Opinion
2014-10-30
In the Matter of James P. DUGAN et al., Appellants, v. Billy LIGGAN et al., Constituting the Planning Board of the Town of Rosendale, Respondents, and Ulster County Department of Health–Environmental Sanitation Division et al., Respondents.
DeGraff, Foy & Kunz, LLP, Albany (David F. Kunz of counsel), for appellants. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Eric M. Kurtz of counsel), for Ulster County Department of Health–Environmental Sanitation Division, respondent.
DeGraff, Foy & Kunz, LLP, Albany (David F. Kunz of counsel), for appellants. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Eric M. Kurtz of counsel), for Ulster County Department of Health–Environmental Sanitation Division, respondent.
Risely & Moriello, PLLC, Kingston (Michael A. Moriello of counsel), for Daniel Falk and others, respondents.
Before: PETERS, P.J., LAHTINEN, STEIN, GARRY and DEVINE, JJ.
STEIN, J.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered January 30, 2013 in Ulster County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Ulster County Department of Health–Environmental Sanitation Division approving the subdivision plans of respondents Daniel Falk, Kevin Evans and Angela Evans for a proposed water supply and sewage disposal system.
In August 2006, respondents Daniel Falk, Kevin Evans and Angela Evans (hereinafter collectively referred to as the applicants) filed an application with the Planning Board of the Town of Rosendale for approval of a subdivision consisting of 21 residential lots and one commercial lot in the Town of Rosendale, Ulster County. The Planning Board subsequently began a coordinated environmental review with various involved agencies, including respondent Ulster County Department of Health–Environmental Sanitation Division (hereinafter the Department), and formally announced its intention to act as lead agency for purposes of the State Environmental Quality Review Act ( see ECL art. 8). The Planning Board classified the project as a type I action and held public hearings. In September 2008, after filing a negative declaration of environmental significance, the Planning Board granted preliminary plat approval, subject to certain conditions. The Department conducted its own review of the relevant water supply and sewage disposal plans, including the soil and water conditions of the property and, in September 2009, approved the subdivision plans, following which the Planning Board granted final subdivision approval. Shortly thereafter, the Department issued a certificate of approval of the subdivision plans to the applicants.
Petitioners—a group of neighboring landowners whose properties adjoin the proposed subdivision—commenced this CPLR article 78 proceeding seeking review of the approvals of the subdivision plans by the Planning Board and the Department. After respondents answered and asserted various defenses, Supreme Court dismissed the petition as untimely. On appeal from that judgment, this Court determined, as relevant here, that dismissal of the claims challenging the Department's approval of the subdivision plans for the proposed water supply and sewage disposal system was erroneous, and remitted the matter to Supreme Court for resolution of those claims (90 A.D.3d 1445, 935 N.Y.S.2d 730 [2011] ). On remittal, Supreme Court denied petitioners' request to conduct further discovery and ultimately determined that the Department's approval of the subdivision plans was not irrational, arbitrary and capricious or in violation of law. Petitioners now appeal, and we affirm.
Initially, we reject petitioners' claim that Supreme Court erred by dismissing the petition without a hearing ( seeCPLR 7804[h] ). Our review of the Department's determination “is limited to the facts and record adduced before [the Department]” ( Matter of Kelly v. Safir, 96 N.Y.2d 32, 39, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001] [internal quotation marks and citations omitted]; accord Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607 [2000]; see Matter of Ames v. Johnston, 169 A.D.2d 84, 86, 571 N.Y.S.2d 831 [1991] ). After carefully considering the Department's record, we conclude that, despite the presence of some factual issues, no hearing was required, as “the matter was summarily determinable from the papers submitted” ( Matter of Conte v. Town of Norfolk Zoning Bd. of Appeals, 261 A.D.2d 734, 737, 689 N.Y.S.2d 735 [1999]; seeCPLR 409[b]; Matter of Eck v. City of Kingston Zoning Bd. of Appeals, 302 A.D.2d 831, 832, 755 N.Y.S.2d 508 [2003]; Matter of Save Our Forest Action Coalition v. City of Kingston, 246 A.D.2d 217, 221–222, 675 N.Y.S.2d 451 [1998]; see generally Matter of City Servs., Inc. v. Neiman, 77 A.D.3d 505, 508, 909 N.Y.S.2d 703 [2010], lv. denied16 N.Y.3d 701, 2011 WL 32428 [2011] ).
As to the merits, petitioners claim that the Department failed to meet its obligations with respect to “regulat[ing] the sanitary aspects of water supplies and sewage disposal and control[ling] the pollution of waters” (Public Health Law § 201[1] [ l ] ) because the final subdivision plans, as approved by the Department, were in violation of various state Department of Health regulations ( see 10 NYCRR Appendix 75–A.1; 75–A.4) and the Ulster County Sanitary Code, and the Department did not consider other identified areas of environmental concern. We note that “[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” ( Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 232, 851 N.Y.S.2d 76, 881 N.E.2d 172 [2007]; accord Matter of Frigault v. Town of Richfield Planning Bd., 107 A.D.3d 1347, 1350, 968 N.Y.S.2d 673 [2013]; Matter of Shop–Rite Supermarkets, Inc. v. Planning Bd. of the Town of Wawarsing, 82 A.D.3d 1384, 1385, 918 N.Y.S.2d 647 [2011], lv. denied17 N.Y.3d 705, 2011 WL 2535249 [2011] ). Moreover, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives” ( Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d at 232, 851 N.Y.S.2d 76, 881 N.E.2d 172 [internal quotation marks and citations omitted]; accord Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53 [1990]; Matter of Schaller v. Town of New Paltz Zoning Bd. of Appeals, 108 A.D.3d 821, 823, 968 N.Y.S.2d 702 [2013] ).
It is evident from the record here that the Department undertook a comprehensive and extensive review of the project, which spanned nearly three years, prior to issuing its approval of the final subdivision plans. The Department's record includes relevant correspondence from government agencies relating to the project. As part of its review, the Department conducted site evaluations, considered the results of soil and well testing, as well as the report of a geologist, who analyzed the geological conditions on the site and addressed concerns raised by petitioners and their expert. While petitioners proffered opinions from their experts, who reached differing conclusions on various issues, the Department was free to rely upon one expert's opinion over the other ( see Matter of Friedman v. Adirondack Park Agency, 165 A.D.2d 33, 38, 565 N.Y.S.2d 607 [1991], lv. denied78 N.Y.2d 853, 573 N.Y.S.2d 467, 577 N.E.2d 1059 [1991]; see also Matter of Kirquel Dev., Ltd. v. Planning Bd. of Town of Cortlandt, 96 A.D.3d 754, 756, 946 N.Y.S.2d 576 [2012], lv. denied19 N.Y.3d 813, 2012 WL 4936608 [2012] ).
In October 2008, after reviewing petitioners' preliminary plat, the Department's engineer identified nearly two dozen areas of concern and noncompliance with sanitary requirements—including some of the particular issues raised by petitioners in this proceeding—and communicated to the applicants' engineer that the problems identified had to be addressed. In April 2009, the Department's engineer followed up with a second letter addressing areas that had not been satisfactorily corrected and identified additional issues that required corrective action. A fair inference can be made that, after further review, the Department was ultimately satisfied that these issues were corrected. Indeed, its approval of the final subdivision plans certified that the project satisfactorily complied with all requirements of the Public Health Law, the Department of Health's sanitary regulations and the Ulster County Sanitary Code.
The Department also notes that each individual system will require the Department's approval after construction is complete.
Considering the extensive scope of the Department's review, and affording the Department appropriate deference regarding factual evaluations within its expertise ( see Matter of Gracie Point Community Council v. New York State Dept. of Envtl. Conservation, 92 A.D.3d 123, 129, 936 N.Y.S.2d 342 [2011], lv. denied19 N.Y.3d 807, 2012 WL 2401398 [2012]; Matter of Plante v. New York State Dept. of Envtl. Conservation, 277 A.D.2d 639, 641, 716 N.Y.S.2d 439 [2000] ), we find that the Department's approval of the final subdivision plans was not arbitrary and capricious, irrational or in violation of law ( see Matter of Schaller v. Town of New Paltz Zoning Bd. of Appeals, 108 A.D.3d at 823–824, 968 N.Y.S.2d 702; Matter of Loughlin v. Town of Thompson Planning Bd., 57 A.D.3d 1334, 1335, 871 N.Y.S.2d 739 [2008]; Matter of Boyer v. Department of Health of County of Albany, 52 A.D.2d 652, 653, 381 N.Y.S.2d 805 [1976] ). We have considered petitioners' remaining contentions and find them to be lacking in merit.
ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., LAHTINEN, GARRY and DEVINE, JJ., concur.