In the Matter of Iroquois Central School District, Respondent, v. Michael D. Zagata, Individually and as Commissioner of New York State Department of Environmental Conservation, et al., Appellants

In the Matter of Iroquois Central School District, Respondent, v Michael D. Zagata, Individually and as Commissioner of New York State Department of Environmental Conservation, et al., Appellants. (Appeal No. 1.) [662 NYS2d 282] [MAJORITY] Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in annulling the determination of New York State Department of Environmental Conservation (DEC) to grant a mining permit to respondent Pine Hill Concrete Mix Corporation (Pine Hill) and in directing that DEC conduct no further review of the permit application until the completion of an Environmental Impact Statement (EIS). Pine Hill’s proposed project is a Type I action, which presumptively requires preparation of an EIS (see, Matter of Cathedral Church of St. John the Divine v Dormitory Auth., 224 AD2d 95, 100, lv denied 89 NY2d 802; Matter of Town of Dickinson v County of Broome, 183 AD2d 1013, 1014). The record establishes, however, that the “determination to issue a negative declaration and forego the need for an EIS was neither arbitrary and capricious nor irrational” (Matter of Cathedral Church of St. John the Divine v Dormitory Auth., supra, at 100; see, Matter of Save the Pine Bush v Planning Bd., 217 AD2d 767, 769, lv denied 87 NY2d 803). Further, DEC’S issuance of a negative declaration was not impermissibly conditioned upon Pine Hill’s commitment to limit the hours and location of truck traffic. That commitment was made by Pine Hill to the Town of Elma, not DEC, and was “part and parcel of the project plans being reviewed by” DEC (Matter of Cathedral Church of St. John the Divine v Dormitory Auth., supra, at 102-103; cf., Matter of Miller v City of Lockport, 210 AD2d 955, 957, lv denied 85 NY2d 807). Finally, we conclude that DEC did not conduct an improperly segmented review by considering the instant project apart from Pine Hill’s application for a permit to mine another parcel in the Town of Manila (see, Matter of Cahn v Planning Bd., 157 AD2d 252, 256-257; cf., Matter of Teich v Buchheit, 221 AD2d 452, 453-454; Sun Co. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34, 46-49, appeal dismissed 86 NY2d 776). (Appeals from Judgment of Supreme Court, Erie County, Rath, Jr., J.—CPLR art 78.) Present—Denman, P. J., Green, Doerr, Balio and Boehm, JJ.