An Elmira artist has lost a court battle with state officials over a cleanup plan for previous commercial pollution at a property he owns, but Julian Raven already plans to appeal the ruling.
Last October, Raven filed a lawsuit in state Supreme Court in Chemung County, naming Gov. Kathy Hochul, the state Department of Environmental Conservation and its commissioner Amanda Lefton, project attorney Dudley Loew, and DEC project manager Kira Bruno as defendants.
The lawsuit stems from Raven’s 2014 purchase of an abandoned building at 714 Baldwin St. in Elmira, with plans to restore it and use it as a studio.
But DEC said the site — which was once used to store petroleum products and later used as a laundry and truck fueling and maintenance depot — was contaminated with chemicals including chlorinated volatile organic compounds which are present in site soil, groundwater, and soil vapor; and petroleum-related volatile organic compounds present in site soil and groundwater.
DEC came up with a cleanup plan that would cost more than $600,000, and identified Raven, Tartan Textile and EnviroAnalytics Group LLC as potentially responsible parties who may be liable for cleanup costs.
Following a hearing in January, state Supreme Court Justice Christopher Baker agreed with DEC’s response to Raven’s lawsuit and dismissed the complaint, primarily on procedural grounds, noting that administrative actions by the agency haven’t been completed.
“They (DEC) argue that the court should also dismiss the petition on the merits both because the applicable statute of limitations has run, and because the petition is premature, as petitioner has failed to exhaust his administrative remedies,” Baker wrote.
In response to the judgement, Raven said only after substantial litigation did the court determine that the case could not proceed because of technical deficiencies that had previously been set aside.
A notice of appeal is being prepared, Raven said, and the matter will be brought before the Appellate Division of state Supreme Court.
The perception that technical rules were first waived and then enforced rigidly will be a focal point of that appeal, Raven said.
The appeal is also expected to raise concerns about whether a litigant can receive a fully impartial hearing in a small local jurisdiction where government agencies, counsel, and courts operate within the same close-knit professional environment, he added.
“This case was not dismissed on the merits,” Raven said. “It was dismissed on a technicality that the court itself had previously set aside. The appellate courts exist precisely to correct errors of this kind, and I am confident that a full and fair review will occur.”
Raven also has a similar legal action pending in federal court, where he filed a lawsuit claiming actions by DEC and other state officials violate his constitutional rights.
READ THE FULL LAWSUIT RULING HERE
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This article originally appeared on Elmira Star-Gazette: Elmira artist’s lawsuit against DEC over contaminated property dismissed
Reporting by Jeff Murray, Elmira Star-Gazette / Elmira Star-Gazette
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