June 10, 2009
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE,
AND ADJUDICATORY HEARING
2771 Judith Drive
Bellmore, NY 11710
Project Application Number: 1-2820-04233/00002
Project Location and Description: Applicant is the owner of a certain parcel of real property known as Broadway Bay Estates, located on Broadway, Island Park, Town of Hempstead, Nassau County, New York. Applicant proposes to construct ten, three bedroom duplex residential units, comprising five principal buildings, with attached garages and accessory structures, including patio and parking areas; to install drainage structures requiring excavation and filling; and to construct a dock and install mooring piles.
Permits Requested: Applicant has applied to the New York State Department of Environmental Conservation (Department) for a Tidal Wetlands permit authorizing the project pursuant to Environmental Conservation Law (ECL) article 25 (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 for a permit to construct a dock and mooring, pursuant to 6 NYCRR 608.4; to allow the excavation or placement of fill in navigable waters, pursuant to 6 NYCRR 608.5; and for a water quality certification, pursuant to 6 NYCRR 608.9 and section 401 of the Federal Water Pollution Control Act, Title 33, United States Code 1341. This project may also require a permit issued by the Town of Hempstead.
SEQRA Status: Department staff determined that the project is an unlisted action pursuant to the State Environmental Quality Review Act, ECL article 8 ("SEQRA") and 6 NYCRR part 617 and issued a negative declaration on November 30, 2008.
Notice of Complete Application: The Department issued a Notice of Complete Application which was published in the Environmental Notice Bulletin ("ENB") and in Newsday on December 14, 2005.
Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit with notification to applicant by letter dated August 7, 2008. Department staff concluded that the project fails to meet the standards for tidal wetlands permit issuance.
Specifically, Department staff determined, pursuant to 6 NYCRR 621.10(f) and 621.13(a)(5), that the permit should be denied because there are unresolved violations on the site arising out of applicant's failure to restore certain intertidal marsh and high marsh areas, in accordance with a previously issued order on consent.
In addition, pursuant to 6 NYCRR 661.9(c)(2), Department staff determined the proposed project does not comply with the development restrictions contained in 6 NYCRR 661.6 and applicant has failed to demonstrate that variances from these provisions are warranted. Specifically, the proposal exceeds the allowable development density for the principal buildings and structures, nor does it meet the minimum setback requirements from the wetland boundary.
Moreover, pursuant to 6 NYCRR 661.9(b)(1)(ii) and 661.9(c)(1), Department staff determined that the proposed project is not compatible with the public health and welfare. The proposal will adversely impact water quality and sediment transport within the harbor which will result in adverse impacts to fish and shellfish stocks and, therefore, is not compatible with the public's interest in protecting and maintaining important fishery and shellfishery stocks.
Further, pursuant to 6 NYCRR 661.9(b)(1)(i) and 661.9(c)(3), Department staff determined the project will have undue adverse impacts on the present and potential values of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat and flood, hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation. In particular, Department staff asserts that the upland development will occupy and reduce the size of the buffer area that provides benefits to the nearby wetland. This, in conjunction with the proposed high density development, will result in adverse impacts to the nearby wetlands. In addition, the proposed dock will result in adverse impacts directly to the tidal wetlands because the size of the structure is excessive and will cause shading impacts and impacts to the benthic environment from boat and propeller disturbances.
Furthermore, pursuant to 6 NYCRR 661.9(b)(1)(iii), Department staff determined that the proposed project is not reasonable and necessary taking into account such factors as reasonable alternatives and the degree to which the activity requires water access or is water dependent. Department staff maintains that alternatives exist that would avoid adverse impacts to the tidal wetlands and that the dock could be reduced in size or redesigned to minimize impacts.
Finally, for the foregoing reasons, Department staff has determined that the project does not comply with the standards for permit issuance listed at 6 NYCRR 608.8(a), (b) and (c), and, accordingly, a permit or water quality certification pursuant to 6 NYCRR 608.5 or 608.9, respectively, should be denied.
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, July 7, 2009, at 10:15 a.m., at the Merrick Golf Clubhouse (Merrick Road Park & Golf Course), 2550 Clubhouse Road, Merrick, New York 11566.
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 Tuesday, July 7, 2009, at the Office of Hearings and Mediation Services at the address listed below. As also indicated below, if the hearing is cancelled because no petitions for party status are filed, or if any filed objections are withdrawn and all proposed issues are satisfactorily resolved before the issues conference, written comments will still be accepted until July 7, 2009.
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.
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, June 30, 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: Jennifer Ukeritis, 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 Kelly Risotto, Senior Ecologist, Land Use Ecological Services, Inc., 209 West Main Street, 2nd Floor, P.O. Box 1060, Riverhead, New York 11901.
If no petitions for party status are filed by the above deadline, or if any filed objections are withdrawn and all proposed issues are satisfactorily resolved before the issues conference, the hearing, including the legislative portion thereof, will be cancelled. However, written comments may still be submitted to the Department until Tuesday, July 7, 2009.
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: Mark Carrara, Deputy Permit Administrator, telephone 631-444-0374, 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 ECL article 1 (General Provisions); article 3, title 3 (General Functions); article 8 (State Environmental Quality Review, "SEQR"); article 25 (Tidal Wetlands); and 6 NYCRR part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); part 661 (Tidal Wetlands - Land Use Regulations); and part 608 (Use and Protection of Waters).
James T. McClymonds
Chief Administrative Law Judge
June 10, 2009
Albany, New York