                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   517934
________________________________

In the Matter of JAMES P.
   DUGAN et al.,
                    Appellants,
      v

BILLY LIGGAN et al.,                        MEMORANDUM AND ORDER
   Constituting the Planning
   Board of the Town of
   Rosendale,
                    Respondents,
      and

ULSTER COUNTY DEPARTMENT OF
   HEALTH – ENVIRONMENTAL
   SANITATION DIVISION et al.,
                    Respondents.
________________________________


Calendar Date:   September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                             __________


      DeGraff, Foy & Kunz, LLP, Albany (David F. Kunz of
counsel), for appellants.

      Cook, Netter, Cloonan, Kurtz & Murphy, PC, 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.

                             __________
                              -2-                517934

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
                              -3-                517934

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 AD3d 1445 [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 (see CPLR 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 NY2d 32, 39 [2001] [internal quotation marks
and citations omitted]; accord Matter of Featherstone v Franco,
95 NY2d 550, 554 [2000]; see Matter of Ames v Johnston, 169 AD2d
84, 86 [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 AD2d 734, 737 [1999]; see
CPLR 409 [b]; Matter of Eck v City of Kingston Zoning Bd. of
Appeals, 302 AD2d 831, 832 [2003]; Matter of Save Our Forest
Action Coalition v City of Kingston, 246 AD2d 217, 221-222
[1998]; see generally Matter of City Servs., Inc. v Neiman, 77
AD3d 505, 508 [2010], lv denied 16 NY3d 701 [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
                              -4-                517934

Planning Bd. of Town of Southeast, 9 NY3d 219, 232 [2007]; accord
Matter of Frigault v Town of Richfield Planning Bd., 107 AD3d
1347, 1350 [2013]; Matter of Shop-Rite Supermarkets, Inc. v
Planning Bd. of the Town of Wawarsing, 82 AD3d 1384, 1385 [2011],
lv denied 17 NY3d 705 [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 NY3d at 232 [internal quotation marks and citations omitted];
accord Akpan v Koch, 75 NY2d 561, 570 [1990]; Matter of Schaller
v Town of New Paltz Zoning Bd. of Appeals, 108 AD3d 821, 823
[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 AD2d 33, 38 [1991], lv denied 78
NY2d 853 [1991]; see also Matter of Kirquel Dev., Ltd. v Planning
Bd. of Town of Cortlandt, 96 AD3d 754, 756 [2012], lv denied 19
NY3d 813 [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
                                 -5-                  517934

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.1

       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 AD3d 123, 129 [2011], lv denied 19 NY3d 807
[2012]; Matter of Plante v New York State Dept. of Envtl.
Conservation, 277 AD2d 639, 641 [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
AD3d at 823-824; Matter of Loughlin v Town of Thompson Planning
Bd., 57 AD3d 1334, 1335 [2008]; Matter of Boyer v Department of
Health of County of Albany, 52 AD2d 652, 653 [1976]). We have
considered petitioners' remaining contentions and find them to be
lacking in merit.

         Peters, P.J., Lahtinen, Garry and Devine, JJ., concur.


         ORDERED that the judgment is affirmed, without costs.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court


     1
        The Department also notes that each individual system
will require the Department's approval after construction is
complete.
