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Wilson, Kathleen

May 4, 2010


Applicant: Kathleen Wilson
819 Meadow Road
Smithtown, NY 11787

Project Application Number: 1-4734-01908/00001

Project Location and Description: Applicant is the owner of property located at 819 Meadow Road, Smithtown, Suffolk County, New York (SCTM # 0800-72-2-11). Applicant proposes to subdivide a 1.1 acre parcel, located entirely within the Nissequogue Recreational River Area, into two lots and construct a single family dwelling and associated accessory structures. Lot 1 will be approximately 23,968 square feet and will contain an existing single family dwelling with septic system, driveway and detached garage. Lot 2 will be approximately 23,968 square feet and will contain a proposed single family dwelling with septic system and driveway. The proposal requires a variance from the two acre minimum lot size requirement established under the regulations governing the State's wild, scenic and recreational rivers system.

Permits Requested: Applicant applied to the New York State Department of Environmental Conservation (ADepartment@) for a permit pursuant to Environmental Conservation Law (AECL@) article 15, title 27 (Wild, Scenic and Recreational Rivers System), and its implementing regulations at part 666 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR").

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. Staff determined that the action will not have a significant impact on the environment and a negative declaration is on file with the application.

Department Staff Position: The Department's Division of Environmental Permits reviewed the application and denied the permit by letter dated September 24, 2009. Department staff determined that the application failed to satisfy the standards for permit issuance contained in 6 NYCRR 666.13 and also failed to satisfy the area variance standards contained in 6 NYCRR 666.9. Specifically, Department staff determined that the project did not meet the standard set forth in 6 NYCRR 666.13(c) which provides that each private dwelling in a recreational river area must be on a lot of at least two acres. Staff further determined that, pursuant to the considerations set forth in 6 NYCRR 666.9(a)(2), an area variance should not be granted in this instance because applicant's proposal would, among other things, increase housing density and cause associated environmental impacts, including: increased sanitary effluent reaching groundwater, stormwater runoff, traffic, noise, light pollution, nutrient loads from fertilizers, and use of pesticides for lawn care; and the loss of wildlife habitat. Staff also determined that the area variance required is substantial and that applicant had feasible alternatives to the project, such as purchasing a buildable lot elsewhere. Additionally, staff determined that, because applicant purchased the site after the area was designated as a recreational river corridor, the area variance was being sought to overcome a practical difficulty that was self-created. A copy of the letter of denial is available for public inspection at the locations indicated below.

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 13, 2010, at 10:00 a.m., at the American Legion, Sherwood Brothers Post #1152, 95 Lake Avenue, St. James, New York 11780.

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 mailed to Chief Administrative Law Judge James T. McClymonds, at the address 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 the Chief Administrative Law Judge at the listed address below, to be received on or before Tuesday, July 13, 2010. 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 resolved before the issues conference, written comments will still be accepted until July 13, 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 the statutory and regulatory requirements the project may not meet and provide an offer of proof specifying the witness(es), the nature of the 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, July 6, 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., 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 Vincent J. Trimarco, Esq., The Law Offices of Vincent J. Trimarco, 1038 West Jericho Turnpike, Smithtown, NY 11787-3299.

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, July 13, 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: 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

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 15, title 27 (Wild, Scenic and Recreational Rivers System); and 6 NYCRR part 617 ("SEQR"); part 621 (Uniform Procedures); part 624 (Permit Hearings); and part 666 (wild, scenic and recreational rivers system regulations).

James T. McClymonds
Chief Administrative Law Judge

May 4, 2010
Albany, New York

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