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Ciardullo, Frank J.

December 31, 2008

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE,
AND ADJUDICATORY HEARING

Applicant: Frank J. Ciardullo, Jr.
367 Duck Pond Road
Locust Valley, New York 11560

Project: Applicant has applied (Application #1-4734-02116/00001) 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 convert two existing residential single family dwellings into commercial office space and construct a shared driveway and parking area totaling 3,470 square feet. The properties are zoned neighborhood business by the Town of Smithtown. The proposed project is located at a site owned by applicant at #6 and #8 Brookside Drive, Town of Smithtown, County of Suffolk, State of New York, and is situated within the Nissequogue Recreational River Corridor.

The Department's Division of Environmental Permits reviewed the application and denied the permit with notification to applicant by letter dated June 13, 2008. 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, and also failed to meet the requirements for a use variance under 6 NYCRR part 666.9.

Specifically, Department staff stated that the application failed to satisfy the requirements of 6 NYCRR 666.9(a)(1) and (b), because: applicant did not establish, by competent financial evidence, that applicant was deprived of all economic use and benefit; the alleged hardship was not unique, and according to Department Staff was self-created; and the requested use variance would potentially alter the essential character of the river corridor.

By letter dated June 24, 2008, applicant requested a hearing on the denial.

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 a Type II action pursuant to the State Environmental Quality Review Act, ECL Article 8 ("SEQRA") and 6 NYCRR Part 617 (see 6 NYCRR 617.5[c][10] [construction of minor accessory/appurtenant residential structures]).

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, March 24, 2009 at 10:00 a.m. at the Department's Region 1 offices, SUNY Stony Brook, 50 Circle Road, Stony Brook, New York 11790-2356.

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, March 20, 2009 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). 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 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, March 16, 2009 at the Office of Hearings and Mediation Services, New York State Department of Environmental Conservation, 625 Broadway, First Floor, Albany, New York 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, Office of General Counsel, SUNY Stony Brook, 50 Circle Road, Stony Brook, New York 11790-3409; and to applicant, Frank J. Ciardullo, Jr., 367 Duck Pond Road, Locust Valley, New York 11560.

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, SUNY Stony Brook, 50 Circle Road, Stony Brook, New York 11790-2356, attn: Marilyn Peterson, Environmental Analyst, telephone 631-444-0365, 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 www.dec.ny.gov/regs/4483.html.

Statutory and Regulatory Provisions: This application is 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, title 27 (Wild, Scenic and Recreational Rivers System); and also title 6 of the Official Compilation of Codes, Rules and Regulations of the State of PLACE>New York ("6 NYCRR") 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 31, 2008
Albany, New York

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