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Brookhaven, Town of - Summary Hearing Report, January 13, 1998

Summary Hearing Report, January 13, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In Consideration of the
Preliminary Coastal Erosion Hazard Area Map for Oceanfront property located on

Fire Island
within the Town of Brookhaven
(Suffolk County)

SUMMARY HEARING REPORT

- by -

____________/s/_____________
Frank Montecalvo
Administrative Law Judge

BACKGROUND

Environmental Conservation Law ("ECL") Article 34 (Coastal Erosion Hazard Areas), also known as the "Shoreowner's Protection Act," recognizes the need to safeguard beaches and coastal areas from erosion caused by storm, flooding and the battering of waves. Article 34 is intended to ensure that activities in such areas are undertaken in a manner which minimizes damage to property and prevents the exacerbation of erosion hazards. (See ECL 34-0101, 34-0102).

Pursuant to this law, the Department of Environmental Conservation (the "Department" or "DEC") is charged with mapping critical erosion areas, notifying property owners, furnishing them with an opportunity to be heard, and issuing a final map (ECL 34-0104).

Once a final map has been issued, localities or counties are given the option of regulating these coastal erosion hazard areas with DEC's approval (ECL 34-0105, 34-0106). Where they fail to do so, the DEC is then required to regulate these areas (ECL 34-0107).

After the coastal erosion hazard management program has been implemented, any person proposing to undertake a regulated activity within a designated erosion hazard area must first obtain permission from the regulating entity (see e.g., ECL 34-0109), except where the law states that its provisions do not apply. ECL 34-0113 specifies those situations where the provisions of Article 34 do not apply, e.g., situations where certain actions may have been taken prior to approval or promulgation of coastal erosion hazard regulations.

To implement Article 34, the Department promulgated rules and regulations found at Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York ("6 NYCRR") Part 505 (the "Coastal Erosion Management Regulations").

PROCEEDINGS

This proceeding involves consideration of the Department's Preliminary Coastal Erosion Hazard Area Map for Oceanfront Property located on Fire Island within the Town of Brookhaven (Suffolk County) (the "Map"), prepared pursuant to ECL 34-0104(l).

Preliminary Coastal Erosion Hazard Area Maps identify shoreline areas which contain natural protective features such as beaches, dunes, bluffs and near shore areas that protect coastal lands and development from the adverse impacts of erosion and high water. These maps delineate as accurately as practicable the actual erosion hazard area boundaries in accordance with the requirements of Article 34.

For oceanfront property located on Fire Island within the Town of Brookhaven, the Map consists of twenty-two (22) panels of enlarged aerial photographs at a scale of 1 inch equals 200 feet (1" = 200 feet), upon which is superimposed a line identifying the landward limit of the coastal erosion hazard area. The Map also includes an index map showing the geographic location of each panel. These twenty-two panels cover the Atlantic Ocean shoreline of Fire Island from Seaview eastward to Cupsoque Park.

In accordance with ECL 34-0104(2), the Department scheduled a public hearing in order to afford an opportunity for any person to propose changes in the preliminary identification of the coastal erosion hazard areas shown on the Map.

Notice of the public hearing (the "Notice") was published on August 13, 1997, in the Department's Environmental Notice Bulletin, and on August 14, 1997, in the Long Island Advance. Individual Notices were also sent by certified mail to the supervisor and clerk of the Town of Brookhaven, and to each owner of record, as shown on the latest completed tax assessment rolls, of lands included within the preliminary identification of an erosion hazard area.

The Notice stated that copies of the Map, and the applicable statute and regulations, were available for inspection during regular business hours at the Brookhaven Town Clerk's Office, 205 South Ocean Avenue, Patchogue, N.Y.; at the Town's Department of Environmental Protection, Building 2, Room 201, 3233 Route 112, Medford, N.Y., and at the DEC Region 1 Office, SUNY Campus, Loop Road, Building 40, Stony Brook, N.Y. The Notice further provided that on a date prior to the public hearing, a public information meeting would be held by the Department Staff at St. Joseph's College Main Building Auditorium, 155 West Roe Boulevard, Patchogue, N.Y., on Wednesday, August 20, 1997, at 7:30 P.M., to explain the Coastal Erosion Management Program and to give the public an opportunity to review the Map.

As advertised in the Notice, the public hearing was held before Frank Montecalvo, Administrative Law Judge, at 7:30 P.M. on September 10, 1997, at the St. Joseph's College Main Building Auditorium, 155 West Roe Boulevard, Patchogue, N.Y. The expressed purpose of the hearing was to hear any person and/or receive written statements concerning recommended additions, deletions or revisions to the Map.

The Department's Coastal Erosion Management Staff was represented at the hearing by Boyd Kaler, Environmental Program Specialist, and Frederick Nuffer, Director, Bureau of Flood Protection, both from the DEC Albany Central Office; and by William Southard, Environmental Program Specialist, from the DEC Region 1 Office. The Map was available for reference and inspection at the hearing. The Department Staff provided additional information on the mapping process and the individual erosion hazard areas for anyone requesting such information.

Approximately sixty (60) persons attended the hearing, of which four persons (excluding DEC Staff) made statements for the record (two of which were supplemented by submissions that were marked as exhibits).

In accordance with the hearing Notice, written statements were also accepted for the record before, at and following the hearing through December 10, 1997. Forty-six (46) additional statements were filed by fifteen (15) different representatives. The hearing was stenographically transcribed and the record of the hearing was closed upon the expiration of the advertised written comment period, December 10, 1997.

The written and oral statements are summarized below.

SUMMARY OF ORAL AND WRITTEN STATEMENTS

The comments reflect an overriding concern that certain property owners, because the Map places their properties within the Coastal Erosion Hazard Area ("CEHA"), may be unable to rebuild should they suffer property damage, even though government projects are now in the works which are expected to protect these areas from coastal erosion. Requests were made that the mapping process be deferred in order that the physical changes to be made by pending beach or dune restoration projects could be accounted for in the placement of the line designating the CEHA.

Two different projects were referenced. One project is the Fire Island Pines Beach Nourishment Project, sponsored by the Fire Island Pines Beach Erosion Control District. This project was apparently in progress at the time of the hearing and was expected to be completed by the end of October, 1997, depending on the weather. The other project, sometimes referred to as the "Fire Island interim project," apparently would run the length of Fire Island, has been proposed by both the U.S. Army Corps of Engineers and the DEC, and is expected to begin in 1999 and be completed anywhere from 1999 to 2001.

Commenters appear to believe that the Department does not perceive the Fire Island Pines project large enough to be protective (and worth waiting a few weeks for), because there is no 30-year project replenishment schedule. However, because they also see the much larger Corps of Engineers/DEC project as occurring relatively soon, they do not believe there is a need for a 30 year replenishment schedule. They believe that with the Corps/DEC project in the works, the Pines project will be sufficient to justify redrawing the line upon its imminent completion. Essentially, there is concern that with the position of the line as shown now on the Map, there may be some persons, even though they will be protected by the Pines project, who will not be permitted to rebuild should they suffer property damage between now and the time the CEHA line is redrawn to reflect completion of the Corps/ DEC project.

Even though this hearing was not intended to determine or establish the rights of particular individual property owners to be free of Article 34 application pursuant to ECL 34-0113, numerous documents were submitted for inclusion in the record for this purpose. Since such information is not germane to the mapping of the CEHA, the documents are not reviewed in this Report. Nevertheless, appended to this Report is a Table listing all persons making oral and written comments and what they submitted, thus there is a record of what they submitted (see Appendix A - Table of Submissions).

  1. Irving Like, an attorney with Reilly, Like, Tenety, Ambrosino & Vetri from North Babylon, spoke and submitted documents on behalf of the Fire Island Pines Property Owners Association (FIPPOA, having 700 members owning property on Fire Island in the Town of Brookhaven), and on behalf of Mr. Joseph Messina, a particular property owner. Mr. Like later filed several additional written statements on behalf of FIPPOA and a number of other named property owners.

    Mr. Like requested that the DEC defer mapping the coastal erosion hazard area for the Fire Island Pines community until the Fire Island Pines 1997 Beach Nourishment Project is completed. This project has been DEC and Corps of Engineers permitted, and Department of State certified as consistent with the state's coastal zone management program. The project, involving an expenditure of at least 2.3 million dollars, and intended to repair the damage that was caused to the Pines' beach and dune system by 1992 and 1993 storm events, is designed to make certain that sufficient volumes of sand are provided on the beaches and dunes. The project will create a new primary dune which will be located south or seaward of the existing primary dune, as shown on DEC's preliminary coastal erosion hazard map. The project was expected to be completed in the fall of 1997.

    Mr. Like also requested that the DEC use the beach nourishment project maps and drawings (marked into the record as Exhibit 3) to identify the coastal erosion hazard area, claiming that they are as good as or superior to the stereoscopic and other methods or the aerial photographs that DEC used to indicate the preliminary lines on the Map. Mr. Like indicated that upon project completion, his clients would be able to submit to the Department the "as-built" drawings.

    Mr. Like expressed the belief that all property owners in the Pines who received certificates of occupancy prior to July 27, 1981 (the date that the statute was enacted), have "grandfather status," pursuant to ECL 34-0113 and would be exempt from the application of Article 34. He requested that the DEC General Counsel consider explaining the meaning of this provision. With regard to "grandfathered status," Mr. Like submitted to the record documentation intended to establish such status for several land owners, as well as a brief detailing applicable statutes and case law.

    Mr. Like argued that such "grandfathered" status also entitles these property owners to restoration of the primary dune as it existed as of July 27, 1981, which location, determinable through historical records and documentary evidence, was located south (i.e., seaward) of that shown on DEC's preliminary coastal erosion hazard area map. In this regard Mr. Like contended that such landowners are entitled to have the Map conform to the new primary dune to be created by the restoration project insofar as that project creates a new primary dune in the area between the existing dune and the dune as it existed on July 27, 1981.

    Mr. Like argued that the Fire Island Pines property owners have "vested rights" to be mapped on the basis of the new primary dune which will be created by the restoration project that was approved and permitted by the DEC before there was any notice of the Department's intention to bring these proceeding under Article 34. Essentially, because the Department authorized the creation of the new primary dune, and substantial expenditures have been incurred and property physically altered in reliance on same, Mr. Like believes that property rights have vested and the Department is now bound to draw the hazard line co-terminus with that which will be established after the project is completed. If the DEC declines to accept the new primary dune as the basis for any mapping, Mr. Like believes the action will result in a taking, and will cause substantial damage for the rights of the affected owners.

    Lastly, noting that this mapping has been pending since 1983, Mr. Like argued that there is no urgency for DEC to complete mapping now, and requested that the record be kept open and mapping be deferred until the restoration project is completed and his clients have an opportunity submit to DEC the as-built drawings.

  2. Alan Brockman, the president of FIPPOA, added to the comments made by Mr. Like. He noted that this matter was previously the subject of a hearing in 1983 that was attended by over 500 homeowners from Fire Island within the Town of Brookhaven. Mr. Brockman contended that these homeowners strenuously objected to the placement of provisions upon them without any advance warning or discussion, and that the objections resulted in this matter remaining dormant for 14 years without adverse impact to the State or the communities affected. Mr. Brockman, understanding that the Department is proceeding now so that an interim project for all of Fire Island may proceed, noted that the interim project may be many years away. He contended that the regulations are being put into place now as a policy matter, rather than because of any new-found erosion problem, and, thus, the DEC could defer this effort until the Fire Island Pines project is completed and can be accounted for. He asserted that at that time, a much more accurate boundary may be drawn, as opposed to the one now on the Map which appears to have been "eyeballed" rather than being based on scientific data. He requested that mapping be deferred pending completion of the Fire Island Pines project.
  3. Ed Schulhafer, an owner of property in Fire Island Pines and a member of the Board of Directors of FIPPOA, argued that the currently mapped line is "a blight to Fire Island in general and Fire Island Pines in particular" and is " a taking of private property without just compensation." He contended that the request for delay until completion of the Fire Island Pines project was modest and reasonable and should be granted. However, he also believed that there is no reason why this matter could not be delayed until the interim project for beach restoration on all of Fire Island is completed.
  4. Gerard Stoddard, the president of the Fire Island Association (FIA), both spoke and made written submissions. He indicated that his organization opposed the implementation of Article 34 in the past because they felt that the erosion problem on Fire Island was caused partly by government actions at Moriches and Westhampton. These actions allegedly blocked the littoral drift of sand that otherwise would have protected Fire Island beaches, essentially creating the erosion hazard that the statute addresses. Since Article 34 entails establishing a construction control line, FIA believes that the government should fix problems that it helped cause before it sets up a line that could restrict an owner's use of property. Essentially, FIA believes it is arbitrary, unfair, unwarranted and unnecessary to reduce an owner's right to rebuild property when the government played a significant role in creating the situation now used to justify the reduction.

    Mr. Stoddard pointed out that when Congress established the Fire Island National Seashore, the Seashore was charged with preparing zoning standards designed to insure that existing communities would remain substantially as they were when the seashore was established. He noted that both the federal regulations (36 CFR Chapter 28) and the Brookhaven Code provide for construction control lines, that these jurisdictions have drawn their lines in the same place, but that the Map has placed the State line in a different location.

    FIA supports the Corps of Engineers and DEC Fire Island interim project which will produce a new primary dune or "natural protective feature" under the statute, and result in relocation of the CEHA to 25 feet landward of the limit of that project. At that time, FIA anticipates that Congress would relocate the boundary of the federal dune district to be coterminous with the state's CEHA boundary, and property owners and regulators alike would benefit from having a single construction control line to deal with.

    In the meantime, however, Mr. Stoddard contended that the Department has tried to place the boundary at the landward toe of the existing primary dune (6 NYCRR 505.2(dd)) where such is believed to be undiscernible by stereoscopic photography aided by on-site inspections. DEC's placement of the line is perceived to be arbitrary under these circumstances. In this vein, it was essentially argued that given the pending Corps/DEC project which would make any 30 year replenishment requirement unnecessary, it would be more reasonable for DEC to place the hazard line consistent with where the Pine's project will place the area's "primary protective feature," a berm, consisting of a half million cubic yards of sand.

    Mr. Stoddard indicated, however, that FIA was concerned that persons would be unable to receive permission to repair damage between the time the current boundary becomes effective and the time the boundary can be moved to conform to the Corps/DEC project, requested that such project be implemented as soon as possible, and requested that the CEHA boundary not become final until that project is completed. As an alternative to using Article 34 to regulate reconstruction before the Corps Project is completed, Mr. Stoddard suggested that the Department use its authority under Article 25, the Tidal Wetlands Act.

    FIA requests five things: (1) that DEC provide written assurance that the CEHA boundary will not become final until the Corps project has been completed, (2) that DEC support the Corps project being formally adopted by the Legislature as part of the state's coastal zone management program, (3) that DEC continue to regulate house reconstruction under Article 25 rather than Article 34 until the Corps project is in place, (4) that at that point Article 25 no longer be applied to ocean beaches, and (5) that the DEC accommodate the unique circumstances of Fire Island Pines in light of the measures they have taken to help themselves.

  5. George C. Palmer, a long time homeowner on Fire Island, wrote to the Governor to state his belief that Article 34 implementation is an attempt to ease homeowners out of their homes.
  6. Walter C. Reich of the Fire Island National Seashore Advisory Board submitted for the record a copy of a letter from DEC Regional Attorney Riley to Alan Brockman.
  7. William Peil and Dorothy Peil Witkowski wrote to protest inclusion of their property in the CEHA, noting their home ownership since 1964.
  8. Marilyn Feldstein wrote that she did not understand purpose of the hearing since she has owned her property for more than 25 years and has been prevented from building by the U.S. government. She would like to be reimbursed for the value of her property.
  9. John Lund, president of the Davis Park Association, wrote to support the FIA position and reiterated the FIA's requests.
  10. George L. Marks, a property owner, wrote to support and reiterate the FIA position and requests.
  11. Charles W. Bowman, president of the Land Use Company, Inc., in a letter dated October 30, 1997, wrote to point out what he called "innumerable inconsistencies in the 'landward limit of the natural protection feature line' (landward toe of dune), " state his belief that the line was subjectively drawn "with no clear criteria for its placement," and request that the methods used be reevaluated and the line redrawn. Attaching an exhibit (#1), he noted several areas on the Map where the "natural protection feature line" falls on or near the top of secondary dune formations, and opined that the line should fall further south, in the area of the primary dune.

    Referring to a second exhibit in his letter (#2), pertaining to sheet 8 of the Map in the community of Seaview, he stated that "[b]eginning at the eastern boundary of the community, the CEHA line is situated at a reasonable location, but changes abruptly as it moves west over contours ranging from 9.1' to 12.6'," and opined that the line should take a course further south where elevations range from 8.0' to 10'. He stated that these elevations follow the natural landward toe of the dune in that area, and that this inconsistency is evident throughout the entire CEHA map.

    Referring to a third exhibit (#3) and the Map near Kismet, he noted that the line runs through a thick area of vegetation. He questioned how the line in this area was determined, and opined that visual inspection must be made to accurately and correctly locate the line.

    With reference to the Kismet area of the Map, a fourth attached exhibit (#4), and beach scraping projects by six communities authorized by DEC during 1997, Mr. Bowman questioned what appeared to be a change of mind on the part of DEC concerning the location of the primary dune and pointed out what appeared to him to be a differing approach and opinion between the DEC officials who authorized the placement of sand during on-site inspections and those persons who prepared the Map.

    In another letter dated November 17, 1997, with general reference to Fair Harbor and specific reference to the Jerome Feder Parcel, Mr. Bowman opined that the line was drawn unreasonably northward of the primary dune which he located at the sand fencing that appears in the Map. A copy of the relevant portion of the Map and surveys pertaining to the Feder parcel were enclosed with his request that the line be redrawn with reference to that parcel.

    Mr. Bowman also made several written submissions as agent of a number of specific landowners intended to document conditions which pre-existed Article 34. These are listed in the appendix to this report.

  12. Jerome Levy, on behalf of the Seaview Association, wrote to support the FIA's position, reiterate its requests, and submit a copy of an article entitled "The Sand Thieves of Long Island's South Shore."
  13. Michael G. Romanelli from Cherry Grove wrote and indicated that the line was based on 21 year old information that is no longer valid. He opined that dune protection does not require selective denial of property use, and pointed to the local Dunes Committee's protective activities and positive results. He noted the establishment of a new dune system near Aeon Walk, fully 90 feet south of the 1976 dune line. He questioned the enforcement of a law that is based on changing natural conditions, and seemed to think that people would be penalized for things beyond their control.
  14. O.W. Svenson submitted several documents to establish the long term presence of his Fair Harbor cottage.
  15. Diane Abell, Park Planner, for Constantine Dillon, superintendent with the U.S. Department of the Interior, National Park Service, wrote and pointed out that the CEHA is within the Fire Island National Seashore. It was noted that although the Federal Government approved New York's coastal policies (including Article 34) in 1981, Fire Island remains the only coastal zone in the State that is not yet regulated by Article 34. As such, implementation of the CEHA without delay or change based on any temporary or interim projects was supported.

    It was noted that the Corps project was intended to be an interim project (prior to a "Reformulation" study and course of action for all the south shore of Long Island), directed to be reversible, and was not to involve a long term commitment of resources. In other words, the Corps interim project should be viewed as temporary in nature. Redrawing the CEHA seaward to account for such was seen as resulting in new construction that would only add to the amount of damage that would inevitably result from predictable flooding and erosion. It was argued that this would impose additional burdens on both local governments and individual owners.

    Since neither the Pines nor the Corps projects were anticipated to have any effect on the location of the primary dune, it seemed illogical to the writer to postpone or redraw the line to account for these projects.

    It was noted that shoreline construction resulting from an artificial fill project would not be consistent with the Federal Zoning Standards for Fire Island National Seashore. It was also noted that it would be illegal under the National Environmental Policy Act (NEPA) to presuppose the outcome of the Reformulation Study. The writer indicated that such would be the effect of shifting the line southward to account for the projects. Additionally, it was argued that any public presumption that the Reformulation Study would result in a larger beach fill project would be based on misinterpretation of what the study is intended to accomplish.

    Regarding the suggestion that the Federal and State lines ultimately would be the same, it was pointed out that this could not happen without changes to the respective laws.

  16. Robert Palermo wrote to confirm his understanding that property owners may make reasonable emergency repairs as needed without first obtaining DEC permits and that after the emergency the property owner will be required to file for the permits.
  17. Katharine G. Sommers wrote and submitted documents intended to ensure her right to rebuild her property in the event of disaster.

CONCLUSION

The Department's Coastal Erosion Management Staff should review the challenges to the Map for a precise determination in locating the erosion hazard line on each individual property (where such field inspections have not already been completed) and then make any necessary changes as may be needed or warranted to the preliminary map. Upon completing this review and making any necessary changes, the Staff should then forward the final Coastal Erosion Hazard Map to Commissioner Cahill for appropriate further action pursuant to ECL 34-0104(3).

Appendix A - Table of Submissions

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