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LIGHTHOUSE POINTE PROPERTY ASSOCIATES LLC v. NYS. DEPT.

61 A.D.3d 88 (2009)

872 N.Y.S.2d 766

In the Matter of LIGHTHOUSE POINTE PROPERTY ASSOCIATES LLC, Respondent, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Appellants.

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided February 6, 2009.

Attorney(s) appearing for the Case

Andrew M. Cuomo, Attorney General, Albany (Karen R. Kaufmann of counsel), for appellants.

Knauf Shaw LLP, Rochester (Alan J. Knauf of counsel), for respondent.

Daniel M. DeLaus, Jr., County Attorney, Rochester (Michael E. Davis of counsel), for Monroe County, amicus curiae.

Franklin D'Aurizio, Rochester, for Irondequoit Chamber of Commerce, amicus curiae.

CENTRA and GREEN, JJ., concur with FAHEY, J.; LUNN, J., did not participate. SMITH, J.P., dissents and votes to affirm in a separate opinion.

OPINION OF THE COURT

FAHEY, J.

The issue before us on this appeal is whether Supreme Court erred in granting the petition in this CPLR article 78 proceeding and directing respondent New York State Department of Environmental Conservation (DEC) to accept petitioner into the Brownfield Cleanup Program (BCP), set forth in Environmental Conservation Law (ECL) article 27, title 14. We conclude that the court erred in determining that the DEC acted in an arbitrary...

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