Department of Environmental Conservation

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Kelleher, Denis and Carol

June 11, 2008



APPLICANTS: Denis and Carol Kelleher, 112 Circle Drive, Staten Island, New York, 10304.


PROJECT DESCRIPTION AND LOCATION: Applicants Denis and Carol Kelleher propose to construct a two-story single-family dwelling with an on-site waste water treatment system on a 17,334 square-foot parcel they own on Westminster Road in Water Mill, Town of Southampton, Suffolk County.

PERMIT REQUESTED: Applicants request a tidal wetlands permit pursuant to 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). In conjunction with the permit application, applicants request variances from two development restrictions contained in 6 NYCRR 661.6(a): (1) a restriction in 6 NYCRR 661.6(a)(1) requiring that principal buildings be set back at least 75 feet landward from the most landward edge of any tidal wetland, in that the residence would be as close as 33 feet from the boundary of a tidal wetland associated with Calf Creek, a tributary of Mecox Bay; and (2) a restriction in 6 NYCRR 661.6(a)(2) requiring that any on-site sewage disposal system be set back at least 100 feet landward from the most landward edge of any tidal wetland, in that applicants' system would be as close as 44 feet from the tidal wetland boundary.

SEQRA STATUS: In accordance with 6 NYCRR 617.5(c)(9), Department staff determined that the project is a Type II action not subject to review under the State Environmental Quality Review Act because it involves construction of a single-family residence on an approved lot, along with installation of a septic system.

NOTICE OF COMPLETE APPLICATION: Department staff deemed the permit application complete pursuant to 6 NYCRR part 621 on March 17, 2005.

DEPARTMENT STAFF POSITION: Department staff has determined that the project does not satisfy the standards contained in 6 NYCRR 661.9(c) for issuance of permits for regulated activities in the adjacent area of tidal wetlands. More particularly, staff contends that the project is not compatible with the public health and welfare, due to its negative impact on water quality and fisheries in Mecox Bay (6 NYCRR 661.9(c)(1)); that it does not comply with the development restrictions contained in 6 NYCRR 661.6 (6 NYCRR 661.9(c)(2)); and that it would have an undue adverse impact on the present or potential value of the tidal wetlands for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research or open space and aesthetic appreciation (6 NYCRR 661.9(c)(3)). Staff further contends that applicants have provided insufficient information to support their requested variances, and have not met their burden of showing that the variances should be granted (6 NYCRR 661.11). Staff also contends that the project will have cumulative impacts. Department staff issued a Notice of Permit Denial on August 29, 2006, and applicants submitted a written request for hearing, dated September 22, 2006.

PUBLIC HEARING: Pursuant to 6 NYCRR 624.4(a), the public is invited to comment on the permit application at a legislative hearing to be held at 10:00 a.m. on July 15, 2008, in the Town Council conference room on the second floor of the Southampton Town Hall, 116 Hampton Road, Southampton, New York. The hearing will be conducted by Department Administrative Law Judge (ALJ) Edward Buhrmaster. It is not necessary to file in advance to speak at the hearing. In lieu of oral comments, written statements may be mailed to the ALJ at the address below, provided they are postmarked no later than July 7, 2008, or they may be delivered to him at the hearing on July 15. The location of the legislative hearing is reasonably accessible to persons with a mobility impairment. Interpreter services will be provided 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), an issues conference will be conducted by ALJ Buhrmaster at the town hall immediately after the legislative hearing on July 15. The conference will be held to determine party status for any person or organization that has properly filed (as indicated below) and to narrow and define those issues, if any, that will require adjudication in this matter. Participation at the issues conference shall be limited to Department staff, applicants, and those persons and organizations requesting party status.

FILINGS FOR PARTY STATUS AND PROPOSED ISSUES: Persons and organizations seeking party status to participate at any adjudicatory hearing must file a written petition meeting the requirements of 6 NYCRR 624.5(b). Mere opposition to the project is not a sufficient basis to be granted party status. A petition must fully identify the proposed party and its representative, the petitioner's environmental interest in the proceeding, any interest relating to the statutes administered by the Department that are relevant to this project, whether the petition is for full party or amicus status, and the precise grounds for opposition or support. Petitioners for full party status must identify the witnesses that they would present and the nature of their evidence. If a petitioner intends to rely upon expert testimony, the petitioner must identify the name of the expert, that person's qualifications, a summary of the subject matter on which the expert is offered, and a summary of the expert's opinions as well as the facts upon which those opinions are based.

ALL PETITIONS REQUESTING PARTY STATUS TO PARTICIPATE AT THE ADJUDICATORY HEARING MUST BE RECEIVED NO LATER THAN 3 P.M. ON JULY 7, 2008. Address all petitions to Edward Buhrmaster, Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, 1st Floor, 625 Broadway, Albany, New York, 12233-1550. At the same time and in the same manner as the petition is furnished to the ALJ, a copy of the petition must be furnished to applicants' attorney, Stephen R. Angel, Esq., of Esseks, Hefter & Angel, LLP, 108 East Main Street, P.O. Box 279, Riverhead, New York, 11901-0279; and to Susan Schindler, Esq., Assistant Regional Attorney, at the Department's Region 1 Office, SUNY at Stony Brook, 50 Circle Road, Stony Brook, New York, 11790-3409. Electronic filings and service by fax will not be accepted. Any questions about filing requirements or other hearing procedures may be addressed to ALJ Buhrmaster by telephone at (518)402-9003.

ADJUDICATORY HEARING: The adjudicatory hearing in this matter is scheduled to begin immediately after the issues conference on July 15, continuing throughout that day and on July 16, 2008, as necessary, at the Southampton Town Hall. All hearing participants shall assure the availability of their witnesses on both dates.

DOCUMENT AVAILABILITY: A copy of the application materials is available for inspection at the Department's Region 1 office, SUNY at Stony Brook, 50 Circle Road, Stony Brook, New York. (Please contact Karen S. Westerlind, Environmental Analyst I, at (631)444-0362.) Also, the Department's guide to permit hearings may be found at, or by calling the Office of Hearings and Mediation Services at (518)402-9003.

APPLICABLE STATUTES AND REGULATIONS: This application is being processed pursuant to ECL Article 3 (General Functions), Article 8 (Environmental Quality Review, SEQRA), Article 25 (Tidal Wetlands) and Article 70 (Uniform Procedures); as well as 6 NYCRR Part 617 (SEQRA), Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures), and Part 661 (Tidal Wetlands - Land Use Regulations).

James T. McClymonds
Chief Administrative Law Judge

Albany, New York
June 11, 2008

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