Opinion

Winston v. Freshwater Wetlands Appeals Board

  • 254 A.D.2d 363
  • 678 N.Y.S.2d 654
  • 1998 N.Y. App. Div. LEXIS 10804
Court
Appellate Division of the Supreme Court of the State of New York
Filed
Oct 13, 1998
Status
Published
Cited by
2 cases
Authority
More cited than 56.4%

The opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Freshwater Wetlands Appeals Board dated July 29, 1994, which affirmed a decision of the Commissioner of the Department of Environmental Conservation “demapping” a portion of property owned by the Village of Scarsdale from the final Freshwater Wetlands Map for Westchester County, the petitioner and the intervenorpetitioner appeal from a judgment of the Supreme Court, Westchester County (DiBlasi, J.), entered August 6, 1997, which dismissed the proceeding.

Ordered that the judgment is affirmed, with one bill of costs.

The appellants’ contention that the Freshwater Wetlands Appeals Board should have used the substantial weight of the evidence test in reviewing the order of the Commissioner of Environmental Conservation is without merit. Where, as here, agency action is taken pursuant to a hearing which is informational as opposed to adjudicatory, “the standard of review is whether the agency’s action had a rational basis and, thus, was not arbitrary or capricious” (Matter of Hudson Riv. Fisherman’s Assn. v Williams, 139 AD2d 234, 238 ).

The courts have allowed State or local lead agencies considerable latitude in the exercise of discretion on substantive environmental matters (see, Matter of Orchards Assocs. v Planning Bd., 114 AD2d 850, 852 ). The choice of conflicting expert testimony rests in the discretion of the administrative agency (see, Matter of Power Auth. v Williams, 101 AD2d 659 ). We find that there was a rational basis for the finding of the Commissioner of the Department of Environmental Conservation that the property sought to be mapped as a wetland was not of unusual local importance (see, ECL 24-0301 [1]; 6 NYCRR 664.5 [a], [b]).

The appellants’ remaining contention is without merit. Ritter, J. P., Santucci, Altman and Krausman, JJ., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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