
    In the Matter of Stephen D. Grimaldi, Petitioner, v New York State Department of Environmental Conservation, Respondent.
    [753 NYS2d 842]
   On the Court’s own motion, it is Ordered that its unpublished decision and order dated September 23, 2002, in the above-entitled case is recalled and vacated, and the following decision and order is substituted therefor:

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Environmental Conservation dated August 8, 2000, which, after a hearing, denied the petitioner’s application for a permit to build a house and septic system in the regulated area immediately adjacent to a designated freshwater wetland.

Adjudged that the petition is denied, without costs or disbursements, the determination is confirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance with ECL 25-0404.

The determination of the Commissioner of the New York State Department of Environmental Conservation (hereinafter the Commissioner) must be confirmed, as it was supported by substantial evidence and was not arbitrary or capricious (see Matter of Brotherton v Department of Envtl. Conservation of State of N.Y., 189 AD2d 814, 815).

The record of the administrative hearing is insufficient to determine whether the denial of the petitioner’s application is so burdensome as to constitute a taking, in which case, the Commissioner must either grant the application or commence condemnation proceedings (see ECL 25-0404). Accordingly, the matter is remitted to the Supreme Court for an evidentiary hearing to determine whether the wetlands regulations, coupled with the denial of the permit application, constituted an unconstitutional taking of the petitioner’s property (see Matter of Brotherton v Department of Envtl. Conservation of State of N.Y., supra at 816; Matter of Haines v Flacke, 104 AD2d 26, 33; see also Spears v Berle, 48 NY2d 254, 261, 264).

The petitioner’s remaining contention is without merit (see CPLR 7804 [g]). Feuerstein, J.P., Schmidt, Adams and Crane, JJ., concur.  