September 19, 2007
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
COMBINED NOTICE OF COMPLETE APPLICATION, LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE, AND ADJUDICATORY HEARING
Applicant: Sylvia K. Heumann, 6 Deer Run Road, New Hartford, New York 13413-2413.
Applicant's Agent: Daniel S. Cohen, Esq., Cohen & Cohen LLP, 258 Genesee Street, Suite 205, Utica, New York 13502.
Project: Applicant has applied (Application #6-2154-00260/0003 and #6-2154-00260/0005) to the New York State Department of Environmental Conservation (Department) to modify permits issued on June 19, 1999. The original permits authorized dredging of boat slips in an existing boathouse located on First Lake in the Town of Webb, Herkimer County, New York, at 160 Indian Point Road.
Applicant sought to modify those permits to allow additional dredging, to enlarge the boathouse from one slip to three, and to expand the existing boathouse. Both applications were received on December 14, 1999, and require a protection of waters permit pursuant to Environmental Conservation Law ("ECL") article 15 and part 608 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). In addition, the project requires a section 401 water quality certification (see 6 NYCRR 608.9).
The plans submitted with the permit modification request called for a 26 foot structural height, with a second story patio/balcony, a chimney, and windows. The expanded structure would have just under 4,000 square feet of floor space. The boathouse has already been constructed, without a permit. The structure is 35 feet by 47 feet, and is supported on cribs. The boathouse, as constructed, has no chimney.
Department staff deemed the application complete and denied the request to modify the permits on July 19, 2007. Department staff took the position that the proposed boathouse expansion was not reasonable or necessary for a water dependent use, as required pursuant to 6 NYCRR 608.7(b)(5) and 608.8(a), and that the height of the proposed structure would be out of character with similar structures on First Lake and would have a significant visual impact. According to Department staff, boathouses are meant for boat and boating equipment storage only, and not for human habitation.
By letter dated July 31, 2007, applicant requested a hearing on the denial.
Permits: Protection of waters permit pursuant to ECL article 15 and 6 NYCRR part 608. In addition, the project will require a section 401 water quality certification (see 6 NYCRR 608.9).
SEQRA Status: The Department is the lead agency under the State Environmental Quality Review Act (SEQRA), ECL article 8 and 6 NYCRR part 617. Department staff determined that the project is an unlisted action (see 6 NYCRR 617.2[ak] [defining unlisted action]), and issued a negative declaration dated September 14, 2007.
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 Monday, October 22, 2007 at 10:00 a.m. at the Town of Webb Municipal Building, 183 Park Avenue, Old Forge, New York (telephone number 315- 369-3001).
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 Monday, October 22, 2007 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). Any persons requesting party status must 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 Tuesday, October 16, 2007 at the following address:
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: Daniel S. Cohen, Esq., Cohen & Cohen LLP, 258 Genesee Street, Suite 205, Utica, New York 13502; Randall C. Young, Esq., Regional Attorney, New York State Department of Environmental Conservation, Region 6, 317 Washington Street, Watertown, New York 13601-3787; Karen R. Kaufmann, Esq., Assistant Attorney General, New York State Department of Law, The Capitol, Albany, New York 12224; and Elizabeth Dailey McManus, Esq. and John T. McManus, Esq., The West Firm, 677 Broadway, 8th Floor, Albany, New York 12207.
Document Availability: All filed documents, the application and other papers are available for inspection during normal business hours at the Department's Region 6 Office, 317 Washington Street, Watertown, New York 13601-3787 (contact Randall Young, Esq., Regional Attorney), telephone 315-785-2238; and at the Office of Hearings and Mediation Services at the address above (contact 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 www.dec.ny.gov/regs/4483.html.
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); 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); and part 624 (Permit Hearings).
James T. McClymonds
Chief Administrative Law Judge
September 19, 2007