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East River Realty Co., LLC v. New York State Dep't of Environmental Conservation

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 17, 2009

IN RE EAST RIVER REALTY COMPANY, LLC, PETITIONER-RESPONDENT,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, RESPONDENT-APPELLANT.

Judgment (denominated an order), Supreme Court, New York County (Lewis Bart Stone, J.), entered October 30, 2008, setting aside respondent's determination dated October 9, 2007, which excluded three properties belonging to petitioner from the Brownfield Cleanup Program (Environmental Conservation Law, art 27, tit 14) (BCP), reinstating respondent's earlier acceptance of the three properties into the BCP, and ordering respondent to execute and deliver to petitioner a cleanup agreement as to the three properties, unanimously affirmed, without costs.

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.

Gonzalez, P.J., Mazzarelli, Nardelli, Acosta, RomÁn, JJ.

117040/07

The BCP was enacted "to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment" (Environmental Conservation Law § 1403). "Brownfield site" is defined as "any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant" (section 1405[2]). A would-be participant in the program must submit a request that includes information "sufficient to allow the department to determine eligibility and the current, intended and reasonably anticipated future land use of the site" (section 1407[1]). We reject respondent's argument that a property may be deemed ineligible for the program on the ground that it would have been remediated in any event (see Matter of Destiny USA Dev., LLC v New York State Dept. of Envtl. Conservation, 63 AD3d 1568, 1570 [2009] [rejecting respondent's reliance on extra-statutory "factors (that) effectively limit inclusion in the BCP to parcels of real property that, but for BCP participation, would remain undeveloped"]; Matter of HLP Props. LLC v New York State Dept. of Envtl. Conservation, 21 Misc 3d 658, 669 [2008] [rejecting respondent's use of "its own administratively-created and far more limiting guidelines to determine petitioners' ineligibility"]).

Given the extensive record before it, the court had sufficient evidence on which to base its determination that petitioner was eligible for inclusion in the BCP and therefore properly declined to remand the matter to respondent for additional consideration (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 10 NY3d 846 [2008]; Destiny USA Dev., 63 AD3d at 1573).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091217

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