New York Appellate Division Reports

12-21-2006] 2006 NY Slip Op 09689 In the Matter of INN AT
HUNTER, INC., Appellant, v. VILLAGE OF HUNTER, Respondent.
500836. Appellate Division of the Supreme Court of New
York, Third Department. Decided and Entered: December 21,

Appeal from a judgment of the Supreme Court (Lalor, J.),
entered April 13, 2006 in Greene County, which dismissed
petitioner’s application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying
petitioner’s application for a water and sewer tap permit.

Tillim & Shepardson, Melville (Malcolm L. Tillim of
counsel), for appellant.

Murphy, Burns, Barber & Murphy, Albany (James J. Burns of
counsel), for respondent.




Petitioner proposed to build a condominium development on
its property in the Village of Hunter, Greene County, and
applied for water and sewer permits for future service to
the proposed development. After a public hearing, and based
on concerns raised by respondent’s consulting engineer
regarding the present capacity of its water and sewer
systems, respondent denied petitioner’s application.
Petitioner then commenced this CPLR article 78 proceeding
seeking an order of mandamus compelling respondent to grant
its permit application. Supreme Court found that respondent
had a rational basis for its determination and dismissed
the petition. Petitioner appeals, arguing that it is
entitled to have a permit for future water and sewer
service to its proposed development because the system has
adequate capacity and, thus, the granting of such a permit
is a ministerial act.

Initially, we note that mandamus is appropriate only where
the right to relief is clear and the governmental act to be
compelled is a mandatory duty commanded to be performed by
law in a specified manner involving no exercise of judgment
or discretion (see Matter of Brusco v Braun, 84 NY2d 674,
679 [1994]; see also Matter of Hamptons Hosp. & Med. Ctr. v
Moore, 52 NY2d 88, 96 [1981]; Matter of Davis v Pomeroy,
283 AD2d 874, 875 [2001]). While denial of an application to
access water and sewer service will be reversed if it is
arbitrary and unsupported by substantial evidence (see e.g.
Matter of Capitol Real Estate v Town Bd. of Town of
Charlton, 23 AD3d 858, 860 [2005]; Matter of Clubside, Inc.
v Town Bd., Town of Wallkill, 297 AD2d 734, 735 [2002];
Matter of Peschel v Village of Monroe, 226 AD2d 540, 541
[1996], lv denied 98 NY2d 803 [1996]), a municipality
nonetheless has the discretion to reject such an
application “upon a finding that the proposed connection,
because of excessive demands on the system or otherwise,
would present problems related to the sewer system or the
public health of the [municipality]” (Matter of Svenningsen
v Passidomo, 62 NY2d 967, 969 [1984]. Thus, petitioner may
seek review of respondent’s determination, but mandamus is
not an available remedy. We also note that petitioner
contends that there are affidavits and other materials in
the record before Supreme Court that contain information
not in the record before the Village Board. In our view,
however, this information was provided to Supreme Court
only to show that the recommendation of respondent’s
engineer was offered in good faith and based on accurate
data. In any event, considering only the record before the
Village Board, we find evidentiary support for the denial
of petitioner’s application due to limitations on
respondent’s water supply, the unconfirmed capacity of its
sewer system and the mandated future connection of
approximately 150 existing users. The record indicates that
respondent’s engineer recommended a flow standard for
approval of any applications for water and sewer service to
a new structure. This standard was a flow of no more than
873 gallons per day based upon the engineer’s opinion that
flow in excess of that amount could result in overloading
respondent’s wastewater treatment plant during periods of
snow melt or rain. The engineer also stated that the
treatment plant’s capacity could not be adequately gauged
until it had been running at least one full season at full
flow. While petitioner presented a conflicting engineering
opinion as to the capacity of respondent’s system, there is
no dispute that its proposed condominiums would require a
water and sewage flow of more than 7,000 gallons per day,
far in excess of the threshold recommended by respondent’s
engineer. Upon this record, we conclude that respondent’s
determination to follow its engineer’s recommendation and
reject petitioner’s expert’s assessment of the capacities
of its water and sewer systems was both rational and
supported by substantial evidence (see Matter of Retail
Prop. Trust v Board of Zoning Appeals of Town of Hempstead,
98 NY2d 190, 196 [2002]; Saratoga Water Servs. v Zagata,
247 AD2d 788, 790 [1998]).

Petitioner’s remaining contention, that denial of its
application was discriminatory because other existing users
were thereafter permitted to connect to respondent’s
systems, is unavailing. We need note only that the
connection of existing users was mandated by an ordinance
of respondent, petitioner’s application was for a future
use and petitioner failed to identify any instance in which
the Village Board approved connection of the system to a
new structure with daily flow requirements comparable to
its proposed development. Further, petitioner failed to
allege malicious intent (see Matter of Northway 11
Communities v Town Bd. of Town of Malta, 300 AD2d 786,
788-789 [2002]).

Cardona, P.J., Mugglin and Lahtinen, JJ., concur.

ORDERED that the judgment is affirmed, without costs.