NY, Kings Co.: Admin order to enter for environmental concerns needs only programmatic purpose

The Department of Environmental Conservation needed only a programmatic purpose for its administrative probable cause for a court order for access to respondent’s property. Matter of State of New York, Department of Environmental Conservation v. 735 Bedford LLC, 2020 NY Slip Op 20307, 2020 N.Y. Misc. LEXIS 9181 (Kings Co. Nov. 19, 2020):

735 Bedford LLC’s argument that a probable cause requirement applies to the DEC’s access to the property is rejected. The DEC’s requested inspection of the property is administrative, and does not involve a criminal proceeding. Under the statutory scheme of the Environmental Conservation Law, the DEC’s entry upon the property is sought “in furtherance of the substantial governmental interest in environmental protection and remediation, rather than in furtherance of criminal investigation and prosecution” (Matter of Murtaugh, 42 AD3d at 989). 735 Bedford LLC claims that it is not part of a “highly-regulated industry,” and, therefore, it has a right to absolute privacy with respect to the property. However, this argument is unavailing since contaminated and potentially contaminated sites are highly regulated by the DEC under Environmental Conservation Law article 27 and DEC regulations. Moreover, the DEC has attempted to obtain 735 Bedford LLC’s consent and then, upon 735 Bedford LLC’s refusal to consent, sought relief from this court authorizing such access, pursuant to its petition and notice of petition.