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Lighthouse Pointe Property Associates LLC v. New York State Department of Environmental Conservation

February 6, 2009

IN THE MATTER OF LIGHTHOUSE POINTE PROPERTY ASSOCIATES LLC, PETITIONER-RESPONDENT,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ALEXANDER B. GRANNIS, COMMISSIONER, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND DALE A. DESNOYERS, DIRECTOR, DIVISION OF ENVIRONMENTAL REMEDIATION, RESPONDENTS-APPELLANTS.



Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered December 27, 2007 in a proceeding pursuant to CPLR article 78. The judgment granted the petition.

The opinion of the court was delivered by: Fahey, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., CENTRA, LUNN, FAHEY, AND GREEN, JJ.

OPINION AND

It is hereby ORDERED that the judgment so appealed from is reversed on the law without costs and the petition is dismissed.

The issue before us on this appeal is whether Supreme Court erred in granting the petition in this CPLR article 78 proceeding and directing respondent New York State Department of Environmental Conservation (DEC) to accept petitioner into the Brownfield Cleanup Program (BCP), set forth in Environmental Conservation Law (ECL) article 27, title 14. We conclude that the court erred in determining that the DEC acted in an arbitrary and capricious manner in denying petitioner's applications for acceptance into the BCP. We therefore conclude that the judgment should be reversed and the petition dismissed.

Background

This appeal arises from petitioner's efforts to develop contiguous 22-acre and 25.4-acre parcels. The first of the parcels (Riverfront parcel) is located on the east side of the Genesee River in the Town of Irondequoit and the City of Rochester, close to the confluence of the Genesee River and Lake Ontario, while the second of the two parcels (Inland parcel) is located near the east side of the Genesee River (collectively, the site). Petitioner proposes to develop the site as a mixed-use neighborhood, including residential complexes, a marina, restaurants and a hotel. Petitioner estimates that the cost of the project will range between $150 million and $250 million.

The site presently is between 8 and 25 feet above mean lake level and has groundwater at approximately seven feet below surface level. The site is located across the Genesee River from the historic Charlotte lighthouse, which was once on the shore of Lake Ontario. According to one of petitioner's members, however, the lighthouse is now a "good distance" from the mouth of the Genesee River because the marshland in that area "filled in." Petitioner acknowledges that most of the site is located on a 100-year flood zoneand encompasses what was historically a marsh area.

Much of the site was deemed wasteland during the early to mid-20th century. Most of the Inland parcel is located within the footprint of a City landfill that operated from at least 1956 to 1962 and that served as a depository for residential refuse, ash, slag, sewage sludge and construction debris. The site has fill material ranges of 4 to 26 feet in depth, and at least some of the ground at that location is unstable. A wastewater treatment plant was located on a portion of the Inland parcel for approximately 60 years. The plant ceased to operate in the early 1980s and was demolished in the late 1990s. Sewage sludge from that plant was disposed of on the part of the site that contained a landfill through roughly 1970. Today, the portions of the site that are not vacant are primarily used for boat storage and parking.

The Brownfield Cleanup Program Act

The Brownfield Cleanup Program Act was enacted in 2003 to encourage voluntary remediation of brownfield sites for reuse and redevelopment (see ECL 27-1403). A brownfield site, with certain exceptions not relevant herein, is defined as "any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant" (ECL 27-1405 [2]). The term contaminant is defined as "hazardous waste and/or petroleum" (ECL 27-1405 [7-a]).

Participation in the BCP is subject to DEC approval (see ECL 27-1407 [1]; 6 NYCRR 375-3.4 [c]). The ECL lists grounds that mandate exclusion from the program (see ECL 27-1407 [8]; see also 6 NYCRR 375-3.3), including the failure of "real property [to] ...


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