In September 2009, the Ulster County Department of Health – Environmental Sanitation Division (“DoH”) found that there would be no negative environmental impact for a proposed 21-unit residential and one commercial lot subdivision. The subdivision application was subsequently approved by the planning board, and Petitioners, neighbors of the proposed subdivision, brought an Article 78 proceeding challenging the determination. The state Supreme Court dismissed the petition, and Petitioners now appeal to the Appellate Division.

On appeal, the Appellate Division stated that although Petitioners claimthe Department failed to meet its statutory obligations in “regulating the sanitary aspects of water supplies and sewage disposal and controlling pollution of waters,” the Court would not second guess “thoughtful agency decision-making.” The Court noted the DoH’s review, which lasted three years, involved a comprehensive and extensive review of the project including site evaluations, soil and well testing, and a commissioned report from a geologist.  While Petitioners’ provide their own expert opinion, the DoH is free to rely on its own experts in making its decisions. Finally, correspondence from the DoH to the applicant show items identified by the DoH engineer as needing to be addressed, and presumably were addressed prior to final approval. The Court thus upheld the DoH’s determination as not being arbitrary and capricious, irrational, or in violation of law.

The case was Dugan v Liggan, 121 A.D.3d 1471 (App. Div. 2014) and can be found at: http://law.justia.com/cases/new-york/appellate-division-third-department/2014/517934.html