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Forest Hill Green Building, Corp. - Ruling, October 12, 1999

Ruling, October 12, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of FOREST HILL GREEN BUILDING CORP. for a permit
pursuant to Article 24 of the Environmental Conservation Law and Part 663 of
Title 6 of the New York Compilation of Codes, Rules and Regulations in connection with the
construction of a 38-unit development on Ashworth Avenue, in Richmond County, New York.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE
ON PARTY STATUS AND ISSUES
Application No. 2-6403-00029/00001

Background and Project Description

Introduction

Forest Hill Green Building Corp. (Forest Hill or applicant) has applied to the Department of Environmental Conservation (DEC or Department) for a freshwater wetlands permit pursuant to Article 24 of the Environmental Conservation Law (ECL) and Part 663 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR) in connection with its proposal to construct a 38-unit residential housing development on a 4.15 acre site located on Ashworth Avenue, north side of Rockland Avenue, east of Forest Hill Road, Block 1965, lots 1-3, Richmond County, Staten Island, New York. The area to be developed is 3.25 acres with 28 of the units located in the freshwater wetlands adjacent area of AR-25 (the Great Swamp).

In 1989, the Department issued an Article 24 permit for development of this site to Ashworth Development Corporation that allowed the construction of 12 unattached homes, including 9 houses located in the adjacent area of AR-25. In 1997, DEC approved the transfer of this permit to Forest Hill and in 1998, the applicant requested a modification of the permit to reflect the change in the current project plans.

Due to the significant changes proposed by the applicant to the project, the Department staff treated the current proposal as a new application pursuant to 6 NYCRR § 621.13(e). Based upon the submissions of the applicant, including Part I of the long form environmental assessment form (EAF), the Department, as lead agency, determined that this project was an unlisted action that would not have a significant effect on the environment pursuant to the State Environmental Quality Review Act (SEQRA - ECL Article 8). The Department and the applicant subsequently published a notice of complete application that included the staff's determination of non-significance in the Environmental Notice Bulletin of December 9, 1998 and the Staten Island Advance of December 7, 1998. In response to this notice, several people including representatives of Community Board 2, New York City Audubon, the Protectors of Pine Oak Woods, and New York City Parks and Recreation commented on the project. The applicant responded to the issues raised by these commenters in letters to the Department dated January 7 and 12, 1999 and February 1, 1999.

Legislative Hearing and Public Comment

A notice of public hearing, dated August 10, 1999, was published in the Department's Environmental Notice Bulletin of August 18, 1999 and the Staten Island Advance of August 18, 1999. As announced in the hearing notice, a legislative hearing was held on the evening of September 14, 1999 at the Sons of Norway Nansen Lodge on Victory Boulevard on Staten Island. Approximately 23 people attended the legislative session, of which there were twelve speakers including the representatives of the staff and the applicant. Other than the Forest Hill representative, the Department spokesperson, and a representative of Community Board No. 2, all of the speakers opposed the project.

The applicant's consulting engineer, Jeffrey Vollmuth, P.E., began the session with a comparison of the former project that provided for filling of wetlands with the current project that increases density but keeps the internal road out of the wetlands thereby preserving 95% of the on-site wetlands. Mr. Vollmuth stated that there would be 4% less activity in the adjacent area and a minor decrease in the creation of impervious surfaces. Engineer Vollmuth also noted that the setbacks from the old project would be maintained as well as the mitigation plan that requires the removal of illegally placed fill on Ashworth Avenue.(1)

The next speaker was DEC Region 2 Assistant Regional Attorney Udo Drescher who explained the history of this application as well as the nature of the SEQRA review. He ended his comments by noting that the staff does not consider the potential impacts of this project severe but rather recognizes that there will be a benefit based upon the mitigation plan.

Representatives of the Protectors of Pine Oak Woods (Protectors), John Rooney, Dr. Alan Benimoff, Ellen O'Flaherty Pratt, Richard Buegler, Ken Clair, Jr., and Olga Federico spoke to the historic role of Protectors in preserving open space and wetlands on Staten Island. These individuals argued that an environmental impact statement (EIS) was needed on this project due to the potential for many significant impacts such as increased runoff and flooding, the proximity of the Greenbelt Park to the site that includes hiking trails, the significance of the Great Swamp, and the density of the project. Many of these speakers also stated that the wetland delineation done by DEC was quite old as was a more recent review by New York City Parks and therefore, a current review of the status of the wetlands was necessary. These individuals stressed that the Department should not have granted the original permit due to the significance of the wetland and the potential for harm due to the loss of its buffer. Ms. Pratt ended her comments noting that the pressures of traffic and development would lead to more development.

A few others who reside in the area spoke to the increased traffic that will result from the project and the loss of wildlife habitat. Kathy Dodd, the District Manager for Community Board 2, stressed that there were traffic problems on Forest Hill Road while also recognizing that the New York City Department of Transportation had undertaken improvement projects in that vicinity. She stated that her agency was not opposed to the development but was concerned with the need for establishment of curbs and sidewalks on Rockland Avenue. She also raised concerns about flooding and the failures of drywells.

Kathy Nutt, Administrator for the Greenbelt Park, New York City Parks and Recreation emphasized the ecological significance of the Great Swamp and the potential for damage to the drainage system of the area due to this development.

Issues Conference

The issues conference was held on September 15 at the Nansen Lodge. The purpose of the conference was to determine what issues, if any, bearing on permit issuance would require adjudication and whether the Protectors, the sole group that had filed for party status, would participate in a hearing, should one be required.

The applicant, Forest Hill, was represented by Michael Bogin, Esq. of Sive, Paget, and Reisel. Assisting Mr. Bogin was Jeffrey P. Vollmuth, P.E. of Vollmuth & Brush. Assistant Regional Attorney Udo Drescher of DEC's Region 2 office represented the staff accompanied by the regional wildlife biologist, Joseph Pane, and environmental analyst Harold Dickey. Representing Protectors was board member John Rooney.

The Protectors filed a letter dated September 3, 1999 with the Office of Hearings and Mediation Services (OHMS) requesting that it be made a party in these proceedings. Attached to this letter is a copy of the January 18, 1999 comments Protectors sent to the Department in response to the notice of complete application. I did not receive any other petitions for party status.

Because the start of the issues conference was delayed due to problems with the stenographer's appearance, the parties agreed to use the time to take a site visit. Those in attendance in addition to myself were: Mr. Drescher, Mr. Pane, Mr. Vollmuth, Mr. Rooney, and Ms. Elaine Croteau, a member of Protectors. Because of the density of the undergrowth, we were unable to walk in more than a very short distance onto the site off of Rockland Avenue. By visiting the area of the site however, I was able to gain a better perspective of the location of the project. There are several homes on Rockland Avenue that are adjacent to the project site. Near the entrance of the area off of Rockland Avenue on the eastern edge of the site, we noted the presence of septage that apparently originates from one of the homes. Mr. Rooney also pointed out some of the wetland species that were present in the eastern area of the project site. Those present also noted what is known as the "White Trail" in the Greenbelt Park which could be seen from this part of the site.

Positions of the Parties

The applicant has presented its project as an improvement over the previously approved development based upon a reduction in disturbance of the wetland and adjacent area of AR-25 and a slight reduction in the construction of impermeable surfaces. In addition, Forest Hill represents that despite the diminished impact on the wetland, it will implement the mitigation plan that was required for the original project. Forest Hill has responded to the comments of the Protectors and others with information indicating that its project will not adversely affect drainage, traffic, or the parkland that is adjacent to the site.

The staff has determined that this project can meet the regulatory requirements of Article 24 and 6 NYCRR Part 663. Through the special conditions contained in the draft permit, the staff finds that it can successfully limit impacts on the wetland and enhance AR-25 through the mitigation project on Ashworth Avenue by reestablishing connections between the Great Swamp and two isolated wetlands on the site. The staff has concluded that the project's most significant impact - the placement of a sewer line through wetland adjacent area and wetland in the area of the regrading/restoration project - is mitigated by the permit's requirement that the applicant restore this area to its former condition.

Protectors is opposed to the project based upon the impacts it foresees on the Great Swamp and the Greenbelt Park such as drainage impairments, intrusion by the public on sensitive areas, and increased traffic. The Protectors raised a concern about the status of this application stating that it should be considered a new application based upon the significant changes in the project. However, board member Rooney stated at the issues conference that he was satisfied with the Department's explanation that this project was treated as a new application pursuant to 6 NYCRR § 621.13(e). And, as explained above, Protectors argues that since the wetland has not been mapped by DEC since 1986, it is appropriate to update the delineation. Protectors also maintains that since the project is adjacent to parkland, the Department should have designated the application a Type I action under SEQRA and required the applicant to produce an EIS. Protectors states that it intends to work towards getting this parcel added to the Open Space plan so that it could be considered for public acquisition.

Discussion

Section 624.4(c) sets forth the standards for issues to be heard in an adjudicatory hearing. The administrative law judge (ALJ) must view the application, draft permit and related documents along with the petitions and the record of the issues conference in light of whether the intervenor has raised significant and substantive issues. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project, or the imposition of significant permit conditions in addition to those proposed in the draft permit. An issue is substantive if there is sufficient doubt about the applicant's ability to meet the applicable regulatory criteria. The Protectors have failed to meet their burden because they have only raised general criticisms of the proposed project without bringing forth specific matters that mandate an adjudicatory hearing.

In their petition, the Protectors identified as their expert Dr. Alan Benimoff, Associate Professor of Geology at the College of Staten Island. Appearing at the legislative session only, Dr. Benimoff made a presentation regarding drainage patterns occurring in the area of the project site. Using a topographic map he attempted to demonstrate that when there were periods of increased rainfall resulting in more runoff, the wetland would expand into the buffer zone. This in turn could result in the flooding of houses built in that area. At the issues conference, Mr. Rooney listed a number of other potential witnesses with expertise in areas such as wildlife biology, recreation, plants, and ornithology. Without disputing the expertise of any of these individuals who are largely affiliated with Protectors, it was not apparent to what specific issues raised by the intervenors their testimony would relate.

With regard to the classification of the project under SEQRA, Protectors argued that the regulations require a Type I categorization based upon 6 NYCRR § 617.4(10) which provides for such a designation when "any Unlisted action, that exceeds 25 percent of any threshold in this section, occur[s] wholly or partially within or substantially contiguous to any publicly owned or operated parkland, . . ." However, as noted by the representatives of both the staff and the applicant, the threshold that is applicable to this residential development is set forth in 6 NYCRR § 617.4(b)(5)(v) and greatly exceeds what is being proposed by the applicant. Protectors' argument that § 617.4(b)(6)(i) is the applicable threshold ("a project . . . that involves the physical alteration of 10 acres") is clearly erroneous as this subsection exempts residential development.

The staff and the applicant also respond that the level of environmental review matched a Type I designation because Forest Hill completed Part I of a full EAF and the staff completed Part II. While I would not agree that the review was tantamount to that accorded a Type I project that has undergone an EIS, there has been nothing concrete brought forth by the intervenors indicating that the applicant's presentation is deficient or that the staff has erred in its analysis.

Regarding the status of the wetland, the Protectors argue that the wetland delineation is too old to rely upon. To support this claim, Mr. Rooney presented a New York City map that was labeled Olmstead Center and dated from 1988 (issues conference exhibit no. 10).(2) On this map, the parties agreed that the wetland boundary appears in different locations when compared to the DEC freshwater wetland map. However, the shape of the wetland is congruent and the City map has the wetland indicated in areas where there is a home and a paved road. This leads the staff and the applicant to conclude that the Olmstead map was not based upon an in-field investigation but instead was made by overlaying the DEC official wetlands map on an existing City map. Because the scales used were quite different, the outcome is not surprisingly at odds with the Department's map. Since no one knew who drew the City map and it apparently is routine for maps derived from field investigations to so reflect, this map adds no support to Protectors' arguments that the boundary is incorrect on the official map.

In addition, staff indicated at the issues conference that recent field visits by Mr. Pane, the regional wildlife biologist, indicate that the boundaries have not changed. In response to Mr. Rooney's claims that wetland species are in existence outside the wetland boundaries, Mr. Pane confirmed that wetlands are defined by the dominance of wetland indicator species. As one moves from the wetland to the upland areas, wetland species will still exist but in smaller numbers and once they are less than 50% dominant, the transition has been made. Mr. Pane noted that in his recent visits he has noted the abundance of upland species in the designated upland areas such as virginia creeper and other exotic species.

In response to comments made by individuals at the legislative hearing regarding potential intrusion by children and others into the protected areas adjacent to the housing development, staff noted the requirement of a fence as part of the permit conditions. In addition, Mr. Drescher suggested that certain vegetation could be planted between the fence and the wetlands to further restrict access.

With respect to the issue of drainage, Mr. Vollmuth reported that the project site was indicated as Zone C - an area of minimal flooding - by the Federal Emergency Management Administration (FEMA) and also that it was above the 500 year floodplain. He also noted that special condition no. 3 of the draft permit requires the applicant to provide proof to the Department that the surface water flow will not be increased or decreased by construction of the project. Prior to construction, the applicant will have to demonstrate a balance of pre and post-construction runoff. Mr. Vollmuth stated that this will be performed through the use of drywells as well as the diversion of water into the wetland. The staff confirmed that no construction will occur until this demonstration occurs.

Mr. Vollmuth explained that through the drilling of a single test bore on the project site, the applicant has demonstrated that the geological structure of the area will allow the use of dry wells effectively. The applicant's consultants dug a 30 foot test hole in which water was not encountered. In addition, Mr. Vollmuth presented issues conference exhibit no. 8 containing the consultant's boring log showing that the silty sand, trace rock fragments and gravel are indicative of soil that will allow water to percolate into the ground readily. Protectors did not provide any response to this explanation.

The balance of the issues conference was largely devoted to matters that I raised based upon comments made at the legislative hearing, a review of the draft permit terms, and observations at the site visit. With respect to special condition no. 5 that requires the applicant to file a deed restriction that prevents the development of the site that contains freshwater wetlands and adjacent area that is to be conserved, I inquired as to whether a conservation easement would be a more effective tool to accomplish this end. The applicant stated that it had no objection to this arrangement as long as the City or another competent agency or land trust was available to accept the easement.

Based upon the observation of the septage on the site, the applicant offered to allow the hookup of the six residences adjacent to the project to the homeowner's association sewer that will bring the sanitary discharges to the City's Oakwood Beach sewage treatment plant. The applicant agreed that as long as the homeowner's association took care of the administrative requirements and any pro rated fees, Forest Hill was amenable to a permit condition that reflected this agreement.

In response to my questions concerning traffic, the applicant stated that the intersection with Forest Hill Road is subject to a New York City DOT improvement project. In addition, the pavement and curb cuts that the applicant is required to install will also address traffic concerns. NYC DOT issued waivers of improvement to the applicant that Forest Hill will provide to the Department staff and which are noted on the NYC DOT Builders Pavement Plan that was submitted by the applicant as issues conference exhibit no. 7. In response to my request at the issues conference, the applicant also submitted a copy of the waiver from the City which has been marked as issues conference exhibit no. 11.

In response to my question regarding the requirements of the Ashworth Avenue mitigation plan, Mr. Vollmuth represented that this plan has already been submitted to the Department staff as part of the former application. However, the applicant has agreed to submit an updated version that may include some enhancements but which will not have fewer requirements. In response to Mr. Rooney's comment that special condition no. 13 should be changed to require the permittee's replacement of plants based upon a certain percentage of mortality, while the applicant stated its willingness to agree to such a change, the staff opposed it. Clearly, such a change would be less restrictive than what is in place currently.

The Protectors' representative noted during the issues conference that he did not understand the conference to require a full recitation of the intervenor's proof. While it is true that the issues conference is not a trial, a petitioner must raise "sufficient doubt as to the applicant's ability to meet all statutory and regulatory criteria such that reasonable minds would inquire further." See, In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988; In the Matter of Akzo Nobel Salt, Inc., Interim Decision of the Commissioner, January 31, 1996. Protectors' general and vague criticisms of the project are insufficient to base a finding of any issue. To the extent that questions were raised by the Protectors, the commenters at the legislative hearing, and the ALJ, the applicant has provided sufficient information to support the determination of staff to issue the permit.

Party Status

It is clear that the Protectors have an environmental interest in this application and no party raised any objections to their environmental standing. However, because I find that Protectors failed to raise an adjudicable issue, there is no reason to grant party status.

Conclusions and Recommendations

Based upon the information provided by the applicant in the permit application and responses to comments as well as the discussion at the issues conference among all the parties, I conclude there are no issues for adjudication. The applicant has demonstrated that it will meet the standards for issuance of the Article 24 permit and the petitioner has failed to meet the regulatory requirements to establish an adjudicable issue.

Based upon the discussion at the issues conference, the staff should proceed with the issuance of the permit subject to the revision of the permit conditions regarding the addition of the requirement of a conservation easement (if possible) and sewer hook-up by adjacent homeowners. In addition, staff's suggestion that vegetation be planted between the fence and the wetlands to restrict access to the protected areas should be added as part of either special condition no. 7 or 12.

Appeals

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner John P. Cahill c/o Assistant Commissioner James H. Ferreira (NYSDEC, 50 Wolf Road, Albany, New York 12233) on an expedited basis, within five days of the disputed ruling, pursuant to 6 NYCRR § 624.8(e)(1). Any requests for extensions to file appeals must be made to Chief Administrative Law Judge Daniel E. Louis (518-457-3468).

Parties shall ensure that transmittal of all papers is made to the others on the service list including two copies to the Administrative Law Judge at the same time as it is made to the Commissioner. No filings by telecopier will be allowed or accepted. Appeals should address the ALJ's ruling directly, rather than restate a party's position. To the extent practicable, appeals should also include citations to pages in the transcript or to specific documents.

The parties are advised that if the Commissioner's decision certifies an issue for adjudication, this matter will proceed to an adjudicatory hearing. In that event, we will set a schedule for the hearing.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
October 12, 1999

TO: Udo Drescher, Assistant Regional Attorney
NYSDEC - Region 2
47-40 21st Street
Long Island City, NY 11101

Michael Bogin, Esq.
Sive, Paget & Reisel
460 Park Avenue
New York, NY 10022

Mr. John C. Rooney
Protectors of Pine Oak Woods, Inc.
80 Mann Avenue
Staten Island, NY 10314

1. Ashworth Avenue is a mapped street that is not built and which contains wetlands. A party unknown to the Department filled a portion of these wetlands and as part of the special conditions in the former permit and in the current draft permit, the applicant is required to remove that fill and plant appropriately. The goal of this mitigation is to reconnect isolated portions of AR-25 with the main body of the wetland.

2. Protectors asked the City's Parks Department to make copies of this map so that it could be included as an issues conference exhibit. While this map appears to reflect the area of interest, it is puzzling that it is labeled Flushing Meadows-Corona Park, Flushing, New York which is obviously a reference to a location in Queens. At the same time, Protectors sent a letter dated September 23, 1999 that contains more comments on the project and has appended to it a map entitled Bloodroot Valley - Greenbelt Park that also relates to the area of concern. However, because these latter submissions were not discussed or called for during the issues conference, I am not including them as part of the issues conference record.

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