York Society of Architects and another, amici curiae.

    In determining the boundaries of a special district, a professional architect must be permitted to rely upon such boundaries as they appear and as they are drawn on the official zoning maps prepared, printed and published by the Department of City Planning, and that such architect need not be required to exhaustively research the legislative history of such boundaries which would, of necessity, require his retrieving, analyzing, and comparing the actual texts of many resolutions of the Board of Estimate, memoranda and diagrams prepared by the Department of City Planning, and official maps.

      Martin Gallent and Marc Silver for Carnegie Hill Neighbors and others, amici curiae.

    I. The zoning resolution as enacted by the Board of Estimate unambiguously places petitioner’s property within the Special Park Improvement District. II. The City of New York is not estopped from enforcing its laws where petitioner unreasonably relied on a building permit that was void ab initio. (Matter of Jayne Estates v Raynor, 22 NY2d 417; Matter of Natchev v Klein, 41 NY2d 833; Reichenbach v Windward, 80 Misc 2d 1031, 48 AD2d 909, 38 NY2d 912; Matter of Pokoik v Silsdorf, 40 NY2d 769; Landmark Colony v Board of Supervisors, 113 AD2d 741; Matter of Faymor Dev. Co. v Board of Stds. & Appeals, 45 NY2d 560; Scruggs-Leftwich v Rivercross Tenants’ Corp., 119 AD2d 88; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408; Matter of 1555 Boston Rd. Corp. v Finance Adm’r, 61 AD2d 187; Ward v City of New Rochelle, 20 Misc 2d 122, 9 AD2d 911, 7 NY2d 711.)
   OPINION OF THE COURT

Bellacosa, J.

We hold in this case involving the height of a building on Park Avenue in Manhattan, already constructed in excess of the height limitations of applicable zoning provisions, that estoppel is not available to preclude a governmental entity from discharging its statutory duties or to compel ratification of prior erroneous implementation in the issuance of an invalid building permit. The rare exception to the unavailability of estoppel against governmental entities may not, in any event, be invoked in this case where reasonable diligence by a good-faith inquirer would have disclosed the true facts and the bureaucratic error. We may not address the additional claim that governmental correction of prior administrative action, erroneously overriding applicable zoning provisions, constitutes an unconstitutional taking inasmuch as there is a pending variance application. We thus affirm the Appellate Division’s order affirming the denial of relief to plaintiff.

Owner-builder Parkview’s property, purchased in 1982, is at the southeast corner of Park Avenue and 96th Street, located 90- to 190-feet east of Park Avenue. A portion of the property is within a Special Park Improvement District (P.I.D.) created by enactment of the Board of Estimate of the City of New York in 1973. The enabling and authorizing resolution limits the height of new buildings in that district to 19 stories or 210 feet, whichever is less. The P.I.D. boundary ran uniformly 150-feet east of Park Avenue until, by resolution of the Board of Estimate on March 3, 1983, the metes and bounds description of the P.I.D. was amended, providing in part for a reduction from 150 to 100 feet between East 88 Street to midway between 95th and 96th Streets. The boundary north of this midblock division, pursuant to the metes and bounds, remained at all times 150 feet. Plaintiff’s property was thus unaffected by this 1983 change and has always been governed by the 1973 original enactment.

Zoning Map 6b accompanying the March 1983 resolution depicted the amended boundary with a dotted line which fell within a shaded area constituting the existing P.I.D. A numerical designation of "150”, included on earlier versions of the map to show the setback, had been removed and a new designation of "100” was inserted adjacent to the dotted line. This left no numerical designation along the northern part of the boundary. The "150” designation signaling the retention of the boundary north of the 95th-96th Street midblock line was reinserted on a version of Map 6b published to reflect a subsequent resolution of September 19, 1985.

Parkview’s initial new building application, submitted on June 5, 1985, was rejected for failure to show compliance with the P.I.D. height limitation. Based upon its interpretation of the version of Zoning Map 6b existing in the summer of 1985, Parkview concluded that a 100-foot boundary controlled, and its revised building application, submitted on July 31, 1985, limited the height of the proposed new building to 19 stories between its property line and 100 feet from Park Avenue. The portion of the building setback more than 100 feet from Park Avenue was to rise 31 stories. The application was approved by the Department of Buildings as conforming with all zoning requirements on August 12, 1985 and, after rereview, a building permit was issued on November 21, 1985 by the Borough Superintendent. There is no dispute that at the time the permit was issued the Department erroneously interpreted amended Map 6b as changing the boundary on 96th Street to 100 feet. On July 11, 1986, however, after substantial construction, the Borough Superintendent of the Department of Buildings issued a stop work order for those portions of the building over 19 stories within the full 150 feet of Park Avenue. After review, the Commissioner of Buildings partially revoked the building permit, consistent with the stop work order, on the grounds that the permit, to the extent it authorized a height of 31 stories from 100-feet back instead of 150-feet back, was invalid when issued.

Parkview appealed the Commissioner’s decision to the Board of Standards and Appeals (BSA), which denied the appeal and sustained the determination of the Commissioner. In sum, the BSA found that the dotted lines on Zoning Map 6b within the shaded P.I.D., expressly connoting a reduction to 100 from 150 feet of the protected area, excluded the 96th Street frontage of plaintiff from any change; that the original resolution with its metes and bounds description, which was never changed in any event, controlled over the map depicting the boundaries even if the map could be misread; and that the boundary-height limitation applicable to Parkview under the metes and bounds description was and had always been 150-feet east of Park Avenue.

Parkview then turned to the courts, essentially in an article 78 proceeding, seeking to set aside the partial revocation of its building permit. It sought to reinstate the full permit, arguing that the final BSA determination was arbitrary and capricious or affected by error of law because the original permit was properly issued; that its rights pursuant to that permit had vested; that its reliance on the permit caused substantial and irreparable harm requiring that the City be estopped from revoking the permit; and that the partial revocation deprived Parkview of its property without due process or just compensation.

The IAS Judge dismissed the petition holding that the BSA’s determination was reasonable and supported by substantial evidence that the building permit was invalid when issued, vesting no rights, because the building plans did not comport with the metes and bounds description for the P.I.D. as contained in the controlling original legislative enactment of the Board of Estimate. The court also held that estoppel was unavailable as a matter of law. Finally, the constitutional taking argument was dismissed as premature because Park-view had failed to apply for a variance which is a prerequisite to that claim. The Appellate Division affirmed, and this appeal ensued by leave of this court.

Parkview argues that its original permit was issued in conformity with a reasonable interpretation of the zoning map, thus making it valid when issued; that the principles of equitable estoppel preclude the partial revocation of the building permit even if the permit was erroneously issued; and that the City’s partial revocation of its permit constitutes a taking in violation of due process of law and without just compensation. The City counters that the decision of the BSA has a rational basis because the permit was invalid when issued; that equitable estoppel is not available to estop a municipality from enforcing its zoning laws when the building permit issued by the municipality violated those zoning laws; and that the petition below failed to state a claim for an unconstitutional taking.

There can be little quarrel with the proposition that the New York City Department of Buildings has no discretion to issue a building permit which fails to conform with applicable provisions of law, and that the Commissioner may revoke a permit which "has been issued in error and conditions are such that a permit should not have been issued” (Administrative Code of City of New York §§ 27-191, 27-197). Since discrepancies between the map and enabling resolution are controlled by the specifics of the resolution (New York City Zoning Resolution §§ 11-22, 12-01), the original permit in this case was invalid inasmuch as it authorized construction within the 150-foot P.I.D. above 19 stories in violation of New York City Zoning Resolution § 92-06 (2 Journal of Proceedings of Board of Estimate of City of NY, at 1708 [Cal No. 6, Apr. 23, 1973], as amended [Cal No. 8, Mar. 3, 1983]). Therefore, the subsequent BSA action in ratifying the decision of the Commissioner partially revoking Parkview’s permit had a sound legal basis. Indeed, there was no discretion reposed in these authorities to do otherwise at that point and on the record before them at that time.

Turning to the next stage of our analysis, we have only recently once again said that "[generally, estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties” (Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849, citing Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93; see also, Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359 [decided herewith]). Moreover, "[e]stoppel is not available against a local government unit for the purpose of ratifying an administrative error” (Morley v Arricale, 66 NY2d 665, 667). In particular, "[a] municipality, it is settled, is not estopped from enforcing its zoning laws either by the issuance of a building permit or by laches” (City of Yonkers v Rentways, Inc., 304 NY 499, 505) and "[t]he prior issue to petitioner of a building permit could not 'confer rights in contravention of the zoning laws’ ” (Matter of B & G Constr. Corp. v Board of Appeals, 309 NY 730, 732, citing City of Buffalo v Roadway Tr. Co., 303 NY 453, 463). Insofar as estoppel is not available to preclude a municipality from enforcing the provisions of its zoning laws and the mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results (Parsa v State of New York, 64 NY2d 143, 147; Matter of New York City v City Civ. Serv. Commn., 60 NY2d 436, 448-449), the City should not be estopped here from revoking that portion of the building permit which violated the long-standing zoning limits imposed by the applicable P.I.D. resolution. Even if there was municipal error in one map and in the mistaken administrative issuance of the original permit, those factors would be completely outweighed in this case by the doctrine that reasonable diligence would have readily uncovered for a good-faith inquirer the existence of the unequivocal limitations of 150 feet in the original binding metes and bounds description of the enabling legislation, and that this boundary has never been changed by the Board of Estimate. The policy reasons which foreclose estoppel against a governmental entity in all but the rarest cases thus have irrefutable cogency in this case.

Finally, Parkview’s claim that the City’s action constitutes a taking without due process of law or just compensation may not be addressed in this action and at this time because Parkview had failed to apply for a variance (see, Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 519; see also, Scarsdale Supply Co. v Village of Scarsdale, 8 NY2d 325, 330; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269, 273). The variance application now pending is, of course, not affected by our decision today.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Yvette Boronow, Appellant, v Eugene Boronow, Respondent.
    Argued January 12, 1988;
    decided February 11, 1988

      POINTS OF COUNSEL

      David Howe for appellant.
    I. The court below erred when it held that "a separate action to determine questions of title which could have been but was not raised in a prior matrimonial action” is barred. Appellant was not precluded from commencing a separate plenary action to have her rights as to the marital premises adjudicated. (Perry v Perry, 79 AD2d 851; De Giarde v De Giarde, 54 AD2d 628; Weichold v Weichold, 54 AD2d 1015.) II. Appellant’s action to impose a constructive trust upon the marital assets was commenced within the applicable Statute of Limitations. The court below erred in dismissing the complaint as the Statute of Limitations commenced upon the breach of the conjugal contract by respondent. (Beatty v Guggenheim Exploration Co., 225 NY 380; Moore v Crawford, 130 US 122; Vassel v Vassel, 40 AD2d 713, 33 NY2d 533; Sharp v Kosmalski, 40 NY2d 119; Janke v Janke, 47 AD2d 445, 39 NY2d 786; Thorne v Thorne, 66 AD2d 397; Tomaino v Tomaino, 68 AD2d 267; Muller v Sobol, 277 App Div 884; Scheuer v Scheuer, 308 NY 447; Mann v Mann, 77 AD2d 866.) III. The court below erred in granting respondent’s cross motion with regard to appellant’s second cause of action, as the Supreme Court, Queens County, Justice correctly determined that he could not summarily dismiss appellant’s second cause of action until a trial was held to determine all the facts, including any and all dates of demands by appellant and refusals by respondent. (Scull v Scull, 94 AD2d 29, 67 NY2d 926; Walsh v Walsh, 91 AD2d 1198; Augustine v Szwed, 77 AD2d 298; Schirano v Paggioli, 99 AD2d 802; Hirschhorn v Kirstein, 34 Misc 2d 229; Tichonchuk v Orloff, 36 Misc 2d 623; Matter of Rhinelander, 290 NY 31; Niman v Niman, 15 Misc 2d 1095, 8 AD2d 793; Azoy v Fowler, 57 AD2d 541.) IV. The parties herein formed a conjugal contract in which the parties agreed to share equally all marital assets acquired by them during their marriage, regardless of how these assets were titled, registered or owned. (Matter of Crichton, 20 NY2d 124; Stein-Sapier v Stein-Sapier, 52 AD2d 115; Matter of Duckman, 110 Misc 2d 575; Matter of Hernandez, 172 App Div 467, 219 NY 566; Matter of James, 172 App Div 800, 221 NY 242; Matter of Warburg, 38 Misc 2d 997; Avitzur v Avitzur, 58 NY2d 108, 464 US 817; Matter of Sunshine, 51 AD2d 326, 40 NY2d 875; Matter of Davis, 20 NY2d 70; Aziz v Aziz, 127 Misc 2d 1013.)

      Norman Paul Weiss for respondent.
    I. The doctrines of res judicata, collateral estoppel and claim preclusion bar appellant’s claim. (Kremer v Chemical Constr. Corp., 456 US 461, 458 US 1133; Schultz v Boy Scouts of Am., 65 NY2d 189; Capital Tel. Co. v Patterson Tel. Co., 56 NY2d 11; Schwartz v Public Adm’r, 24 NY2d 65; Kaufman v Lilly & Co., 65 NY2d 449; Ryan v New York Tel. Co., 62 NY2d 494; Gargiulo v Oppenheim, 95 AD2d 484, 63 NY2d 843; Matter of Reilly v Reid, 45 NY2d 24; Grossman v Axelrod, 466 F Supp 770; Perry v Perry, 79 AD2d 851; Rakowski v Rakowski, 109 AD2d 1.) II. The conjugal contract on which appellant relies cannot be recognized as a matter of law. (Swift & Co. v Bankers Trust Co., 280 NY 135; Auten v Auten, 308 NY 155; Matter of Crichton, 20 NY2d 124; Miller v Miller, 22 NY2d 12; Dym v Gordon, 16 NY2d 120.) III. Equitable principles preclude appellant from recovery as a matter of law. (Sharp v Kosmalski, 40 NY2d 119; Werking v Amity Estates, 2 NY2d 43; City of New York v State of New York, 40 NY2d 659; Orlik, Ltd. v Helme Prods., 427 F Supp 771; Matter of Carla L., 45 AD2d 375; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Feldman v Metropolitan Life Ins. Co., 259 App Div 123; New York Pub. Interest Research Groups v Levitt, 90 Misc 2d 670, 62 AD2d 1074; Costello v United States, 365 US 265; Glenesk v Guidance Realty Corp., 36 AD2d 852.) IV. Appellant’s action must be dismissed as it is time barred due to expiration by the Statute of Limitations. (Duffy v Horton Mem. Hosp., 66 NY2d 473; Kahn v Kahn, 43 NY2d 203; Scheuer v Scheuer, 308 NY 447; Anonymous v Anonymous, 71 AD2d 209.)
   OPINION OF THE COURT

Bellacosa, J.

We agree with the Appellate Division that ¿ party to a concluded matrimonial action, who had a full and fair opportunity to contest title to the former marital home, is barred by res judicata principles from subsequently and separately reopening that issue. The discretionary authority reposed in the courts under Domestic Relations Law § 234 is not to the contrary and may not be read as conferring unilateral and unfettered options on parties in this respect. We thus affirm.

Appellant Yvette Boronow, a French citizen, moved to New York from Puerto Rico in 1949 at the age of 18. In June 1956, she returned for two days to Puerto Rico with respondent Eugene Boronow, where they were married. Subsequently, the parties resided in New York and purchased a marital home in Jamaica Estates, Queens County, New York City. Title to the home was taken in Eugene Boronow’s name only. The parties were divorced in February 1977 after an action initiated by Mrs. Boronow, and she was awarded possession of the home. Although title to the property was not decided, Yvette Boronow had submitted an affidavit claiming joint ownership of the home and Mr. Boronow denied that assertion in an answering affidavit. This litigation arose under preequitable distribution laws, where division of marital property could remain unresolved in a manner not permissible today (Domestic Relations Law § 236 [B] [5] [a]), and has been going on since 1976 with multiple proceedings.

In July 1982, Mr. Boronow brought a motion seeking modification of the divorce decree, including possession of the house. In October 1982, the former wife instituted the present action seeking a declaratory judgment that, under principles of Puerto Rican law, a conjugal contract existed between the parties entitling her to one half of the marital estate, including the marital premises, and seeking to impress a constructive trust upon the premises. She alleged that title to the premises was supposed to have been held jointly and that she was deceived by her husband who, without her knowledge and consent, had her name kept off the deed. She moved to consolidate her action with her former husband’s motion to modify; he cross-moved to dismiss on the grounds that she had failed to state a claim and that the action was barred by res judicata, collateral estoppel, and the Statute of Limitations. The Trial Justice denied both the motion to consolidate and the cross motion to dismiss. That court held that Domestic Relations Law § 234 makes resolution of title issues permissive in a divorce action, thus permitting a subsequent plenary action to adjudicate that issue; that a cause of action for constructive trust had been adequately pleaded; and that the moving papers provided an insufficient basis to determine that the action was not timely commenced.

The Appellate Division reversed, finding the action barred by res judicata and by the Statute of Limitations (Boronow v Boronow, 111 AD2d 735). It held that the question of title to the marital premises could have been, but was not, raised and litigated in the prior matrimonial action and that res judicata barred this subsequent action. It added that even if such an action could be maintained, it was barred by the six-year Statute of Limitations (CPLR 213 [1]) which begins to run in a constructive trust case upon the occurrence of the wrongful act. In this case the court ruled that act occurred on August 4, 1965 when Mr. Boronow took, allegedly by fraudulent means, title of the marital home in his name only. Lastly, the Appellate Division found that the laws of Puerto Rico had no pertinency in this case.

Yvette Boronow appeals to this court urging that we adopt the trial court’s view, while Eugene Boronow counters that we should affirm the Appellate Division analysis.

In pertinent part, Domestic Relations Law § 234 provides: "[i]n any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties” (emphasis supplied). Differences have arisen among the departments of the Appellate Division as to whether the statute permits a subsequent and separate litigation of title questions between ex-spouses after a matrimonial action has been finally determined or whether such litigations are barred by res judicata principles (compare, Perry v Perry, 79 AD2d 851; Szabo v Szabo, 71 AD2d 32; Weichold v Weichold, 54 AD2d 1015; with, Scattoreggio v Scattoreggio, 115 AD2d 531; Rakowski v Rakowski, 109 AD2d 1; Marinelli v Marinelli, 88 AD2d 635; see, Scheinkman, Practice Commentary, McKinney’s Cons Law of NY, Book 14, Domestic Relations Law C234:2, at 76).

The Third and Fourth Departments have not allowed res judicata principles to block actions involving questions of title between ex-spouses who failed to raise or litigate the issue in a prior matrimonial action. Reasoning that the statutory language of Domestic Relations Law § 234 is permissive only, they hold that "[fjailure to raise or litigate the title question in the first action does not constitute a waiver or bar of any rights based upon such title” (Perry v Perry, 79 AD2d 851, supra; see also, Szabo v Szabo, 71 AD2d 32, 36, supra [questions of title between ex-spouses should be raised in a separate and plenary action, not in a motion relating back to the divorce decree]; Weichold v Weichold, 54 AD2d 1015, 1016, supra [a separate and plenary action to adjudicate rights as to title may be brought when they were neither litigated nor raised in the matrimonial action]). We reject those holdings and that reasoning.

The Second Department has held, as in the present case, that res judicata bars a subsequent plenary action concerning an issue of marital property which could have been, but was not, raised in the prior matrimonial action (see also, Rakowski v Rakowski, 109 AD2d 1, 5, supra; contra, Foster v Foster, 99 AD2d 284). "[T]he parties had the right to expect that any such matters not there considered were not going to be litigated” (Marinelli v Marinelli, 88 AD2d 635, 636, supra; see also, Scattoreggio v Scattoreggio, 115 AD2d 531, 532, supra ["dismissal of an action on the ground of res judicata is warranted where it concerns an issue of title which could have been, but was not, litigated in the prior matrimonial action”]). In rejecting the opposite view of the other departments, the Second Department has construed the permissive language to apply only to the courts and not the litigants. "[T]he issue of title, if raised, need not be decided by the matrimonial court and can be raised again in a separate plenary action. However, the language of Domestic Relations Law § 234 does not allow litigants to endlessly commence separate actions to adjudicate issues of title which could have been, but were not, raised in a prior matrimonial action” (Rakowski v Rakowski, 109 AD2d 1, 6, supra). In effect, that court concludes that the statutory authorization does not confer a unilateral or unfettered procedural option upon the parties.

The reasoning of Rakowski (supra) is consistent with our interpretation of Domestic Relations Law § 234. In Kahn v Kahn (43 NY2d 203), we observed that the principal reason for the relevant 1962 amendment to Domestic Relations Law § 234 "was to 'make it unnecessary to bring a separate action or proceeding to determine questions relating to who has title to property’ (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations, § 234, p 123 [1964])” (id., at 208-209), and that the legislative history of the amendment establishes that "[i]ts essential purpose was procedural: to permit a court in a marital action to resolve disputes involving possession and title to property arising as an incident to the marital action” (id., at 209). The parties in a matrimonial action are not freed from the obligation to litigate all issues affecting the marriage merely because the courts are empowered by the statutory amendment to procedurally dispose of title issues or make allowance for their consideration in a separate action.

One commentator has noted that the Second Department’s construction of Domestic Relations Law § 234 "is consistent with modern res judicata and collateral estoppel views. Though joinder of claims is generally permissive in civil litigation, all claims arising out of a given transaction or occurrence are barred once any of them is litigated” (Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C234:2, at 77, citing Smith v Russell Sage Coll., 54 NY2d 185, rearg denied 55 NY2d 878; O’Brien v City of Syracuse, 54 NY2d 353). In Smith v Russell Sage Coll, (supra), we stated the test in deciding res judicata issues as viewing the "claim or cause of action as 'coterminous with the transaction regardless of the number of substantive theories or variant forms of relief * * * available to the plaintiff ” (id., at 192, citing Restatement [Second] of Judgments § 61, comment a [Tent Draft No. 4 1978]). " 'A "cause of action” may denote one of several separately stated claims in a pleading based on the same congeries of facts but related to different legal theories of recovery. A "cause of action” may also denote a separately stated claim on the same congeries of facts, but for different legal relief ” (id, at 192; Matter of Reilly v Reid, 45 NY2d 24, 29). A claim is coterminous with a transaction from which other claims arise, requiring that it be joined with the litigation of the other claims, if the facts upon which the claims are based " 'are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether * * * their treatment as a unit conforms to the parties’ expectations’ ” (Smith v Russell Sage Coll., 54 NY2d 185, 192-193, supra; citing Restatement [Second] of Judgments §§ 61, 61.1 [Tent Draft Nos. 1, 5]; Matter of Reilly v Reid, supra, at 30).

In a matrimonial action, where the essential objective is to dissolve the marriage relationship, questions pertaining to important ancillary issues like title to marital property are certainly intertwined and constitute issues which generally can be fairly and efficiently resolved with the core issue. The courts and the parties should ordinarily be able to plan for the resolution of all issues relating to the marriage relationship in the single action (Matter of Reilly v Reid, 45 NY2d 24, 28, supra). Insofar as Yvette Boronow had a full and fair opportunity to litigate the title-to-property issue in her divorce action and, in fact, raised the title issue in an affidavit in the divorce action, res judicata was correctly applied by the Appellate Division here. Fragmentation in this area would be particularly inappropriate and counterproductive because, in addition to sound statutory construction, jurisprudential policy reasons support the result we reach today; that is, a continuation of the relationship and of the conflict among parties to a matrimonial litigation would be particularly perverse and the inevitable cloud on titles should also not be allowed to hang over the alienability of the property.

We need not decide other issues since they are subsumed in the decision on the primary ground.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr., J., concur; Judge Titone taking no part.

Order affirmed, with costs.


author: Hancock, Jr., J. Kaye, J.

text:
    In the Matter of New York Public Interest Research Group, Inc., by Thomas A. Wathen, Its Executive Director, et al., Appellants, v Town of Islip et al., Respondents, and Board of Education of Hauppauge Union Free School District, Intervenor-Appellant.
    Argued January 12, 1988;
    decided February 11, 1988

      POINTS OF COUNSEL

      Eugene L. Wishod, Randall M. Weiner, Bruce H. Kaplan, Scott M. Karson and Lewis B. Oliver, Jr., for appellants and intervenor-appellant.
    I. The expansion of the authorized capacity and life of the landfill authorized by the expansion agreement is subject to the mandates of the Landfill Law. By exempting expansions of a vertical configuration from the scope of the Landfill Law — notwithstanding that such expansions increase the life and authorized capacity of landfills beyond that which existed on the effective date of the Landfill Law — DEC usurped the legislative function by rewriting the statutory prohibition against landfill expansion. (Matter of Town of Islip v Cuomo, 64 NY2d 50; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Gibson v Board of Educ., 68 AD2d 967, affd sub nom. Matter of Gibson v Watkins Glen Cent. School Dist., 52 NY2d 1053; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; Boreali v Axelrod, 71 NY2d 1; Matter of Brewer v Board of Educ., 51 NY2d 855.) II. The use of area F as an ash disposal site constitutes a horizontal expansion of the landfill subject to the public hearing and other requirements of the Landfill Law. III. Expansion of an existing landfill in the deep flow recharge area is subject to SEQRA. The environmental review provisions of SEQRA may not be avoided by cloaking Type I actions in the garb of "consent orders” and adding some remediation obligations to affect an "enforcement proceeding” posture. (Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862; Onondaga Landfill Sys. v Flacke, 81 AD2d 1022; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652; Morrell v New York State Dept. of Envtl. Conservation, 119 AD2d 1009.) IV. The use of area F as an ash disposal site contravenes applicable criteria of the Ashfill Law and renders the expansion agreement unlawful.

      Guy W. Germano, Town Attorney (Michael J. Cahill, Bernard S. Meyer and Doris E. Roth of counsel), for Town of Islip and others, respondents.
    I. The May 12, 1987 consent order was a proper exercise by the Commissioner of power constitutionally delegated to him by the Legislature. (Town of Ramapo v Williams, 100 AD2d 965; Williams v Ludlow’s Sand & Gravel Co., 122 AD2d 612; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Levine v Whalen, 39 NY2d 510; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Martin v State Liq. Auth., 15 NY2d 707; Town of Islip v Williams, 126 AD2d 276; Chiropractic Assn. v Hilleboe, 12 NY2d 109; Matter of Town of Islip v Cuomo, 64 NY2d 50.) II. Continued use of the landfill does not constitute an expansion under the Land Burial Law. (Town of Islip v Williams, 126 AD2d 276.) III. Ash disposal is not prohibited at an existing landfill. (Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; People v De Jesus, 54 NY2d 465.) IV. The May 12, 1987 consent order, entered in an enforcement proceeding, is not an "action” within the meaning of SEQRA. (District of Columbia v Train, 533 F2d 1250; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862; Onondaga Landfill Sys. v Flacke, 81 AD2d 1022; Morrell v New York State Dept. of Envtl. Conservation, 119 AD2d 1009.) V. Any curtailment of the Commissioner’s authority to utilize a consent decree as a mechanism for enforcing DEC regulations should be deferred, as the Town justifiably and reasonably relied upon prior judicial support and enforcement of such consent decrees. (Matter of Andresen v Rice, 277 NY 271; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Chevron Oil Co. v Huson, 404 US 97; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; Town of Islip v Williams, 126 AD2d 276; Town of Ramapo v Williams, 100 AD2d 965; Williams v Ludlow’s Sand & Gravel Co., 122 AD2d 612; Flacke v Onondaga Landfill Sys., 69 NY2d 355.)

      Robert Abrams, Attorney-General (Ezra I. Bialik and O. Peter Sherwood of counsel), for Henry G. Williams, respondent.
    DEC is charged with the administration of both SEQRA and the Long Island Landfill Law, and therefore its interpretation of uncertain provisions in both statutes is entitled to great weight.

      Regina Seltzer for The Assembly Commission on Water Resource Needs for Long Island, amicus curiae.

    I. The consent order of May 12, 1987 permitting the expansion of the landfill is invalid for noncompliance with ECL article 27. (Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Mkts., 58 NY2d 1097.) II. The New York State Legislature did not distinguish between vertical and horizontal expansions in enacting the Long Island Landfill Closure Law. (Town of Islip v Williams, 126 AD2d 276; Matter of Town of Oyster Bay v Williams, 118 AD2d 576.) III. The May 12 consent order insofar as it permits expansion of the landfill is an "action” pursuant to SEQRA ECL 8-0105 (4) (i). (Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652; Morrell v New York State Dept. of Envtl. Conservation, 119 AD2d 1009; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.)
   OPINION OF THE COURT

Hancock, Jr., J.

This is an appeal from a dismissal of a CPLR article 78 proceeding challenging an order on consent of the Department of Environmental Conservation (DEC) dated May 12, 1987 pertaining to the 87-acre landfill located on Blydenburgh Road, Town of Islip, Long Island. The order on consent was entered in a proceeding brought by the DEC against respondents Town of Islip and Islip Resource Recovery Agency. The consent order contains several terms but the principal one about which the appeal centers modifies an earlier order on consent entered on August 5, 1980 in a DEC enforcement proceeding under which the Town of Islip was permitted to continue to use the landfill prior to final capping and closure in accordance with a plan to be submitted and approved by the DEC. The August 5 order provided that additions to the landfill prior to rounding off for capping should be made at a slope of 1 foot vertically to 6 horizontally. The disputed term in the May 12, 1987 order modifies this provision by increasing the slope of the landfill to 1 foot to 3 feet; it also provides that the final permitted level of the landfill be raised to a height not in excess of 300 feet above sea level. Additionally, the May 12, 1987 order provides for the burial of ash from the Town’s resource recovery system in the northwest portion of the landfill (area F).

In their appeal, by permission of this court, from the order of the Appellate Division unanimously affirming dismissal of the article 78 proceeding brought to annul the DEC May 12, 1987 consent order, petitioners and the intervenor-petitioner Board of Education advance two chief contentions: (1) that the order on consent violates the Long Island Landfill Closure Law because the increase in the permissible slope and in the maximum height and the permitted use of area F constitute "expansion^] to-an existing landfill which is located in a deep flow recharge area” (ECL 27-0704 [3]) which were approved by the DEC without meeting the statutory requirements that the Commissioner first conduct a public hearing and make a finding that "no other feasible means of solid waste management is available” (id,.); and (2) that the order on consent is invalid for noncompliance with the State Environmental Quality Review Act (SEQRA) inasmuch as it was not an order entered in an enforcement proceeding and, thus, was not excluded from compliance by the provision in ECL 8-0105 (5) (i) exempting from SEQRA "enforcement proceedings or the exercise of prosecutorial discretion”. For reasons expressed hereafter, we hold that Supreme Court and the Appellate Division properly rejected these contentions and that the order should be affirmed.

I

The Blydenburgh Landfill has been in operation since 1927. Its operation predated enactment of various legislative measures designed to protect the environment and to prevent contamination from solid waste disposal sites — as, for exam-pie, the Solid Waste Management and Resource Recovery Facilities Act (ECL art 27, tit 7, eff Sept. 1, 1973), SEQRA (ECL art 8, eff Sept. 1, 1976), the Long Island Landfill Closure Law (ECL art 27-0704, eff Dec. 18, 1983), and the Inactive Hazardous Waste Disposal Site Law (ECL art 27, tit 13, eff Aug. 26, 1979). For this reason, during most of its existence the entire Blydenburgh Landfill was operated without liners or other protection against contamination from seepage.

In the 1970s DEC became concerned that the landfill might be contaminating the ground water. It began discussions that have developed into a continuing series of disagreements between the DEC and the Town over the landfill’s operation. The DEC commenced proceedings to compel the Town to close the landfill and to make plans for alternate means of refuse disposal. These proceedings culminated in the August 5, 1980 order on consent which required the Town to cease accepting additional refuse at the existing unlined landfill except for vertical additions to the extent needed for rounding off and capping the landfill provided, however, that these additions be made at a slope of 1 foot on 6 feet. The August 5, 1980 order on consent imposed other requirements on the Town, including, most significantly, the direction that it submit a plan for double-lining and constructing a leachate recovery system for a new 16-acre section of the landfill (area A). The Town was also directed to develop a methane gas venting plan and to attempt various alternate disposal options including source separation and incineration. It was contemplated that the new lined 16-acre section at Blydenburgh together with a large undeveloped site in Edgewood — which the Town of Islip had acquired for a future landfill — would meet the Town’s needs.

Disputes between the Town and the DEC over the acceptability of respondents’ plans for the new lined 16-acre section at Blydenburgh and its compliance with other provisions of the August 5, 1980 order persisted and eventually led to litigation. Cross actions were brought between the parties in Supreme Court, Suffolk County, which resulted in a consent judgment entered on January 13, 1983. The consent judgment changed the August 5, 1980 order and imposed additional obligations on the Town. The requirement of the August 5, 1980 order on consent pertaining to closure of the unlined portion of the landfill including the 1 on 6 slope remained in effect, however, as did the direction that the Town proceed with the lined 16-acre area (area A).

Despite the settlement of the litigation in the 1983 consent judgment, the DEC and the Town of Islip continued to disagree over the Town’s compliance with the judgment and with the remaining provisions of the August 5, 1980 consent order. It was during this period that the Long Island Landfill Closure Law (ECL 27-0704) became law having been enacted on June 29, 1983 to become effective on December 18, 1983. This statute outlawed any new landfill in a deep flow recharge area (ECL 27-0704 [3]). Also, no existing landfill in a deep flow recharge area, such as the Town’s landfill at Blydenburgh, could, with very limited exceptions, continue in operation after December 18, 1990 (ECL 27-0704 [5]). Because the site which the Town had acquired at Edgewood was also in a deep flow recharge area, the Town, as a consequence of the new statute, could no longer count on the future use of a landfill at that location. In a new legal proceeding the Town sought to challenge the Long Island Landfill Closure Law on the ground that it was beyond the Legislature’s power to enact special legislation pertaining to the property, affairs or government of a local government (see, NY Const, art IX, § 2 [b] [2]). Our court ultimately rejected the Town’s contentions, holding the legislation valid as relating to a matter of general State concern (see, Matter of Town of Islip v Cuomo, 64 NY2d 50, 52, 58).

Thereafter, in September 1985, the Town petitioned the DEC pursuant to the provisions of the Long Island Landfill Closure Law for permission to make a limited lateral expansion of the Blydenburgh Landfill into an area immediately south of the existing site. The DEC, after conducting an "expansion” hearing as required by ECL 27-0704 (3), denied the request. It concluded that the Town could dispose of its waste by providing off-island trucking and that the Town had, therefore, not made the required statutory showing that "no other feasible means of solid waste management [was] available” (ECL 27-0704 [3]). The Town resorted once more to the courts to challenge the DEC’S denial of its request for lateral expansion. Its CPLR article 78 proceeding was dismissed and the determination of the DEC unanimously confirmed by the Appellate Division (Town of Islip v Williams, 126 AD2d 276, Iv denied 70 NY2d 602). In confirming, the Appellate Division held that although the acceptability of the cost of off-island trucking might be debatable, "the Commissioner’s determination that such cost is not so exorbitant as to render a program of off-island trucking 'infeasible’ is not so one-sided as to be irrational” and that "the Commissioner’s interpretation of the statute, not being irrational, should be upheld (Matter of Bernstein v Toia, 43 NY2d 437, 448; Matter of Howard v Wyman, 28 NY2d 434, 438; Town of Hempstead v Flacke, supra)” (id., at 280).

Faced with the impossibility of obtaining more landfill capacity through lateral expansion at Blydenburgh and with the necessity of abandoning its plans for a new landfill at Edgewood because of the passage of the Long Island Landfill Closure Law, the Town consented to the DEC order of May 12, 1987 — the subject of this litigation. Besides the above-described amendments of the March 5, 1980 order pertaining to the slope and maximum height and the direction that area F be used for ash burial, the May 12, 1987 order on consent contains several significant provisions. By its terms, the Blydenburgh Landfill is treated as a waste disposal site subject to the provisions of ECL article 27, title 13 pertaining to inactive hazardous waste disposal sites. The consent order provides that the Town will enter into a further order on consent requiring it to undertake a "Remedial Investigation and a Feasibility Study of Remedial Options CRI/FS’) as well as remediation of the Landfill” as an inactive hazardous waste disposal site; that it develop and implement a work plan for the remediation of the inactive hazardous waste disposal site subject to DEC approval and in compliance with the requirements established by the United States Environmental Protection Agency; that it must provide the DEC with all information and data in its possession regarding the use of the Blydenburgh Landfill for disposal of hazardous wastes; that the Town pay to the DEC a sum not to exceed $125,000 per year for the employment of full-time monitors at the landfill who will assure that the landfill is used only for nonhazardous wastes from the Town of Islip and that such waste is deposited in accordance with applicable rules and regulations and the terms of the consent order; that it will install a leachate barrier and collection system in two portions of the landfill (area C and area F); that the Town will modify the existing gas collection system at the landfill to prevent off-site migrations of toxic wastes and explosive gases; and that it must enter into an action program immediately for the recycling of the Town’s municipal waste to the maximum extent practicable and consistent with the New York State Waste Management Plan. Under the order on consent, the DEC retains jurisdiction over the landfill and over the Town’s compliance with the terms of the order and the applicable statutes, rules and regulations. In consenting to the order, the Town waives any right to a hearing including the right to contest the determination that the Blydenburgh Landfill is an inactive hazardous waste site posing a significant threat to the environment and that it must, therefore, develop and implement a remedial program (see, ECL 27-1313 [3], [4]).

On May 15, 1987, petitioner NYPIRG commenced the instant CPLR article 78 proceeding seeking to annul the May 12, 1987 consent order and to enjoin the parties from acting on that order. The Hauppauge Union Free School District Board of Education was thereafter permitted to intervene as a petitioner. The court dismissed the petition holding, among other things, that ECL 27-0704 (3) does not encompass vertical expansions; that respondents were not required to follow SEQRA since the May 12 order was an act of prosecutorial discretion in an enforcement proceeding and, therefore, not an action for purposes of SEQRA (see, ECL 8-0105 [5] [i]); and that the Ashfill Law was not violated because it applies only to the selection of a regional ashfill site. The Appellate Division unanimously affirmed for the reasons stated at Supreme Court.

II

We address first petitioner’s contention that the order on consent of May 12, 1987 is invalid because it violates the Long Island Landfill Closure Law (ECL 27-0704). ECL 27-0704 (3) provides that, as of December 18, 1983: (1) all new landfills are prohibited in deep flow recharge areas and (2) expansions to existing landfills in such areas are prohibited except where, among other things, the Commissioner finds, after a public hearing, that no other feasible means of waste management is available. Petitioners maintain that compliance with the statute was required because the order on consent constitutes the Commissioner’s approval of "a limited expansion of [an] existing landfill which is located in a deep flow recharge area” (ECL 27-0704 [3]). Their argument depends upon the interpretation of the word "expansion” as including the vertical expansion of the landfill which would necessarily result when municipal solid waste from the Town is added to the existing landfill under the provisions permitting a steeper slope for the landfill and increasing its maximum height to 300 feet. The Town argues that compliance with the statute was not required because it applies only to expansions which are lateral or horizontal.

We agree with Supreme Court and the Appellate Division that "expansion” was intended to include lateral but not vertical expansions. We reach this construction from the sense of the word "expansion” as it is used in its immediate statutory context and as part of the entire Long Island Landfill Closure Law (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 97). This construction, we observe, accords with the meaning of the term "expansion” that has been continuously accepted by the DEC in its administration of the statute (see, McKinney’s Statutes § 129). Moreover, it is consistent with the underlying purpose and statutory scheme of the Long Island Landfill Closure Law as seen from its provisions and the applicable legislative history (see, McKinney’s Statutes § 96; Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126, 131-134).

The Long Island Landfill Closure Law (ECL 27-0704) contains no definition of the term "expansion”. From the word’s context in subdivision (3), however, it seems evident that it could not have been meant to include the vertical expansion which necessarily results from piling refuse on what has already accumulated in a landfill. New landfills and expansions of existing landfills are treated together in the first sentence of the section: "no person shall commence operation, including site preparation, of a new landfill or of an expansion to an existing landfill” (ECL 27-0704 [3] [emphasis added]). Significantly, the prohibition of new landfills and expansions of existing landfills — which the quoted language imposes — is with respect to the commencement of their operation and the preparation of their sites — acts which could naturally and logically pertain to new landfills and newly expanded areas adjacent to existing landfills but not to vertical expansions, which would not entail the commencement of operations or require site preparation.

This meaning of the word "expansion” as applying only to expansions which are lateral comports with the interpretation of the term adopted by the Commissioner from the time of the statute’s inception in 1983. In the guidelines for the implementation of the Long Island Landfill Closure Law adopted by the Commissioner in February 1984, "expansion” is defined as "a lateral extension of a landfill beyond the boundaries of an existing landfill” (Long Island Landfill Law Implementation Guidelines § 3.8). This is the intended meaning of the term as it has been used consistently by the Department in its application of ECL 27-0704 (3) including its determination of Islip’s request for a lateral expansion which the DEC ultimately rejected (see, Determination of Commissioner of DEC Project No. 10-86-0673).

The Commissioner’s construction is based, in part, on the DEC’s technical expertise and its judgment that a vertical expansion, as opposed to a lateral expansion, does not pose a significant threat to the ground water because "recharge is among other things, a function of areal extent”, and there is a "reduced potential for leachate formation from a vertical versus a lateral expansion”. Inasmuch as this appears to be a reasonable reading of the statute based on the technical expertise of the agency charged with the responsibility of administering the Long Island Landfill Closure Law, we agree with Supreme Court that there is no reason for rejecting it (Matter of Bernstein v Toia, supra, at 448; cf., Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; see also, Town of Islip v Williams, 126 AD2d 276, 280, Iv denied 70 NY2d 602, supra [where the court, in confirming the DEC’s rejection of respondents’ lateral expansion, accepted the Commissioner’s interpretation of the word "feasible” as part of his conclusion that off-island trucking was a feasible alternate means of refuse disposal]).

Further, the Commissioner’s construction of ECL 27-0704 (3) —as applying only to lateral expansions of existing landfills— is consistent with the statute’s underlying purpose of protecting Long Island’s sole source aquifer and its scheme of phasing out landfills and accelerating the transition to resource recovery (see, Matter of Town of Islip v Cuomo, 64 NY2d 50, supra; Mem of State Executive Dept in support of L 1983, ch 299, reprinted in 1983 McKinney’s Session Laws of NY, at 2502-2503). While the statute prohibits all new landfills in deep flow recharge areas and greatly restricts expansions of existing landfills, it recognizes that the transition to resource recovery will require time for completion and the accommodation of the needs for municipal solid waste disposal in the heavily populated area during the transition period. Thus, the scheme contemplates the continued use of existing landfills for municipal solid waste as approved and controlled by the Commissioner during a seven-year period by the end of which the phase-out is to be accomplished. The Commissioner’s application of the statute is consistent with the aim of safeguarding the aquifer because, as noted, it reflects the Department’s expert judgment that there is a reduced potential for leachate formation from a vertical as opposed to a lateral expansion.

Finally, we reject petitioners’ contention that the provisions of the May 12, 1987 consent order pertaining to area F constitute not a vertical expansion but a lateral expansion into a new area which would be prohibited unless specifically authorized by the Commissioner pursuant to ECL 27-0704 (3). The simple answer is that the record contains unrefuted affidavits of officials of the DEC, based on excavations, that area F is not a new site but a solid waste landfill site used before the effective date of the Long Island Landfill Closure Law. The courts below, in rejecting petitioners’ contention, have apparently accepted the Commissioner’s position that the addition of material on area F constituted a vertical expansion and not a lateral expansion requiring an application under the statute. No reason has been shown why we should do otherwise.

III

Notwithstanding our holding that the May 12, 1987 order on consent is not an expansion requiring an application in compliance with ECL 27-0704 (3), petitioners maintain that the order is invalid because the Town did not comply with SEQRA. The contention depends on the consent order being an action within the meaning of ECL 8-0105 (4), thereby triggering the requirements for SEQRA compliance. The contention of the DEC, accepted by the courts below, however, is that the order on consent is expressly exempted from the definition of "action” by ECL 8-0105 (5) which, in pertinent part, states:

" 'Actions’ do not include:

"(i) enforcement proceedings or the exercise of prosecutorial discretion in determining whether or not to institute such proceedings”.

Petitioners argue that the order on consent is not truly an enforcement proceeding because it "fails to impose any substantially new obligations on the Town” and that, because the permitted vertical expansion will assertedly accommodate an estimated 900,000 tons of solid waste and extend the life of the Blydenburgh Landfill for approximately three years, the order should be regarded as an expansion agreement requiring SEQRA compliance. On the other hand, in support of its position, the DEC has filed an affidavit of the Executive Deputy Commissioner detailing the lengthy history of the Department’s enforcement efforts with respect to the Blydenburgh Landfill. The affidavit points out, among others things, that the May 12, 1987 order on consent was a modification of the August 5, 1980 order, which, itself, was an order made in an enforcement proceeding and, as such, exempt from SEQRA under ECL 8-0105 (5).

The DEC is the agency charged with the administration of SEQRA. The Commissioner has been given authority to "adopt rules and regulations implementing the provisions” of SEQRA (ECL 8-0113 [1]) including, specifically, regulations pertaining to the definitions of the terms used in SEQRA (ECL 8-0113 [2] [a]). Pursuant to this authority, the Commissioner has adopted a more detailed definition of "exempt action” which includes the following: "civil or criminal enforcement proceedings, whether administrative or judicial, including a particular course of action specifically required to be undertaken pursuant to a judgment or order, or the exercise of prosecutorial discretion” (6 NYCRR 617.2 [q] [1]).

We conclude that the Commissioner’s application of the statute (ECL 8-0105 [5]) and of his regulation (6 NYCRR 617.2 [q] [1]) in exempting the May 12, 1987 order on consent — as an order entered in an enforcement proceeding in the exercise of the Department’s prosecutorial discretion — was reasonable and that it should, therefore, be upheld (see, Matter of Bernstein v Toia, 43 NY2d 437, 448, supra; Matter of Howard v Wyman, 28 NY2d 434, 438, supra). We observe that, contrary to petitioners’ contentions, the May 12, 1987 order on consent does impose substantial obligations on the Town including, most significantly, the binding determination that the Blydenburgh Landfill is an inactive hazardous waste disposal site constituting a significant threat to the environment and the provision of the order that the Town comply with the stringent remedial requirements and enforcement provisions of ECL 27-1313.

Moreover, as we noted in Flacke v Onondaga Landfill Sys. (69 NY2d 355, 362, 363), the "regulation of solid waste management facilities is a legislative function delegated to the DEC by statute (ECL 27-0103)” and "ECL 71-2727 (1) specifically provides that the Commissioner may take 'such remedial measures as may be necessary or appropriate’ and expressly authorizes initiation of any appropriate action or proceeding to enforce the provisions of article 27, any rule or regulation promulgated pursuant thereto and any order issued or penalty assessed thereunder (ECL 71-2727 [2])”. The Commissioner, it appears, has exercised his statutory authority to control the operation of landfills on Long Island other than the one at Blydenburgh. Indeed, at the time of enactment of the Long Island Landfill Closure Law, 11 of the 15 landfills in Suffolk and Nassau Counties were, like the Blydenburgh Landfill, being operated under orders on consent. It thus seems evident that the May 12, 1987 consent order — and the vertical expansion permitted thereby — were matters well within the prosecutorial discretion given the Commissioner to issue and modify orders in enforcement proceedings in connection with violations of ECL article 27 (see, Flacke v Onondaga Landfill Sys., supra, at 362, 363). We conclude, then, that Supreme Court and the Appellate Division properly accepted the DEC’s determination that the May 12, 1987 order was exempt as a matter involving prosecutorial discretion in an enforcement proceeding (see, ECL 8-0105 [5]; 6 NYCRR 617.2 [q] [1]).

The order should, therefore, be affirmed, with costs.

Kaye, J.

(dissenting). Long Island’s aquifer provides the sole source of drinking water for Nassau and Suffolk Counties. Concerned about its threatened contamination by municipal solid waste, in 1983 the Legislature adopted the Long Island Landfill Closure Act (ECL 27-0704), curtailing landfills in the deep flow recharge area (through which precipitation replenishes the aquifer). The body of the statute — as its title — leaves no doubt of the underlying legislative purpose: existing Long Island landfills in the deep flow recharge area are to be capped and closed, and no new landfill or expansion of an existing landfill permitted. A "limited expansion” might be allowed by the Commissioner as a stopgap measure, but he is without authority to do even that without first listening to the public at a hearing and then finding there are no other feasible means of waste management available (ECL 27-0704 [3]). In this case he did neither.

This action concerns the Blydenburgh Landfill, which is located over the deep flow recharge area, and a consent order privately negotiated between the Town of Islip and the Department of Environmental Conservation (DEC) that permits substantial capacity to be added to the landfill. The issue that divides us is whether breathing new life into the Blydenburgh Landfill — permitting new capacity of up to 900,000 tons of solid waste, adding 50 more feet to the tower of refuse than the stipulated maximum, extending the landfill’s active life by three years — is an "expansion” or even a "limited expansion” of the landfill legislatively targeted for closure. The majority denies that this gross enlargement can even be considered a "limited expansion” because the landfill is expanding vertically; it therefore concludes that a private compact without public input is authorized. We disagree. The arrangement between the DEC and the Town of Islip is plainly an expansion of the Blydenburgh Landfill. It must be exposed to public scrutiny and then permitted by the Commissioner only if he finds there are no other feasible means of waste management available.

I.

The issue is best viewed in the context of a brief recapitulation of the facts.

In the past seven years the Blydenburgh Landfill has been the subject of three consent orders between the Town of Islip and the DEC. A common thread throughout is that the major active portion of the landfill — the unlined area — was to be capped and closed. The first consent order, in 1980, required the Town to cease accepting any refuse at the landfill except to the extent needed to contour it in preparation for capping in accordance with a Town plan to be submitted for approval to the DEC. The consent order further required the Town to submit a plan to double-line a smaller, 16-acre section adjacent to the area to be closed and construct a leachate recovery system there, with the ultimate goal of using that new area for municipal solid waste disposal.

Islip and the DEC ultimately sued each other, engendering a second consent order in 1983. The 1983 consent order continued the original objective of closing the landfill and requiring the Town to implement alternative waste disposal methods, including resource recovery. By this time Islip had apparently complied with some of the requirements of the 1980 consent order: the unlined portion of the landfill had been capped and closed at a height of 250 feet with the slope fixed at "l-to-6”, and the adjacent 16-acre area had been lined and put into operation. In August 1985, Islip submitted a capping and closure plan then being implemented in the closed portion of the site, but the DEC found it inadequate.

As litigation continued, the Town was running out of landfill capacity. Apparently, the 16-acre area receiving new waste would be full by March 1987. Islip’s Solid Waste Management Plan called for a new landfill to be constructed in Edgewood, at which time the Town would close Blydenburgh. But construction of the Edgewood Landfill never materialized, and Islip was forced to shift its focus back to Blydenburgh. The Town itself rejected vertical expansion above the 250-foot height of the capped and closed portion of the existing landfill, and instead proposed opening a new section. The DEC, however, was concerned both because this would interfere with the cleanup of the existing site and because feasible alternatives were available. The DEC ultimately prevailed (Town of Islip v Williams, 126 AD2d 276, Iv denied 70 NY2d 602) and the proposal was abandoned.

In spring 1987, a deal was struck between the Town and the DEC. As recited by Supreme Court and affirmed by the Appellate Division (134 AD2d 246), the concluding chapter in the tale of the infamous garbage barge Mobro was written when various agencies agreed that its 3,100 tons of raw garbage would be burned at an incinerator in Brooklyn and the residue transported to Blydenburgh. Islip agreed to take back this residue, and it received from the DEC the right to expand Blydenburgh materially. The May 12, 1987 consent order permitted the Town to modify its closure plan so that municipal solid waste could be added both to the closed area and to the adjacent 16-acre area — the combined base obviously offering greatly increased capacity. The maximum allowable height of the combined area was increased from 250 to 300 feet and the slope steepened from l-to-6 to l-to-3. Additionally, Islip was granted permission to use an area adjacent to an elementary school (area F) owned by petitioner Board of Education as a disposal site for incinerator ash. As part of the consent order, the Town agreed to remediate the landfill subject to DEC approval, pay for DEC employees to monitor waste coming onto the landfill, modify the gas collection system to prevent the migration of gas from the site, and undertake an extensive recycling program.

Petitioners (NYPIRG and the Board of Education of the Hauppauge Union Free School District) urge that the deal struck between the Town and the DEC — with no public hearing — while expedient for both sides, contravenes the Landfill Closure Law and the underlying legislative concern for contamination of Long Island’s sole source aquifer. Their contentions are meritorious.

II.

The Long Island Landfill Closure Law (ECL 27-0704 [3]) provides that "no person shall commence operation, including site preparation, of a new landfill or of an expansion to an existing landfill which is located in a deep flow recharge area. However, the commissioner, after conducting a public hearing, may approve a limited expansion of any existing landfill in a deep flow recharge area for the sole purpose of providing for solid waste disposal capacity prior to the implementation of a resource recovery system. The commissioner shall not approve any such expansion unless he finds * * * that no other feasible means of solid waste managements is available, taking into account technological, economic and other essential factors.”

The majority adopts the conclusion reached by Supreme Court and the Appellate Division that "expansion” as used in ECL article 27 means only lateral expansion, not vertical expansion. It does so on three perceived grounds: first, the sense of the word in its immediate statutory context; second, DEC’S expert reading of the word; and third, the statute’s underlying purpose. None of these is persuasive.

If the statute is first tó be examined on its face — as we agree it must — then the majority erroneously bypasses the ordinary, commonsense meaning of the word "expansion.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 232.) Understandably so. In its ordinary use "expansion” plainly means increase or growth; neither the word nor the statute limits the direction. Nor is there merit in the argument that "expansion” could not possibly include vertical expansion because daily garbage deposits would otherwise trigger the need for a hearing. Daily garbage deposits within a landfill’s capacity obviously do not require a public hearing. Here, however, the parties agreed — by a very particular plan specifying height and grade — to expand the tower of refuse 50 feet beyond the landfill’s stipulated capacity, steepening its slope and adding 900,000 tons of waste, or three more years to its active life. That is not ordinary daily waste deposit, but quite a different matter. Nor is there support for the majority’s conclusion in reading the word "expansion” in its immediate statutory context. Even if to "commence operation” contemplated only a wholly new beginning — which we dispute — there is no question on this record that the major portion of the Blydenburgh Landfill in issue here (the unlined area) had been capped and closed, requiring a new beginning. Similarly, in the case before us there was substantial dispute as to whether area F-— designated in the consent order to receive the ash — had ever operated as a landfill; at best it had not been used as a landfill for three or four years. (This facet of the consent order alone warrants the exploration and public scrutiny of the statutorily prescribed hearing.) Thus, it is obvious that even a vertical expansion may also entail a new beginning or commencement of operations; it does in the very case before us.

Reading the word "expansion” alone or in its immediate statutory context leads to only one conclusion: from the title on through, it is plain that the legislation was meant to curtail and close critically situated Long Island landfills, not to sanction their skyward expansion.

An administrative agency is of course bound by the statutory language, and cannot constrict, expand or interpret it in ways not intended by the Legislature (see, e.g., Matter of Trump-Equitable Fifth Ave. Corp. v Gliedman, 57 NY2d 588, 595; Matter of Jones v Berman, 37 NY2d 42; see also, Boreali v Axelrod, 71 NY2d 1). A statute circumscribes agency authority, not vice versa (see, e.g., Matter of McNulty v New York State Tax Comma., 70 NY2d 788, 791). The majority places undue reliance on the DEC’s reading of the statute, on its regulation, and on its apparent application of the regulation in one prior instance when it rejected Islip’s application for a lateral expansion. There is no evidence in this record of any consistent pattern of application by the DEC of its cramped definition of "expansion” — even assuming that an agency’s consistent interpretation can itself limit a statute (which it surely cannot).

The majority’s conclusion that DEC’s reading of the word "expansion” is reasonable in light of its technical expertise rests on an affidavit from one of DEC’s engineers, simply asserting that "a vertical expansion, as opposed to a lateral expansion, does not pose a significant threat to the ground water because 'recharge is among other things, a function of areal extent’, and that there is a 'reduced potential for leach-ate formation from a vertical versus a lateral expansion’.” (Majority opn, at 303.) Such a downplaying of the environmental impact of vertical expansion, however, was directly contradicted by Islip’s own 1985 environmental impact statement, also part of the record before us. In that document, prepared for a proposed lateral expansion, the Town itself pointed out that "a higher landfill is not an acceptable alternative,” and it raised concerns incident to vertical expansion including "erosion of the landfill cap and an increase in attendant nuisances (exposure of buried garbage, odor, unattractiveness and repair costs)”. Petitioners urge that in fact piling garbage on top of an already loaded site could substantially weaken the underlying barrier, thereby increasing the volume of leachate reaching the aquifer, and that the resulting increased volume acquires a higher concentration of contaminants as it is tunneled through a higher mountain of garbage. While courts may not be best suited to resolving such highly technical disputes, and there is much to be said for recognizing the Commissioner’s unquestioned expertness, still that is no basis for abdicating to the DEC and abandoning the clear mandate of the Legislature — to have such matters aired at public hearings where expert opinions can be confronted and challenged. This process neither eliminates nor undermines the Commissioner’s ultimate power to decide the most feasible means for waste disposal. To the contrary, the public participation contemplated by the statute enlightens and informs that decision.

Little need be said of the majority’s conclusion that permitting this substantial expansion of a Long Island landfill to be accomplished by private agreement is actually consistent with the underlying purpose of a statute whose sole purpose is to direct their closure, forbid their expansion, and permit even limited expansion only after a public hearing and finding of no feasible alternative.

In view of the life-and-death importance of drinking water to Long Island residents, it is no surprise that the Legislature has provided them with an opportunity to be heard before a critically situated landfill may be expanded, and no surprise that well over 1,000 people in fact attended a hearing conducted by the Commissioner in connection with the Town’s earlier effort to expand Blydenburgh. However desperate the Town’s long-standing waste disposal problem may appear at this moment (compare, Flushing Natl. Bank v Municipal Assistance Corp., 40 NY2d 731), it is indeed unfortunate that a way has been found to defeat the prescribed statutory procedure, and that it now receives this court’s sanction.

We would reverse the Appellate Division order and grant the petition.

Chief Judge Wachtler and Judges Simons and Alexander concur with Judge Hancock, Jr.; Judge Kaye dissents and votes to reverse in a separate opinion in which Judge Bellacosa concurs; Judge Titone taking no part.

Order affirmed, with costs.

      . Respondents Town of Islip and Islip Resource Recovery Agency will be referred to collectively as Islip or the Town. Respondent Williams will be referred to as the Commissioner or DEC. Respondent Harrelson has defaulted and is not a party to this appeal.

      . Petitioner and intervener also contend that the consent order provision which allows the disposal of ashes in area F violates the Ashfill Law (L 1985, chs 358, 359), because area F is within 3,000 feet of a school. This argument is without merit. The Ashfill Law sets forth the procedure to be followed in the selection of a regional ashfill disposal facility for Nassau and Suffolk Counties. The 3,000-foot requirement only applies to prospective sites for this regional ashfill and has no relevance to local facilities (see, L 1985, ch 358, § 4 [2] [b] [iii], reprinted in McKinney’s Cons Laws of NY, Book l?i/2, ECL 27-0704, 1988 Cum Ann Pocket Part).

      . Notwithstanding petitioners’ assertions and the suggestion to the contrary in the dissent, there is nothing in the May 12, 1987 order on consent or the record pertaining to the enforcement proceedings conditioning the vertical expansion on Islip’s agreement to take the residue from the "infamous garbage barge” (see, dissenting opn, at 308). Indeed, the order on consent does not mention the garbage barge.

      . ECL 27-0704 (3) provides: "On or after the effective date of this section and except as provided herein, no person shall commence operation, including site preparation, of a new landfill or of an expansion to an existing landfill which is located in a deep flow recharge area. However, the commissioner, after conducting a public hearing, may approve a limited expansion of any existing landfill in a deep flow recharge area for the sole purpose of providing for solid waste disposal capacity prior to the implementation of a resource recovery system. The commissioner shall not approve any such expansion unless he finds that the owner of such landfill is a municipality that is implementing a resource recovery system which is acceptable to the commissioner and which will be operational no later than seven years after the effective date of this section and that no other feasible means of solid waste management is available, taking into account technological, economic and other essential factors.”

      . The guidelines were drafted with input from the New York State Legislative Commission on Water Resource Needs of Long Island and after notice to the various towns. They were adopted after issuance of a negative declaration under SEQRA was published in the Environmental Notice Bulletin.