In this CPLR Article 78 proceeding, petitioner 29 FLATBUSH ASSOCIATES,

LLC is the owner of a large vacant former parking lot (the Site), at 29 Flatbush Avenue, Brooklyn, New York (Block 2106, Lot 19, County of Kings), near the intersection of Fulton Street and Flatbush Avenue and about one block from the Brooklyn Academy of Music. Petitioner purchased the Site for $28,000,000 in November 2007.^[FN1] Petitioner, for help in cleaning contaminants from the Site, applied to respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) to participate in New York State's "Brownfield Cleanup Program" (BCP), pursuant to Article 27, Title 14 of the New York State Environmental Conservation Law (ECL). Respondent DEC denied petitioner's BCP application by letter, dated April 28, 2009, from respondent DALE A. DESNOYERS (DESNOYERS), DEC's Director of its Division of Environmental Remediation, to petitioner and petitioner's counsel.

Then, petitioner commenced the instant Article 78 proceeding to: annul and reverse DEC's denial of its BCP application; declare that the Site is eligible for the BCP; declare that DEC's March 2005 Eligibility Guidance Manual or any other informal guidance or policy excluding consideration of the Site from eligibility for the BCP are fatally inconsistent with statutory law, illegal and void; declare that petitioner should be treated equally to all other parties in the BCP; and, direct respondents to grant petitioner's application to participate in the BCP for the remediation and redevelopment of the Site.

Respondent DEC opposes the instant petition and includes, as part of its opposition, affidavits from DESNOYERS and Robert J. Cozzy, DEC Environmental Engineer and Acting Bureau Director for a Remedial Bureau in the Division of Environmental Remediation.

Petitioner replies with affidavits from John M. Gavras, a certified professional geologist, and Drew Spitler, Vice President of Development for The Dermot Company, Inc., who manages the Site for petitioner.

The New York State Legislature enacted the Brownfield Cleanup Program Act

(BCPA), effective October 7, 2003. BCPA is codified in ECL § 27-1401 et seq. ECL

§ 27-1405 (2) defines a "Brownfield site," with certain exceptions not relevant in this proceeding, as "any real property, the redevelopment or reuse of which may be [*2]complicated by the presence or potential presence of a contaminant." Further, ECL

§ 25-1405 (7-a) defines "contaminant" as "hazardous waste and/or petroleum as such terms are defined in this section." Brownfield sites often present, in addition to environmental and blight concerns, legal and financial burdens. Contaminated sites, particularly when left vacant, diminish property values of the surrounding area and threaten the economic viability of adjoining properties.^[FN2] The purpose of the BCPA is to

encourage voluntary cleanup of hazardous waste sites and the ultimate restoration of such sites to productive use, including restoration to the tax rolls. (Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17½, ECL § 27-1401 [2007]). The Legislature enacted as part of the BCPA, ECL § 27-1403, a "Declaration of policy and findings of fact," stating in relevant part:

The legislature hereby finds that there are thousands of abandoned

and likely contaminated properties that threaten the health and vitality of

the communities they burden, and that these sites, known as brownfields,

are also contributing to sprawl development and loss of open space. It is

therefore declared that, to advance the policy of the state of New York

to conserve, improve, and protect its natural resources and environment

and control water, land, and air pollution in order to enhance the health,

safety, and welfare of the people of the state and their overall economic

and social well being, it is appropriate to adopt this act to encourage

persons to voluntarily remediate brownfield sites for reuse and

redevelopment by establishing within the department a statutory

program to encourage cleanup and redevelopment of brownfield sites.

All remedies shall be fully protective of public health and the environment including, including but limited to groundwater . . . A remedial program

that achieves a permanent cleanup of a contaminated site, including the

restoration of groundwater to its classified use, is to be preferred over a

remedial program that does not do so.

Participation in the BCP is subject to DEC approval. (ECL § 27-1407 [1]). The BCPA requires, among other things, that an application be made to DEC. This commences a DEC investigation and a public notification process. (ECL § 27-1407 [5]). Then, DEC decides whether to accept or reject the BCP application. DEC, in determining BCP eligibility, considers only "contamination"^[FN4] from on site sources. (6 NYCRR § 375-3.3 [2]). DEC does not consider "historic fill material"^[FN5] as a contaminant.^[FN6]

DEC is authorized to "[i]ssue and amend guidance memoranda and similar

documents of general applicability which are to be relied upon by department personnel for implementation of this chapter, and rules and regulations promulgated pursuant thereto, and for guidance to the general public in complying with the requirements of this chapter." (ECL § 3-0301 [2] [z]). DEC issued: in May 2004, a "Draft Brownfield Cleanup Program Guide," which has not been finalized to date [the Draft BCP Guide];^[FN7] and, in March 2005, its final Eligibility Determination Guidance [the Eligibility Guidance Manual], which it incorporated into the Draft BCP Guide.^[FN8] The Eligibility Guidance Manual lists: five factors, in § 2.2.2, relating to the "contamination test" that DEC will consider in "determining whether there is confirmed contamination or a reasonable basis to believe that contamination is likely to be present on the property";^[FN9] and, four factors, in § 2.2.3, relating to the "complication of development test" that [*4]DEC will consider in "determining whether there is a reasonable basis to believe that the contamination or potential contamination may be complicating the development, use or re-use of the property."^[FN10]

Further, DEC has the general power to "[a]dopt such rules, regulations and

procedures as may be necessary, convenient or desirable to effectuate the purposes of this chapter." (ECL § 3-0301 [2] [m]). Thus, DEC adopted regulations relating to and implementing the BCPA. (6 NYCRR § 375-3.1 et seq.). However, DEC's guidance factors are "conspicuously missing from the DEC's own regulations with regard to the BCP (see 6 NYCRR Part 375)." (HLP Props., LLC v New York State Dept. of Envtl. Conservation, 21 Misc 3d 658, 670 [Sup Ct, New York County 2008], affd 70 AD3d 469 [1st Dept 2010]. Courts have rejected DEC's use of its own administratively created and far more limiting BCP eligibility guidelines for BCP applicants. " [A]n agency, by law, is not allowed to legislate' by adding guidance requirements' not expressly authorized by statute.' (Matter of HLP Props., LLC v New York State Dept of Envtl. Cons., 21 Misc 3d 658, 669; see Matter of Medical Society of State of New York v Serio, 100 NY2d 854, 866 [2003])." (Destiny USA Development, LLC v New York State Dept. of Environmental Conservation, 63 AD3d 1568, 1570 [4d Dept 2009], lv denied 66 AD3d 1502 [4d Dept 2009], lv denied 14 NY3d 703 [2010]).

DEC developed specific risk levels, with tables of numeric and contaminant specific "soil cleanup objectives" (SCOs), to protect public health and the environment for three types of land use - unrestricted (residential use), commercial, and industrial. (ECL § 27-1415 [6]). "[T]he BCP affords applicants the flexibility to employ the tables or site-specific criteria to determine acceptable levels of residual contamination, based on four different cleanup tracks.'" [*5](Lighthouse Pointe Prop. Assocs. LLC v New York State Dept. of Environmental Conservation, 14 NY3d 161, 166 [2010]). In the instant proceeding, petitioner elected a track 1 remedial program, which "generally achieves a cleanup level and the SCOs appropriate for unrestricted residential use (as published in the relevant generic table) without reliance on any institutional . . . or engineering controls." (Lighthouse Point at footnote 2, citing ECL § 27-1415 [4]).

The Site in this proceeding is approximately 0.38 acres or 17,700 square feet. It

has been used as a surface parking lot since the 1960s [AR at 8, 849].^[FN11] When the Site was a parking lot, automotive lifts with hydraulic lift systems were utilized for parking [AR at 8, 849]. Prior to the 1960s, the Site had been the location of a theater [AR at 8] and earlier, prior to the 1900s, the Site had been improved with numerous multistory residential buildings [AR at 38]. The Site is located in Kings County Census Tract 33, which, according to the 2000 US government census, had a poverty rate of 19.88%.^[FN12]

The Phase I Environmental Site Assessment revealed no evidence of "recognized environmental conditions,"^[FN13] except for: surface-level spills of hydraulic fluid which may contain PCBs [AR at 38]; and, the possibility that demolition debris or subsurface improvements remained at the site from former improvements [AR at 39]. The Phase I consultant recommended that "during site redevelopment activities the soils at the [property] are handled and disposed of in accordance with all applicable governmental regulations [AR at 38]" and that "[i]n the event that building debris, tanks, etc. are encountered during the excavation activities, . . [*6]. that they are closed or disposed of in accordance with applicable local regulations [AR at 39]."

The Limited Subsurface Investigation Report found "the presence of semi-volatile organic compounds [SVOCs] in the north and southwest portions of the Site at concentrations 2 orders of magnitude greater than their respective regulatory standard [AR at 848]." The Limited Subsurface Investigation Report noted the following with respect to contamination in the areas at issue [AR at 862]:The elevated levels of SVOCs detected in the shallow soil

in the north portion of the Site do not extend vertically to a depth

of 10 feet below grade. This is evidenced by the fact that no SVOCs

were detected in the 10 to 12 foot sample from SP-1 [soil probe].

Additionally, the elevated levels detected in the southwest portion of

the Site do not vertically extend to 6 to 10 foot sample from SP-6.

The levels of SVOCs detected in this sample, the 12 to 14 foot sample

from SP-4 and the 14 to 16 foot sample from SP-7 are most likely

related to the fill material identified in the southwest portion of the

Site.

The Limited Subsurface Investigation Report recommended that DEC's Spill Hotline be contacted and informed about the elevated levels of SVOCs and the soil in the northern and southeast portions of the site should be excavated and removed [AR at 864].

Subsequently, petitioner sent an additional investigation report to DEC, for review in conjunction with its BCP application [AR at 917-1603], containing a supplemental soil sampling collected by or for petitioner's consultant, Langan Engineering & Environmental Services, from non-native fill material and native soil at the site [AR at 920-921]. The supplemental soil testing report found contamination in non-native fill material, but none in native soil, as follows [AR at 922]:[N]o RCRA [Resource Conservation and Recovery Act]

hazardous waste was detected in any of the composite samples

within the non-native fill material. RCRA hazardous waste could

be encountered during the RI [remedial investigation] or during soil

excavation activities when further soil screening is conducted to

confirm if RCRA hazardous waste is encountered before any material

is disposed off the Site.SVOCs and/or metals were identified at concentrations

exceeding their respective Unrestricted Use SCOs in all of the composite

non-native fill material samples . . . [*7]

No RCRA hazardous characteristics were detected in any of the

native soil samples . . .

Respondent DEC denied petitioner's BCP application on April 28, 2009, claiming that the Site did not meet the statutory definition of a "Brownfield," stating, in relevant part:

Contamination consisting of lead and semi-volatile organic

compounds ("SVOC") is present on the Site. The Application,

the supplemental soil sampling results and other underlying data

submitted to the Department indicated that there are concentrations

on the Site of seven (7) SVOC compounds that exceed the Department's

regulatory remediation objectives as stated in 6 NYCRR Part 375.

However, these soil sampling results do not indicate that there will

be any complications of the Site's future development as contamination

[sic]. Further, they appear to be the result of historic fill materials

only.

In addition, the contamination discovered by this data appears

to be minimal when compared to the vast majority of the sampling

(approximately 39 total samples) and the total number of SVOC

contaminants detected (19 in total). Finally, the random locations

and concentrations of the SVOC discovered in Site soils indicates

a low potential for the excavation and off-site disposal of Site soils ashazardous wastes. Therefore, it is highly unlikely that the redevelopment

of the Site would generate additional costs or complications due to

that issue.A review of the BCP application sampling data also indicates

the presence of one sample with an extremely high lead concentration.

However, this lead sample appears to be isolated due to the lack of

similar sampling results both in proximity of the sample in question

or elsewhere on the Site. In addition, TCLP [Toxicity Characteristic

Leaching Procedure] analysis was done on the lead samples, including

the sample with the highest concentration (11,400 mg/kg). The results

of that sampling indicated that none of the samples exceeded the

hazardous waste threshold (i.e., 5 mg/l) for lead as set forth in

Title 6 of NYCRR Part 371. Also, the supplemental soil sampling [*8]

results submitted in July 2008, demonstrated that the identified lead

contamination in soil is isolated both vertically and horizontally.

This makes it unlikely that there is lead contamination on the Site

which would require remediation. Therefore, it is highly unlikely

that there is sufficient lead contamination present to complicate

the redevelopment of the Site.

Additional factors used to make this determination include:

1.The historical uses of the Site since 1900 (theater and parking lot)

make it highly unlikely that sufficient contamination or potential contamination was generated via these uses and then released to

the Site in concentrations that would complicate the redevelopment

of the Site;

2.The Department finds no conclusive data to indicate that there

still may be unclosed or leaking underground storage tanks on

the Site which could complicate redevelopment;

3.The applicant did not undertake (or provide) groundwater

sampling for the Site which may have revealed additional

types and sources of contamination that could complicate

redevelopment [; and]4.The Department also notes that the area was recently rezoned

and during the rezoning process the City did not identify any

environmental factors that would qualify the Site for New

York City's E-Designation Environmental Review Program

for Hazardous Materials, Air Quality and Window/Wall

Noise Attenuation" (AR at 1615-1616).

Petitioner then commenced the instant CPLR Article 78 proceeding to challenge the validity of DEC's April 28, 2009 determination with respect to the Site and the BCP.

The standard for judicial review of DEC's administrative decision is whether it "was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion." (CPLR § 7803 [3]). For a reviewing court to find that an agency determination was arbitrary and capricious or an abuse of discretion it would have to find that the action taken was without sound basis in reason and without regard to the facts (Matter of Pell v Board of Educ. of Union School District No.1, 34 NY2d 222, 230-231 [1974]). A rational [*9]basis exists where the determination was " [supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination' (Matter of Pell v Board of Educ. at 231; see Matter of Weber v Town of Cheekatowaga, 284 NY [377] at 380 [1940])." (Matter of Ador Realty, LLC v Division of Housing & Community Renewal, 25 AD3d 128, 139-140 [2d Dept 2005]).

A reviewing court will not substitute its judgment for that of the agency unless the agency's determination was arbitrary, capricious, or contrary to law (see Pell at 231), and "where . . . the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference." (Flacke v Onondaga Landfill Sys., Inc., 69 NY2d 355, 363 [1987]). On the other hand, "[w]here, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore accorded much less weight [Emphasis added]." (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). Further, "if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight." (Kurcsics at 459). Two months ago, on February 18, 2010, the Court of Appeals, in Lighthouse Pointe at 176, held that "[t]he meaning of the term brownfield site' presents such a question . . . of pure statutory analysis [Emphasis added]."

"There are two constituents to the definition [of a Brownfield site]: the presence or potential presence of a contaminant on the real property; and this presence or potential presence must complicate the property's redevelopment or reuse. The term contaminant' is defined in the statute (see ECL 27-1405 [7-a])." (Lighthouse Pointe at 176). DEC, in the instant matter, acknowledged that the Site is contaminated by at least seven separate SVOC compounds,^[FN14] as well as by lead, ^[FN15] in amounts exceeding DEC's regulatory remediation objectives. Therefore, at issue, is the propriety of DEC's application of the "complication of development" test, pursuant [*10]to the definition of a "Brownfield site" in ECL § 27-1405 (2).

In Lighthouse Pointe at 176, the Court of Appeals rejected DEC's contention that "once it determined that no cleanup was warranted, redevelopment or reuse of the properties was, by force of this circumstance alone, not complicated' within the meaning of the statutory definition." The Lighthouse Pointe Court held, at 177, that there is a low threshold of eligibility for an applicant to enter the BCP program and "the Legislature intended the definition of the term brownfield site' to be interpreted as broadly as its words suggest." Recently, Professor David Siegel in writing about Lighthouse Pointe,succinctly described the Lighthouse Pointe decision as petitioner "is sustained and the DEC's position dismissed as so much solid waste." (Brownfield Cleanup Program, Finding Arbitrary the DEC's Rejection of Owner's Request to Admit Its Land into Cleanup Program, Court Mandates Acceptance, Siegel, NY St L Dig No. 604, at 3 [April 2010]). The Appellate Division, First Department in East River Realty Co., LLC at 564, held, "[w]e reject respondent's [DEC's] argument that a property may be deemed ineligible for the program on the ground that it would have been remediated in any event." In Destiny USA Dev., LLC at 1570, the Appellate Division, Fourth Department, refused to accept DEC's position because:

The DEC did not address in its determination any of the specified

complications to redevelopment that Destiny asserted would result

from contaminants in the subject parcels. Instead, the DEC relied

upon its self-promulgated "guidance" and "guide factors" that require,

inter alia, consideration of whether a parcel is "idled, abandoned or

underutilized" and a comparison of the estimated remediation cost "to

the anticipated value of the proposed site as redeveloped or reused."

Those factors effectively limit inclusion in the BCP to parcels of real

property that, but for BCP participation, would remain undeveloped. [*11]

We conclude that the application of such a categorical limitation without

a fact-specific analysis contravenes the broadly worded definition of

brownfield site set forth in ECL 27-1402 (2) . . . Thus, the categorical

application by the DEC of its "guidance" and "guide factors" as a

precondition to admission into the BCP both conflicts with the intent

of the Legislature and constitutes an impermissible attempt to legislate.

In the instant proceeding, similar to Lighthouse Pointe, DEC's interpretation of the "complication of development" tests goes against the statutory requirement that the definition of a "Brownfield site" be construed as broadly as the language in ECL § 27-1405 (2) suggests. Thus, DEC's internal determination and formal denial of petitioner 29 FLATBUSH ASSOCIATES, LLC's participation in the BCP is not entitled to any special deference, is arbitrary and capricious and an abuse of discretion.

DEC found, in its internal memorandum, dated July 29, 2008, when applying its own "complication of development" test factors, based upon its Eligibility Guidance Manual § 2.2.3, that two of the four "complication of development" test factors: whether the proposed site is unattractive for redevelopment or reuse due to the presence or reasonable perception of contamination; and whether the estimated cost of any necessary remedial program is likely to be significant in comparison to the anticipated value of the proposed site as redeveloped or reused; weighed against petitioner [AR at 1610-1611]. The DEC specifically found [AR at 1610], with respect to whether the Site is unattractive for redevelopment or reuse due to the presence or reasonable perception of contamination, that:

The available data do not indicate that the existing contamination

would complicate the redevelopment or re-use of the property. The

soil analytical data presented in the application materials indicate that

the soils are contaminated with various SVOCs and lead, which may

require the off-site disposal as "contaminated fill." However, the

concentrations do not exceed the threshold level of hazardous waste,

therefore the incremental cost of disposal should be minimal.

Next, DEC found that whether the estimated cost of any necessary remedial program is likely to be significant in comparison to the anticipated value of the proposed site as redeveloped or reused [AR at 1611]:

[B]ased on the magnitude of the redevelopment project (342 residential

units plus 10,000 sf of retail space in downtown Brooklyn) and

the environmental data provided by the petitioner, the cost of any

necessary remedial program would likely be insignificant in comparison

to the anticipated value of the proposed site as redeveloped or reused.

According to the NYC Department of Taxation and Finance, the

property's Market Value was $554,700 as of January 1, 2004, and

its sale price in November 2007 (following completion of the Phase

I and Limited Subsurface Investigation Reports) was $28,000,000.

Regardless of the cost of the Site's remediation, DEC's analysis was flawed. It failed to [*12]account for petitioner's alleged inability to obtain financing absent its participation in the BCP [Spitler Affidavit, ¶ 9 and ¶ 11]. Additionally, the reference to the $28,000,000 purchase price for the site was misleading. According to property records, recorded in the City Register of the City of New York for Kings County, petitioner assumed mortgages totaling $23,500,000 as part of its purchase of the Site.^[FN16]

Although the two remaining DEC "complication of development" test factors:

underutilization of the Site; and, the Site's location in a blighted area; were satisfied, DEC accorded no weight to these factors. Also, DEC did not consider other socio-economic factors such as the number of new construction jobs that would be created for the duration of the project and future additional property taxes collected as a result of the project. Therefore, it is not surprising, that DEC, in its formal denial, eschewed applying its own Eligibility Guidance Manual § 2.2.3 "complication of development" factors.

The Court of Appeals, as noted above, held in Lighthouse Pointe, that DEC's narrow interpretation of the "complication of development" test for a subject property to be eligible for the inclusion in the BCP was overly restrictive and not supported by the language of the statute or the legislative intent. The Court rejected DEC's argument that it was the sole arbiter to determine whether or not a site should be included in the BCP and instructed, in Lighthouse [*13]Pointe, at 177, "that the Legislature intended the definition of the term brownfield site' to be interpreted as broadly as its words suggest." The Court's holding, reversed the Appellate Division's decision to the contrary (61 AD3d 88 [4d Dept 2009]), which accorded deference to DEC, and reinstated the order of the Supreme Court, Monroe County (2007 WL 5540594), which granted petitioner Lighthouse Pointe Property Associates, LLC's Article 78 petition for admission to the BCP. Lighthouse Pointe sends a clear message to DEC that it must perform its responsibility to administer the BCP transparently, using quantitative parameters (i.e., the SCOs) to guide decision-making related to the "complication of development" test, rather than relying exclusively on qualitative, site-by-site determinations.

Commentators John-Patrick Curran and Kenneth M. Block (Brownfield Program Should Benefit A Range Of Projects, NYLJ, Mar. 10, 2010, at 5, col 3) discussed the Lighthouse Pointe decision, and concluded that:

The Court of Appeals' decision in Lighthouse Pointe has broad

implications for BCP eligibility. The specific holding of the Court is

that in determining whether a particular property meets the statutory

definition of a brownfield, DEC must consider all possible complications

to redevelopment caused by the presence of contaminants. The Court

also makes it clear that DEC's discretion in making eligibility

determinations is limited to areas where DEC's specific experience

and expertise is required, and then only where discretion is permitted

by the language of the statute. Exclusionary conditions and subjective

criteria not authorized by the statute cannot be the basis for denial of

participation in the BCP. The Court's articulated definition of a

brownfield, however, also appears to invalidate DEC's practice of

considering only contamination from on-site sources, thereby broadly

expanding the availability of the BCP to sites such as those contaminated

by historic fill [material].

DEC, in the instant proceeding, engaged in the same type of sui generis inquiry rejected by the Court of Appeals in Lighthouse Pointe. DEC used a combination of four arguments to deny the instant application: (1) the quantitative criteria of the generally accepted cleanliness levels (the SCOs) were not relevant at the application stage; (2) even if such quantitative criteria were relevant, they were not meaningful because the site samples did not significantly exceed them; (3) even if such quantitative criteria were relevant and meaningful, they could still be disregarded because contamination was located in historic fill material; and (4), some vague qualitative factors such as "specific site conditions," "the project's design specifications," and "other methods for eliminating the threats, if any, posed by the presence of contamination"

[Cozzy Affidavit, ¶ 15] weighed in favor of denying the application.

DEC's determination in the instant matter, similar to DEC's determination in Lighthouse Pointe is arbitrary and capricious or an abuse of discretion, for the following reasons:

(1)The generally accepted cleanliness levels, or the SCOs,

represent the only objective, "hard" data indicating whether

a site is contaminated. The SCOs must be used at the

application stage in order for the DEC's decision-making to [*14]

be rational and transparent;

(2)The contamination of the Site is meaningful because, based

upon lead data samples alone of the thirteen initial borings in

the fill, the composite samples in three, or 23%, of the borings

exceeded the restricted residential SCO level of 400 ppm

for lead [Gavras Affidavit, ¶ 35]. Sixteen of the twenty-seven

supplemental soil samples that were collected for total lead

analyses, or 59%, exceeded the SCO level for lead [Gavras

Affidavit, ¶ 32]. DEC admitted, in its formal denial, that there

were seven separate toxins present at the site in concentrations

that exceeded the maximum allowable levels of various

contaminants that can be present at a BCP site after a cleanup

is completed [AR at 1616];

(3)The alleged location of the contamination in the historic fill

material at the site did not negate the fact that the site is

contaminated; and

(4)DEC ignored petitioner's alleged inability to obtain financing

absent its participation in the BCP [Spitler Affidavit, ¶ 9 and

¶ 11].

Accordingly, it isORDERED, that respondent NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION's April 28, 2009 determination, which denied petitioner 29 FLATBUSH AVENUE ASSOCIATES, LLC's application for inclusion in the New York State Brownfield Cleanup Program, pursuant to Environmental Conservation Law § 27-1401 et seq., is arbitrary and capricious or an abuse of discretion; and it is further

ORDERED, that the aforementioned April 28, 2009 determination of respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

is vacated; and it is further

ORDERED, that the matter is remanded to respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION for further consideration in light of this decision; and it is further [*15]

ORDERED, that unless the parties agree otherwise, petitioner 29 FLATBUSH ASSOCIATES, LLC shall perform further investigation of the subject Site, consisting of: (1) a groundwater investigation; (2) a soil vapor investigation; (3) the completion of a soil characterization analysis; and (4), a magnetometer survey; and shall submit the investigation results to respondent NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, together with the documented results of the petitioner 29 FLATBUSH ASSOCIATES, LLC's efforts to obtain financing for the subject project, and documentation demonstrating petitioner 29 FLATBUSH ASSOCIATES, LLC's alleged inability to proceed with the project unless it is accepted in the Brownfield Cleanup Program; and it is further

ORDERED that in accordance with Environmental Conservation Law § 27-1407 (6), the DEC "shall use all best efforts to notify the applicant [29 FLATBUSH ASSOCIATES, LLC] "within forty-five days after receiving" the foregoing that its application, as supplemented in accordance with this decision, is "either accepted or rejected"; and it is further

ORDERED that all other relief not specifically granted herein is denied.

This constitutes the Decision and Order of the Court.

ENTER

________________________________

HON. ARTHUR M. SCHACK

J. S.C.