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Linus Realty, LLC

July 12, 2005

NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
COMBINED NOTICE OF COMPLETE APPLICATION
AND
NOTICE OF PUBLIC HEARING

APPLICANT: Linus Realty, LLC, 318 Clove Road, Staten Island, NY 10310.

Contact: Richard Rosenzweig, Esq., Menicucci, Villa & Associates, PLLC, Attorneys and Counsellors at Law, 2040 Victory Boulevard, Staten Island, NY 10314.

PROJECT APPLICATION NUMBER: 2-6405-00476/00001

PROJECT DESCRIPTION AND LOCATION: Linus Realty, LLC (Linus Realty), has filed an application for a freshwater wetlands permit to construct ten commercial buildings and parking areas in and adjacent to Freshwater Wetland AR-7 on a 7.5 acre site located between Johnson Street and Industrial Loop West (Block 7207, Lot 35), Staten Island (Richmond County), NY. Linus Realty's application was deemed complete pursuant to 6 NYCRR 621.5(f). Freshwater Wetland AR-7 is a Class I wetland.

PREVIOUS APPLICATION: In 1988, Frank Vigliarolo and Joseph Vigliarolo, doing business as Opal Investments, filed an application for a freshwater wetlands permit with the New York State Department of Environmental Conservation (the Department) for a proposal at the location identified above. Subsequently, Opal Investments petitioned the Freshwater Wetlands Appeals Board (FWAB), pursuant to Environmental Conservation Law (ECL) section 24-1104. The FWAB issued an Order and Decision dated July 23, 1998 (Index No. 92-10), and determined, among other things, that Opal Investments had suffered a hardship. The July 23, 2998 Order and Decision directed the Department to issue a permit. The Department did not seek judicial review of FWAB's July 23, 1998 Order and Decision. The Department, however, did not issue a permit because Opal Investments did not finalize the permit process. Linus Realty purchased the property in 2003, and filed the subject permit application for the project described above.

TENTATIVE STAFF POSITION: In a letter dated June 30, 2004, Department staff denied the permit application filed by Linus Realty. According to Department staff, the project, as described above, would not meet the permit issuance standards regarding compatibility and the weighing standards outlined in title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) § 663.5(e)(1) and (2). Therefore, potential factual issues that may require adjudication include whether the proposed project would meet the permit issuance standards outlined at 6 NYCRR 663.5(e).

APPLICANT'S POSITION: With a cover letter dated April 19, 2005, Linus Realty filed a motion, and argues that it is entitled to the permit initially awarded to Opal Investments by the FWAB's July 23, 1998 Order and Decision because Linus Realty is the current property owner and that the FWAB's July 23, 1998 Order and Decision runs with the land. Linus Realty makes this motion as an alternative to the pending permit application for the project described above.

A copy of Linus Realty's April 19, 2005 motion is available at the locations identified below. The administrative law judge (ALJ) will set a schedule for replying to Linus Realty's April 19, 2005 motion at the issues conference.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) STATUS: To date, Department staff has not made a determination of significance about Linus Realty's proposal (see 6 NYCRR 617.5 and 617.7).

PERMITS REQUIRED AND STATUTORY AND REGULATORY PROVISIONS: Linus Realty has filed an application for a freshwater wetlands permit pursuant to ECL article 24 (Freshwater Wetlands), as well as 6 NYCRR part 663 (Freshwater Wetlands Permit Requirements). The application was filed and is being processed pursuant to ECL article 3, title 3 (General Functions), article 8 (SEQRA), and article 70 (Uniform Procedures), as well as 6 NYCRR part 617 (SEQR), part 621 (Uniform Procedures), andpart 624 (Permit Hearing Procedures).

PUBLIC HEARING: The public is invited to comment on the permit application, and the legal arguments presented in Linus Realty's April 19, 2005 motion concerning the applicability of the FWAB's July 23, 1998 Order and Decision. Pursuant to 6 NYCRR 624.4(a), a legislative hearing to receive oral comments will be held on August 18, 2005 at 10:00 A.M. at the Columbus Club of Tottenville, Inc., 100 Kreischer Street (off Arthur Kill Road), Staten Island, New York 10309 (telephone: 718-948-9882). It is not necessary to file a request in advance of the legislative hearing to speak at the hearing. In lieu of oral comments, written statements may also be submitted either by mail or delivered at the hearing. Written statements will be considered equally with oral comments made at the legislative hearing, and must be received by August 18, 2005.

The location of the legislative hearing 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 ALJ at least 10 days before the hearing.

ISSUES CONFERENCE: Pursuant to 6 NYCRR 624.4(b), a pre-adjudicatory hearing issues conference will be held immediately following the legislative hearing on August 18, 2005, and at the same location to determine party status for any person or organization who has properly filed a petition (as outlined below), and to narrow and define the scope of issues that will require adjudication. Participation at the issues conference will be limited to Department staff, Linus Realty, and those requesting party status. If needed, the adjudicatory hearing will be scheduled at a later date, and the ALJ will advise the parties accordingly.

FILING FOR PARTY STATUS: Persons and organizations seeking to participate in the issues conference and any subsequent adjudicatory hearing must file a petition (a written statement) explaining whether the request is for full party status or amicus status. For the required contents of all petitions for party status, see 6 NYCRR 624.5(b)(1). For the additional contents of petitions for full party status, see 6 NYCRR 624.5(b)(2). To determine whether an issue is substantive, see 6 NYCRR 624.4(c)(2), and to determine whether an issue is significant, see 6 NYCRR 624.4(c)(3). For the additional contents of a petition seeking amicus status, see 6 NYCRR 624.5(b)(3).

All petitions for either full party status or amicus status must be received at the Department's Office of Hearings and Mediation Services by 4:00 p.m. on August 15, 2005. Send them to: Daniel P. O'Connell, Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, First Floor, 625 Broadway, Albany, New York 12233-1550 (telephone: 518- 402-9003). Telefaxed petitions will not be accepted. Send copies at the same time and in the same manner to Udo Drescher, Esq., Assistant Regional Attorney, Department of Environmental Conservation, Region 2 Office, 47-40 21st Street, Long Island City, New York 11101-5407 (telephone: 718-482-4965); and to Linus Realty's attorney, Richard Rosenzweig, Esq., Menicucci, Villa & Associates, PLLC, Attorneys and Counsellors at Law, 2040 Victory Boulevard, Staten Island, NY 10314 (telephone: 718-667-9090).

DOCUMENT AVAILABILITY: All filed documents, including the permit application, are available for public review at the offices of the assigned ALJ and at the Department's Region 2 Office. The Department staff contact person in the Region 2 Office is Harold J. Dickey, Environmental Analyst, Division of Environmental Permits (telephone: 718-482-4997).

James T. McClymonds
Chief Administrative Law Judge

Albany, New York
July 12, 2005

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