Posted by: Patricia Salkin | July 2, 2016

NY Appellate Court Finds Department of Health’s Denial of Application Lacked Sufficient Detail for Meaningful Review

In 2011, petitioners Sean Menon and Dawn Menon found a property lot on which they wanted to construct a vacation house. Prior to making an offer for the lot, Sean 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. Shortly thereafter, 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, Glenn Illing, an engineer in respondent’s district office, 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. The Supreme Court granted the petition, and the respondent appealed.

On appeal, respondent contended 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. However, 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. Moreover, 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. Accordingly, respondent’s denial shed “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.”

Menon v New York State Department of Health, 2016 WL 3331877 (NYAD 3 Dept. 6/16/2016)

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