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Castelli, Laurette - Settlement Conference Report, August 10, 1994

Settlement Conference Report August 10, 1994

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

In the Matter

of

the application of LAURETTE CASTELLI for a permit pursuant to
the Environmental Conservation Law Article 24 (Freshwater Wetlands), to construct a swimming pool
in the back yard of her residence at 57 Nicolosi Loop, Staten Island, Richmond County,

#2-6404-00324/1-0.

Settlement Conference Report

- by -

____________/s/____________
Francis W. Serbent
Administrative Law Judge
August 10, 1994

Proceedings

Summary

At the settlement conference held on August 3, 1994, the Applicant and the Department Staff resolved their dispute over the location of the swimming pool. The settlement is based on moving the proposed pool further away from the wetland.

Synopsis

On behalf of Laurette Castelli, Michael Nagy PE applied on October 28, 1992 for permit to construct a swimming pool in an area adjacent to a freshwater wetland. The application and this proceeding are pursuant to the Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions), ECL Article 8 (Environmental Quality Review) ("SEQR"), ECL Article 24 (Freshwater Wetlands) and ECL Article 70 (Uniform Procedures). This proceeding is also pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 (State Environmental Quality Review), Part 621 (Uniform Procedures) and Part 663 (Freshwater Wetlands Permit Requirements).

The Applicant proposes to construct a swimming pool with decks ("the pool") and a dry well for storm water disposal (the "dry well") at 57 Nicolosi Loop, Staten Island. The Applicant's residence is the first existing structure on the property east of Arbutus Lake. The pool and dry well would be between the residence and Arbutus Lake in a designated protected area adjacent to freshwater wetland AR-12. The Department Staff determined the Project is a SEQR type II action that does not require an environmental impact statement or processing otherwise under the ECL Article 8. There were no filings in response to the Notice of Complete Application as published on December 3, 1993. Staff determined that the location of the proposed pool could not be permitted and the Applicant disputed the determination.

On February 1, 1994, Staff requested this office to conduct a settlement conference. Administrative law judge ("ALJ") Francis W. Serbent arranged the conference. After some preliminary phone calls, the ALJ sent a memo to the Parties to establish common facts and to request additional data from Staff. Two exchanges between the Parties of responses and replies followed prior to an on-site settlement conference scheduled for and held on August 3, 1994. According to 6 NYCRR 621.8(g), the ALJ is required to prepare a report with recommendations and to send the report to the Applicant and the Regional Permit Administrator.

The Applicant is represented by the law offices of Menicucci and Castellano, (Michael Menicucci Esq., of counsel) 460 Midland Avenue Staten Island 10306 and by Michael Nagy PE, Consulting Engineer, 84 Manee Avenue Staten Island, 10309. Both appeared at the settlement conference.

The Department Staff is represented by Marc Gerstman, General Counsel and Deputy Commissioner (Murali Balachandran Esq., of counsel at the Region II Attorney's office) and Christina Dowd from the Division of Fish and Wildlife. Both appeared at the settlement conference.

Staff's Position

The dry well and the pool would be located in an area adjacent to a freshwater wetland and therefore each requires a permit [the pool according to 6 NYCRR 663.4(d)(42) and the dry well according to 6 NYCRR 663.4(d)(21)]. Each is usually considered incompatible with the wetland benefits unless the impact is insignificant. The dry well is considered insignificant and would be permitted. The pool as proposed would not be permitted because, the Staff contends:

the in-ground pool would be a substantial intrusion into the adjacent area,

the pool would diminish the open space benefit of the wetland contrary to a standard for permit issuance [6 NYCRR 663.5(e)(i)],

the pool if permitted as originally proposed would also serve to prompt increased pressure for development in other regulated areas about Arbutus Lake,

there is an alternative location for the pool in the Applicant's landscaped side lot that is not subject to wetland regulation and because there is a practical alternative, the proposal would also not meet the weighing standard, if it were required, for permit issuance [6 NYCRR 663.5(e)(2)].

Applicant's position

The Applicant contends the pool would not violate any provision of 6 NYCRR 663.4. Subsection 42 thereunder (which Staff relies on for requiring a permit) relates only to the construction of a residence or related structures or facilities, not in ground swimming pools. The preface to that subsection states, in part:

"Constructing buildings, accessory roads, and parking areas can have several effects on wetlands, not the least of which is the increased pressure to continue development beyond the initial construction.

Roofs and paved areas quickly shed rain where rain previously had an opportunity to soak into the ground. This can result in more turbulent stream flow, more erosion and sedimentation, and higher water levels in surrounding areas, including in nearby wetlands.",and the Applicant claims these things would not and could not happen with the proposed pool.

The Applicant further contends the pool would have an insignificant effect, if any, on the wetland benefit of open space and its impact on intensifying development is essentially nonexistent.

The Applicant also points to prior wetland permits as precedents favoring the application.

The settlement conference

At the settlement conference, various alternative pool locations were discussed and approximately located on site. Once a mutually acceptable location was found, special conditions were then discussed and a full accord was reached. The pool location is now proposed to be farther away from the wetland and closer to the house.

The settlement conference was concluded with the agreement between the Parties. Revised plans reflecting the agreement are being prepared for submission and processing towards a revised draft permit.

Since the revised application is of lesser wetlands impact than originally described in the published notice of complete application, a re-notice is not necessary. Since the only known dispute is resolved, a hearing is not necessary.

Recommendation

It is recommended that the Applicant proceed to develop and submit a revised application and the Staff continue processing that application towards drafting a permit with special conditions.

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