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Bartonik, Ann - Decision, February 16, 1998

Decision, February 16, 1998

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

In the Matter of

the Application for a permit to subdivide real property and construct a residential structure
in a tidal wetland, pursuant to Environmental Conservation Law Article 25, (Tidal Wetlands),
and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York Part 661 (Tidal Wetlands - Land Use Regulations),

- by -

ANN BARTONIK

Applicant

DEC No. 1-4722-01987/00001

DECISION

February 16, 1998

DECISION OF THE COMMISSIONER

The attached Hearing Report (the "Report") by Administrative Law Judge Kevin J. Casutto is hereby adopted as my Decision in this matter, subject to my comments below. The application of Ann Bartonik for a tidal wetlands permit and variance pursuant to Environmental Conservation Law ("ECL"), Article 25, to construct a single-family home on a vacant parcel adjacent to her existing residence in the Town of Brookhaven, East Patchogue, Suffolk County, New York is denied.

I conclude that the requested variance and permit must be denied because the Tidal Wetlands Act mandates preservation, not despoliation, of tidal wetlands and adjacent areas. Under the facts of this case, issuance of the requested variance and permit would result in construction of a second residence on an already undersized site. Each residence would be on a lot having only one-fourth of the minimum area specified in our development restrictions (6 NYCRR 661.6), while addition of another residence would adversely impact wetland values, as the ALJ's report shows. Applicant does not deny that there would be adverse impacts, for example from nitrification and sanitary facilities, but contends in essence that such adverse impacts would not be undue in light of the benefits. Staff disagrees. The judgment to be made is whether the adverse impacts are "undue," taking into account the social and economic benefits which may be derived. (6 NYCRR 661.9(c)(3)).

The facts are that the Applicant seeks to divide her existing site in half and build another home, an outcome that would obviously yield an economic benefit to her. However, denying her that benefit is consistent with the Act's requirements. This is not a "hardship" case, because the Applicant continues to have the opportunity to use the entire undivided site for a single family residence and appurtenant facilities. On balance, I concur that the economic and social benefits would not outweigh the adverse impacts, which I find would be "undue" based on the record and the ALJ's findings. I add that Applicant's position, if accepted, would sanction increased density of development in this and potentially other areas protected under the Tidal Wetlands Act. However the substance and policy of the Act dictates the opposite result. I have decided previously in the context of the Freshwater Wetlands Act that if many small lots are allowed to be developed in a protected area, entire wetlands and their important values will soon be ruined, and that such an eventuality is what the Legislature intended to prevent. See Matter of Gans, Decision of the Commissioner, July 21, 1997. The same rationale holds true here.

Accordingly, I conclude that the variance cannot be granted and deny the requested permit. As indicated in the Hearing Report of ALJ Casutto, this decision does not preclude the Applicant from seeking a permit for other uses which may be compatible.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
February 16, 1998

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter of

the Application for a Permit and a Variance to subdivide Real Property
and Construct a Residential Structure in a Tidal Wetland,
Pursuant to Environmental Conservation Law Article 25, (Tidal Wetlands),
and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York Part 661 (Tidal Wetlands - Land Use Regulations),

- by -

ANN BARTONIK

Applicant

DEC No. 1-4722-01987/00001

HEARING REPORT

- by -

Kevin J. Casutto
Administrative Law Judge

Summary

The Applicant has applied to the Department for a Tidal Wetlands permit and a variance to subdivide a lot that is smaller than the minimum lot specified in the regulations. The ALJ finds that the Applicant has failed to meet her burden of demonstrating that the project is compatible with the spirit and intent of the pertinent provisions of ECL Article 25 and regulations issued pursuant thereto. Further, that the Applicant has not demonstrated that in granting the variance public safety and welfare would be secured or that substantial justice would be done. Nor has the Applicant demonstrated that undue adverse environmental impacts would not occur on the present or potential values of the tidal wetlands were this project and variance to be granted.

The ALJ concludes that the project is not compatible with the preservation, protection or enhancement of the present and potential uses of the wetland. A preponderance of the evidence shows that adverse impacts on public health, safety and welfare will occur as a result of the project. The project will cause undue adverse impacts on wetland values addressed in the report, primarily flood, hurricane and storm control and ecosystem cleansing.

The ALJ concludes that the Applicant failed to establish by a preponderance of the evidence that the variance should be granted. The ALJ recommends that the application for a tidal wetlands permit and variance be denied. The Department Staff's determination to deny this tidal wetlands permit and variance application should be adopted by the Commissioner as the Department's decision in this matter.

Proceedings

Ann Bartonik, (the "Applicant") has applied to the New York State Department of Environmental Conservation ("the Department" or "NYSDEC") for a Tidal Wetlands permit and variance pursuant to Environmental Conservation Law ("ECL") Article 25, Title 4 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR).

On November 13, 1997 at 10:00 a.m., a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Hagerman Fire Department Meeting Hall, 1309 Montauk Highway, East Patchogue, New York. An issues conference and then an adjudicatory hearing were held at the same location, immediately following the legislative hearing. The parties made oral closing statements at the conclusion of the adjudicatory hearing. A stenographic record of the proceedings was received by the ALJ on December 1, 1997.

The Applicant appeared with Nelson, Pope & Voorhis, LLC. Nelson, Pope & Voorhis, LLC. appeared by Charles Voorhis, CEP, AICP, a managing partner of the firm.

Department Staff ("Staff") appeared by Louise Aja, Esq., Assistant Regional Attorney, New York State Department of Environmental Conservation Region 1. Appearing with counsel were technical Staff, Louis Chiarella, Regional Manager, Bureau of Marine Habitat Protection, George Stadnik, Marine Resource Specialist, Bureau of Marine Habitat Protection and Mark Carrera, Environmental Analyst I.

At the legislative hearing, no members of the public offered comments on the permit application. No written comments were filed on this project.

The deadline for receipt of filings for party status was November 6, 1997. No applications for party status were received; therefore, Applicant and Staff were the only parties to this proceeding.

Background

The Applicant owns adjoining real property under two deeds (the "site"), which is subject to regulation under the tidal wetlands program. The site is located at 22 Rod Street, Hamlet of East Patchogue, Town of Brookhaven, County of Suffolk, State of New York. The site is bordered on the north by Rod Street and on the south by the Great South Bay. To the east and west of the site, in close proximity, are large tracts of publicly owned lands.

One property, consisting of one tax parcel, is a single family residence with appurtenances including sheds, a deck and a swimming pool ("the residential lot"). The other property, consisting of three tax parcels, is vacant ("the vacant lot"). It is this vacant property that the Applicant seeks to develop with a new single family residential structure. The site is approximately 23,101 sq. ft., and the two resulting lots would be approximately 11,376 sq. ft. and 11,760 sq. ft.

Under the tidal wetlands regulatory program, adjoining properties in the same ownership may be treated as one lot. 6 NYCRR 661.6(b). Here, Staff has treated the Applicant's adjoining properties, comprising the site, as one property. Therefore, the Applicant seeks a variance from 6 NYCRR 661.6(b) to allow subdivision of the site and construction of a single family dwelling on the newly created lot.

The Town of Brookhaven was lead agency for State Environmental Quality Review ("SEQR"; ECL Article 8, 6 NYCRR Part 617). The Town required preparation of a Draft Environmental Impact Statement ("DEIS"; dated June, 1995). Subsequent to its review of the DEIS, on August 24, 1995 the Town issued a negative declaration Pursuant to 6 NYCRR 617.9(a)(5)(i)(b), a lead agency can issue a negative declaration after review of the impacts revealed in a DEIS.. The SEQRA process resolves potential SEQRA issues in this permit application. But this permit review process requires a separate review under the Department's tidal wetlands regulatory program. ECL Article 25 and 6 NYCRR Part 661. See, 6 NYCRR 624.4(c)(6)(ii).

Regional Staff made a tentative determination to deny the application, and Applicant has requested a hearing. Applicant bears the burden of proof that, "the proposed activity will be in complete accord with the policy and provisions of [the tidal wetlands] act." ECL 25-0402(l).

The Issues Conference

6 NYCRR 661.9 sets forth standards for issuance of a tidal wetland permit and 6 NYCRR 661.11 addresses standards for issuance of a variance for tidal wetland permit applications. 6 NYCRR 661.6 sets forth development restrictions, and is incorporated by reference in 6 NYCRR 661.11 (a). The Applicant does not dispute that the proposed project does not meet the requirements of 6 NYCRR 661.9. The Applicant and Staff identified the adjudicable issue as whether Staff improperly exercised its discretion in denying the Applicant's variance request. An adjudicatory hearing was held immediately following the issues conference, with the consent of the parties.

Applicant's Position

Applicant seeks to subdivide the residential property in order to build a second single family residence. However, pursuant to 6 NYCRR 661.6(a)(5), a minimum lot size of 40,000 sq. ft. is required. The site, at 23,101 sq. ft., is just over half the regulatory lot size. The proposed subdivision would result in two residential lots approximately of the minimum regulatory lot size. Nonetheless, the Applicant asserts that, other than the lot size requirement, the project would comply with all requirements of 6 NYCRR 661.11 (Variances) and 6 NYCRR 661.6 (Development Restrictions). Further the Applicant asserts that the project will enhance existing wetland values and will meet the spirit and intent of the tidal wetland regulations; that the site does not contain vegetated tidal wetlands that would be disturbed as a result of the project; and that all of the proposed development is in the wetland adjacent area. The Applicant identified mitigation features of the project, including a 65-foot no-disturb vegetative buffer area between the new building and the general high water mark associated with the littoral zone tidal wetlands, relocation and reconstruction of the existing substandard sanitary system and a limitation not to exceed 15% fertilizer-dependent vegetation for each lot.

Further, the Applicant asserts that denial of the variance will cause the Applicant severe hardship, in that denial of the variance will substantially reduce the economic value of the site. The Applicant concludes that Staff erred in rendering its tentative determination to deny the variance, and the Department should grant the variance in this instance.

Staff's Position

Staff's tentative determination to deny the permit and variance application is based upon Staff's conclusion that the project would double land use density, thereby doubling adverse impacts to the regulated wetlands. Further, Staff asserts that Applicant's variance request does not adequately demonstrate the requirements of 6 NYCRR 661.11(a), and that Applicant has not met its burden of establishing that the project will comply with the standards of 6 NYCRR 661.9, Standards for Issuance of Permits, particularly, 6 NYCRR 661.9(a) and 661.9(c)(1), (2) and (3).

6 NYCRR 661.9(c)(2) requires compliance with the development restrictions contained in 6 NYCRR 661.6. Staff asserts that the Applicant's project will not comply with 6 NYCRR 661.6(a)(5)(ii), which requires a 40,000 sq. ft. minimum lot size where the principal building will not be served by a public or community sewage disposal system, as is the case here.

Lastly, Staff asserts that the term "hardship" does not appear in the tidal wetlands law or regulations. Staff addressed the Applicant's "hardship" claim under its evaluation of economic and social benefits of the project. See, 6 NYCRR 661.9(b)(1)(i). Staff asserts that the Applicant has the burden of proof and has failed to carry its burden of proof on this issue.

Findings of Fact

  1. The Applicant, Ann Bartonik, owns adjoining real property under two deeds, located at 22 Rod Street, Hamlet of East Patchogue, Town of Brookhaven, County of Suffolk, State of New York (the "site"). The site is bordered on the north by Rod Street and on the south by Great South Bay.
  2. The Applicant and her spouse jointly purchased one property in 1971 and constructed a single family residence on that property. By a separate deed at the same time, the Applicant individually purchased the adjoining (vacant) property, now sought to be developed.
  3. Of the two properties comprising the site, one property is a single family residence with appurtenances including sheds, a deck and an above ground swimming pool and the other property is a vacant lot. The site is approximately 23,101 sq. ft. The project proposes subdivision into two lots. The residential lot would be approximately 11,376 sq. ft. and the new lot would be 11,760 sq. ft.
  4. Prior to 1986, the Applicant's marriage dissolved. In 1986, as part of the settlement of marital obligations and assets, the Applicant's spouse executed a quit-claim deed conveying his interest in the residential lot to the Applicant.
  5. Since 1986, the Applicant has owned the residential lot and the vacant lot comprising the site under separate deeds in her name.
  6. The Town of Brookhaven was lead agency for State Environmental Quality Review. The Town required preparation of a Draft Environmental Impact Statement, dated June, 1995. Subsequent to its review of the DEIS, on August 24, 1995 the Town issued a negative declaration.
  7. Mitigation features of the project include a 65-foot no-disturb vegetative buffer area between the new building and the general high water mark associated with the littoral zone tidal wetlands, relocation and reconstruction of the existing substandard sanitary system and a limitation not to exceed 15%. fertilizer-dependent vegetation for each lot. The project proposes no change to the beach.

Flooding

  1. The wetland at the site is an unvegetated shoal and mud flat located in a flood zone.
  2. The site is very low lying and is subject to flooding from rains, overland runoff and tidal inundation. Seasonal high groundwater at the site is at a depth of 0.2 feet.
  3. Bureau of Marine Habitat Protection Manager Chiarella conducted a site visit on November 4, 1997, approximately four days after a heavy rain.
  4. Mr. Chiarella observed water on Rod Street and Dunton Avenue, landward of the site. Testing revealed water with a salinity of five parts per thousand. The water on Rod Street was a mixture of road runoff, over land runoff and tidal inundation.
  5. The proposed 65-foot "no disturb" vegetated buffer on the south side of the property would provide a buffer to help control flooding and cleansing of the ecosystem but would not eliminate migration of contaminants to the Bay.

Land Use Analysis

  1. Staff prepared a land use analysis for this project. The land use analysis reveals that there are 27 privately owned properties within the 300 foot regulated tidal wetland adjacent area. The average lot size of developed lots is 15,264 sq. ft. Of the 27 properties, only five have been constructed after the effective date of the tidal wetlands act in 1974.
  2. The land use analysis shows that existing average lot size in this area is substantially less than the 40,000 sq. ft. regulatory standard, i.e., 15,264 sq. ft. Nonetheless, the proposed subdivision to create lots of 11,376 sq. ft. and 11,760 sq. ft. is substantially less than the average developed lot size of 15,264 sq. ft.
  3. The footprint of the existing residence is 3,185 sq. ft. and the footprint of the proposed new residence would be 2,730 sq. ft., a total for existing and new structures of 5,915 sq. ft. in the wetland adjacent area.
  4. The project does not provide for a driveway for the new residence, so that no onsite automobile parking would be available for that residence.
  5. The existing sanitary septic system serving the existing residence is in the flood zone.
  6. The two proposed sanitary septic systems (one to replace the existing system and one to serve the new residence) would be built to flood plain standards, including elevation standards, and would be outside of the flood zone boundaries.

Ecosystem Cleansing

  1. A single family residential sanitary septic system will generate an effluent flow of approximately 300 gallons per day.
  2. The proposed project will double the amount of sanitary waste water by introducing a second sanitary system for the new residence. Introduction of an additional residence would increase the flow at the site from 300 gallons/day to approximately 600 gallons/day.
  3. The horizontal and vertical separation distances between the existing sanitary septic system and the wetlands are inadequate to allow proper breakdown, filtration and removal of contaminants associated with that system.
  4. The two proposed modern sanitary systems would be landward of the existing system, with greater horizontal and vertical separation distances from groundwater and the wetlands.
  5. The current Suffolk County Sanitary Code requires a 100 ft. setback for sanitary systems from surface water.
  6. The existing system serving the residential lot (predating the 100 ft. code requirement) is located approximately 72 ft. north of general high water of Great South Bay.
  7. The proposed replacement sanitary septic system for the existing residence would be located approximately 119 ft. north of general high water of Great South Bay, approximately 47 ft. landward of the existing system.
  8. Nitrification is the aerobic process by which ammonium breaks down into its components. Following nitrification, an anaerobic denitrification process will occur, further breaking down the ammonium constituents.
  9. In very sandy soils, nutrients and pathogenic and toxic materials are easily transported to groundwater. Once in groundwater, these pollutants will readily migrate into the surface waters due to the sandy soil conditions and the close proximity of the Bay.
  10. Due to the shallow depth to groundwater at the site and the proximity of the existing sanitary system to the Great South Bay, breakdown of ammonium effluent is incomplete for discharges from the existing system to the Bay.
  11. The SONIR computer model was used for modeling of nitrogen recharge concentration for the proposed system (DEIS II17 and Appendix B). This computer program was developed by Cramer, Voorhis & Associates, Inc., based upon methodologies developed by Cornell University for simulation of nitrogen recharge.
  12. The SONIR program has been used in various other projects. Modeling indicates the nitrogen recharge at the site will be 5 mg./l. The drinking water standard is 10 mg./l. However, the model does not consider groundwater level as a factor nor does it account for flooding at the site.
  13. Although the two sanitary systems would be located landward of the existing system, during flood events the two new systems would not continue to function properly and would release contaminants to the Bay.
  14. Temperature, rather than separation distance is the more important factor regarding pathogenic contamination. More moderate and colder groundwater temperatures slow down the metabolism of the organism, allowing it to travel and survive longer due to slower metabolism.
  15. Coliform bacteria are used as indicators of fecal contamination and possible presence of pathogenic organisms.
  16. The Great South Bay is currently open to commercial shellfishing, a multi-million dollar industry in New York. However, due to pathogen contamination shellfishing is prohibited in certain areas.
  17. The Great South Bay, immediately south of the site, is closed to shellfishing due to coliform contamination. The shellfish closure line runs with the property boundary immediately east of the site.
  18. Generally, approximately 90%. of coliform loadings to the Bay are attributable to stormwater runoff.
  19. Coliform bacteria concentrations from the existing system will be reduced because of the separation distance between the discharge and the Bay. Nonetheless, an unknown quantity of bacterial influx to the Bay would occur due to substandard setbacks of the existing sanitary septic system and residence.

Other Wetland Values

  1. Regarding the wetland value of marine food production, the surface waters immediately east of the site allow shellfish harvesting and contact recreation.
  2. Degradation of water quality would adversely impact species in the area, including benthic organisms within the substrate of the beach and in the intertidal area adjacent to the site. These areas are habitat for forage fish that come in at high tide to forage on the intertidal beach, and return to deeper waters during low tide. Decreased water quality would adversely affect both benthic organisms, fin fish and shellfish.
  3. Regarding the wetlands values of adsorption of silt and organic matter, increased development density would impact the wetland because of additional surface runoff from impervious surfaces such as the proposed residential structure. Since the site is not a vegetated wetland surface water runoff from the site would more readily migrate to the Bay.
  4. Regarding the wetland values of open space and aesthetic appreciation, the site is located in an area of dense development with relatively small lots. To the east is additional residential housing and then a conservation area; to the north is additional residential housing and to the west is bayfront residential housing.
  5. If the project were granted, some open space and aesthetic impairment would occur looking towards the Bay from Rod Street. Also, looking north from the Bay side there would be aesthetic and open space impairment due to construction of the new residence.

Social and Economic Benefits

  1. Regarding social and economic benefits to the people of the State of New York, maintenance of water quality is necessary to support the commercial shellfishing industry.
  2. Possible compatible uses of the site include addition of a tennis court, in-ground swimming pool, driveway, garage or shed. Another use would be expansion/reconstruction of the existing single family residence into a two family residence.

Discussion

The site consists of real property currently owned and occupied by Ann Bartonik, the Applicant under two deeds. The Applicant and her spouse jointly purchased one property in 1971 and constructed a single family residence on that property. By a separate deed, the Applicant individually purchased the adjoining (vacant) property, now sought to be developed.

The Applicant contends that she kept the two properties separate because she always intended to develop the vacant lot eventually. Then, prior to 1986 the Applicant's marriage dissolved. In 1986, as part of the settlement of marital obligations and assets, the Applicant's spouse executed a quitclaim deed conveying his interest in the residential lot to the Applicant. Since 1986, the Applicant has owned the residential lot and the vacant lot under separate deeds in her name.

Under the tidal wetlands program the adjoining lots, now in the same ownership, may be treated together as one lot. See, 6 NYCRR 661.6(b). Staff has treated the Applicant's adjoining properties as one property under the tidal wetlands regulatory program.

6 NYCRR 661.11, Variances, authorizes Staff to vary or modify the application of any of the provisions of Part 661 in such a manner that the spirit and intent of such provisions shall be observed, that the public safety and welfare are secured, that substantial justice is done and that the proposed project will not have an undue adverse impact upon tidal wetland values (enumerated in the regulation, described below). 6 NYCRR 661.11(a). The Applicant asserts that Staff's denial of a variance in this case is improper, because the Applicant has demonstrated compliance with the provisions of 6 NYCRR 661.11(a) and other regulatory requirements of the tidal wetlands program, except the minimum lot size requirement.

Staff concluded that the project is not compatible with public safety and welfare due to the doubling of development density, including sanitary system effluent, on substandard lots approximately the minimum lot size. Staff stated that the project would have an adverse impact on the present and potential values of existing tidal wetlands. In sum, Staff represented that Staff would likely approve one or a combination of accessory structures on the vacant lot, but could not approve the current project.

For reasons described below, I conclude that Staff properly denied the Applicant's permit and variance application for this project.

Impacts of the Proposed Project

The Applicant's representative, Mr. Voorhis, correctly states that the existing sanitary system has adverse impacts on the bay and the wetland values associated with the littoral zone. He contends that removal of the existing system and replacement with a modern system located more than one hundred feet from the wetland will reduce or eliminate adverse environmental impacts attributable to the existing substandard system. The following discussion focuses on those wetland values and adverse impacts relied upon by Staff in its determination to deny the variance application.

  1. Development Restrictions

    As noted above, the site is presently just over half the required lot size of 40,000 sq. ft. 6 NYCRR 661.6(a)(5)(ii). Staff's primary concern is that granting the project will result in a lot size approximately one fourth the required size. This is of particular concern as the site is not served by a public or community sewage disposal system. Staff asserts that increased development density adversely impacts the wetland because of additional surface runoff and, more importantly, due to potential contamination by the additional sanitary system of the new dwelling. Staff's other concerns are consequential to the proposed substandard lot size and increased development density.

    As the Commissioner has stated, over the past four decades many acres of Long Island's wetlands have succumbed to development. Many wetlands areas were subdivided into relatively small lots years ago. The tidal wetlands act, adopted in 1973, recognized the critical environmental significance of wetland resources, and the need to regulate development in wetland areas. If a substantial part of each relatively small lot is allowed to be covered with a home and septic tank, the entire wetland and its values will soon be ruined. This eventuality is what the Legislature intended to prevent in adopting ECL Article 25. This article establishes controls to stop the otherwise inevitable destructive effect on important wetland resources that would result if each different owner of a small lot could pursue his or her own interests without restraint. See, In the Matter of Gans, Commissioner Decision, July 21, 1997. Development in this geographic area has been extremely limited since enactment of the tidal wetlands program.

    Staff's land use analysis reveals that there are 27 privately owned properties within the 300 foot regulated tidal wetland adjacent area6 NYCRR 661.4(b)(1); Land Use Analysis, Exhibit 12. and that the average lot size of developed lots is 15,264 sq. ft. Of the 27 properties, only five have been constructed after the effective date of the tidal wetlands act in 1974. Mr. Chiarella conceded that the existing average lot size is substantially less than the 40,000 sq. ft. regulatory standard. Nonetheless, he concluded that the proposed subdivision of 11,376 sq. ft. and 11,760 sq. ft. is considerably less than the average developed lot size.

    Tidal wetlands development restrictions also require that "[n]ot more than 20% of the adjacent area..... on any lot shall be covered by existing and new structures and other impervious surfaces. Provided, however....... [that the restrictions] shall not be deemed to prohibit the coverage of 3000 sq. ft. or less of adjacent area on any individual lot lawfully existing on August 20, 1977, by existing and new structures and existing and impervious surfaces (emphasis supplied)." 6 NYCRR 661.6(a)(4).

    Although this provision is not directly applicable to the present case, the Applicant cited this provision in support of its variance application. The footprint of the existing residence is 3,185 sq. ft. and the footprint of the proposed residence would be 2,730 sq. ft., a total for existing and new structures of 5,915 sq. ft. of adjacent area. Using 6 NYCRR 661.6(a)(4) as guidance, Applicant views the proposed project as being within the 6 NYCRR 661.6(a)(4) development restriction because the proposed residence would cover less than 3,000 sq. ft. or 20% of the vacant lot.

    However, Staff views the project as a whole, covering 5,915 sq. ft. of adjacent area. Even accepting, arguendo, the Applicant's premise of using 6 NYCRR 661.6(a)(4) as guidance, Staff views the project as exceeding the 3,000 sq. ft. limitation. Staff's view is consistent with 6 NYCRR 661.6(a)(4), which requires consideration of existing and new structures.

  2. Flood, Hurricane and Storm Control

    Regarding flood, hurricane and storm control, the parties do not dispute that the area is very low lying and is subject to both flooding from rains, overland runoff and tidal inundation. The wetland is an unvegetated shoal and mud flat located in a flood zone. Seasonal high groundwater at the site is at a depth of 0.2 feet. Because the site is not a vegetated wetland, surface water runoff from the site will more readily migrate to the Bay. The existing system intrudes into the flood zone. Therefore, it is likely that the existing septic system floods during high water events, adversely impacting the Bay.

    The proposed new systems would be built to flood plain standards, including elevation standards, and would be outside flood zone boundaries. The project proposes no change to the beach. Based upon these factors, Mr. Voorhis asserts that the project will not adversely affect flood, hurricane and storm control at the site.

    Still, Staff asserts that flooding would impact the functions of a properly operating sanitary system, including the two proposed systems. Impacts would result from surface flooding, but more significantly, such flooding and high tides would adversely impact groundwater. Mr. Chiarella stated he conducted a site visit on November 4, 1997, approximately four days after a heavy rain. He observed water on Rod Street and Dunton Avenue, located west of the site, runs north/south to the Bay; Rod Street, the northern border of the site, runs from Dunton Avenue, east., landward of the site. Testing revealed salinity of five parts per thousand, leading him to conclude that the water was a mixture of road runoff, over land runoff and tidal inundation. Nonetheless, Mr. Chiarella conceded that the proposed 65-foot "no disturb" vegetated buffer on the south side of the property, would provide an excellent buffer regarding control of flooding and cleansing of the ecosystem.

  3. Ecosystem Cleansing

    Doubling of Waste Water Flow

    The Applicant concedes that the proposed project will double the amount of sanitary waste water by introducing a second sanitary system for the new residence. A single family residential system will generate an effluent flow of approximately 300 gallons per day. Introduction of an additional residence would increase the flow from 300 gallons/day to approximately 600 gallons/day. This increased flow, coupled with the proposed lot size approximately 1/4 the required minimum, will produce unacceptable adverse impacts. The primary issues with respect to the septic systems are introduction of high concentrations of nitrogen and biological contaminants to groundwater and the Bay.

    In the Applicant's view, the horizontal and vertical separation distances between the existing sanitary septic system and the wetlands are inadequate to allow proper breakdown, filtration and removal of contaminants associated with that system. The two proposed modern sanitary systems would be landward of the existing system, with greater horizontal and vertical separation distances from groundwater and the wetlands. Mr. Voorhis concludes that the project will reduce adverse surface water impacts resulting from the existing substandard system.

    Staff disagrees with this conclusion. Staff asserts that doubling the amount of sanitary wastewater being discharged to groundwater will introduce greater nitrogen and biological loading to the Bay thereby degrading existing wetland values, making the existing bad situation worse. Mr. Chiarella stated that in very sandy soils, nutrients and pathogenic and toxic materials are easily transported to groundwater. Once in groundwater, these pollutants will readily migrate into the surface waters due to the sandy soil conditions and the close proximity of the Bay.

    Mr. Voorhs concludes that there is no scientific evidence to show that a doubling of effluent will cause any increased adverse impact to surface water. However, Staff responds, correctly, that the Applicant bears the burden of proof to show that the proposed activity will be in compliance with the policy and provisions of the tidal wetlands act. ECL 25-0402(l).

    Nitrogen Loading

    DEIS II(B)(1)(d) addresses existing groundwater impacts, primarily impacts of the existing residential sanitary septic system. Briefly, the primary groundwater concern associated with single family use is nitrogen loading due to sanitary waste effluent. Ammonium is the primary form of nitrogen present in such effluent. Nitrification is the aerobic process by which ammonium breaks down into its components - - i.e., nitrification occurs only in the presence of oxygen, and will not occur once the effluent enters groundwater. Following nitrification, an anaerobic denitrification process will occur, further breaking down the ammonium constituents. However, nitrification must precede denitrification.

    If the effluent enters groundwater before nitrification has occurred, then that process will cease and denitrification will not occur, resulting in nitrogen loading. Further, because the site is adjacent to the Bay, the nitrogen loaded groundwater would flow toward, and enter, the Bay.

    The current Suffolk County Sanitary Code requires a 100 ft. setback for sanitary systems from surface water. However, the existing system serving the residential lot (pre-dating the 100 ft. code requirement) is located approximately 72 ft. north of general high water of Great South Bay. The proposed replacement system for the residential lot would be located approximately 119 ft. north of general high water of Great South Bay, approximately 47 ft. landward of the existing system. Due to the shallow depth to groundwater at the site and the proximity of the existing sanitary system to the Great South Bay, breakdown of ammonium effluent is incomplete for discharges from the existing system to the Bay.

    SONIR Nitrogen Recharge Modeling

    The DEIS provides modeling of nitrogen recharge concentration for the proposed system. The SONIR computer model was developed by Cramer, Voorhis & Associates, Inc., based upon methodologies developed by Cornell University for simulation of nitrogen recharge. Mr. Voorhis testified that he participated in the development of the SONIR modeling program. SONIR has been used in various other projects, and has been refined over a period of years. Modeling indicates the nitrogen recharge will be 5 mg./l. The drinking water standard is 10 mg./l.

    Mr. Voorhis asserts that two modern sanitary systems will improve wetland impacts as compared to the existing substandard system. However, the model does not consider groundwater level or flooding as factors. The Applicant's nitrogen modeling assumes that the new sanitary systems will function properly. In view of the site location and the proposed doubling of wastewater flow, this is not a valid assumption. Although the two sanitary systems would be located landward of the existing system, the site is subject to flooding. In a flood, hurricane or storm event, Mr. Voorhis acknowledged that the two new systems may not continue to function properly and would release contaminants to the Bay. Therefore, the SONIR modeling is inaccurate as applied to this site.

    Biological Contamination

    A second groundwater impact is biological contamination in the form of bacteria and viruses.

    While Mr. Chiarella conceded that replacement of the existing sanitary system would provide a small improvement in nitrification, he stated that temperature, rather than separation distance is the more important factor regarding pathogenic contamination. More moderate and colder groundwater temperatures slow down the metabolism of the organism, allowing it to travel and survive longer due to slower metabolism.

    Coliform bacteria are used as indicators of fecal contamination and possible presence of pathogenic organisms. The Great South Bay, immediately south of the site, is closed to shellfishing due to coliform contamination. Approximately 90% of coliform loadings to the Bay are attributable to stormwater runoff. However, the generally flat topography and sandy soil of the site will allow for the recharge of stormwater before it reaches the Bay. Coliform bacteria concentrations from the existing system will be reduced because of the separation distance between the discharge and the Bay. Nonetheless, an unknown quantity of bacterial influx to the Bay would occur due to substandard setbacks of the existing sanitary septic system and residence.

    Mr. Chiarella testified that the Great South Bay is currently open to commercial shellfishing, a multi-million dollar industry in New York. However, due to pathogen contamination shellfishing is prohibited in certain areas. The shellfish closure line runs with the property boundary immediately east of the site. Mr. Chiarella's opinion is that granting the proposed project would result in greater pathogenic contamination of the Bay; this would result in a shift of the shellfish closure line further east, exacerbating the existing problem. Staff's concerns are that contaminated shellfish may reach the marketplace and that the Bay may become completely closed to shellfishing, adversely impacting the shellfish industry.

    Mr. Voorhis acknowledged that the site is subject to flooding, the two new septic systems would be subject to flooding and possible escape of contaminants to the Bay. This presents a potential health problem, including possible biological contamination of shellfish.

    Precedential Effect of Granting the variance

    The Town's SEQR negative declaration was conditioned upon the Applicant receiving other required approvals for the project, including the DEC wetlands permit. When an agency other than NYSDEC serves as the lead agency and has required the preparation of a DEIS, no issue that is based solely on compliance with SEQRA and not otherwise subject to the department's jurisdiction will be considered for adjudication (except as specified; not applicable here). 6 NYCRR 624.4(c)(6)(ii). Here, Staff asserts that the Applicant's project does not comply with ECL Article 25 and 6 NYCRR Part 661 - - not SEQRA. Therefore, Staff asserts the Town's negative declaration should not be determinative in this permit review. Further, Staff asserts, and the Applicant does not dispute, that the tidal wetland requirements should apply equally in densely developed areas as in undisturbed areas. Staff concludes that the Applicant has not established that any development has occurred in this area since the tidal wetlands regulations became effective.

    In response, Applicant asserts that any precedential effect of granting this variance application will be negligible, due to the unique circumstances of this case. First, the Applicant notes that this is already an area of relatively high density development. Secondly, the Applicant relies upon the Town of Brookhaven's SEQR determination following review of the DEIS, granting a negative declaration for the project. Therefore, the Applicant concludes, approval of projects such as this will not necessarily lead to a degradation of wetlands values.

  4. Other Wetland Values

    Regarding the wetland value of marine food production, the surface waters immediately east of the site allow shellfish harvesting and contact recreation. The Applicant asserts that two functioning sanitary systems will have less of an impact than one nonfunctioning system. However, Mr. Voorhis conceded that the site is subject to flooding and therefore the systems may not operate properly during flood events. Also, the Town has limited fertilizer-dependent vegetation on the site to 15%. The Applicant asserts this restriction will reduce the nutrient load to the Bay. Lastly, the project proposes an no-disturb 65-foot vegetative setback in the adjacent area, that would provide a natural buffer between the wetland and the use area.

    Mr. Chiarella stated that degradation of water quality would adversely impact species in the area, including benthic organisms within the substrate of the beach and in the intertidal area adjacent to the site. These areas are habitat for forage fish that come in at high tide to forage on the intertidal beach, and return to deeper waters during low tide. Mr. Chiarella stated that decreased water quality would adversely affect both benthic organisms, fin fish and shellfish.

    Regarding the wetlands values of adsorption of silt and organic matter, the Applicant asserts that the project will include a permeable (gravel) driveway and a drainage well. The generally flat topography and sandy soil of the site will allow for the recharge of stormwater before it reaches the Bay. These features will serve to retain runoff onsite. However, the parties do not dispute that the area is very low lying with a shallow groundwater level. Staff asserts that increased development density impacts the wetland because of additional surface runoff. Because the site is not a vegetated wetlands surface water runoff from the site will more readily migrate to the Bay. Approximately 90% of coliform loadings to the Bay are attributable to stormwater runoff.

    Regarding the wetland values of open space and aesthetic appreciation, the Applicant asserts that this is an area of dense development with relatively small lots, therefore not significantly affected by the construction of one additional residence. To the east is additional residential housing and then a conservation area; to the north is additional residential housing and to the west is bayfront residential housing. Mr. Voorhis stated that open space and aesthetic appreciation values will not be significantly impacted by granting the variance.

    In contradiction, Mr. Chiarella stated that there would be some open space and aesthetic impairment looking towards the Bay from Rod Street. The project requires the construction of an additional single family residence as well as four foot high concrete retaining walls (related to the new sanitary systems) along the site boundary with Rod Street. He also noted that looking north from the Bay side, there would also be aesthetic and open space impairment due to construction of the new residence. However, Mr. Chiarella noted that the Bay is not visible from Rod Street across the site, due to heavy vegetation.

  5. Social and Economic Benefits

    Regarding social and economic benefits to the people of the State of New York, Staff's primary concern is maintenance of water quality to support the commercial shellfishing industry. As discussed above, Staff views the project as adversely impacting water quality.

    The "Hardship" Claim

    With respect to economic benefit of the Applicant, the Applicant asserts that denial of the permit application would constitute an undue economic "hardship" for the Applicant. In support of this contention, the Applicant relies upon the history of the site and the circumstances under which the Applicant obtained sole ownership of the separately deeded residential lot. The Applicant concedes that neither ECL Article 25 nor 6 NYCRR Part 661 contain any specific reference to a "hardship" factor. But Mr. Voorhis asserts that granting the variance will provide the Applicant with substantial economic benefit, yet not at the expense of the resources of the State of New York.

    To the contrary, Staff considered this economic "hardship" issue in its consideration of social and economic benefits, pursuant to 6 NYCRR 661.9(b)(1)(i), as one of several factors in evaluating the Applicant's variance request. But, as discussed above, Staff finds several adverse impacts to the resources of the State. Staff asserts that the fact that the site may have been devalued as a tidal wetland, or as a result of being located adjacent to a tidal wetland, does not constitute a "hardship" upon the property owner. It may reasonably be concluded that the Applicant would benefit from the construction and sale or rental of the proposed single family residence. However, that alone is not sufficient to outweigh the potential adverse environmental impacts identified by Staff.

    Department Staff identified possible existing compatible uses of the property including the addition of a tennis court, swimming pool, driveway, garage or shed. Another use could be expansion/reconstruction of the existing single family residence into a two family residence, which Staff considers one principal building under Part 661.

Conclusions of Law

  1. The site is subject to regulation under the Department's tidal wetlands program and the project does not meet the requirements for a tidal wetlands permit.
  2. When an agency other than NYSDEC serves as the lead agency and has required the preparation of a DEIS, no issue that is based solely on compliance with SEQRA and not otherwise subject to the department's jurisdiction will be considered for adjudication (except as specified in 6 NYCRR Part 624; not applicable here). 6 NYCRR 624.4(c)(6)(ii). This permit review process requires a review under the Department's tidal wetlands regulatory program, separate from the SEQRA review conducted by the Town of Brookhaven. ECL Article 25 and 6 NYCRR Part 661.
  3. Adjoining properties in the same ownership may be treated as one lot. 6 NYCRR 661.6(b). Here, the Applicant's two adjoining properties constituting the site, under two deeds, are treated as one property.
  4. The Applicant bears the burden of proof to show that the proposed activity will be in compliance with the policy and provisions of the tidal wetlands act.
  5. 6 NYCRR 661.11 authorizes Staff to vary or modify the application of any of the provisions of Part 661 in such a manner that the spirit and intent of such provisions shall be observed, that the public safety and welfare are secured, that substantial justice is done and that the proposed project will not have an undue adverse impact upon tidal wetland values. 6 NYCRR 661.11(a).
  6. The site is just over half the regulatory lot size. Granting the project would result in two residential lots, each approximately 25% of the minimum regulatory lot size.
  7. 6 NYCRR 661.6(a)(4) requires consideration of both existing and new structures. Using 6 NYCRR 661.6(a)(4) as guidance, the project exceeds the 3,000 sq. ft. regulatory limitation because the footprint of the existing residence and the proposed residence would be 5,915 sq. ft.
  8. Flooding would impact the functions of the two proposed systems. Impacts would result from surface flooding. But, more significantly, such flooding and high tides would adversely impact groundwater. The two proposed septic systems will be subject to flooding and possible escape of contaminants to the Bay. This presents a public health issue, regarding possible biological contamination of shellfish.
  9. The SONIR nitrogen recharge computer modeling assumes that the proposed new sanitary systems will function properly. The SONIR model does not consider groundwater level as a factor, nor does consider that the sanitary systems will be subject to flooding. Therefore, the SONIR modeling is inaccurate as applied to this site.
  10. Doubling the amount of sanitary wastewater presently being discharged to groundwater will introduce greater nitrogen and biological loading to the Bay thereby degrading existing wetland values.
  11. The increased flow resulting from introduction of an additional residence, coupled with the proposed lot size approximately 1/4 of the required minimum, would produce unacceptable adverse environmental impacts.
  12. Degradation of water quality will adversely impact species in the area, including benthic organisms within the substrate of the beach and in the intertidal area adjacent to the site. Decreased water quality will adversely affect both benthic organisms, fin fish and shellfish.
  13. Granting the proposed project would result in greater pathogenic contamination to the Bay, possibly doubling such contamination. The result will be a shift of the shellfish closure line further east, exacerbating the existing pollution problem in the Bay.
  14. If the project were granted, open space and aesthetic impairment will occur looking towards the Bay from Rod Street. Also, from the Bay side looking north there will be aesthetic and open space impairment due to construction of the new residence.
  15. The project is not compatible with public safety and welfare due to the doubling of development density, including doubling of sanitary system effluent, on substandard lots approximately 1/4 the minimum lot size. The project would have an adverse impact on the present and potential values of existing tidal wetlands.
  16. With respect to economic benefit of the Applicant, neither ECL Article 25 nor 6 NYCRR Part 661 contain any specific reference to a "hardship" factor. It may be concluded that the Applicant would benefit from the construction and sale or rental of the proposed single family residence.
  17. The record in this case shows that the current proposal is not compatible with the preservation, protection or enhancement of the present and potential uses of this tidal wetlands. A preponderance of the evidence shows that impacts on public health, safety and welfare may occur as a result of the project. The proposed project would cause undue impacts on wetland values, primarily flood, hurricane and storm control and ecosystem cleansing, as well as other wetland values addressed in this report. The Applicant failed to establish by a preponderance of the evidence that the variance should be granted.
  18. The Applicant has failed to meet her burden of demonstrating that the project is compatible with the spirit and intent of the pertinent provisions of ECL Article 25 and regulations issued pursuant thereto; the Applicant has not demonstrated that public safety and welfare would be secured; the Applicant has not demonstrated that substantial justice would be done; nor has the Applicant demonstrated that no undue adverse impact would occur on the present or potential value of the tidal wetlands were this project and variance to be granted. Staff did not improperly deny the Applicant's variance application for this project.
  19. Possible compatible uses of the site include addition of a tennis court, in-ground swimming pool, driveway, garage or shed. Another possible use would be expansion/reconstruction of the existing single family residence into a two family residence.

Recommendations

After a review of the entire record, and based upon the foregoing findings of fact and conclusions of law, it is recommended that the application of Ann Bartonik for a tidal wetlands permit and variance be denied. The Department Staff's determination to deny this tidal wetlands permit and variance application should be adopted by the Commissioner as the Department's decision in this matter.

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