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Kelly, Joseph and Margaret (March 2006)

March 10, 2006



Applicants: Joseph and Margaret Kelly, 11 Beechwood Road, Ho Ho Kus, New Jersey 07423 (Application No. 1-4736-01981/00006). Agent: Nicholas A. Vero, Architect, 120 Mill Road, Westhampton Beach, New York 11978.

Project: Applicants own a house at 122 Seafield Point Road in Westhampton Beach (Suffolk County). Applicants have filed a tidal wetland permit application to elevate the existing structure from the current foundation and to construct a two-story addition. The existing structure is located within approximately eight feet of the tidal wetlands boundary at its closest point. The addition, which would include two bedrooms, a bathroom, a covered porch and a deck from the second story, is proposed within approximately six feet of the tidal wetlands boundary at its closest point. Applicants propose to abandon the current sanitary system, and to install a new sanitary system and retaining wall that would be located within 23 feet of the tidal wetlands boundary at its closest point. The current impervious asphalt driveway, located approximately five feet from the tidal wetlands boundary at its closest point, would be replaced with pervious crushed stone. Except for the hay bale and silt fence, which is located in and adjacent to the tidal wetlands, the balance of the proposal would occur in the adjacent area. It is Department staff's position that a variance from the tidal wetlands regulations is required. However, Applicants seek an interpretation that the project complies with the tidal wetlands regulations.

By letter dated May 2, 2005, the DEC Region 1 Staff denied the permit application.

Permits: Tidal Wetlands permit pursuant to the New York State Environmental Conservation Law (ECL) article 25, and part 661 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR part 661).

SEQRA Status: The DEC Staff determined that the project is not subject to the State Environmental Quality Review Act (SEQRA, ECL Article 8 and 6 NYCRR part 617) because it is a Type II action (6 NYCRR 617.5).

Public Hearing: A legislative hearing to receive unsworn comments about the proposed project will be held at 10:00 A.M. on April 25, 2006, at the Westhampton Beach Firehall, 92 Sunset Avenue, Westhampton Beach, New York 11978 (telephone 631-288-1654 Westhampton Village Office, and 631-288-1896 Westhampton Fire District). Written comments may also be submitted to the Office of Hearings and Mediation Services, at the address below, in advance of the legislative hearing. All persons, organizations, corporations, or government agencies which may be affected by the project are invited to attend the hearing and to submit oral or written comments. Interpreter services will be made available to deaf persons, at no charge, upon written request to the administrative law judge (ALJ) at least five business days prior to the date of the hearing. The hearing location is reasonably accessible to persons with a mobility impairment.

Issues Conference: A pre-adjudicatory hearing issues conference will be held at the Westhampton Beach Firehall immediately following the legislative hearing. The purpose of the issues conference is to define, narrow, and resolve, if possible, the issues which are proposed as subjects for adjudication. Any persons requesting party status must appear or be represented at the issues conference in order that all proposed issues may be fully discussed. The adjudicatory hearing has been scheduled for June 27, 2006 at the Westhampton Beach Firehall.

Party Status: To participate in the adjudicatory hearing, persons must file a written petition requesting full party status, pursuant to 6 NYCRR 624.5 (also see 6 NYCRR 624.4[c]). Petitions for full party status must demonstrate that substantive and significant issues exist concerning the proposed project. Please see 6 NYCRR 624.4 and 624.5 for further information about requesting full party status and identifying issues for adjudication.

All petitions requesting full party status to participate in the adjudicatory hearing must be received at the Office of Hearings and Mediation Services at the following address no later than 3:30 p.m. on April 20, 2006. Telefaxed copies will not be accepted. Petitions must be submitted to: Daniel P. O'Connell, Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, 625 Broadway, Albany, New York 12233-1550 (telephone: 518-402-9003).

All persons filing petitions must also send a copy of their petition at the same time and in the same manner to: Gail Rowan, Esq., Assistant Regional Attorney, DEC Region 1, Building 40 - SUNY Campus, Stony Brook, New York 11790-2356 (telephone: 631-444-0260) and to applicants' attorney, James N. Hulme, Esq., Kelly & Hulme, PC, Attorneys at Law, 323 Mill Road, Westhampton Beach, New York 11978 (telephone: 631-288-2876).

Document Availability: All filed documents are available for inspection during normal business hours at the Department's Region 1 Office, Building 40 - SUNY Campus, Stony Brook, New York (631-444-0260, Attn: Gail Rowan), and at the Office of Hearings and Mediation Services at the Albany address above. A copy of 6 NYCRR part 624 may be obtained from the Office of Hearings and Mediation Services.

Statutory and Regulatory Provisions: ECL article 1 (General Provisions); article 3, title 3 (General Functions); article 8 (State Environmental Quality Review); article 25 (Tidal Wetlands); article 70 (Uniform Procedures); and 6 NYCRR part 661 (Tidal Wetlands); part 617 (State Environmental Quality Review); part 621 (Uniform Procedures); and part 624 (Permit Hearing Procedures).

James T. McClymonds
Chief Administrative Law Judge

Albany, New York
March 10, 2006

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