Matter of East Riv. Realty Co., LLC v New York State Dept. of Envtl. Conservation

Matter of East Riv. Realty Co., LLC v New York State Dept. of Envtl. Conservation 2009 NY Slip Op 09381 [68 AD3d 564] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of East River Realty Company, LLC, Respondent,
v
New York State Department of Environmental Conservation, Appellant.

—[*1] Andrew M. Cuomo, Attorney General, New York (Todd D. Ommen of counsel), for appellant.

Mayer Brown LLP, Washington, D.C. (Richard Ben-Veniste of counsel), for respondent.

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 (BCP) (ECL art 27, tit 14), 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.

The BCP was enacted "to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment" (ECL 27-1403). "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" (ECL 27-1405 [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" (ECL 27-1407 [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 extrastatutory "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 [*2]Pantelidis v New York City Bd. of Stds. & Appeals, 10 NY3d 846 [2008]; Destiny USA Dev., 63 AD3d at 1573). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and RomÁn, JJ. [Prior Case History: 22 Misc 3d 404.]