Opinion
July 3, 1997
Present — Denman, P. J., Green, Doerr, Balio and Boehm, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in annulling the determination of New York State Department of Environmental Conservation (DEC) to grant a mining permit to respondent Pine Hill Concrete Mix Corporation (Pine Hill) and in directing that DEC conduct no further review of the permit application until the completion of an Environmental Impact Statement (EIS). Pine Hill's proposed project is a Type I action, which presumptively requires preparation of an EIS (see, Matter of Cathedral Church of St. John the Divine v. Dormitory Auth., 224 A.D.2d 95, 100, lv denied 89 N.Y.2d 802; Matter of Town of Dickinson v. County of Broome, 183 A.D.2d 1013, 1014). The record establishes, however, that the "determination to issue a negative declaration and forego the need for an EIS was neither arbitrary and capricious nor irrational" (Matter of Cathedral Church of St. John the Divine v. Dormitory Auth., supra, at 100; see, Matter of Save the Pine Bush v. Planning Bd., 217 A.D.2d 767, 769, lv denied 87 N.Y.2d 803). Further, DEC's issuance of a negative declaration was not impermissibly conditioned upon Pine Hill's commitment to limit the hours and location of truck traffic. That commitment was made by Pine Hill to the Town of Elma, not DEC, and was "part and parcel of the project plans being reviewed by" DEC (Matter of Cathedral Church of St. John the Divine v. Dormitory Auth., supra, at 102-103; cf., Matter of Miller v. City of Lockport, 210 A.D.2d 955, 957, lv denied 85 N.Y.2d 807). Finally, we conclude that DEC did not conduct an improperly segmented review by considering the instant project apart from Pine Hill's application for a permit to mine another parcel in the Town of Marilla (see, Matter of Cahn v. Planning Bd., 157 A.D.2d 252, 256-257; cf., Matter of Teich v. Buchheit, 221 A.D.2d 452, 453-454; Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 46-49, appeal dismissed 86 N.Y.2d 776). (Appeals from Judgment of Supreme Court, Erie County, Rath, Jr., J. — CPLR art 78.)