| 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 |
| In the Matter of East River Realty Company, LLC,Respondent, v New York State Department of Environmental Conservation,Appellant. |
—[*1] Mayer Brown LLP, Washington, D.C. (Richard Ben-Veniste of counsel), forrespondent.
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, whichexcluded 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 theBCP, and ordering respondent to execute and deliver to petitioner a cleanup agreement as to thethree properties, unanimously affirmed, without costs.
The BCP was enacted "to encourage persons to voluntarily remediate brownfield sites forreuse and redevelopment" (ECL 27-1403). "Brownfield site" is defined as "any real property, theredevelopment or reuse of which may be complicated by the presence or potential presence of acontaminant" (ECL 27-1405 [2]). A would-be participant in the program must submit a requestthat includes information "sufficient to allow the department to determine eligibility and thecurrent, intended and reasonably anticipated future land use of the site" (ECL 27-1407 [1]). Wereject respondent's argument that a property may be deemed ineligible for the program on theground 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 onextrastatutory "factors (that) effectively limit inclusion in the BCP to parcels of real propertythat, 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 ownadministratively-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 itsdetermination that petitioner was eligible for inclusion in the BCP and therefore properlydeclined to remand the matter to respondent for additional consideration (see Matter of [*2]Pantelidis v New York City Bd. of Stds. & Appeals, 10 NY3d846 [2008]; Destiny USA Dev., 63 AD3d at 1573). Concur—Gonzalez, P.J.,Mazzarelli, Nardelli, Acosta and RomÁn, JJ. [Prior Case History: 22 Misc 3d404.]