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New York Commercial Associates

April 11, 2000



PROJECT: The applicant has applied for a freshwater wetlands permit pursuant to Environmental Conservation Law Article 24 and Part 663 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) to fill approximately one-tenth of an acre (.1 acre) of the Dongan Hills Freshwater Wetland (NA-9) located between Buel and Dongan Hills Avenues and between Olympia and Boulevard and Nugent Avenue on Staten Island, New York, for the construction of 11 residential dwelling units.

The project involves the filling of one-tenth of an acre (.1 acre) of wetland to construct 10 attached duplexes and 1 detached single-family residence on .52 acres of a 2.12 acre site. To mitigate for the loss of .1 acre of wetlands, the applicant proposes to enhance 1.60 acres of the on-site freshwater wetland by excavating a pond and replacing Phragmites reeds with native wetland species and buffer trees and shrubs. The applicant also proposes to restore a 2,000 square foot illegally filled and paved area of wetland near the intersection of Buel Avenue and Olympia Boulevard. In addition, the applicant will enhance a 1,000 square foot area of currently reed-dominated wetland in the bed of Olympia Boulevard at the intersection with Buel Avenue. Finally, the applicant will install a stormwater drain on Dongan Hills Avenue along the length of the project area.

APPLICATION HISTORY: NY Commercial Associates made its application to the Department on December 17, 1985. On June 16, 1987, Department staff determined that the project would have significant environment impacts requiring an environmental impact statement (EIS). Staff accepted the draft EIS as adequate for public review on May 30, 1997 and declared the application complete on July 11, 1997. The staff determined that the project did not meet the regulatory criteria for permitting set forth in 6 NYCRR 663.5(e). In addition, the staff contested the applicant's off-site enhancement of an illegally-filled wetland for meeting mitigation requirements.

After meeting with DEC staff in August 1997, the applicant modified the project plans by reducing the number of units from 40 to 22, decreasing the wetland area filled from roughly two acres to slightly under one acre, and increasing the mitigation area to a two-for-one ratio (approximately 2 acres of mitigation area). The applicant also submitted a supplemental report describing the project impacts of the revised project. In October 1997, the application was noticed for public hearing but once again the applicant elected to cancel the hearing in an effort to modify the project to meet staff's objections. In June 1998, the applicant again modified the project plan by reducing the number of units from 22 to 18. DEC staff opposed the proposed 18-unit project.

On December 29, 1998, DEC published a Notice of Public Hearing scheduling a legislative hearing to be held February 2, 1999, an issues conference on February 3, 1999, and an adjudicatory hearing, if required, on February 3-5,1999.

At the legislative hearing held on February 2, 1999, DEC staff continued to oppose the proposed 18-unit project. However, based on a then-recent site inspection, DEC determined that much of what had been presumed to be on-site freshwater wetlands was not, in fact, wetland but rather adjacent area. Therefore, Department agreed to fashion a draft permit to allow for development of a portion of the project site together with appropriate mitigation. As a result, ALJ Goldberger agreed to postpone the issues conference scheduled for February 3, 1999.

On February 12, 1999, DEC released a draft permit that would allow for the construction of 10 duplex residential units on the site, with the on-site mitigation that the applicant had previously proposed for the 18-unit development. Pursuant to the draft permit, all 10 of these units would be located within adjacent area, entirely outside of the on-site freshwater wetlands. After further meetings and discussions with the applicant, the Department has agreed to modify the draft permit to allow the construction of 1 additional single-family residence on the Dongan Hills Avenue side of the project site.

STAFF'S POSITION: The Department staff has agreed to the issuance of a permit for this project because it finds that the construction of 10 duplexes and 1 single-family residence satisfies the applicable standards contained in 6 NYCRR Part 663. Staff finds that the proposed mitigation compensates for the proposed filling of one-tenth acre (.1 acre) of wetlands by enhancing wetland benefits on the remaining 1.5 acres of lesser quality wetlands, and by restoring and creating an additional 1,000 square feet of freshwater wetlands on the site.

SEQRA STATUS: Pursuant to the State Environmental Quality Review Act (SEQRA, ECL Article 8), on July 11, 1997, DEC determined that the Draft Environmental Impact Statement (DEIS) was complete. A Final Environmental Impact Statement must be prepared before the Department issues a permit for the project.

PUBLIC HEARING: For the receipt of public comment, a legislative hearing session on the application will be held at P.S. 52, 150 Buel Avenue, Staten Island, NY 10305 on May 15, 2000 beginning at 6:00 p.m. All persons, organizations, corporations, or government agencies which may be affected by the proposed project are invited to attend the hearing and to submit oral or written comments on the application. Parties may also file written comments with the Office of Hearings and Mediation Services (OHMS) at the address indicated below either before or during the legislative hearing. Equal weight will be given to both oral and written statements. The hearing will be conducted pursuant to 6 NYCRR Part 624 (Permit Hearing Procedures).

The hearing location is reasonably accessible to persons with a mobility impairment. Interpreter services will be made available to deaf persons, at no charge, upon written request to the Administrative Law Judge named below at least five business days prior to the date of the hearing.

ISSUES CONFERENCE: A pre-adjudicatory hearing issues conference will take place on May 16, 2000 at 10 a.m. at the Staten Island Hotel, 1415 Richmond Avenue, Staten Island, NY. The purpose of the issues conference is to define, narrow and resolve, if possible, the issues concerning the permit application which are proposed as subjects for adjudication in the adjudicatory portion of the hearing.

PARTY STATUS: In order to participate at the issues conference and at any subsequent adjudicatory hearing, parties must file a written petition explaining your interest and the facts you intend to present at an adjudicatory hearing according to the criteria outlined in 6 NYCRR §§ 624.5 and 624.4(c). Party status to participate at the adjudicatory hearing will be accorded only to those persons who file a written petition requesting party status. A petitioner for party status must demonstrate that a significant and substantive issue exists concerning the proposed project.

ALL PETITIONS FOR PARTY STATUS MUST BE RECEIVED by 5:00 p.m. on May 10, 2000 at the following address: HELENE G. GOLDBERGER, ADMINISTRATIVE LAW JUDGE, OFFICE OF HEARINGS and MEDIATION SERVICES, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ROOM 423, 50 WOLF ROAD, ALBANY, NEW YORK 12233-1550; TELEPHONE (518) 457-3468. Faxes will not be accepted. At the same time all petitioners must send copies of their complete filings to: Udo Drescher, Assistant Regional Attorney, NYSDEC, Region 2, 47-40 21st Street, Long Island City, New York 11101 and Michael Bogin,Esq., Sive, Paget and Reisel, 460 Park Avenue, New York, NY 10022-1906.

DOCUMENT AVAILABILITY: The permit application, draft permit, DEIS and Permit Hearing Procedures are available for public review at the following locations:

1. NYSDEC Office of Hearings and Mediation Services, 50 Wolf Road, Room 423, Albany, New York 12233-1550.

2. NYSDEC Region 2, 47-40 21st Street, Long Island City, New York 11101. Contact: Harold Dickey (718) 482-4997.

STATUTORY AND REGULATORY PROVISIONS: Environmental Conservation Law Article 1 (General Provisions); Article 3, Title 3 (General Functions); Article 8 (State Environmental Quality Review Act); Article 24 (Freshwater Wetlands); Article 70 (Uniform Procedures); and 6 NYCRR Part 663 (Freshwater Wetlands); Part 617 (SEQRA); Part 621 (Uniform Procedures) and Part 624 (Permit Hearing Procedures).

Daniel E. Louis
Chief Administrative Law Judge

April 11, 2000

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