Salmon v. Flacke — 61 N.Y.2d 798

Majority

p. 798

In the Matter of Clinton A. Salmon, Individually and as Supervisor of the Town of Sardinia, Appellant, v Robert F. Flacke, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents. (And Another Proceeding.)

Argued January 5, 1984;

decided February 14, 1984

p. 800

APPEARANCES OF COUNSEL

Richard J. Lippes for appellant.

Richard N. Blewett for Richard Penfold, respondent.

OPINION OF THE COURT

Orders affirmed, without costs, for reasons stated in the memoranda at the Appellate Division ( 91 AD2d 867 , 868). We would only add that, in other circumstances, there might be proof of change in the level of operation so substantial as to be sufficient to remove an activity from the exclusion clause of ECL 8-0111 (subd 5, par [a]), notwithstanding that the basic nature of the activity remains unchanged.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye. Taking no part: Judge Simons.