Department of Environmental Conservation

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DeCillis, Thomas M, Tracey A. DeCillis, Thomas DeCillis and LeeAnn DeCillis

December 20, 2006


Applicants: Thomas M. DeCillis, Tracey A. DeCillis, Thomas DeCillis and LeeAnn DeCillis, 24 Links Road, Smithtown, New York 11787.

Applicant's Agent: Vincent J. Trimarco, Esq., 1040 West Jericho Turnpike, Smithtown, New York 11787-3299.

Project: Applicants have applied (Application #1-4734-02009/00001) to the New York State Department of Environmental Conservation ("Department") for a permit pursuant to article 15, title 27 of the New York State Environmental Conservation Law ("ECL") (Wild, Scenic and Recreational Rivers System), and part 666 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") to subdivide a parcel of real property consisting of 2.104 acres into two lots. The existing house would remain on one of the lots of 1.002 acres, and a dwelling, driveway and leaching pool would be constructed on the second lot of 1.102 acres. The subject lot is located within the Nissequogue Recreational River Corridor.

Applicants propose to construct the project at a site owned by applicants on the south site of Loft Road and west side of Croft Lane (SCTM #0800-154-2-46), Town of Smithtown, County of Suffolk, New York.

The Department's Division of Environmental Permits reviewed the application and denied the application with notification to applicants by letter dated November 17, 2005. Department staff determined that the proposed activity did not meet the standards for permit issuance pursuant to article 15, title 27 of the ECL and part 666 of 6 NYCRR. Specifically, Department staff cited to the table of use guidelines in 6 NYCRR 666.13(C)(2), note (iii), which provides that "[e]ach private dwelling or mobile home in a recreational river area must be on a lot of at least 2 acres and have, when applicable, a shoreline frontage of at least 200 feet."

In its denial, Department staff stated that in the past, variances for undersized lots have been granted provided that the proposals could meet one of two conditions: first, if the lot was already subdivided prior to the enactment of article 15 and was in single and separate ownership; and second, if the proposed subdivided lots conform to the character of the immediate neighborhood. Department staff contended that because the subject property was not yet subdivided, it could not meet the first condition. Department staff asserted further that in order to meet the second condition, an applicant is required to average the lot size for all residentially developed lots in a 500' radius of the subject property. According to Department staff, the average provided by applicants of residential lots within a 500' radius of the subject property is 1.27 acres, and the average of the two proposed lots is 1.05 acres, which would not meet the second condition's requirements.

By letter dated November 23, 2005, applicants requested a hearing on the denial.

This application was the subject of a combined notice of complete application and notice of public hearing that appeared in the Environmental Notice Bulletin on August 30, 2006. That notice was also published in the August 31, 2006 edition of the Smithtown News. The hearing was scheduled to commence on October 3, 2006, but was postponed to allow for receipt of additional information from the applicant, and a determination by Department staff based upon that information. Notice of the postponement appeared in the September 27, 2006 edition of the Environmental Notice Bulletin.

Specifically, by letter dated September 15, 2006, Department staff requested that the applicant provide further information concerning the applicant's request for an area variance. The applicant submitted that information in correspondence dated September 27, 2006. On December 1, 2006, Department staff notified the applicant that the proposal failed to satisfy the area variance standards for permit issuance set forth in part 666.9 of 6 NYCRR.

Permits: Permit pursuant to ECL article 15, title 27 (Wild, Scenic and Recreational Rivers) and 6 NYCRR part 666. In addition, the project will require approvals from the Town of Smithtown.

SEQRA Status: Department staff determined that the project is an unlisted action pursuant to the State Environmental Quality Review Act, ECL article 8 ("SEQRA") and 6 NYCRR part 617 (see 6 NYCRR 617.2[ak] [defining unlisted action]). Department staff issued a negative declaration dated February 10, 2006.

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, January 30, 2007 at 10:00 AM at the Department's Region 1 offices, SUNY Stony Brook, 50 Circle Road, Stony Brook, New York 11790-3409.

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, January 19, 2007 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.

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 Monday, January 15, 2007 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: Kari Wilkinson, Esq., Assistant Regional Attorney, at the Department's Region 1 Office, Building 40, SUNY Stony Brook, New York 11790-2356; and applicants' agent, Vincent J. Trimarco, Esq., 1040 West Jericho Turnpike, Smithtown, New York 11787-3299.

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: Carol Farkas, Environmental Analyst, telephone 631-444-0364, 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, or from the Department's website at part 617 ("SEQR"); part 621 (Uniform Procedures) part 624 (Permit Hearings); and part 666 (Wild, Scenic and Recreational Rivers System).

James T. McClymonds
Chief Administrative Law Judge

December 20, 2006
Albany, New York

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