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Barsuk, Joseph - Decision, October 28, 1997

Decision, October 28, 1997

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

- of the -

Application of JOSEPH BARSUK for a freshwater wetlands permit
pursuant to Article 24 of the Environmental Conservation Law ("ECL")
and Part 663 of Title 6 of the New York Compilation of Codes, Rules and Regulations, and
a Clean Water Act 401 Certification, to fill approximately 2.9 acres of
freshwater wetland OK-31 located in the Town of Batavia, Genesee County, New York.

DEC Project No. 8-1824-00048/00001

D E C I S I O N

October 28, 1997

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Helene G. Goldberger, including its findings of facts, discussion and conclusion, in the matter of the application of Joseph Barsuk ("the applicant"), 3064 Pearl Street, Batavia, New York, for a freshwater wetlands permit pursuant to Environmental Conservation Law Article 24, for placement of fill in the southern tip of OK-31 in order to expand his existing salvage and used car parts business located on the south side of Route 5 between Kelsey and Stegman Roads, Batavia, Genesee County, New York, is adopted as the decision in this matter.

The report addresses whether the applicant meets the standards set forth in Part 663 and also whether the applicant's claims of an exemption are applicable. For the reasons set forth in the report, I find that the applicant is not exempt from the requirements of the freshwater wetland regulations, he has failed to meet the standards set forth in Part 663 as freshwater wetland OK-31 would be impaired by the project, the mitigation proposed is not consistent with the regulatory requirements, and there is a viable alternative on applicant's land that would not unduly harm the wetland.

Under these circumstances, I conclude that the wetland permit sought by the applicant should be denied. In addition, as noted by the ALJ, in the event that the applicant re-applies for a permit that would limit his activities to the adjacent area in accordance with the draft permit dated September 24, 1997, staff should carefully re-examine whether the conditions set forth therein are consistent with Article 24 and Part 663.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
October 28, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the Application of

JOSEPH BARSUK
for a freshwater wetlands permit pursuant to Article 24 of
the Environmental Conservation Law ("ECL") and Part 663 of Title 6 of the New York Compilation of
Codes, Rules and Regulations, and a Clean Water Act 401 Certification,
to fill approximately 2.9 acres of freshwater wetland OK-31 located
in the Town of Batavia, Genesee County, New York.

DEC Project No. 8-1824-00048/00001

HEARING REPORT

- by -

Helene G. Goldberger

Administrative Law Judge

PROCEEDINGS

Background

The applicant, Joseph Barsuk, made his initial application for a freshwater wetlands permit in October 1991. He submitted a revised application in February 1992. He proposes to fill in almost three (3) acres of the southern tip of wetland OK-31 and three (3) acres of adjacent area in order to provide more road frontage for the display of used automobiles. This area is located on the south side of Route 5 between Stegman and Kelsey Roads in Batavia, New York. Currently, Mr. Barsuk maintains a salvage yard adjacent to this area (Bushville Auto Parts) and wants to expand his business for use as an auto sales and used parts business. The entire project involves approximately eight (8) acres. This development also requires a Clean Water Act 401 water quality certification.

As mitigation, Mr. Barsuk proposes to create an emergent marsh wetland of about 4.1 acres located on the southern portion of his property near the Tonawanda Creek.

In response to Mr. Barsuk's application, the staff issued several notices of incomplete application. On September 7, 1995, the staff issued its notice of complete application and a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA), Article 8 of the Environmental Conservation Law (ECL). Subsequently, staff and the applicant engaged in settlement discussions but were unable to reach agreement.

The hearing notice was published in the September 3, 1997 edition of the Environmental Notice Bulletin and the September 2, 1997 edition of the Batavia Daily News. The issues conference and hearing were held on September 30, 1997. Although adjacent landowners and local officials were sent copies of the hearing notice, no written comments or petitions for party status were received by the Office of Hearings and Mediation Services (OHMS) and there were no appearances at the hearing by members of the public other than the applicant and staff. Therefore, there was no legislative hearing.

The issues conference and adjudicatory hearing on this project were held as scheduled before ALJ Goldberger on September 30, 1997 at the U.S. Soil and Water Conservation Service offices located at 29 Liberty Street in Batavia, New York. The staff was represented by Lisa Perla Schwartz, Assistant Regional Attorney. Accompanying Ms. Schwartz was Matthew Sanderson, the regional wildlife biologist, who provided testimony and Robert Shearer of the Office of Environmental Permits. Mr. Barsuk appeared pro se and testified on his own behalf; his son attended briefly. In addition, Bob Berkemeier of the Genesee County Soil and Water Conservation District attended the hearing and testified as a witness on Mr. Barsuk's behalf.

In preparation for the hearing, the ALJ requested that the parties identify the documents constituting the permit application. In response, Ms. Schwartz consulted with Mr. Barsuk and sent a list to the OHMS with a cover letter dated August 13, 1997. However, the OHMS file did not reflect all the documents listed. Accordingly, as a first step in the issues conference, the ALJ asked the parties to confirm the documents that comprised the application. These documents were identified as Exhibits 1A-Q; the notice of public hearing that appeared in the ENB was identified as Exhibit 2; and the notice in the Batavia Daily News was identified as Exhibit 3. In addition, a United States Army Corps of Engineers letter dated September 3, 1997 that indicates Army Corps jurisdiction over the project was identified as Exhibit 4 and a draft permit was identified as Exhibit 5. At the hearing, all of these documents were accepted into evidence without objection of the parties.

Because staff had presented the draft permit for the first time at the issues conference, a short recess was taken for the applicant to review this document. Upon continuation of the conference, the ALJ inquired of Mr. Barsuk whether he was interested in accepting the conditions of the draft permit and he declined. Therefore, we continued with the conference.

During the issues conference, staff represented that it believes that the permit may be granted provided that only adjacent area, and not wetland is filled. Accordingly, staff's draft permit reflects this condition. Staff represented that the applicant's failure to present a project that complied with the standards for issuance of freshwater wetlands permits contained in Part 663 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) was the basis for denial of the permit and the issue for consideration at the hearing. Applicant Barsuk maintained that his proposed land use was grandfathered from regulatory jurisdiction and that other landowners had been allowed to engage in similar activities.

Upon the conclusion of the issues conference, the ALJ recessed for lunch and the hearing commenced after that break. The hearing concluded in one day and the parties elected to deliver oral closing statements.

On October 20, 1997, the stenographic transcript of the hearing was received and the hearing record was closed on that date.

SUMMARY POSITIONS OF THE PARTIES

The Applicant

The Applicant maintains that the portions of wetland OK-31 under consideration should not be regulated under Article 24 because there had been existing activities in the wetland that predated the Freshwater Wetlands Act. In support of this position, Mr. Barsuk stated that the telephone company had an easement across his property and had placed and maintained poles in the wetland and there were various materials such as old auto parts and scrap in the wetland. Therefore, he argued that his proposed project was "grandfathered." In addition, he maintained that the Department staff had delayed processing the application so that a previous determination by the U.S. Army Corps of Engineers to exempt his project from its jurisdiction was no longer valid. Mr. Barsuk also argued that other landowners in the area were allowed to fill wetlands on their property with and without the creation of wetlands placed at distances from their project sites. And, he stated that he requires the frontage specified in his application in order to run a competitive business.

The Staff

Staff maintains that OK-31 is a Class III wetland -- a deciduous swamp -- with significant wetland attributes such as flood control, water filtration, wildlife habitat and aesthetic benefits. Staff presented that these benefits would be damaged by the applicant's proposal to fill in the southern portion of OK-31. Staff rejected applicant's mitigation plan as it would not duplicate the benefits of OK-31 because the wetland created would be an emergent marsh type and would be located too far from OK-31 (more than 500 feet away) to be hydrologically connected. Thus, the newly created wetland of less than 12.4 acres would not be subject to Article 24 jurisdiction. In addition it would be located on private land. Based upon these factors, the new wetland would not be guaranteed any permanency. Therefore, this mitigation plan does not comply with the requirement in 6 NYCRR 663.5(g) which mandates that the newly-created wetland be subject to regulation after mitigation.

Staff's position is that the activities proposed by Mr. Barsuk, filling, grading and the expansion of his business, are all subject to the wetlands regulations contained in 6 NYCRR 663.4(d)(20), (25) and (43) respectively, and all require a permit. In addition, these activities in a wetland are indicated as incompatible. Staff explained further that based upon the compatibility of the activity, a weighing of need against benefits lost must serve as the standard for making a determination regarding the permit as set forth in 6 NYCRR 663.5. Section 663.5(e)(2) sets forth the specific weighing standards to apply to all such activities. For Class III wetlands, the proposed activity must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant's objectives, and have no practicable alternative on a site that is not a freshwater wetland or adjacent area. The activity must also minimize degradation to, or loss of, any part of a wetland or adjacent area and must minimize any adverse impacts on the functions and benefits that the wetland provides.

It is the staff's position that the proposed project and mitigation plan do not minimize the loss of the wetland or the adverse effects on its benefits. On the other hand, staff contend that the draft permit provides the applicant with over 500' of road frontage to display used cars along Route 5 without the requirement of a mitigation plan. Staff observes that this amount of road frontage compares favorably with other similar businesses in the area which have less space for such use.

In response to some of the applicant's arguments, staff represents that while telephone poles exist in the wetland, apparently since 1949, the telephone company would now have to obtain a permit to perform any work in that area. In addition, Mr. Sanderson did not note any ongoing activities in the wetland or any salvage materials there. Staff was not aware of most of the sites where the applicant claims the landowners have filled wetlands for projects except for the Tops site which Mr. Sanderson said was not under Department jurisdiction. Staff also directed the ALJ and the applicant to 663.4(d)(1) that exempts "continuing lawfully existing uses and continuing all activities associated with any such use, . . . where such continuance does not involve expansion of significant alteration of the existing use and does not affect additional wetland area." It is staff's position that the applicant's current use of his land does not involve the wetland and to the extent that he wishes to expand his use at this time according to his proposal, that is a new use. Therefore, the expansion is not exempt pursuant to the regulations.

FINDINGS OF FACT

  1. Joseph Barsuk (the "applicant") proposes to fill the southern tip of wetland OK-31 located on the south side of Route 5 between Stegman and Kelsey Roads in Batavia for the purposes of obtaining more road frontage on Route 5 to expand his existing salvage yard and used parts business (Bushville Auto Parts) to include a used car and auto parts enterprise. The fill would encompass approximately 2.9 acres of wetland and about 3 acres of adjacent area. Maps depicting the location of the wetland and the existing conditions of the site are annexed to this report as Appendix A and B respectively.
  2. OK-31 is a Class III deciduous swamp containing vegetation such as green ash, red maple, silver maple, black willow, American elm, red osier dogwood, greystem dogwood, joe pye weed, and sensitive fern. The wetland exists on both sides of Route 5 in Genesee County and serves as a water filter and flood storage for Tonawanda Creek. It provides wildlife habitat for species such as migratory songbirds, blue herons and muskrats. It also serves as open space. The wetland is hydrologically connected on both sides of Route 5 via two culverts.
  3. As part of the applicant's project, he proposes to mitigate the loss of wetland by creating an emergent marsh wetland of approximately 4 acres to be located on the southern portion of his property near Tonawanda Creek but not adjacent to OK-31. This wetland would be located in excess of 500' from OK-31.
  4. The applicant's current use of his property does not involve the wetland although there may be some scrap in the wetland. In addition, since around 1949, the telephone company, formerly NYNEX, has approximately 8-10 telephone poles in the wetland based upon an easement it maintains on the property.
  5. There are residences and businesses within the area surrounding the project site. The property adjacent to the site has been run as a salvage yard since approximately 1935 and the applicant obtained the property in or about 1979. At some point, the area that contains the junk yard was fenced to comply with the Town of Batavia's screening requirements.
  6. The main purpose of the proposed wetland filling is to provide a space for the display of used cars along Route 5.
  7. In the draft permit submitted by staff, the applicant would be allowed to fill a portion of OK-31 adjacent area at this location and obtain approximately 513' of road frontage. The draft permit is annexed to this report as Appendix C. This amount of frontage is more than other used car businesses maintain in the area.
  8. The applicant commenced the process of obtaining this permit from DEC in 1991. Due to repeated requests for more information, Mr. Barsuk was the recipient of several notices of incomplete application. On September 7, 1995, DEC staff issued its notice of complete application and a negative determination of significance pursuant to the State Environmental Quality Review Act (SEQRA), Article 8 of the ECL. Based upon the parties' desire to attempt to resolve this matter without a hearing, a mediation was attempted. Since no agreement was reached, Mr. Barsuk requested a hearing but due to an injury he sustained, the matter was adjourned until September 1997.
  9. In 1990, the Army Corps of Engineers provided Mr. Barsuk with a letter in which it stated that it did not have jurisdiction over this project. That determination was valid for two years after the letter's issuance. By letter dated September 3, 1997, the Army Corps informed Assistant Regional Attorney Schwartz that the prior determination was based upon its understanding that there would be an avoidance of wetland impacts by Mr. Barsuk. Accordingly, Diane C. Kozlowski, a biologist for the Army Corps, informs Ms. Schwartz that any filling activities would require a 404 permit from the Army Corps.
  10. As part of his application process, Mr. Barsuk enlisted the assistance of the office of the Genesee County Soil and Water Conservation District (GCSWCD) staff. Mr. Bob Berkemeier, a technician with GCSWCD, worked with Mr. Barsuk on his application and found that because this project involved the filling of a larger segment of a wetland than other projects he had reviewed (e.g., filling for a driveway), it was an application that took more time requiring the development of greater information.
  11. The Tops development project did not involve a DEC-jurisdictional wetland.
  12. In the event that the applicant was to receive permission to fill OK-31 as proposed, the wetland would lose some ability to slow the release of stormwaters downstream and to provide habitat for plant and bird species that currently use the site. And, because the wetland proposed as mitigation is approximately mile away on private land, would not be connected to OK-31, and would be less than 12.4 acres, it would not be subject to Article 24 protection.

DISCUSSION

The applicant does not dispute the existence of a portion of wetland OK-31 at the location of his proposed development. He argues that because the scrap business he now operates existed prior to the enactment of Article 24 and because there are telephone lines in the wetland, the project should be exempt from the staff's requirements. While there may be some scrap in the wetland, the business that exists on Mr. Barsuk's property, as noted on the many drawings and maps submitted by the applicant in this proceeding, does not encroach on the wetland. In addition, while the telephone poles are located in the wetland, there is no on-going work associated with this equipment and they are not related to Mr. Barsuk's proposed expansion.

The activities proposed by the applicant are designated as incompatible with the wetland functions and a permit is required. 6 NYCRR 663.4(d)(20),(25),(43). In order to obtain a permit for these activities in a Class III wetland, the applicant must meet the standards set forth in 663.5(e)(2). The project must be compatible with the public health and welfare, be the only practicable alternative to accomplish the applicant's objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area. Also, the proposed activity must minimize degradation, adverse impacts and loss to the wetland and its functions. 663.5(e)(2).

Matthew Sanderson, the staff's witness, is the regional wildlife biologist and has a Bachelor's and Master's in Biology. He is responsible for oversight of the fish and wildlife resources in Region 8 which includes the protection of freshwater wetlands. Mr. Sanderson visited OK-31 in the vicinity of Mr. Barsuk's project site on three occasions (most recently in September 1997) and he noted the existence of plant and wildlife species as set forth above in the findings of fact. He also observed the potential flood control and water filtering functions of the wetland in question.

Mr. Sanderson testified in a credible fashion to the loss of these benefits in the event that the project as described by the applicant proceeds. Mr. Sanderson did not observe any human activities in the wetland during his visits. This witness also testified to the conditions in the staff's proposed draft permit that would allow Mr. Barsuk to extend his frontage along Route 5 to approximately 513'. Mr. Sanderson noted that he observed other used auto businesses in Batavia that had considerably less road frontage.

In addition, Mr. Sanderson testified that the proposed mitigation plan by Mr. Barsuk would result in a wetland with acreage less than the 12.4-acre standard set forth in Article 24. And because this wetland would be over 500' from OK-31 it could not be considered a part of the regulated wetland. Thus, this mitigation plan does not meet the standards set forth in 6 NYCRR 663.5(g) which requires that the area affected must be regulated after mitigation measures are complete. The new wetland would also not duplicate the habitat that is now available on the Barsuk site because it would contain an emergent marsh cover type instead of the deciduous swamp that now exists at the proposed project site.

While Mr. Sanderson was not familiar with a number of sites that Mr. Barsuk asked him about in cross-examination, he did know about the Tops site. Apparently, in conjunction with the filling of a wetland at this site, the developer was permitted to mitigate at an area some distance from the project. However, Mr. Sanderson noted that the wetland in question at the Tops site was not a state-regulated wetland subject to DEC jurisdiction.

Mr. Barsuk presented Mr. Berkemeier as his witness in addition to himself. Mr. Berkemeier testified to the application process. He noted that it had taken some years but that the amount of time that had elapsed was not that unusual particularly in light of the complexity of this project. Through the testimony of Mr. Berkemeier and himself, Mr. Barsuk attempted to emphasize the red tape to which he had been subjected. However, Mr. Berkemeier did not dispute that these applications take time and this one was more "difficult" due its scope. In addition, he noted that the Army Corps approval he obtained in August of 1990 had lapsed. However, the letter dated September 3, 1997 from the Army Corps indicates that it had not understood Mr. Barsuk's project to involve the wetlands and to the extent that it does, a 404 certification is required.

Mr. Barsuk was unable to establish that other projects in the area had been approved in wetland areas and that some mitigation measures had been allowed at distances from the project sites. Mr. Barsuk did not present any evidence that countered the staff's evidence regarding OK-31's attributes. Nor did he attempt to demonstrate that his project would not affect the wetland. In addition, the applicant did not dispute the staff's representation that the proposed mitigation would create a wetland that would not meet Article 24 jurisdictional requirements.

Rather, Mr. Barsuk stressed in his testimony that his project was grandfathered although he introduced no evidence to show that the wetland was used as part of the ongoing business prior to the enactment of Article 24. And, regarding the length of time the application process has ensued, there is no contest nor is it germane to the outcome of this proceeding. Mr. Barsuk also vaguely referenced the United States Constitution and the G.I. Bill in his arguments that the staff's denial was improper. I am not aware what Mr. Barsuk's specific grounds are for making these allegations. In any event, they are not relevant to the regulatory requirements of Part 663 that are the subject of these administrative proceedings.

CONCLUSION

The staff met its burden of proving that Mr. Barsuk's proposed project does not meet the requirements set forth in Part 663. Conversely, Mr. Barsuk has not proved that his project meets the requirements of Article 24 and Part 663. Because the development would impair flood storage, water filtration abilities of OK-31 and wildlife habitat, it is not compatible with public health and welfare. For the same reasons, the project is not compatible with the preservation of the wetland and its benefits and would instead result in substantial degradation. In addition, the mitigation plan proposed would result in the creation of a wetland that would not duplicate the qualities of the area filled and would be over 500' from OK-31. This wetland would not be regulated by Article 24 and therefore could be filled and utilized in a manner inconsistent with Article 24 and Part 663 without a permit.

Moreover, the staff established that the applicant may utilize his property to expand his business as he has planned without disturbing the wetland. It is true that portions of Mr. Barsuk's property are screened from public view due to the Town's requirements. This factor combined with the wetland restrictions diminish the area that the applicant may use to show his cars. Still, pursuant to staff's draft permit, he would be able to present enough vehicles to allow the public to see the nature of his business and encourage interested parties to inquire further by entering the premises of the business. As Mr. Barsuk noted in a letter to DEC staff received in August 1995, filling and grading the land up to the wetland would allow him to display about seventy vehicles. Although Mr. Barsuk does not view this as an optimum situation because he seeks to display 130 cars, the draft permit does allow him substantial use of his property for the purposes he seeks. Because the hearing addressed the staff's objections to Mr. Barsuk's proposed development, there was no in-depth discussion of the proposed draft permit which the applicant had rejected. For example, the evidence did not address the effects on wetland OK-31 of Mr. Barsuk's activities in the adjacent area pursuant to the conditions in the draft permit. The draft permit would allow Mr. Barsuk to fill the adjacent area of the wetland on his property. And, this permit would not require any mitigation. According to Part 663, the activities planned are considered usually incompatible and incompatible even in adjacent areas. Therefore, I recommend that in the event at some future time the applicant decides to accept the conditions in the draft permit, staff carefully re-examine those conditions to ensure that they meet the weighing standards contained in 663.5(e)(1).

That is, with the draft permit, applicant Barsuk would have significant road frontage for display of used cars. Therefore, there is a viable alternative to his project that would not result in the destruction of the wetland on his property. And, while Mr. Barsuk argued that his project is exempt from Article 24 on the basis of a continuing use, he did not demonstrate this fact. Rather, the drawings and maps he presented as part of the application are to the contrary.

In conclusion, I recommend that Mr. Barsuk be denied a permit for the project he has proposed.

Albany, New York
October 22, 1997

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