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Fenner, Peter and Nancy

August 24, 2005


Applicant: Peter Fenner and Nancy Fenner, 0308 SW Montgomery Street, Apartment #401, Portland, Oregon 97201.

Applicant's Agent: Lark J. Shlimbaum, Esq., Shlimbaum and Shlimbaum, 265 Main Street, P.O. Box 8, Islip, New York 11751-0008.

Project: Applicant has applied (Application #1-4736-02179/00003) to the New York State Department of Environmental Conservation ("Department") for a tidal wetlands permit to install a private recreational dock at 742 Dune Road, West Hampton Dunes, Suffolk County, New York 11978. The components of this project would consist of a 4' x 150' elevated catwalk, with a 3' x 15' ramp leading down to a 6' x 25' float, with two tie off poles. Pass/repass stairs 4' wide would also be provided to facilitate public access across the dock. The float would be secured in place with two 8" x 18' piles. The dock, ramp and float would be constructed of wood. The proposed location of the dock structure is on the north side of Dune Road fronting Moriches Bay.

The Department's Division of Environmental Permits reviewed the application and issued a denial of the application with notification to applicant by letter dated May 18, 2001. Department staff determined that the proposed activity did not meet the standards for permit issuance pursuant to article 25 of the Environmental Conservation Law ("ECL") and part 661 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). According to Department staff, the construction of the catwalk would cause direct loss of 600 square feet of prime piping plover foraging habitat. The piping plover is a federal threatened, and State endangered species. Department staff contended that the proposal (1) would have an undue adverse impact on the present and potential values of the tidal wetland and wildlife habitat (6 NYCRR 661.9(b)(1)(i), (c)(3)); (2) is not compatible with the public health and welfare (6 NYCRR 661.9(b)(1)(ii),(c)(1)); and (3) is not reasonable or necessary (6 NYCRR 661.9(b)(1)(iii)). By letter dated June 1, 2001, applicant requested a hearing on the denial.

Permits: Tidal wetlands permit pursuant to ECL article 25 and 6 NYCRR part 661. In addition, the project will require a protection of waters permit pursuant to ECL article 15 and 6 NYCRR part 608, and a section 401 water quality certification (see 6 NYCRR 608.9). In addition, a permit issued by the Army Corps of Engineers is required, as well as a permit issued by the Trustees of the Town of Southampton.

SEQRA Status: Department Staff determined that the project is not subject to review under the State Environmental Quality Review Act, ECL article 8 (SEQRA) and 6 NYCRR part 617 because it is a Type II action, pursuant to 6 NYCRR 617.5(c)(10) (the construction of an accessory structure).

Legislative Hearing: All persons, organizations, corporations or government agencies that may be affected by the project are invited to comment on the application. For this purpose, a legislative hearing to receive unsworn comments will be held on Tuesday, October 4, 2005 at 10:00 AM at the Westhampton Beach Fire Department, 92 Sunset Avenue, New York 11978 (telephone number 631-288-1654 [Westhampton Village Office] or 631-288-1896 [Westhampton Fire District]).

This location is reasonably accessible to persons with a mobility impairment. Pursuant to the State Administrative Procedure Act ("SAPA"), interpreter services shall 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 hearing.

Written comments may also be submitted at the legislative hearing or may be mailed to be received on or before Friday, September 23, 2005 at the Office of Hearings and Mediation Services at the address listed below.

Issues Conference: A pre-adjudicatory hearing issues conference will be held at the same location immediately following the legislative hearing. The purpose of the issues conference is to define, narrow, and resolve, if possible, the issues that are proposed as subjects for adjudication. The known issues include Department staff's basis for the denial of the application. Other issues may be proposed for adjudication and must be both substantive and significant in accordance with 6 NYCRR 624.4(c). It is important that any persons requesting party status appear or be represented at the issues conference in order that all proposed issues may be fully discussed.

Adjudicatory Hearing: The adjudicatory hearing is scheduled to take place at the same location, immediately following the issues conference, and will continue from day to day thereafter if necessary.

Party Status: Party status to participate in the adjudicatory hearing will be accorded only to those persons who file a written petition requesting party status. The petition must include the facts intended for presentation pursuant to 6 NYCRR 624.4(c) and 624.5(b). Any petition must fully identify the proposed party together with the name(s) of the person(s) who will act as the proposed party's representative(s), the proposed party's environmental interest in the proceeding, any interest relating to the statutes administered by the Department relevant to the project, whether the request is for full party status or amicus status, and the precise grounds for opposing or supporting the project. Mere opposition to the project is not a sufficient basis to be granted party status. Please see 6 NYCRR 624.4 and 624.5 for further information on party status and identification of issues.

If seeking full party status, the petitioner must propose issues that could result in permit denial, major modification of the proposed project, or the imposition of significant permit conditions. The petition must identify all statutory and regulatory requirements the project may not meet, and explain why. If a petitioner intends to rely upon expert testimony, the petition must also include an offer of proof that specifies the witness(es), the nature of the arguments and other documentary evidence that the petitioner intends to present at the hearing, and the basis for the assertions as to the existence of proposed adjudicable issues.

All filings requesting party or amicus status must be received on or before the close of business on Friday, September 23, 2005 at the Office of Hearings and Mediation Services, New York State Department of Environmental Conservation, 625 Broadway, First Floor, Albany NY 12233-1550, attn: Maria E. Villa, Administrative Law Judge. Electronic filings or telefaxed submissions will NOT be accepted. Copies of the filing are to be sent at the same time and in the same manner to: Gail Rowan, Esq., Assistant Regional Attorney, at the Department's Region 1 Office, Building 40, SUNY Stony Brook, New York 11790-2356; and applicant's agent, Lark J. Shlimbaum, Esq., Shlimbaum and Shlimbaum, 265 Main Street, P.O. Box 8, Islip, New York 11751-0008.

Document Availability: All filed documents, the application and other papers are available for inspection during normal business hours at the Department's Region 1 Office, Building 40, SUNY Stony Brook, New York 11790-2356, attn: Marilyn E. Peterson, telephone 631-444-0366, and at the Office of Hearings and Mediation Services, Maria E. Villa, Administrative Law Judge, telephone 518-402-9003.

A copy of 6 NYCRR part 624 may be obtained from the Office of Hearings and Mediation Services.

Statutory and Regulatory Provisions: The applications are processed and this proceeding is conducted according to the Environmental Conservation Law ("ECL") article 1 (General Provisions); article 3, title 3 (General Functions); article 8 (State Environmental Quality Review, "SEQR"); article 15 (Protection of Waters); article 25 (Tidal Wetlands); and also title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") part 608 (Use and Protection of Waters); part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); and part 661 (Tidal Wetlands).

James T. McClymonds
Chief Administrative Law Judge

August 24, 2005
Albany, NY

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