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Cassese, Annette - Decision, December 29, 1994

Decision, December 29, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In the Matter of

the Application of Annette Cassese for
Tidal Wetlands and Protection of Waters Permits,
a variance from the tidal wetlands setback requirement, and a water quality certification
pursuant to Environmental Conservation Law Articles 25 and 15, and Title 6 of the
Official Compilation of Codes Rules and Regulations of the State of New York Parts 661 and 608

Application No. 1-2820-01106/00001-0

DECISION

December 29, 1994

Decision of the Commissioner

The attached Hearing Report (the "Report") of Administrative Law Judge ("ALJ") Frank Montecalvo, including its Findings, Conclusions and Recommendation, in the matter of the application submitted by Annette Cassese (the "Applicant"), 116 Shore Drive, Oakdale, NY 11769, for Tidal Wetlands and Protection of Waters Permits, a variance from the tidal wetlands setback requirement, and a water quality certification, is hereby adopted as my Decision in this matter.

The Applicant proposes to construct a single family dwelling, driveway, bulkhead, dock, ramp and float on Florence Avenue (on the Florence Canal and Millburn Creek), in the Village of Freeport, Town of Hempstead, Nassau County, N.Y. The dwelling would be located between 0 and 6 feet from tidal wetlands at its closest point, requiring a variance from setback requirements. The bulkhead construction and filling would result in elimination of all of the site's high and intertidal marsh, and most of its shoals and mudflats.

As explained in the Report, the proposed bulkhead and fill render the proposed project unpermittable because they would have an undue adverse impact on and be incompatible with the wetland's values for marine food production, wildlife habitat, recreation and aesthetic appreciation, and cleansing ecosystems and absorption of silt and organic material. Therefore, permits to build the bulkhead and to fill do not meet the permitting standards in 6 NYCRR 661.9(b)(l)(i)(iii) and (v).

Since the project cannot be constructed safely without a bulk-head, the subject application is denied.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports and other papers relating thereto in its office in the County of Albany this 29th day of December, 1994.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

TO: Annette Cassese
116 Shore Drive
Oakdale, NY 11769

Gail Hintz, Esq., Assistant Regional Attorney
NYSDEC Region 1 Offices
Building 40, SUNY Campus
Stony Brook, NY 11790-2356

Stephen R. Angel, Esq.
Esseks, Hefter & Angel
108 East Main Street
P.O. Box 279
Riverhead, NY 11901

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Office of Hearings
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In the Matter of

the Application of Annette Cassese for
Tidal Wetlands and Protection of Waters Permits,
a variance from the tidal wetlands setback requirement, and a water quality certification
pursuant to Environmental Conservation Law Articles 25 and 15, and Title 6 of the
Official Compilation of Codes Rules and Regulations of the State of New York Parts 661 and 608

DEC Project No. 1-2820-01106/00001-0

HEARING REPORT

-by-

________________/s/__________________
Frank Montecalvo
Administrative Law Judge

The Proposed Project and Permits Sought

Annette Cassese, 116 Shore Drive, Oakdale, NY 11769 (the "Applicant") seeks Tidal Wetlands and Protection of Waters Permits, a variance from the tidal wetlands setback requirement, and a water quality certification (collectively, the "permits") from the Department of Environmental Conservation (the "Department" or "DEC"). Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 25 (Tidal Wetlands); Article 15, Title 5 (Excavation and Fill in Navigable Waters); and Article 8 (Environmental Quality Review). Also, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 661 (Tidal Wetlands); Part 608 (Use and Protection of Water); and Part 617 (SEQR).

The Applicant proposes to construct a single family dwelling, driveway, bulkhead, dock, ramp and float (the "proposed project") on Florence Avenue (on the Florence Canal and Millburn Creek), in the Village of Freeport, Town of Hempstead, Nassau County, N.Y. The dwelling would be located between 0 and 6 feet from tidal wetlands at its closest point, requiring a variance from setback requirements. The bulkhead construction and filling would result in elimination of all of the site's high and intertidal marsh, and most of its shoals and mudflats.

Proceedings

The permits were initially applied for in 1988. Following submission of other documents, DEC Region 1 Staff ("Staff") determined the application to be complete on or about January 22, 1992. The DEC Office of Hearings received the file from Staff on or about September 29, 1993 for the purpose of scheduling a public hearing. On September 30, 1993, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

Following the parties' agreement on a hearing date, a hearing notice was issued November 1, 1993 that was subsequently withdrawn before publication at the Applicant's request. Following a change in Applicant's representation, rescheduling of the hearing was held in abeyance until the parties decided how they wanted to proceed.

By letter dated April 12, 1994, Applicant requested that the hearing be scheduled. In a subsequent conference call, the parties advised the ALJ that they could not agree on the location of the tidal wetland boundary at the proposed project site, that proceedings to amend the applicable tidal wetlands map were incomplete, and that they disagreed over whether or not the hearing had to be postponed until after re-mapping. On the last matter, the parties agreed to file a motion and response to explain their positions, and agreed to further postpone scheduling of the hearing until after the ALJ made a ruling. Briefing on this issue was completed May 10, 1994. Following another conference call during which the parties agreed to present their cases at hearing using alternative boundary lines, on May 17, 1994 the ALJ denied further postponement. The parties subsequently agreed on the hearing date.

The Notice of Complete Application and Public Hearing (the "Notice") was issued May 26, 1994, and was published in DEC's Environmental Notice Bulletin on June 8, 1994, and in The Leader (Freeport, NY) on June 9, 1994. Notice was also directly mailed on June 6, 1994 to the clerk or chief executive officer of the Village of Freeport, the Town of Hempstead, and Nassau County, as well as to other persons deemed interested in this proceeding.

As provided in the Notice, the ALJ convened the public hearing at 10:00 AM, Monday, July 18, 1994, at the Town of Hempstead Department of Conservation and Waterways Building, Lido Boulevard, Point Lookout, N.Y., opening with a public statement session. No oral comments were made on the proposed project. Two written comments were filed by the deadline stated in the Notice and one arrived shortly after. These are summarized in Appendix A.

DEC Staff was represented at the hearing by Gail Hintz, Esq., Assistant Regional Attorney. The Applicant was represented by Esseks, Hefter & Angel; Stephen R. Angel, Esq., of counsel. No requests for Party Status were filed.

An Issues Conference was convened immediately following the public statement session. Staff reported that it decided not to pursue remapping of the tidal wetland boundary on the proposed project site. Potential issues were discussed and either resolved or narrowed and set forth. None were appealed. These are identified below ("Issues").

The adjudicatory hearing commenced immediately following the Issues Conference, and concluded the next day. Applicant called as her witness Roy L. Haje, President, En-Consultants, Inc. Staff called as its witnesses George Hammarth, Deputy Regional Permit Administrator; Kevin DuBois, DEC Marine Resource Specialist I; Alan Chwick, a neighbor of the project site; and Anne W. White, Senior Building Inspector with the Village of Freeport. Oral closing arguments were taken, and the record closed November 10, 1994 on receipt of the stenographic transcript.

Issues

Resolved issues:

The parties stipulated that [if permitted] the dwelling would be slightly relocated to take it completely out of the wetland, so that only the subsection (c) standards of 6 NYCRR 661.9 would apply to it. They also stipulated that the house's proposed location would be between 0 and 6 feet from the wetland itself depending upon the exact location of the boundary line in the eastern portion of the site (the location of which is disputed).

Hearing issues:

1) Is the average setback applicable? [661.6, Development Restrictions]

2) What is the average setback? [661.6]

3) Does the house qualify for a variance from either the average or 75' setback? [661.11, Variances]

4) Aside from developmental restrictions, does the dwelling meet the permit issuance standards under 661.9(c)(2) and (3)?

5) Is the bulkhead and backfilling compatible with the wetland? How does Applicant overcome the presumption of incompatibility under 661.5(b)(29) and (30), and meet the requirements under 661.9(b)(1)(i), (iii), and (v)?

Staff's Position

Staff claims that the Proposed Project does not meet any of the standards for permit issuance because Applicant failed to show that the project would cause no adverse impacts to the wetland. Staff argues that the site is greatly inured with tidal wetland values, and is the only undeveloped site in the neighborhood. Staff contends that the site is too small to be used for a single family dwelling or bulkhead, and would be more appropriately used for purposes which are compatible with its tidal wetland nature, such as water access, public access, and rental sites for marinas.

Noting Applicant's failure to offer a calculation to show "numerosity," Staff contends there is an insufficient number of qualifying structures to make the average setback rule applicable.

Staff posits that the house neither qualifies for the setback variance, nor meets the "adjacent area" permit issuance standards, because tidal wetland values would be unduly adversely affected.

Staff argues that the bulkhead and filling are not compatible with the wetlands, and are not permittable, because they would completely destroy or reduce the site's tidal wetland values for flood control, fish and wildlife use, marine food production, and recreation. Staff contends that these losses would result from the covering of the vegetated wetlands (high marsh, intertidal marsh), shoals and mudflats, and part of the littoral zone. Staff disputes any contention that the loss would be de minimis.

Applicant's Position

Applicant, who has sought to develop the site since 1988, acknowledges that both inventoried and non-inventoried tidal wetlands would be destroyed by the proposed bulkhead and filling, and that tidal wetland values are protected by statute. Applicant contends, however, that the only appropriate use of the site is for a single family dwelling, because the neighborhood is otherwise fully built up with single family residences on similar-sized parcels, and because the site is served by public water and sewer services. Citing two court decisions, Applicant argues that when her right to reasonably use her property conflicts with society's right to protect tidal wetland values, strict application of the regulations must give way to Applicant's reasonable use of her property. Applicant notes that the bulkhead is a necessary part of building the house, since it is required under the local ordinances. Thus, Applicant contends she should be granted the requested authorizations for the entire proposed project. Applicant acknowledges that the issue of economic harm is one for the courts, rather than a DEC tribunal, to determine.

Applicant contends that the average setback rule applies. Applicant argues that Staff's calculation of "numerosity," which includes the use of landlocked parcels, doesn't make sense. Applicant further argues that Staff's contention that 42 units is not numerous is "silly," because the 42 units amount to virtually all of the waterfront properties.

Applicant argues that because her lots were laid out in an urban area prior to 1973 and are capable of being hooked up to public sewer and water services, she has demonstrated the practical difficulty needed to receive a variance of the setback requirement.

Applicant admits that the project will have adverse impacts to the tidal wetland, but, in effect, argues that they are not "undue." In this regard she alleges that the project would involve only a small amount of wetlands within a "sea of development" which would have no cumulative effect on other wetland sites. She also argues that DEC's decision not to remap the site to show new tidal wetland boundaries and types demonstrates the unimportance of these wetlands. Applicant notes that the regulations recognize a house as being generally compatible with an adjacent area, and a bulkhead as generally compatible with shoals and mudflats and, while presumptively incompatible with vegetated wetland zones, still permittable there.

Applicant offers an alternative of slightly redesigning the bulkhead to remove the right angle at the northwest portion of property, and move it in no more than 4 to 5 feet. Applicant notes, however, that local building requirements further limit her options. In essence, Applicant argues that the proposed project with such a modification is the best that can be done to preserve wetland values while maintaining her right to build her house.

Findings of Fact

Project Site and Setting:

  1. The project site comprises six adjoining lots (designated on the Nassau County Tax Map as Section 54, Block 323, Lots 1 through 6; each lot being 70' x 20' except for lot 1 which is irregular) located at the western end of Florence Avenue, in the Meister Beach section of Freeport, Nassau County, New York. The site's lots were laid out prior to 1973, and they have been in single and separate ownership ever since prior to 1973. Applicant acquired the site from Harold O'Hara by deed dated June 10, 1983.
  2. The site is bounded on the west by Milburn Creek, and on the north by the Florence Canal. Milburn Creek and Florence Canal are navigable waters which provide recreational boat access to waterfront properties. Official Tidal Wetlands Map No. 618-498 classifies these waters as "LZ," littoral zone.
  3. The site is bounded on the east by a bulkheaded lot with dwelling, and on the south by Florence Avenue (which is bulkheaded at its western end, immediately adjacent to the site). A fence runs along the Florence Avenue side of the site. A gate gives access to the site at the site's southeast corner.
  4. The neighborhood's character is primarily residential with individual one-family homes of mixed styles on similar sized parcels. Immediately across Florence Canal from the project site is a group of multi-family dwellings. There are also a few commercial structures within 500 feet of the site on the other side of the creek and canal. Most of the waterfront within 500 feet of the site is developed and bulkheaded, and has been that way since 1977.
  5. Forty-two "pre-1977" residences on parcels bordering Milburn Creek or its connecting canals (including Florence Canal) can be identified within 500 feet of the project site. Out of these 42 residences, 40 are less than 75 feet from the water. Average distance to the water is approximately 26 feet. Because of bulkheading, the distance to the water is generally also the distance to the tidal wetland.
  6. Of all the lots within 500 feet of the project site (including non-waterfront lots), less than half have residences located within 75 feet of the tidal wetland.
  7. The project site includes both upland and land under water (either submerged at all times or subject to tidal inundation). Of a total of approximately 8,330 square feet, approximately 4,720 square feet lie above mean high water (i.e., upland), with the remainder below. Portions of the site immediately bordering the waterways have been designated littoral zone, "LZ", on the official wetlands map. There also are areas of shoals and mudflats ("SM") along the site's western shore and in the site's northwestern corner, landward of the "LZ" wetland, which are not shown as such on the official tidal wetlands map.
  8. Species found in the site's littoral zone and shoals and mudflats areas are Fundulus sp. (killifish), Menidia menidia (atlantic silversides, a fish), Glycera sp. (bloodworms) and "microphytobenthos" (various benthic macro algae). Fundulus serve as food for other fish and marine predators. Glycera are commonly sold for bait. Microphytobenthos, which are unicellular algae and bacteria that grow within the upper millimeters of marine sediments, fix carbon and serve as food for higher organisms.
  9. Intertidal ("IM") and high marsh ("HM") vegetation combined form a 12' deep band running along the site's northern shore landward of the littoral zone, with HM landward of IM. These areas are not designated as such on the official wetlands map. Low vigor Spartina alterniflora (saltwater or smooth cordgrass) and Limonium carolinianum (sea lavender) are located in a 1' to 7' wide band along the shore. While changing in exact location, the area of IM and HM vegetation has expanded landward the last few years, particularly along the eastern property line.
  10. Species found in the site's area of intertidal marsh vegetation are Spartina, Uca sp. (fiddler crab), Fundulus sp., (killifish), Modiolus demissus (ribbed mussel), and microphytobenthos. Spartina is a soil stabilizer and its seeds and plant parts provide food for birds. Modiolus lives half buried in the peat among roots of marsh grasses and filter water to feed, ultimately removing suspended sediments from the water.
  11. Species found in the site's area of high marsh vegetation are Salicornia europaea (common glasswort), Phragmites australis (common reed), Suaeda linearis (sea blite), Limonium, Atriplex sp. (spearscale), Solidago sempervirens (seaside goldenrod), Spergularia marina (salt marsh sand spurrey), and Uca. Phragmites is located primarily along the site's eastern property line, and sparsely elsewhere (generally along the shoreline, including upland areas). Phragmites is a soil stabilizer and provides cover for various birds and animals. Salicornia provides nesting and cover for certain birds and animals.
  12. The site's upland fluctuates in elevation between 4' and 7' (mainly 4' - 5'). A swale (depressed elevation) runs across the site's eastern half, and connects Florence Avenue near the gate with the Florence Canal.
  13. Species found on the site's upland are Aster sp. (aster), Solidago, Calystegia sepium (morning glory), Phragmites, various grass species, and insects (grasshoppers, spiders, worms).

Wetland benefits:

  1. The unbulkheaded site permits flooding of Florence Avenue and Brunella Street to regularly occur during extreme high tides, blocking the streets and inconveniencing local residents. Flood waters move from Florence Canal to the street through the site's swale. This and the following finding are actually negative benefits, i.e. normal wetland benefits of sedimentation and flood control are somewhat countered by the site's location in a developed area on navigable waters.
  2. The unbulkheaded site is eroding into the waterways. Over a period of years, the level of the site has dropped in relation to the property on the east to the point where sandbags have been placed along the site's eastern boundary to keep the adjoining property from eroding. The site's shoreline facing west (toward Milburn Creek) is sculptured from erosion. In 1988 the site's grade was generally flat. Since then the site's west shore has receded and the swale on the site's eastern portion has appeared. The access gate, which had been at grade in 1988, is no longer so.
  3. The site's vegetation can slow sediment float and remove debris from water that may pass through it during storms. The site's ribbed mussels filter and clean the water.
  4. People fish for fluke, flounder and eel off the bulkhead at the end of Florence Avenue immediately adjoining the site. People also go there to feed swans and ducks (such as mallards). These species are drawn to this location by the immediately adjacent shallow areas and shoals and mudflats of the site, because these parts of the site provide a "dinner plate" for species to feed and probably the only place in the area where ducks can haul out.
  5. The site's tidal wetlands have value for marine food production. The algae and bloodworms of the shoals and mudflats, Spartina and ribbed mussels of the intertidal zone, and high marsh plants all provide food for higher organisms, either directly or through fixing carbon or by breaking down and releasing nutrients to phytoplankton which is, in turn, fed upon.
  6. The site's tidal wetlands have value as wildlife habitat. Fishes in the canal use the shallow waters to avoid predators. Horseshoe crabs lay eggs in the shoals and mudflats. Species such as swans and ducks are able to use the shallow areas and the gradual sloping wetland to haul out of the water and rest, nest, and conduct other activities. Silversides lays eggs and killifish spawn in the grass of the intertidal areas. Ribbed mussels live in the banks of the intertidal area. Fiddler crabs have their burrows and live in the intertidal and high marsh areas. Phragmites in the high marsh provides cover.

The Proposed Project, Design Constraints and Expected Impacts:

  1. The proposed project contains the following components:
    1. constructing approximately 93 feet of bulkhead (the top at 6' elevation) parallel to the site's northern boundary, attached to and in line with the existing bulkhead to the east of the site; and 72 feet of bulkhead at a right angle and attached to the west end of the previously mentioned new bulkhead, running across the western portion of the site to intersect the return of the bulkhead that forms the western end of Florence Avenue;
    2. filling the area behind the bulkheads with approximately 2500 cubic yards of clean material to raise the property to a maximum elevation of 7 feet;
    3. constructing a 6' x 20 ' float, 3' x 14' ramp and 4' x 15' boardwalk on pilings in the water off the proposed western bulkhead to permit boat mooring and access;
    4. constructing a 45' x 30' dwelling one-family two story house with a first floor elevation of 9 feet, to be located between 0 and 6 feet from the wetland itself (depending of the exact location of the boundary line, which is disputed); and
    5. constructing a 16' wide x 15' long driveway leading from the house to the street.
  2. Project design is constrained by certain local zoning requirements and practical considerations. The bulkhead is an essential part of the project, being a requirement of local law. This requirement has not been varied in the last 8 years. Also, as a practical consideration, the house should not be built on an unsecured shoreline. At the proposed distance of 15' from the street, the house also needs a variance of the 20' street setback requirement of the local municipality. Such a variance had been obtained in 1991, but has since expired. Local zoning also requires minimum 5' wide side yards which must total at least 25% of the width of lot; coverage to be limited to 30% of the site; and 5,000 square feet of usable upland.
  3. The proposed bulkhead and filling would reverse and prevent further erosion of the project site into the waterways. The upland portion of the site would be extended seaward to attain a width of approximately 90 feet and a depth of approximately 72 feet, and would relocate the tidal wetland boundary seaward to coincide with the bulkhead's edge.
  4. The proposed bulkhead and filling would prevent recurrent tidal flooding when the bulkhead is higher than the tides because they will block water from moving across the site to the street.
  5. The proposed bulkhead and filling would eliminate all of the site's intertidal and high marsh tidal wetland areas and associated wetland benefits, and part of the shallow areas, shoals and mudflats and associated benefits. In particular, the marine food production associated with the Spartina, ribbed mussels, algae, silversides' egg-laying and killifish spawning found in the intertidal marsh and with the plants found in the high marsh will be eliminated; and that associated with the algae and bloodworms of the shoals and mudflats would be partially eliminated. Habitat in the intertidal and/or high marsh for ribbed mussels and fiddler crabs to live, for silversides to lay eggs, and for killifish to spawn will be eliminated. Habitat for fish to avoid predators, for horseshoe crabs to lay eggs, and for species such as swans and ducks to haul out and rest, nest and conduct other activities would be partially eliminated. The cover provided by high marsh vegetation would be eliminated. The water cleansing associated with ribbed mussel filtration and wetland vegetation slowing sediment float and removing debris would be eliminated. The value of the publicly accessible wetland at the end of Florence Avenue for recreation and aesthetic appreciation (in the form of fishing and bird observation and feeding) will be diminished because part of what attracts the birds and fish to the area is in the site's intertidal marsh, high marsh and shoals and mudflats, and will be eliminated.

Discussion

To receive a permit, Applicant's project must meet all applicable permit issuance standards of 6 NYCRR 661.9. Here, the house, admittedly, cannot be built without the bulkhead (see Applicant's Position and Finding 21 above), thus a key issue to the ultimate decision is the compatibility of the bulkhead and fill with the wetland. As explained below, these project elements fail to meet this permit issuance standard. This failure, as further explained, also disqualifies the house for a variance and causes the house to fail to meet permit issuance standards. In short, the project cannot be permitted because it will cause undue adverse impacts to the wetland.

Compatibility of the bulkhead and fill [Issue 5]:

Permit issuance standard 661.9(b)(1)(i) requires that DEC determine that the proposed activity on a tidal wetland:

"... is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity; ..."

This determination cannot be made with regard to the proposed bulkhead and fill.

Although the bulkhead and fill would benefit the surrounding neighborhood and waterways in the form of reduction or elimination of the erosion and flooding associated with the site (see Findings 14, 15, 22 and 23), they would adversely impact the wetland's value for marine food production, wildlife habitat, recreation and aesthetic appreciation, and cleansing ecosystems and absorption of silt and organic material (see Findings 16, 17, 18, 19, and 24).

Construction of bulkheads and filling in intertidal and high marsh areas are presumptively incompatible uses of these areas (see 661.5(b)(29) and (30)). The regulations intend that even small portions of intertidal and high marsh will be stringently protected and preserved (see 661.2(d) and (h)). The proposed bulkhead and fill are patently incompatible with anundulyly adverse to the wetland because they will totally destroy all of the site's intertidal and high marsh and the actual wetland benefits that flow from them (see Finding 24). Preservation of such areas is all the more critical here where the rest of the neighborhood has been developed and bulkheaded (Finding 4). How the social and economic benefits of the proposed project could outweigh the wetland damage wasn't shown. Therefore, permit issuance standard 661.9(b)(1)(i) will not be met due to the impacts of the bulkhead and fill on the wetlands.

Setbacks and Variance [Issues 1, 2 and 3]:

The issues of "which setback applies" and the amount of average setback are moot because the house will not qualify for a variance from either the standard or an average setback. It's noted, however, that Applicant's determination of a 26' average setback was never challenged as being mathematically incorrect -- only Applicant's determination that an average setback applied was challenged. It's also noted that Applicant's method for determining average setback (Finding 5) appears at least on its face to be consistent with the intent and wording of the applicable regulation"The minimum setback of all principal buildings and all other structures that are in excess of 100 square feet (other than boardwalks, shoreline promenades, docks, bulkheads, piers or wharves) shall be 75 feet landward from the most landward edge of any tidal wetland * * * . Further provided, where numerous and substantially all structures which are (i) of the type proposed by the applicant, (ii) lawfully existing on August 20, 1977, and (iii) within 500 feet of the subject boundary, are located closer to the subject tidal wetland than the minimum setback required by this paragraph, placement of a structure as close as the average setback of these existing structures from the subject tidal wetland shall fulfill the requirements of this paragraph." (6 NYCRR 661.6(a)(1); underline added).. In their setting, based on the appearance of the "radius map" [Exhibit 2Q], the forty-two pre-1977 houses appear "numerous," and 40 out of the 42 appear to be "substantially all" of them. The relevancy of Staff's calculation (Finding 6) isn't understood. "Lots" aren't mentioned in the regulation, and their relationship to what constitutes "numerous" structures does not readily come to mind. Applicant would not know to make such a calculation, particularly when her application for the variance was found to be complete without it.

To qualify for a variance from the setback requirement for the house, Applicant bears the burden of showing the "practical difficulty" in the way of carrying out the requirement, that the spirit and intent of the requirement will be observed, and that granting the variance will not cause undue adverse impact on present or potential wetland values, among other things. (See 661.11)"(a) Where there are practical difficulties in the way of carrying out any of the provisions of section 661.6 of this Part or where in the department's judgment the strict application of the provisions of section 661.6 of this Part would be contrary to the purposes of this Part, the department shall have authority in connection with its review of an application for a permit under this Part to vary or modify the application of any provisions in such a manner that the spirit and intent of the pertinent provisions shall be observed, that public safety and welfare are secured and substantial justice done and that action pursuant to the variance will not have an undue adverse impact on the present or potential value of any tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation. * * * The burden of showing that a variance to such provisions should be granted shall rest entirely on the applicant." (661.11, Variances)

The small size of the project site and the design constraints (Finding 21) make compliance with either a 75' or 26' setback virtually impossible. However, any "practical difficulty" caused by the limited building area is self-imposed. Since the setback requirement became effective in 1977, Applicant either knew or should have known the buildable area was too small to accommodate her proposed house and maintain an adequate setback when she acquired the site in 1983. While not determinative by itself, such self-imposed hardship is a factor to be considered in deciding whether or not a variance should be given (Application of Gazza, Interim Decision 5/3/91; compare Matter of DeSena v Board of Zoning Appeals, 45 NY2d 105, 108 (1978)).

More important here, however, is that it can't be shown that the spirit and intent of the setback requirement would be observed, or that no undue adverse impact would result, if the variance is granted for the house. As already stated, the house cannot be built without the bulkhead, and the bulkhead would cause an undue adverse impact.

Since the bulkhead would cause an undue adverse impact to the wetland, and since the "practical difficulty" hardship was self-imposed, no variance may be granted.

The house and permit issuance standards [Issue 4]:

The house admittedly does not meet the 661.6(a)(1) [the setback] development restriction, thus it does not meet permit issuance standard 661.9(c)(2).

Since the house cannot be built without the bulkhead which would cause an undue adverse impact to the wetland, the house does not meet permit issuance standard 661.6(c)(3) [which requires no undue adverse impact].

Conclusions of Law

  1. The issues of applicable setback and amount of average setback are moot because Applicant's proposed house does not qualify for a variance of either the standard or an average setback. [Issues 1, 2]
  2. Applicant's proposed house does not qualify for a variance under 661.11 of the 661.6 setback requirement because the house cannot be built without the bulkhead which would cause an undue adverse impact to the wetland, and since any "practical difficulty" hardship was self-imposed. [Issue 3]
  3. Applicant's house does not meet permit issuance standards under 661.9(c)(2) because it does not comply with the 661.6(a)(1) [the setback] development restriction. [Issue 4]
  4. Applicant's house does not meet permit issuance standards under 661.9(c)(3) because it cannot be built without the bulkhead which would cause an undue adverse impact to the wetland. [Issue 4]
  5. The proposed bulkhead and fill do not meet permit issuance standards under 661.9(b)(1)(i) because they would have an undue adverse impact on (and be incompatible with) the wetland's values for marine food production, wildlife habitat, recreation and aesthetic appreciation, and cleansing ecosystems and absorption of silt and organic material, as set forth under Finding 24. [Issue 5].

Recommendation

Because permit issuance standards would not be met, the requested variance and permits should be denied.

Appendix A - Summary of Public Concerns

Mr. Alan J. Chwick and Ms. Esther B. Ernst filed comments opposing the project. Both noted wildlife's use of the site. Mr. Chwick, neighbor of the project site, contended that he opposed the project even though bulkheading the site would personally benefit him by stopping floodwaters that sometime block the street. He argued that "at this stage it would be wrong", because the marsh has grown to where it is now a place where swans, muskrats and other animals live. He also noted that with the level of erosion on the property, there is not enough land to build a house on, which would require the property to be filled, destroying the environment. Ms. Ernst noted the possible damages that DEC Staff cited as violating standards, noted Long Island's loss of tidal wetlands and vulnerability to flooding and erosion, and noted the buffering effects of wetlands for same. She argued "What compelling reason is there to grant the applicant's request? ... Are we going to uphold the intent of the law, or not?" She wanted the laws enforced "strictly."

The Village of Freeport, through its Deputy Superintendent of Public Works, Richard A. Mitthauer, filed a comment supporting the project. He noted the site's status as the only vacant unbulkheaded parcel within the densely populated residential area on both sides of Milburn Creek. He pointed out that the site is a gap in the seawall which allows floodwaters to regularly close the entire development to transportation and cause property damage. He also noted that the site's embankments were eroding into the canal, and contended that if not contained [as proposed] the canal would be impassable at times.

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