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Becker, Richard - CANCELLED

June 2, 2010



Applicant: Richard Becker
P.O. Box 2405
Montauk, New York 11954

Application Number: 1-4724-01703/00001

Project Location and Description: Applicant Richard Becker is the owner of a certain parcel of real property located at 89 Fairview Avenue, Montauk, Town of East Hampton, Suffolk County, New York. The tax map designation of the property is SCTM No. 300-19-8-1.4. Applicant proposes to construct a two-story single family dwelling, patio, sanitary system, and driveway within the 100 foot adjacent area of Class I freshwater wetland MP-24.

Permits Requested: Applicant has applied to the New York State Department of Environmental Conservation ("Department") for a freshwater wetlands permit authorizing the project, pursuant to Environmental Conservation Law ("ECL") article 24 (Freshwater Wetlands) and part 663 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") (Freshwater Wetland 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.

Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit by letter dated August 14, 2009. Department staff determined that the application failed to satisfy the standards for freshwater wetlands permit issuance contained in 6 NYCRR 663.4 and 663.5. A copy of the letter of denial is available for public inspection at the locations indicated below.

In particular, Department staff determined that the project did not meet the standards set forth in 6 NYCRR 663.4 and 663.5. The activities proposed, including the installation of a septic system, construction of a dwelling and associated structures, and additional clearing, grading and ground disturbance would all be located entirely in the 100-foot adjacent area to freshwater wetland MP-24, a Class I wetland. Those activities are considered "P(N)" or usually incompatible pursuant to 6 NYCRR 663.4(d)(23), (25) and (32). According to Department staff, a substantial amount of the wetland's 100-foot buffer will be disturbed and permanently occupied by structures, with a consequent loss of important wildlife habitat and wetland buffering values. In addition, Department staff stated that a precedent would be set for future encroachment, resulting in cumulative impacts. Department staff concluded that the proposal would have significant adverse impacts to the wetland and the adjacent area, and thus was not compatible with the preservation, protection, and conservation of the wetland and its benefits.

Because the project cannot meet the compatibility tests in 6 NYCRR 663.5(e)(1), in order for a permit to be issued, the project must meet the weighing standards in 6 NYCRR 663.5(e)(2). Section 663.4(d)(8) provides that the introduction of sewage effluent in the adjacent area of a freshwater wetland is an activity listed as "X," which means that it is incompatible with a wetland and its function or benefits. Pursuant to 6 NYCRR 663.5(e)(2), an "X" activity cannot be permitted unless the applicant can establish that the activity satisfies each of the weighing standards in 6 NYCRR 663.5(e)(2). In its denial, Department staff stated that the application failed to demonstrate that the proposal satisfies a compelling social or economic need that clearly outweighs the detriment to this Class I wetland and its adjacent area. Moreover, there do not appear to be any alternatives to the proposed project.

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, June 29, 2010, at 10:00 a.m., at the Montauk Public Library, 871 Montauk Highway, Montauk, New York.

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 hearing-impaired 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, June 29, 2010, 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 June 29, 2010.

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 on successive days, as 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, June 22, 2010, 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 L. Elgut, Esq., Associate 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 Richard Becker, P.O. Box 2405, Montauk, New York 11954.

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 canceled. However, written comments may still be submitted to the Department until Tuesday, June 29, 2010.

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: Darleen M. Gerbino, Environmental Analyst, telephone 631-444-0404, 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 ECL article 1 (General Provisions); article 3, title 3 (General Functions); article 8 (State Environmental Quality Review, "SEQR"); article 24 (Freshwater Wetlands); and 6 NYCRR part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); and part 663 (Freshwater Wetlands Permit Requirements).

James T. McClymonds
Chief Administrative Law Judge

June 2, 2010
Albany, New York

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