IN RE: EAST RIVER REALTY COMPANY (2009)

Judgment (denominated an order), Supreme Court, New York County (Lewis Bart Stone, J.), entered October 30, 2008, setting aside respondent's determination dated October 9, 2007, which excluded three properties belonging to petitioner from the Brownfield Cleanup Program (Environmental Conservation Law, art. 27, tit. 14) (BCP), reinstating respondent's earlier acceptance of the three properties into the BCP, and ordering respondent to execute and deliver to petitioner a cleanup agreement as to the three properties, unanimously affirmed, without costs.

The BCP was enacted “to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment” (Environmental Conservation Law § 27-1403). “Brownfield site” is defined as “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant” (section 27-1405[2] ). A would-be participant in the program must submit a request that includes information “sufficient to allow the department to determine eligibility and the current, intended and reasonably anticipated future land use of the site” (section 27-1407[1] ). We reject respondent's argument that a property may be deemed ineligible for the program on the ground that it would have been remediated in any event (see Matter of Destiny USA Dev., LLC v. New York State Dept. of Envtl. Conservation, 63 A.D.3d 1568, 1570, 879 N.Y.S.2d 865 [2009] [rejecting respondent's reliance on extra-statutory “factors (that) effectively limit inclusion in the BCP to parcels of real property that, but for BCP participation, would remain undeveloped”]; Matter of HLP Props. LLC v. New York State Dept. of Envtl. Conservation, 21 Misc.3d 658, 669, 864 N.Y.S.2d 285 [2008] [rejecting respondent's use of “its own administratively-created and far more limiting guidelines to determine petitioners' ineligibility”] ).

Given the extensive record before it, the court had sufficient evidence on which to base its determination that petitioner was eligible for inclusion in the BCP and therefore properly declined to remand the matter to respondent for additional consideration (see Matter of Pantelidis v. New York City Bd. of Stds. & Appeals, 10 N.Y.3d 846, 859 N.Y.S.2d 597, 889 N.E.2d 474 [2008]; Destiny USA Dev., 63 A.D.3d at 1573, 879 N.Y.S.2d 865).