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 N.Y.2d 254, 261) and Matter of Haines v. Flacke ( 104 A.D.2d 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 A.D.2d 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.