                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521535
________________________________

In the Matter of SEAN MENON
   et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   HEALTH,
                    Appellant.
________________________________


Calendar Date:   April 19, 2016

Before:   Peters, P.J., Garry, Rose, Clark and Aarons, JJ.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for appellant.

      Marvin Newberg, Monticello, for Sean Menon and another,
respondents.

      Stoloff & Silver, LLP, Monticello (Richard A. Stoloff of
counsel), for Wanaksink Lake Club, Inc., respondent.

                             __________


Aarons, J.

      Appeal from a judgment of the Supreme Court (McGuire, J.),
entered May 14, 2015 in Sullivan County, which granted
petitioners' application, in a proceeding pursuant to CPLR
article 78, to annul a determination of respondent denying a
waiver of certain regulatory requirements as applied to
petitioners Sean Menon and Dawn Menon.

      In 2011, petitioners Sean Menon and Dawn Menon (hereinafter
collectively referred to as petitioners) found a property lot
                               -2-                521535

located on the shore of Wanaksink Lake in Sullivan County on
which they wanted to construct a vacation house. Prior to making
an offer for the lot, petitioners proceeded to determine whether
such construction would be feasible. Sean Menon (hereinafter
Menon) spoke with John Konefal, the president of petitioner
Wanaksink Lake Club, Inc., the organization that governed the use
of properties in the lake community, who advised him that
construction of a new house needed approval of the Lake Club and
the Town of Thompson's Zoning Board of Appeals. Petitioners
thereafter bought the property. The Lake Club approved
petitioners' proposed construction plan, but the Zoning Board
conditioned its grant of the necessary area variances upon
respondent's approval of the proposed well and septic system.

      In September 2013, Menon and his engineer, D. Randel
Wasson, met with Glenn Illing, an engineer in respondent's
district office, and they discussed the construction project as
well as any potential waivers that might be needed. In December
2013, Illing preliminarily reviewed a plan from Wasson and
provided comments so that Wasson could submit a revised plan. In
May 2014, petitioners submitted a plan to respondent that
proposed the construction of a three-bedroom house on the lot,
which is approximately 50 feet wide and 200 feet long as measured
from the lake's shoreline. Petitioners also submitted a waiver
application seeking to exempt the proposed water supply system
from complying with respondent's regulations setting forth the
minimum separation distances applicable to individual well and
septic systems.1 The application detailed each proposed distance
that was noncompliant with respondent's regulations and compared
them to what respondent's regulations required. While Menon,
Wasson and Illing had further discussions about the waiver
application, Illing subsequently forwarded petitioners'


     1
        Respondent is charged with supervising and regulating the
"sanitary aspects of water supplies and sewage disposal" (Public
Health Law § 201 [1] [l]) and has promulgated regulations to
minimize the risk of water contamination by, among other things,
requiring minimum distances separating well and septic systems
from each other and from potential sources of contamination (see
10 NYCRR 75.4, 75.5; 10 NYCRR Appendices 5-B.2 [c]; 5-8.7).
                              -3-                521535

application and file to respondent's Division of Environmental
Health Protection for review based upon an allegation by Konefal
that Illing was not properly handling the matter.

      In a December 4, 2014 letter addressed to Konefal,
respondent's Director of the Division of Environmental Health
Protection wrote that "this vacant property is too small to be
developed for a new home of any size. For this reason, the
requested specific waiver . . . cannot be issued." In a separate
letter dated December 5, 2014, Illing advised Menon that the
waiver application was denied on the sole ground that "the vacant
property is too small to be developed for a new home of any
size." Petitioners and the Lake Club thereafter commenced this
CPLR article 78 proceeding seeking to annul respondent's
determination. Supreme Court granted the petition. Respondent
appeals.2

      Respondent may grant a waiver of its separation
requirements pertaining to individual water supply systems if an
applicant demonstrates that (1) a hardship or other circumstance
making it impractical to comply with respondent's regulations
exists, and (2) the requested waiver is consistent with
respondent's overall protective purpose of ensuring water safety
(see 10 NYCRR 75.3 [d]; 75.6 [b]). A court should defer to an
agency's determination and only when such determination is
arbitrary, capricious or irrational should it be annulled (see
Matter of Dugan v Liggan, 121 AD3d 1471, 1473 [2014]; Matter of
O'Connor v Ginsberg, 106 AD3d 1207, 1210 [2013], lv denied 21
NY3d 864 [2013]).

      Respondent premised its denial of petitioners' waiver
application on a bare statement that the property was too small
for the construction of a house of any size. While respondent
was not required to set forth any findings of fact (see Matter of


    2
        Because there is no dispute that petitioners have
standing to commence this proceeding, it is unnecessary to
address whether the Lake Club has organizational standing (see
New York State United Teachers v State of New York, ___ AD3d ___,
___, 2016 NY Slip Op 03572, *2 [2016]).
                              -4-                521535

Office Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d
1402, 1404 [2012]), it was nonetheless required to approve or
deny the waiver application based upon the criteria specified in
its own regulations (see 10 NYCRR 75.3 [d]; 75.6 [b]). The
denial here, however, did not mention a hardship or other
circumstance encountered by petitioners that made it impractical
to comply with respondent's regulations, and there was no
conclusion as to how petitioners' proposed well and septic system
or the proposed distances delineated in the May 2014 waiver
application were not consistent with the regulations' purpose.
Where, as here, no formal hearing was conducted, we are limited
to the ground invoked by respondent – i.e., the property lot was
too small to construct a house of any size – and if we believe
that such basis is insufficient or improper, we cannot sustain
the determination by substituting what we deem to be a more
appropriate or proper basis (see Matter of Parkmed Assoc. v New
York State Tax Commn., 60 NY2d 935, 936 [1983]; Matter of Office
Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d at
1404). Given that respondent did not mention or discuss the
required factors as set forth in its own regulations in denying
petitioners' waiver application, we cannot conduct meaningful
review of the rationality of respondent's determination (see
Matter of Figel v Dwyer, 75 AD3d 802, 804 [2010]; Matter of Gallo
v State of N.Y., Off. of Mental Retardation & Dev. Disabilities,
37 AD3d 984, 986 [2007]; Matter of Fromer [Commissioner of
Labor], 268 AD2d 707, 709 [2000]; cf. Matter of Segal v Zoning
Bd. of Appeals of the Town of Bethel, 191 AD2d 873, 874 [1993]).

      Respondent contends that Illing's affidavit submitted in
response to the petition sufficiently articulated the basis for
its determination by explaining why the property's small size did
not warrant granting the waiver application. While a responsive
affidavit that was not part of the administrative record may be
considered in certain circumstances (see e.g. Matter of Kirmayer
v New York State Dept. of Civ. Serv., 24 AD3d 850, 852 [2005]),
it must come from an affiant with "firsthand knowledge of the
decision-making process undertaken by the [agency]" (Matter of
Office Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d
at 1405). Illing did not have such firsthand knowledge of the
process by which the waiver application was denied, as the matter
had been removed from his hands and referred to the Division of
                                -5-                521535

Environmental Health Protection. The letter that denied the
waiver application was signed by that office's director; Illing's
only involvement was to notify Menon of the decision after it was
made and supply him with a copy of the denial letter. As Illing
did not participate in the decision to deny the waiver
application, his affidavit cannot supply the missing rationale
for the decision (see id. at 1406; Matter of Weill v New York
City Dept. of Educ., 61 AD3d 407, 409 [2009]).

      Moreover, even if we found that the affidavit could be
considered, we nonetheless disagree with respondent (see Matter
of Greece Town Mall, L.P. v New York State, 105 AD3d 1298, 1300
[2013]). In his affidavit, Illing explained how the amount of
bedrooms, but not how the size of the property lot or proposed
house, correlated to the sufficiency of a well and septic
system.3 We further note that, throughout the application
process, which included site visits and discussions with
petitioners and Wasson, Illing never commented about the size of
the purchased lot or proposed house as being a prohibitive factor
in granting or denying a waiver application. In sum,
respondent's denial "sheds no light upon the manner in which
[petitioners'] proof was deemed to be deficient [and] falls far
short of delineating the particular grounds for [respondent's]
determination" (Matter of Office Bldg. Assoc. v Empire Zone
Designation Bd., 95 AD3d at 1405). Therefore, the matter must be
remitted to respondent for reconsideration of petitioners'
application (see Matter of Figel v Dwyer, 75 AD3d at 804-805; cf.
Matter of Hudson Riv. Vall., LLC v Empire Zone Designation Bd.,
115 AD3d 1035, 1038 [2015]).

        Peters, P.J., Garry, Rose and Clark, JJ., concur.




    3
        Respondent's guidelines state that "[s]eptic tank
capacities shall be based on the number of household bedrooms"
(10 NYCRR Appendix 75-A.6 [a] [1]).
                              -6-                  521535

      ORDERED that the judgment is affirmed, without costs, and
matter remitted to respondent for reconsideration of petitioners'
application.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
