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Benincasa, Michael - Interim Decision, December 7, 2000

Interim Decision, December 7, 2000

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

In the Matter of the Application

- of -

Michael Benincasa
for a Tidal Wetlands Permit pursuant to
Environmental Conservation Law Article 25 (Tidal Wetlands),
Article 24 (Freshwater 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)
and Part 663 (Freshwater Wetlands Permit Requirements)

Application No. 1-4722-02451/00001

Application No. 1-4722-02451/00002

INTERIM DECISION

December 7, 2000

INTERIM DECISION

This interim decision decides the interlocutory appeal filed pursuant to 6 NYCRR 624.8(d)(2) from Administrative Law Judge ("ALJ") P. Nicholas Garlick's October 26, 2000 Ruling on Procedural Matters ("Ruling"). Michael Benincasa (the "Applicant") filed an appeal on November 3, 2000. The Department Region 1 Staff (the "Staff") filed a response on November 10, 2000. There are no other parties to the proceeding.

This case involves an application for a tidal wetland permit and a freshwater wetland permit. The Applicant seeks to construct a single family dwelling, deck, driveway, septic system and retaining wall on property he owns in Mastic Beach, Suffolk County, New York. After the reconvened continuation of the pre-adjudicatory hearing issues conference, ALJ Garlick issued his ruling finding that the appropriate wetland map to be used in this proceeding is the one most recently amended. The ALJ also declined to recuse himself from these proceedings.

Position of the Applicant

The Applicant presents three issues on appeal. First, the proceeding initially commenced in 1998 was adjourned by ALJ Owen without date thereby depriving Applicant of an opportunity to have its project reviewed against the tidal wetland map in effect at that time. Second, Staff's intentional or negligent delay in processing the Applicant's permit application disadvantaged the Applicant's position to use the earlier wetland map. Third, the ALJ should recuse himself for bias.

The Applicant also raises State and Federal Constitutional issues, including unreasonable application of regulations, discrimination against a particular individual or parcel, and creating an intentional delay of the proceedings that prejudices the Applicant. Appeal, Statement of Facts, unnumbered p. 4. Additionally, some matters raised or otherwise recounted in the Applicant's appeal papers were or are before the courts (see, Matter of Benicasa v. NYSDEC, Index Nos. 98-00051 and 98-19842). These matters will not be addressed in this interim decision as they are collateral and/or are otherwise irrelevant to the narrow issues before me.

Position of the Staff

Staff assert the Applicant's appeal is procedurally defective and therefore should be denied, since Applicant's appeal was not timely served on Staff, as directed by the ALJ. The Staff state that in the event the appeal is heard, it should be denied as the appeal addresses issues beyond the scope of the proceeding, which collateral issues are pending in the Appellate Division, Second Department.

Timeliness

Timeliness of all filings in the Department's hearing process is critical to the fair and efficient conduct of the proceedings. Here, the Applicant, through its legal counsel, did not timely supply a copy of the appeal to Staff thus shortening the time to reply to the Applicant's appeal. The Applicant is admonished for failing to abide by the ALJ's scheduling directive. Notwithstanding this behavior, the merits of the Applicant's appeal are addressed below.

Discussion

The Applicant seeks to construct a single family dwelling, deck, driveway, septic system and retaining wall on property he owns in Mastic Beach, Suffolk County, New York. There are only two issues that will be addressed before certifying the matter for an adjudicatory hearing. Those relevant issues are which tidal wetland map should be used in the hearing and whether the ALJ should recuse himself. These will be addressed sequentially below.

The Wetland Map

The ALJ held the most recently amended tidal wetland map of April 24, 2000 should apply in this proceeding to help determine which category in the accompanying tidal wetlands land use regulations should apply to the proposed project. The amended map placed the Applicant's proposed project within a tidal wetland and not in the adjacent area as did the previous wetland map. Ruling p. 4. The permitting standards for projects such as the one proposed to be located in a tidal wetland are more restrictive than the regulatory criteria applicable to projects proposed to be located in the tidal wetland adjacent area.

The Applicant asserts that the previous map in effect at the time of the initial hearing in April 1998, should be used and not the amended tidal wetland map. The ALJ fully addressed this issue in his Ruling. Upon review of the ALJ's reasoning and the following analysis I find the most recently amended tidal wetland map should be used in the hearing. My determination is consistent with the strong legislative intent and policy of the statute.

The purpose of the tidal wetlands statute is to "preserve and protect tidal wetlands and to prevent their despoliation and destruction..." ECL 25-0102. In the Matter of Thompson v. DEC, 132 A.D.2d 665, 518 N.Y.S.2d 36 (2d Dep't 1987), the Court held:

Given the strong declaration of policy to preserve and protect wetlands (see, ECL 25-0102), the natural propensity of wetlands boundaries to change with the passage of time, and the commissioner's need for the most recent and accurate scientific information when reviewing a tidal wetlands permit application (see, ECL 25-0403(1),(3)), we conclude that it is reasonable for the DEC to conduct on-site inspections of a given parcel and to propose a map amendment if warranted (see, generally, Matter of Merrick Jewish Centre v. Department of Environmental Conservation, supra), even where an application for a permit to develop the affected realty has already been filed (see, Jack Colletta, Inc. v. Department of Environmental Conservation, 128 A.D.2d 755, 513 N.Y.S.2d 465).

The most recent wetland map reflects the existing environmental conditions at the site and must be used in the hearing, in accord with the statute and its legislative intent. The fact is the environmental conditions at the site have changed from an adjacent area to a tidal wetland. Based on that fact and the above policy, the Applicant's contention and argument claiming that the earlier map should be used must be rejected.

Recusal

The ALJ denied the Applicant's motion that he recuse himself from these proceedings. Ruling p. 6. The grounds for Applicant's recusal request is that the ALJ attributed delays in reconvening the hearing to the Applicant's actions.

An ALJ may be recused if the hearing cannot be conducted in a fair and impartial manner, if the ALJ has a personal interest in the subject of the hearing, for personal bias, or for other good cause. 6 NYCRR 624.8(b)(2). I find the ALJ's articulation of the events leading him to find the Applicant in fact contributed to delays in this proceeding has a rational basis and will not be disturbed. Further, nothing in the Ruling or the appeal demonstrates the ALJ is not impartial or shows bias. Accordingly, I find nothing in the actions of the ALJ to warrant recusal.

Conclusion

The ALJ's Ruling is upheld in all respects. The other matters raised by Applicant on appeal not addressed here are beyond the scope of this proceeding or are otherwise irrelevant. This matter is remanded to the ALJ for further proceedings consistent with this interim decision.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
December 7, 2000

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