
    In the Matter of Arthur F. Smith, Petitioner, v Henry G. Williams, as Commissioner of New York State Department of Environmental Conservation, Respondent.
   Proceeding pursuant to ECL article 24 to review a determination of the respondent Commissioner, dated July 13, 1983, which denied petitioner freshwater wetlands permits, or, if the determination denying the permits is upheld, then for judgment declaring the denial to be a taking without just compensation (ECL 24-0705 [7]).

Determination confirmed, without costs or disbursements, and proceeding remitted to the Supreme Court, Suffolk County, for an evidentiary hearing pursuant to Spears v Berle (48 NY2d 254, 261) and Matter of Haines v Flacke (104 AD2d 26, 36) to determine “whether the wetlands regulations, considered together with the denial of the permit[s] would work an unconstitutional taking of petitioner’s property”.

The subject of this proceeding is three parcels. Petitioner’s brief states in pertinent part: “One caveat should be mentioned here, however. It is petitioner’s position that the DEC’s [Department of Environmental Conservation] refusal to grant a permit for Parcel 1 was clearly not supported by substantial evidence in light of the findings that it could be developed. Parcels 2 and 3 are primarily freshwater wetland and it cannot be seriously argued that the DEC lacked any basis to deny permits for them”.

We find that the determination under review, as to all the parcels in issue, had a rational basis and was supported by substantial evidence (Matter of Haines v Flacke, 104 AD2d 26, supra), and therefore should be confirmed. The confiscation issue cannot be decided on the administrative agency record made on the permit application. Accordingly, the proceeding is remitted to the Supreme Court, Suffolk County, for consideration of that issue (see, Matter of Haines v Flacke, supra). Thompson, J. P., Weinstein, Niehoff and Lawrence, JJ., concur.  