Opinion
April 18, 1988
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the judgment is affirmed, with costs.
The respondent's denial of the petitioner's request for demapping has a rational basis and is supported by substantial evidence in the record (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176). After an inspection of the petitioner's property by Department of Environmental Conservation staff members, they concluded that the area in question is a "vital tidal wetland, regularly inundated with tidal waters" and vegetated by at least five of the plant species which denote tidal wetlands pursuant to ECL 25-0103. The evidence in this record does not support the petitioner's contention that the wetlands on his property were entirely created by artificial means, nor would such a fact, even if proven, necessarily divest the respondent of authority to regulate and restrict their use (see, Jack Coletta, Inc. v. New York State Dept. of Envtl. Conservation, 128 A.D.2d 755, lv denied 70 N.Y.2d 602; Matter of Rappl Hoenig Co. v. New York State Dept. of Envtl. Conservation, 61 A.D.2d 20, affd 47 N.Y.2d 925, rearg denied 48 N.Y.2d 651).
There is likewise a rational basis for the denial of a setback variance because, as the court's own inspection determined, to permit construction where the petitioner desires to build would "destroy tidal wetlands, marine and plant life" which the respondent is empowered to protect (ECL art 25). The petitioner has failed to show that his request to build within 54.67 rather than 75 feet of the wetlands is justified. His survey established that the "average setback" of "substantially all" existing structures within 500 feet of his property was greater than 54.67 feet (see, 6 NYCRR 661.6 [a] [1]). Mollen, P.J., Mangano, Brown and Harwood, JJ., concur.