IN RE: TAXPAYERS TO SAVE the PAUMONOK BIOENCLAVE

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: TAXPAYERS TO SAVE the PAUMONOK BIOENCLAVE, et al., Appellants, et al., Petitioners, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, et al., Respondents.

Decided: September 22, 2003

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, HOWARD MILLER, THOMAS A. ADAMS, JJ. Neufeld & O'Leary, New York, N.Y. (Denis P. O'Leary, David S. Neufeld, and Matthew G. DeOreo of counsel), for appellants. Eliot Spitzer, Attorney-General, New York, N.Y. (Marion R. Buchbinder, John J. Gibson, and Norman Spiegel of counsel), for respondents New York State Department of Environmental Conservation and Erin M. Crotty. Farrell Fritz, P.C., Uniondale, N.Y. (John M. Armentano and Walter J. Johnson of counsel), for respondent United Vanguard Homes, Inc.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Department of Environmental Conservation dated May 17, 2001, which, after a hearing, granted two special permits for the construction of a congregate-care facility, the petitioners Taxpayers to Save the Paumonok Bioenclave, West Hills Nature Preservation Society, Alan Friedberg, and Darlene Balducci appeal from a judgment of the Supreme Court, Suffolk County (Burke, J.), entered July 1, 2002, which, inter alia, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

 The New York Department of Environmental Conservation (hereinafter the DEC) acted rationally in classifying the construction of the subject congregate-care facility, a three-story, 120-unit, assisted-living residence for senior citizens, as a residential activity under 6 NYCRR 663.4(d)(42).   Since the activity was correctly classified as residential, the DEC properly reviewed the permit applications under the criteria listed in 6 NYCRR 663.5(e)(1).   Accordingly, the Supreme Court correctly denied the petition and dismissed the proceeding.

 The determination of the DEC not to hold an adjudicatory hearing was not arbitrary or capricious.   The appellants failed to present substantive and significant issues within the meaning of 6 NYCRR 621.7(b) and 6 NYCRR 624.4(c)(2) and (3).   Accordingly, the Supreme Court correctly denied the petition and dismissed the proceeding.

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