May 19, 2011
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE PUBLIC HEARING, ISSUES CONFERENCE,
AND ADJUDICATORY HEARING
Applicant: Benali, LLC
11499 Bellagio Road
Los Angeles, CA 90049
Project Application Number: 1-4738-02841/00003
Project Location and Description: Applicant is the owner of property located at 1275 Cedar Point Drive West, Southold, Suffolk County, New York (SCTM# 1000-090-01-002). Applicant proposes to construct a single-family dwelling, driveway and septic system.
Permits Requested: Applicant applied to the New York State Department of Environmental Conservation ("Department") for a permit 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"). The application was deemed complete on April 26, 2010.
SEQRA Status: Department staff determined that the project is not subject to further review under the State Environmental Quality Review Act, ECL article 8 ("SEQRA") and 6 NYCRR part 617 because it is a Type II action.
Department Staff Position: The Department's Division of Environmental Permits denied the permit by letter dated January 6, 2011. Department staff determined that the proposed project failed to satisfy the standards for permit issuance ( see 6 NYCRR 661.9). Specifically, staff determined that the proposed septic system is not compatible with the public health and welfare ( see 6 NYCRR 661.9[c]) because it will enable pathogens to migrate to the tidal wetlands thereby adversely affecting marine food production and potentially contaminating shellfish and surface waters. Staff also determined that the project failed to comply with the development restrictions ( see 6 NYCRR 661.9[c]) because the proposed dwelling and septic system are 22.5 feet and 29 feet, respectively, from the tidal wetland boundary. Pursuant to 6 NYCRR 661.6, structures must be a minimum of 75 feet from the tidal wetland boundary and septic systems must be a minimum of 100 feet from the boundary. Additionally, staff determined that the proposed project is incompatible with the policy of the Tidal Wetlands Act to preserve and protect tidal wetlands ( see 6 NYCRR 661.9[b][i]) because it would adversely affect the wetland by reducing the buffer area, eliminating habitat, and reducing storm surge protection. Staff further determined that the project would cause a reduction in absorption of silt and organic material, increase runoff and nutrient inputs, and cause physical disturbances during and after construction. 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, June 21, 2011, at 10:00 a.m., at The Soundview Restaurant, 58775 Route 48, Greenport, 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 deaf persons, at no charge, upon written request mailed to Administrative Law Judge Richard A. Sherman, 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 Administrative Law Judge at the address below, to be received on or before Tuesday, June 21, 2011. 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 Tuesday, June 21, 2011.
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, June 14, 2011, 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: Kari Wilkinson, 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 Anthony R. Filosa, Esq., Rosenberg Fortuna & Laitman, LLP, 666 Old Country Road, Suite 810, Garden City, New York 11530.
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 21, 2011.
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 11790-3409, attn: Sherri Aicher, Environmental Analyst, telephone 631-444-0365, 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); and part 661 (Tidal Wetlands - Land Use Regulations).
James T. McClymonds
Chief Administrative Law Judge
May 19, 2011
Albany, New York