Opinion
2001-09467
Argued May 17, 2002.
November 12, 2002.
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Environmental Conservation dated August 8, 2000, which, after a hearing, denied the petitioner's application for a permit to build a house and septic system in the regulated area immediately adjacent to a designated freshwater wetland.
Esseks, Hefter Angel, Riverhead, N.Y. (Stephen R. Angel of counsel), for petitioner.
Eliot Spitzer, Attorney-General, New York, N.Y. (Gregory J. Nolan and Marion R. Buchbinder of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER ON MOTION
On the court's own motion, it is
ORDERED that its decision and order dated September 23, 2002, in the above-entitled case is recalled and vacated, and the following decision and order is substituted therefor:
ADJUDGED that the petition is denied, without costs or disbursements, the determination is confirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance with ECL 25-0404.
The determination of the Commissioner of the New York State Department of Environmental Conservation (hereinafter the Commissioner) must be confirmed, as it was supported by substantial evidence and was not arbitrary or capricious (see Matter of Brotherton v. Department of Envtl. Conservation of State of N.Y., 189 A.D.2d 814, 815).
The record of the administrative hearing is insufficient to determine whether the denial of the petitioner's application is so burdensome as to constitute a taking, in which case, the Commissioner must either grant the application or commence condemnation proceedings (see ECL 25-0404). Accordingly, the matter is remitted to the Supreme Court for an evidentiary hearing to determine whether the wetlands regulations, coupled with the denial of the permit application, constituted an unconstitutional taking of the petitioner's property (see Matter of Brotherton v. Department of Envtl. Conservation of State of N.Y., supra at 816; Matter of Haines v. Flacke, 104 A.D.2d 26, 33; see also Spears v. Berle, 48 N.Y.2d 254, 261, 264).
The petitioner's remaining contention is without merit (see CPLR 7804[g]).
FEUERSTEIN, J.P., SCHMIDT, ADAMS and CRANE, JJ., concur.