Opinion
2012-07-5
In the Matter of Kathleen WILSON, petitioner, v. Peter M. IWANOWICZ, etc., et al., respondents.
Vincent J. Trimarco, Smithtown, N.Y. (Clare B. Connaughton of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing, Sudarsana Srinivasan, Norman Spiegel, and Kevin G.W. Olson of counsel), for respondents.
Vincent J. Trimarco, Smithtown, N.Y. (Clare B. Connaughton of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing, Sudarsana Srinivasan, Norman Spiegel, and Kevin G.W. Olson of counsel), for respondents.
PETER B. SKELOS, J.P., ANITA R. FLORIO, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of Peter M. Iwanowicz, Acting Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation, dated November 3, 2010, which, after a hearing, denied the petitioner's application for a permit pursuant to the Wild, Scenic and Recreational Rivers System Act (ECL 15–2701 et seq.), and for an area variance.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Judicial review of an administrative determination made after a hearing required by law, and at which evidence is taken, is limited to whether that determination is supported by substantial evidence ( seeCPLR 7803[4]; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;see Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140). “In the final analysis, it is not the function of the reviewing court to weigh the evidence or substitute its own judgment for that of an administrative body to whose expertise a subject matter has been entrusted, but rather to determine whether there is a reasonable fulcrum of support in the record to sustain the body's findings” (Matter of DeCillis v. Grannis, 69 A.D.3d 851, 852, 894 N.Y.S.2d 72 [internal quotation marks omitted] ).
Here, the petitioner sought to subdivide her property, a 1.1–acre parcel improved by a single-family dwelling, into two equal size lots and construct a new single-family dwelling on the unimproved lot. Since the property lies within the recreational river area of the Nissequogue River, it is subject to the Wild, Scenic and Recreational Rivers System (hereinafter WSRRS) Act ( seeECL 15–2701 et seq.) and its implementing regulations. Accordingly, the petitioner filed an application for a WSRRS permit and area variance from the requirement that each private dwelling be located on a lot at least two acres in size ( see6 NYCRR 666.13[C][2][b] n. iii). After an adjudicatory hearing required by law, at which evidence was taken ( seeECL 15–2709[3]; ECL 70–0119; 6 NYCRR 624.8), the New York State Department of Environmental Conservation (hereinafter the DEC) denied the petitioner's application.
Contrary to the petitioner's contention, the DEC's determination to deny the permit and area variance under the standards set forth in 6 NYCRR 666.9(a)(2) was supported by substantial evidence ( see Matter of DeCillis v. Grannis, 69 A.D.3d at 852, 894 N.Y.S.2d 72). Moreover, the petitioner failed to demonstrate that the determination was inconsistent with a prior DEC decision to issue a variance on essentially the same facts, and, in any event, the DEC articulated a reason for reaching a different result in denying the petitioner's request for a variance ( see Matter of Crilly v. Karl, 67 A.D.3d 793, 795, 888 N.Y.S.2d 189;Matter of Clinton Mews Owners Corp. v. New York City Water Bd., 62 A.D.3d 872, 874, 879 N.Y.S.2d 556;Matter of Pesek v. Hitchcock, 156 A.D.2d 690, 690–691, 549 N.Y.S.2d 164;cf. Knight v. Amelkin, 68 N.Y.2d 975, 977–978, 510 N.Y.S.2d 550, 503 N.E.2d 106;Matter of Charles A. Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 520–521, 498 N.Y.S.2d 111, 488 N.E.2d 1223).