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Benincasa, Michael - Ruling, October 26, 2000

Ruling, October 26, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the application for a Tidal Wetland Permit and a Freshwater Wetland Permit

- by -

Mr. Michael Benincasa

Ruling on Procedural Matters

DEC #
1-4722-02451/00001
1-4722-02451/00002

Summary

This matter involves an application for a tidal wetlands permit and a freshwater wetland permit. These preliminary rulings are necessary to restart the permit hearing process following the adjournment of this matter in April, 1998. As more fully discussed below, the Administrative Law Judge ("ALJ") rules that: no additional legislative hearing is necessary; a new issues conference should be convened; the ALJ will not recuse himself; and, the appropriate wetlands map to be used at the adjudicatory hearing is the one most recently prepared, which most accurately describes the present environmental conditions.

History

While some details involving this matter are not included in the file before me, the relevant data is available and adequate to formulate this ruling.

At some point during the late 1980's, Mr. Michael Benincasa (the "Applicant") applied to the Staff of the Department of Environmental Conservation ("DEC Staff") for a permit to construct a single family dwelling, deck, driveway, septic system and retaining wall (the "project")on property he owns at the northwest corner of Beaver Drive and Doe Place, in Mastic Beach, Town of Brookhaven, Suffolk County. The permit was necessary because, at the time of the initial application, the Applicant's property was mapped by DEC Staff as being within the adjacent area to a freshwater wetland.

In order to secure the necessary permit from DEC and the approval of the Town of Brookhaven, the Applicant retained Anderson Environmental, Inc. ("Anderson") as a consultant. While an initial application for a permit was filed with DEC Staff (UPA # 10-86-1754), requests by DEC Staff for additional information were not responded to in a timely fashion and the application was never deemed complete.

As part of the environmental review of this project the Town of Brookhaven, acting pursuant to the State Environmental Quality Review Act ("SEQRA"), Article 8 of the Environmental Conservation Law ("ECL") and 6 NYCRR Part 617, declared itself lead agency and issued a positive declaration stating that the proposed project may have a significant adverse impact on the environment and that an Environmental Impact Statement ("EIS") would be required. In response to the positive declaration, Anderson completed a Draft Environmental Impact Statement ("DEIS") for the project which was accepted as adequate for public review by the Town of Brookhaven on September 14, 1988. After minor modifications, the Final Environmental Impact Statement (FEIS) was filed with the Town of Brookhaven on November 21, 1989. On August 8, 1990, the Town of Brookhaven's Town Board adopted a resolution to certify the findings to deny the requested permission from the Town for the project.

Following this denial, the Applicant brought suit against the Town of Brookhaven in Supreme Court, Suffolk County. A stipulation resolving this litigation was executed on May 14, 1996 and provided for the payment of a monetary settlement by the Town of Brookhaven and contained the provisions specifying the conditions under which a project could be constructed by the Applicant with the Town's approval.

On November 1, 1996, Michelle Quatrale of Michelle's Permit Service ("Michelle's") wrote to DEC Staff stating that the Applicant had retained Michelle's to continue to process the DEC wetlands permit application. Contained in this letter were responses to the information requests made by DEC Staff in June 1987. DEC Staff responded that due to the passage of time, the permit application had been deemed withdrawn. On December 27, 1996 Michelle's submitted a new application on behalf of the Applicant. This application was for both a tidal wetland permit and a freshwater wetlands permit (application #1-4722-02451/00001 and 1-4722-02451/00002). Both permits were necessary because the Applicant's property is in a freshwater wetland, but also is affected by tidal forces during storm events.

On January 3, 1997, DEC Staff informed Michelle's that the application was incomplete because project plans and a survey map for the project were not included. This information was subsequently supplied and the applicationwas deemed complete. As part of its review, DEC Staff visited the site on January 30, 1997. During this visit, it was noted that the entire parcel was underwater. Based upon the site visit and its independent review of the materials, on April 7, 1997 DEC Staff from the Bureau of Habitat recommended denial of the permits. After further review, on May 12, 1997, DEC Staff notified Mr. Benincasa of its determination to deny the permits because the proposed project did not meet the standards for permit issuance in 6 NYCRR Part 663 (Freshwater Wetlands Permit Requirement Regulations) and 6 NYCRR Part 661 (Tidal Wetland Land Use Requirements).

On May 23, 1997, Mr. Benincasa formally requested a public hearing pursuant to 6 NYCRR Part 624 to review DEC Staff's determination to deny the permits.

On October 7, 1997, DEC Staff issued a Findings Statement supporting denial of Mr. Benincasa's application for the permits because the FEIS did not reasonably demonstrate that the proposed activities could meet the necessary standards for permit issuance. The findings statement said that "since the entire lot is in a freshwater wetland M-20, this project will result in the loss of approximately 6,000 square feet of Class I freshwater wetland" and that the FEIS did not offer any meaningful mitigation.

On January 2, 1998, the Applicant filed an Article 78 action in the Supreme Court, Suffolk County, (Matter of Benincasa v. NYSDEC, Index No. 98-00051) asking that the DEC Staff's permit denial be rendered void and the permit granted or that the Applicant be granted an administrative hearing, pursuant to his May 23, 1997 request.

A request for hearing was received by Office of Hearings and Mediation Services on January 2, 1998. At that time ALJ John H. Owen was assigned to the matter.

A Combined Notice of Complete Application and Notice of Public Hearing was prepared and published in the Long Island Advance on March 26, 1998 and in the Environmental Notice Bulletin on April 1, 1998. This notice stated that a legislative hearing, an issues conference, and an adjudicatory hearing would be held at 10:00 a.m., on April 21, 1998. These proceedings were governed by 6 NYCRR Part 624. Following the scheduling of the administrative hearing, the Applicant withdrew his Article 78 proceeding.

No petitions for party status were received and the only parties in this proceeding are DEC Staff and the Applicant. Pursuant to the Combined Notice, a Legislative Hearing was convened. No members of the public spoke on the record.

Immediately following the close of the legislative hearing record, an issues conference commenced. Five issues were identified for adjudication. The adjudicatory hearing commenced at the close of the issues conference. However, after the adjudicatory hearing commenced a dispute arose between the parties regarding the meaning of a stipulation the parties had entered into. DEC Staff believed that they had stipulated to the fact that the project was to be located within a tidal wetland, while the Applicant believed they had stipulated that the project was to be located in an adjacent area of a tidal wetland.

DEC Staff asserted that the proposed project was to be built entirely in a wetland area, while the Applicant asserted that the then current map showed the parcel to be in an adjacent area. DEC Staff stated that the parcel needed to be remapped to reflect changes to the boundary of the wetland since the last mapping. The ALJ then adjourned the hearing without a resumption date, pending remapping.

Following this adjournment, the Applicant again filed an Article 78 proceeding (Matter of Benincasa v. NYSDEC, Index No. 98-19842). On January 12, 2000, Justice Coholan of the Supreme Court, Suffolk County, ordered that the adjudicatory hearing recommence and that a final decision be rendered on the Applicant's permit within thirty days. This ruling was appealed and this appeal is now pending before the Appellate Division, First Department. While the appeal is pending, it is the position of Attorney General's Office that Justice Cohalan's decision is stayed pursuant to CPLR §5519(a)(1) [May 30, 2000 correspondence from Assistant Attorney General Philip Bein to ALJ Garlick].

On April 24, 2000, the Commissioner of DEC signed the order amending the wetlands map for the Applicant's property. This new map clearly shows that the Applicant's property is now within a wetland and not within an adjacent area.

On May 15, 2000, I was assigned to this matter, following the retirement of ALJ Owen. On that date, I informed the parties by writing of my assignment, scheduled the hearing to resume on June 28, 2000, and requested the Applicant to secure a hearing room and stenographer. The Applicant's attorney subsequently argued that the Administrative Hearing was stayed by the pending action in Supreme Court. On May 31, 2000, I again wrote to the parties and stated that upon review of the matter, I found no reason not to proceed with the administrative hearing and again requested the Applicant to secure a hearing room and stenographer.

Having not received any indication from the Applicant that he had arranged for a hearing room or stenographer in this matter, on June 13, 2000 I wrote to the parties informing them that I now considered this matter adjourned at the request of the Applicant.

The matter remained in abeyance until August 7, 2000, when the Applicant's attorney wrote informing me and the DEC Staff that his client was now prepared to continue with the hearing. Attached to this letter was a June 10, 2000 decision in this matter by Supreme Court Justice Cohalan denying the Applicant's motion for an Order directing NYSDEC to use the wetland map in existence at the time of the April, 1998 adjudicatory hearing.

Following correspondence between the parties, on August 28, 2000, I wrote to the parties asking a series of preliminary questions. Based upon the responses of the parties to these questions, I make the following rulings.

Rulings

Ruling 1: There is no need for a new legislative hearing.

In response to my inquiry, DEC Staff suggested that the hearing in this matter be re-noticed and a new legislative hearing be held. The Applicant's counsel opposed this suggestion and noted that such a course was unnecessary, given the lack of public interest in this project (as demonstrated by the fact that no one spoke at the April 1998 legislative hearing), and that renoticing would involve additional expense and delays.

I concur with the Applicant. The scheduling of a new legislative hearing is not necessary. This matter was adjourned by ALJ Owen and an opportunity for public comment has been afforded. Consequently, in order to efficiently conduct the hearing I find that there is no need for a second legislative hearing (6 NYCRR 624.8(b)(xv)). This is also consistent with my letter of May 15, 2000.

Ruling 2: A new issues conference is necessary.

Both DEC Staff and the Applicant both believe that a new issues conference is necessary. I concur. The previous issues conference in this matter was based upon stipulated facts. However, as discussed above, there was no 'meeting of the minds' as to the meaning of the stipulation and consequently the issues identified in April, 1998 are not valid.

Ruling 3: There is no valid reason for ALJ Garlick to recuse himself.

The Applicant's attorney has requested that I recuse myself from adjudicating this matter. In his letter dated September 13, 2000, the Applicant's attorney stated that his request for recusal was based upon his perception that I was biased against his client. Specifically, the Applicant's attorney argued that I had attributed the delays in scheduling the hearing to his client's actions. DEC Staff does not concur in this request.

An ALJ shall recuse himself if he is unable to conduct a hearing in a fair and impartial manner, has a personal interest in the subject of the hearing, has a personal bias, or for other good cause (6 NYCRR §624.8(b)(2)). Upon a review of the correspondence in this matter, I find no evidence to support the Applicant's attorney's contention that I have a personal bias and cannot conduct this hearing in a fair and impartial manner.

As discussed above, this matter was assigned to me, following the retirement of ALJ Owen, on May 15, 2000. At that time I immediately sought to schedule the continuation of the hearing and set the date of June 28, 2000 to resume. Prior to resumption, it was necessary for the Applicant to secure a hearing location and a stenographer. The Applicant failed to notify me that he had made such arrangements. Accordingly, no hearing occurred on June 28, 2000 and I informed the Applicant that due to his failure to secure a hearing location and stenographer, I considered the matter in abeyance at the request of the Applicant. It was not until the Applicant's attorney wrote to me on August 7, 2000 that I was informed that the Applicant was now prepared to continue with the administrative hearing. The only delay I attribute to the Applicant is the six week delay between June 28, 2000 and August 7, 2000. I have made no statements regarding any other delays, nor have I formed any opinions on the matter. The Applicant's attorney is mistaken if he believes that I have pre-determined that Mr. Benincasa is responsible for any delay beyond the six week delay described above.

Therefore, I find that the Applicant's request that I recuse myself to be meritless. There is nothing in the record that indicates that I will not be able to conduct the hearing in a fair and impartial manner.

Ruling 4: The wetlands map to be used at the adjudicatory hearing will be Official New York State Tidal Wetlands Map No. 682-512 as amended by DEC Commissioner's Order dated April 4, 2000.

There is no dispute between the parties that it is within my authority to rule which wetlands map should be used in this adjudicatory hearing. The Applicant seeks to use the wetlands map that was in effect at the time of the original hearing in April, 1998. This map showed the Applicant's property to be within an adjacent area to a wetland. DEC Staff, on the other hand, advocates using the most current wetlands map which was amended following the adjournment of the hearing in this matter and which shows the Applicant's property to be within the wetland itself. The distinction is important because the standards for permit issuance are more strict for the placement of structures within a wetland compared to the standards for placement of a structure in an adjacent area.

The boundaries of wetlands move over time due to natural occurrences. In this case, the Commissioner of DEC has found that the boundary of the wetland has moved and the Applicant's property is no longer in an adjacent area but is now within the wetland itself. Courts have upheld DEC Staff's authority to remap tidal wetlands as environmental conditions change and wetland boundaries move. (Thompson v. DEC, 130 Misc.2d 123, 495 N.Y.S.2d 107 (Sup. Ct. Suffolk Co. 1985), affirmed 132 A.D.2d 665, 518 N.Y.S.2d 36, appeal denied 71 N.Y.2d 803, 527 N.Y.S.2d 769, 522 N.E.2d 1067). Therefore, as a matter of law, the Applicant's property is now within a wetland and the appropriate map to use at an adjudicatory hearing is the most recent one, the Official New York State Tidal Wetlands Map No. 682-512 as amended by DEC Commissioner's Order dated April 4, 2000.

Appeals

This ruling may be appealed to the Commissioner on an expedited basis. 6 NYCRR 624.8(d)(2). Ordinarily, expedited appeals must be filed with the DEC Commissioner in writing within five days of the disputed ruling. 6 NYCRR 624.6(e)(1). However, I provide that any appeals must be sent to Commissioner John P. Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York 12233-1010) before 5 p.m. on November 3, 2000. Any responses to any appeals must be received before 5 p.m. on November 10, 20000. The parties shall ensure that transmittal of all papers is made to me and all parties at the same time and in the same manner as transmittal is made to the Commissioner. Please send two copies of any appeal that is filed. No submissions by telecopier will be accepted. Appeals should address this ruling, rather than merely restate a party's contentions. Any request for an adjustment to the appeal schedule must be made to DEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.

/s/
By: P. Nicholas Garlick
Administrative Law Judge

Dated: October 26, 2000
Albany, New York

Richard I. Scheyer, Esq.
Sheyer and Jellenik
227 Middle Country Road
Smithtown, NY 11787

Craig Elgut, Esq.
Assistant Regional Attorney
NYSDEC
SUNY Campus, Building 40
Stony Brook, NY 11790-2356

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