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MATTER WILLIAM LEATHERSICH v. NEW YORK STATE WATER RESOURCES COMMISSION (09/10/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY 1968.NY.42838 <http://www.versuslaw.com>; 293 N.Y.S.2d 787; 57 Misc. 2d 856 September 10, 1968 IN THE MATTER OF WILLIAM LEATHERSICH, AS PRESIDENT OF THE LIVINGSTON COUNTY FEDERATION OF SPORTSMEN'S CLUBS, PETITIONER,v.NEW YORK STATE WATER RESOURCES COMMISSION, RESPONDENT, AND PARKVIL, INC., INTERVENOR Keenan, Carroll, Harris, Creary & Beck (Wayne M. Harris of counsel), for petitioner. Louis J. Lefkowitz, Attorney-General (Dunton F. Tynan and Edgar G. Purcell, Jr., of counsel), for respondent. Salzman & Salzman (Sidney J. Salzman of counsel), for intervenor. Louis G. Bruhn, J. Author: Bruhn


Louis G. Bruhn, J.

Author: Bruhn

 This is an article 78 proceeding in which the petitioner seeks an order "annulling the determination of the New York State Water Resources Commission in granting Application No. 1-1-66 Parkvil, Inc., Joseph J. Vitale, President, which said application was made pursuant to section 429-b of the Conservation Law of the State of New York, and directing the said New York State Water Resources Commission to deny the said application No. 1-1-66 Parkvil, Inc., Joseph J. Vitale, president forthwith, and directing the applicant to remove fill he has placed under the waters of the State and for such other and further relief as to the court seems just and proper."

The notice of motion herein continues:

"That the said application is made on the following said grounds:

"A. The determination of the New York State Water Resources Commission was made in violation of lawful procedure by error of law.

"B. The determination of the New York State Water Resources Commission was arbitrary and capricious.

"C. The determination of the New York State Water Resources Commission was made as a result of hearings where evidence was taken, pursuant to direction by law and was not supported on the record by substantial evidence."

The facts are briefly these:

The intervenor, pursuant to section 429-b of the Conservation Law which became effective January 1, 1966, filed an application, dated January 26, 1966 with the respondent.

By memorandum of determination, dated March 23, 1967, the Central Permit Agent concluded, inter alia :

"15. After a thorough review of the proposal, the New York State Conservation Department, Division of Fish and Game feels that substantial damage may have been done to Northern Pike breeding potential by the applicant's filling on his own land prior to the effective date of Conservation Law, Section 429-b but that completion of the project will cause little additional damage to the fish and wildlife resources of the lake. Consequently, they do not object to completion of the project.

"16. Benefits will be provided to the general public by the project through the development of improved swimming and recreation facilities, improved sanitation facilities and general redevelopment of the area."

The memorandum then went on to indicate that certain conditions should be imposed as a condition to the granting of the permit.

Thereafter, the petitioner, pursuant to section 611.7 New York Codes, Rules and Regulations (6 NYCRR 611.7) filed an objection to the granting of any such permit and pursuant to section 611.13 of the same Codes, Rules and Regulations (6 NYCRR 611.13) applied to the ...


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