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Barone, Giuseppe - Interim Decision, March 23, 1994

Interim Decision, March 23, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Application of Giuseppe Barone for Extension of a Tidal Wetlands Permit
pursuant to Environmental Conservation Law Article 25

DEC Application No. 2-6308-126/1-0

INTERIM DECISION

March 23, 1994

INTERIM DECISION

This Interim Decision is in relation to the appeal of Giuseppe Barone (the "Applicant") to the February 3, 1994 ruling of Administrative Law Judge ("ALJ") Susan J. DuBois in the captioned matter. She held that the hearing could not proceed as a request for an extension of the Applicant's expired permit because the Department's rules only provide for granting extensions when application is made prior to the expiration of the permit term. In this case, the requested extension was untimely, coming over two and one-half years after the end of the permit term.

There is no explicit authority to extend the Applicant's permit at this late date. Both the current rules and the former ones in effect during part of the time period at issue require a request for an extension to precede the permit's expiration [6 NYCRR 661.13(b) and former 6 NYCRR 661.22(b)]. This requirement was also incorporated as a condition in the Applicant's original permit.

However, the Applicant has brought an important equitable consideration to my attention which needs to be addressed. He applied for an extension in August 1991 and again in October 1992. No response was received on either request until July 1993. He has now secured extensions of approvals from other jurisdictions, but the Army Corps of Engineers has indicated that there will be no further extension of its approval beyond July 1994.

Under these circumstances, it is incumbent on the Department to ensure that the Applicant has a final agency decision on the merits of its request prior to end of July 1994. Requiring the Applicant to return to the beginning of the application process might prevent this outcome.

Therefore, I will allow the Applicant's request to proceed to a final decision. However, since the Applicant did not make timely application for an extension, the merits of the Applicant's request must be judged on the standards for issuance of tidal wetlands permits (6 NYCRR 661.9) rather than the "good cause" standard that appears in the rules cited above.

This matter is remanded to ALJ DuBois for further action consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 23rd day of March, 1994

For the New York State Department
of Environmental Conservation

/s/
By: LANGDON MARSH, ACTING COMMISSIONER

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