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Denson, Carol R.

March 11, 2009


Applicant: Carol R. Denson
1184 Corner Ketch Road
Newark, DE 19711

Project Application Number: 1-4738-01665/00003

Project Location and Description: Applicant is the owner of a commercial facility known as The Old Barge Restaurant located at 750 Old Main Road, Town of Southold, New York. Applicant proposes to construct a second story addition to the restaurant, an observation deck and a drainage system. The proposed second floor addition would be located within 6 feet of the tidal wetlands existing at the site and the proposed deck would be located within 39 feet of those tidal wetlands.

Permits Requested: On December 2, 1998, Applicant was issued Department Tidal Wetlands Permit Number 1-4738-01665/00003 authorizing the construction of a 1300 square foot second story mezzanine addition to the existing restaurant. Applicant has applied to the New York State Department of Environmental Conservation ("Department") for a modification of this permit authorizing the above proposed construction 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).

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: This modification is considered "minor" pursuant to ECL article 70 and 6 NYCRR part 621. No publication of a Notice of Complete Application is required.

Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit with notification to applicant by letter dated April 12, 2007. Department staff determined that the proposed modification does not meet the standards for tidal wetland permit issuance pursuant to ECL article 25 and 6 NYCRR part 661. Specifically, DEC staff objects to the modification because the proposed second floor addition would be located within 6 feet and the proposed deck within 39 feet of the tidal wetlands. Pursuant to 6 NYCRR 661.6, structures must be setback a minimum of 75 feet from the wetland and staff determined that the applicant failed to satisfy the requirements for a variance from the setback provision. Department staff also asserts that the restaurant is a commercial facility that does not require water access and that the proposed observation deck is an addition to that facility. Citing the use guidelines 6 NYCRR 661.5(b)(51), and by reference 6 NYCRR 661.5(b)(48), staff argues that both of these uses are presumptively incompatible in the adjacent area of a tidal wetland and, since the proposal does not comport with these use guidelines, it does not meet the standards for permit issuance pursuant to 6 NYCRR 661.9(c)(4). Department staff further asserts that the project is located on Mill Creek, a tributary of Southold Bay (Peconic Bay/Shelter Island Sound) and the inlet of Hashamomuck Pond, both designated as irreplaceable significant coastal fish and wildlife habitat. The restaurant is also located in close proximity to certain tidal wetlands. Increases in surface water runoff from the proposed construction and drainage field has the potential to introduce nutrients, pathogens and toxic substances to nearby marine waters, resulting in undue adverse impacts to water quality in the area. Degradation or the water quality will also have undue adverse impacts to valuable and essential fish and wildlife habitat at the site, including fisheries and shellfish stocks. These impacts are not compatible with the public health and welfare and, thus, the project does not meet the standard for permit issuance pursuant to 6 NYCRR 661.9(c)(1). The degradation of water quality as well as shading caused by the increased height of the proposed construction will impact marine food production and damage the bay's ability to cleanse contaminants and ecosystems and, therefore, the project does not meet the standards for permit issuance pursuant to 6 NYCRR 661.9(c)(3). Department staff further asserts that the proposal is not reasonable or necessary since the footprint of the construction could be relocated to meet required wetland setbacks and the drainage field relocated further landward to maximize wetland setbacks.

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, April 14, 2009 at 10:00 a.m. at the Human Resources Center, 750 Pacific Street, Mattituck, New York 11952.

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, April 10, 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 provide an offer of proof explaining 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, April 7, 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: Administrative Law Judge Richard A. Sherman. 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: Gail Rowan, 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 Stephen R. Angel, Esq., Esseks, Hefter & Angel, LLP, 108 East Main Street, P.O. Box 279, Riverhead, New York 11901.

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: Claire Werner, Environmental Analyst, telephone 631-444-0372, 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

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 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); and part 661 (Tidal Wetlands - Land Use Regulations).

James T. McClymonds
Chief Administrative Law Judge

March 11, 2009
Albany, New York

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