Opinion
February 10, 1986
Determination confirmed, without costs or disbursements, and matter remitted to the Supreme Court, Suffolk County, for an evidentiary hearing to determine whether the wetlands regulations, considered together with the denial of the permit, would work an unconstitutional taking of the petitioner's property.
Based on the evidence adduced in the record of the administrative proceedings before the New York State Department of Environmental Conservation Administrative Law Judge, we find that the determination of the Commissioner was supported by substantial evidence and had a rational basis (see, Spears v Berle, 48 N.Y.2d 254, 261; Matter of Haines v. Flacke, 104 A.D.2d 26, 34). Nevertheless, because the issue of whether the determination of the Commissioner denying the petitioner a permit to erect a single-family home and an associated septic system, viewed in combination with the applicable regulations, may have resulted in an unconstitutional taking of the petitioner's property without just compensation, and since it is not appropriate to raise such an issue at the administrative level, we remit the matter to the Supreme Court, Suffolk County, for the purpose of holding an evidentiary hearing and making a determination with respect to the issue of whether there has been an unconstitutional taking of the petitioner's property without just compensation (see, ECL 24-0705; Spears v. Berle, supra; Matter of Haines v. Flacke, supra, at pp 32-33, 36). Lazer, J.P., Mangano, Brown and Kooper, JJ., concur.