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Cuker, Elliot

February 11, 2009

HEARING CANCELED

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

Applicant: Elliot Cuker
137 Perry Street
New York, NY 10014

Project Application Number: 1-4736-06961/00001

Project Description and Location: Applicant proposes to construct a second story addition to, and renovate the first story of, an existing single family dwelling located at 39A Dune Road, East Quogue, Town of Southampton, New York. The proposed second story addition is within 9 feet of the boundary of certain designated Class II freshwater wetlands. Proposed clearing, grading and ground disturbance will occur within 6 feet of that freshwater wetland boundary. The proposed second story is set back 2.5 feet from the boundary of certain designated tidal wetlands. An existing septic system is set back 55 feet from that same tidal wetland boundary.

Permits Requested: Applicant has applied to the New York State Department of Environmental Conservation ("Department") for a permit authorizing the proposed project pursuant to article 25 of the New York State Environmental Conservation Law ("ECL") (Tidal Wetlands), and part 661 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") (Tidal Wetlands - Land use Regulations). Applicant has also applied to the Department for a permit authorizing the proposed project pursuant to ECL article 24 (Freshwater Wetlands) and 6 NYCRR part 663 (Freshwater Wetlands Permit Requirements).

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.

Notice of Complete Application: Department staff deemed the permit application complete on December 7, 2006.

Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit with notification to applicant by letter dated January 15, 2008. Department staff determined that the proposed activity did not meet the standards for tidal wetland permit issuance pursuant to ECL article 25 and 6 NYCRR part 661. Specifically, Department staff found, pursuant to 6 NYCRR 661.9(c)(1), that the proposed project is not compatible with the public health and welfare due to the negative impacts to water quality that would result from the project. These impacts include increased runoff from impervious surfaces causing excessive sediment, nutrient and contaminant deposition in the tidal wetlands; destruction of the absorption and filtering properties of buffer vegetation; and impacts to commercial and recreational fisheries and shellfisheries due to degradation of the tidal wetland habitat. Department staff also found, pursuant to 6 NYCRR 661.9(c)(2), that the proposed project does not meet developmental restrictions that require a minimum setback from tidal wetland boundaries of 75 feet for all principal buildings and other structures in excess of 100 square feet; and a minimum landward setback from tidal wetland boundaries of 100 feet of any on-site sewage disposal cesspool, septic tank, leach field or seepage pit. Finally, Department staff found, pursuant to 6 NYCRR 661.9(c)(3), that the proposed project is not compatible with the public policy to preserve and protect tidal wetlands and their values. Specifically, Department staff found that the proposed project, because of runoff impacts, lot coverage by structures and destruction of the absorption and filtering properties of buffer vegetation, would adversely impact marine food production, wildlife habitat, cleansing of the ecosystem, the absorption of silt and organic material, recreation, and open space and aesthetic appreciation.

Department staff also determined that the proposed activity did not meet the standards for freshwater wetland permit issuance pursuant to ECL article 24 and 6 NYCRR part 663, particularly section 663.5. Specifically, Department staff found that the proposed construction would entirely occur within the 100 foot area adjacent to the designated freshwater wetland at the site, the second story addition being within 9 feet of the wetland's boundary and additional clearing, grading and ground disturbance occurring within 6 feet of its boundary. Moreover, the existing sanitary system is within 83 feet of the freshwater wetland boundary. These uses are incompatible with the freshwater wetland's use and function, Department staff determined. Finally, Department staff found that the loss and degradation of the freshwater wetland is not outweighed by any pressing economic or social need.

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 31, 2009 at 10:00 a.m. at the Hampton Bays Public Library, 52 Ponquogue Avenue, Hampton Bays, New York 11946.

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 27, 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 23, 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: Chief Administrative Law Judge James T. McClymonds. 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: Craig Elgut, Esq. Associate 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, Elliot Cuker, 137 Perry Street, New York, New York 10014.

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: Matthew R. Penski, Environmental Analyst 1, telephone 631-444-0358, and at the Office of Hearings and Mediation Services, 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 24 (Freshwater Wetlands); article 25 (Tidal Wetlands); and title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); part 661 (Tidal Wetlands - Land Use Regulations); and part 663 (Freshwater Wetlands Permit Requirements).

James T. McClymonds
Chief Administrative Law Judge

February 11, 2009
Albany, New York

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