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Frie, Patricia and Warren - Order, December 12, 1994

Order, December 12, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 15, 25 and 71 of
the New York State Environmental Conservation Law (ECL), and Parts 661 and 666 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

- by -

PATRICIA FRIE AND WARREN FRIE,
AND 138 OAKSIDE CORPORATION

Respondents

ORDER

DEC File No 1-4039

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated November 24, 1993, an administrative enforcement hearing was convened before John H. Owen, Administrative Law Judge ("ALJ") on January 27, 28 and 31, February 1, March 30 and April 8, 1994 against the above named respondents. The Department's Region 1 Staff ("Staff") appeared by Gail Margaret Hintz, Esq., Assistant Region 1 Attorney. Patricia Frie and 138 Oakside Corporation were represented by Vincent J. Trimarco, Esq. of Smithtown, New York and Warren Frie was represented by Joseph A. Ingrao, Esq. of Commack, New York.
  2. Upon review of ALJ Owen's Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations.
  3. Staff has appealed two rulings of the ALJ which will be addressed directly below.
    1. Staff appeals the ALJ's refusal to receive certain site inspection reports into evidence. Although there is some confusion as to whether these reports were ever offered into evidence, I find the ALJ's determination that these reports were repetitive a sufficient basis to keep them out of the hearing record.
    2. Staff appeals the ALJ's refusal to accept aerial photographs with handwritten markings that were maintained in the Department's files except via the provisions of former 6 NYCRR 622.10, which states that maps which have been on file with any department of the State for more than ten years are prima facie evidence of their contents. Since the maps were actually admitted into evidence, the appeal cannot affect the outcome of this case. However, for purposes of clarifying this issue, the appeal is addressed below.

    Pursuant to the latest promulgation of the enforcement hearing rules, the ten year requirement has been eliminated [see 6 NYCRR 622.11(a)(9)]. Therefore, for cases that are governed by these rules, maps, surveys and official records affecting real property can be admitted as prima facie evidence of their contents without showing that they have been on file for any specified period of time. However, with respect to the case in point, it would be necessary to establish that the purpose of the map was to depict the tidal wetland boundary in order for it to be admitted as a substitute for the official map.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. For having violated ECL 25-0401(2) and 6 NYCRR 661.6(a)(1) by constructing the deck Respondent Patricia Frie and Respondent Warren Frie are jointly and severally assessed civil penalties as follows:
    1. Pursuant to ECL 25-0401(2) THREE THOUSAND DOLLARS ($3,000); and,
    2. Pursuant to 6 NYCRR 661.6(a)(1) THREE THOUSAND DOLLARS ($3,000).
  2. For having violated former 6 NYCRR 666.8 and former 6 NYCRR 666.25(a) Respondent Patricia Frie and Respondent Warren Frie are jointly and severally assessed civil penalties as follows:
    1. For constructing the deck: pursuant to former 666.8 ONE THOUSAND DOLLARS ($1,000);
    2. For constructing the deck: pursuant to former 6 NYCRR 666.25(a) ONE THOUSAND DOLLARS ($1,000);
    3. For constructing the ramp: pursuant to former 6 NYCRR ONE THOUSAND DOLLARS ($1,000); and,
    4. For constructing the ramp: pursuant to former 6 NYCRR 666.25(a) ONE THOUSAND DOLLARS ($1,000).
  3. For having violated 6 NYCRR 666.8 by permitting operation of recreational motorized vehicles in a recreational river area Respondent Patricia Frie and Respondent 138 Oakside Corporation are jointly and severally assessed a civil penalty of FIVE HUNDRED DOLLARS ($500).
  4. The following charges against Respondent Patricia Frie and Respondent Warren Frie are dismissed with prejudice:
    1. Pursuant to ECL 25-0401(2) for constructing the shed;
    2. Pursuant to former 6 NYCRR 661(a)(1) for constructing the shed;
    3. Pursuant to former 6 NYCRR 666.8 for constructing the shed;
    4. Pursuant to former 6 NYCRR 666.25(a) for constructing the shed;
    5. Pursuant to ECL 25-0401(2) for constructing the ramp;
    6. Pursuant to 6 NYCRR 661(a)(1) for constructing the ramp.
  5. The charges against Respondent Patricia Frie, Respondent Warren Frie and Respondent 138 Oakside Corporation under ECL 25-0401(2) (6 NYCRR 661.8) and 6 NYCRR 668.8, 666.22(b), and 666.31(b)(3) and (4) for cutting or topping vegetation are dismissed with prejudice.
  6. Respondents Patricia Frie and Warren Frie shall remove the deck and ramp within ninety (90) days of the service of a conformed copy of this Order on them unless Respondents Patricia Frie and 138 Oakside Corporation fully comply with this Order and one or more of them file a complete application for a tidal wetlands permit within sixty (60) days of the service of a conformed copy of this Order on them (the permit applications pursuant to 6 NYCRR Part 666 having already been filed). In such an event, the Respondents Patricia Frie or 138 Oakside Corporation shall be entitled to a hearing on whether the deck and ramp may be permitted. Following a decision on the permit applications for the deck and ramp, Respondents Patricia Frie and Warren Frie shall be responsible for removing those structures in the event of a denial.
  7. Respondent Patricia Frie and Respondent 138 Oakside Corporation are each directed to refuse to allow motorized vehicle use on or from the premises 138 Oakside Drive, Smithtown, New York.
  8. The appeals of the ALJ's rulings are dismissed.
  9. All penalties are due and payable within sixty (60) days after service of a conformed copy of this Order.
  10. All communications between the Respondents and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 1, Building 40, SUNY Campus, Stony Brook, New York 11794.
  11. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

Dated: December 12, 1994
Albany, New York

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

In the Matter

- of -

the Alleged Violation of Articles 15, 25 and 71 of the New York State Environmental Conservation Law (ECL), and Parts 661 and 666 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), by

PATRICIA FRIE,
AND
WARREN FRIE,
AND
138 OAKSIDE CORPORATION,

Respondents

DEC File No. 1-4039

HEARING REPORT

- by -

____________/s/____________
John H. Owen
Administrative Law Judge

Proceedings

This matter involves Respondents allegedly constructing at a residence on the westerly bank of the Nissequogue River (a protected river) in the Town of Smithtown, Suffolk County a deck, a water pipe and spigot, a shed and a ramp, and altering tidal wetlands vegetation in violation of tidal wetlands laws, with all of these acts also allegedly violating the protected rivers laws. Respondents also allegedly operated or allowed operation of motorized vehicles at the residence and adjoining areas in violation of the protected rivers laws.

Pursuant to a duly served Notice of Hearing with Complaint attached, dated November 24, 1993, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 1 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding conducted in accordance with the State Administrative Procedure Act and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Parts 661 and 666, Articles 15 and 25 of the New York State Environmental Conservation Law ("ECL"), against Patricia Frie ("Mrs. Frie"), Warren Frie ("Mr. Frie") and 138 Oakside Corporation (the "Corporation").

Each of the Respondents served and filed written answers each containing affirmative defenses, with Mr. Frie's answer also containing a "Cross-Complaint" against Mrs. Frie and the Corporation, against which Mr. Frie and the Corporation have served and filed a separate answer.

The subject site is allegedly the former residence of Mr. and Mrs. Frie and currently Mrs. Frie's separate residence, 138 Oakside Drive, Smithtown, New York.

In accordance with the Notice of Hearing, an adjudicatory hearing concerning the site was convened before Administrative Law Judge ("ALJ") John H. Owen on January 27, 28, 31, February 1, March 30 and April 8, 1994 at the Department's Region 1 Headquarters at Stony Brook, New York. Gail Margaret Hintz, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff. Mrs. Frie and the Corporation appeared by Vincent J. Trimarco, Esq. of Smithtown, New York and Mr. Frie appeared by Joseph A. Ingrao, Esq. of Commack, New York.

The Staff made a pre-hearing motion to "dismiss" the affirmative defenses asserted in the answer of Mrs. Frie and the Corporation. On January 11, 1994 the ALJ ruled that this motion would be dealt with in connection with the hearing, for the reason that as to many if not all affirmative defenses the hearing evidence was anticipated to be as relevant to their disposition as it would be to the requests for dismissal of the complaint set forth in each answer to the complaint. On the opening day of the hearing, Staff counsel filed and served a written motion seeking "dismissal" of all the affirmative defenses asserted by Mr. Frie. The ALJ then ruled that all matters concerning affirmative defenses would be addressed after the close of the hearing.

The Staff called as witnesses: Robert A. Bonerba, Chief Building Inspector for the Town of Smithtown; Richard J. Maggio, DEC Investigator; Kevin R. DuBois, Marine Resource Specialist, Bureau of Marine Habitat Protection, Region 1; Edwin Miller, Esq., an attorney and local resident; Carl Veneziano, a local resident; Charles Hamilton, Supervisor of Natural Resources, Region 1; Wesley Gehres, Forester, Bureau of Forest Resource Management, Region 1; Mrs Frie and the corporation called Josephine Sullivan, local resident; Mr. Frie called Donna M. Hamm, Town of Smithtown Clerk; and all Respondents called as a witness Vita Poveromo, a local expert concerning the Nissequogue River and the lands through which its flows; some 37 documents were received in evidence and the record closed upon receipt of the last of the parties' post-hearing memoranda on June 9, 1994.

The Charges and the Factual Proof Required

a) The Structures (a deck, a ramp and a shed)

Respondents Mrs. Frie and Mr. Frie are charged with constructing a deck, a ramp and a shed without permits in violation of both the tidal wetlands laws and regulations and the river systems laws and regulations.

In order to establish that the structures violated the tidal wetlands law (ECL 25-0401(2)), and that the respondents are liable, the Staff must have proven by a preponderance of the evidence the following three (3) elements: 1) that the site is in a protected tidal wetlands area or at least in a protected adjacent area; 2) that the construction is a regulated activity; 3) that one or more of the respondents are responsible for the construction; and 4) that the responsible respondent(s) had no relevant permit from the DEC.

The Respondents are separately charged with violating the tidal wetlands land use regulations, under which charge the Staff is required to prove 1) that the site is in a protected area, 2) that the construction was either of "principal buildings" or was "in excess of 100 square feet" and was "within 75 feet landward "of the tidal wetlands boundary (6 NYCRR 661.6(a)(1)), 3) that some or all of the respondents are responsible for the construction, and 4) that the responsible respondent(s) had no DEC permit or variance.

Concerning the protected rivers law, the Respondents (except the Corporation) are charged with building the structures in the River Corridor within 500 feet of the River bank without a rivers system permit (6 NYCRR former 666.8All relevant rivers system regulations were superseded effective May 31, 1994 such that those cited in this Report are all under the "former" regulations, with "former" being deleted hereafter. and 666.22(e)). Thus it must have been proven that: 1) the building took place within 500 feet of the River bank; 2) one or more respondents are responsible for the building; and 3) the responsible respondent(s) had no relevant DEC permit.

The respondents (except the Corporation) are also charged with violating the rivers system land uses by building the structures within 150 feet of the River bank without a variance (6 NYCRR 666.25(a)). Thus it must have been proven that: 1) the construction took place within 150 feet of the River bank; 2) one or more of the respondents are responsible for it; and 3) the responsible respondent(s) had obtained no variance.

b) The Waterpipe and Spigot

Respondents Mrs. Frie and Mr. Frie were charged with installing a waterpipe and spigot in violation of the protected wetlands laws and the protected rivers laws.

All charges concerning the waterpipe and spigot were withdrawn by Staff counsel during the hearing.

c) Altering Vegetation

Mr. Frie and Mrs. Frie are charged with altering (cutting, topping) vegetation in 1989 and Mrs. Frie and the Corporation are charged with altering vegetation in 1991 and 1992, in violation of the protected wetlands laws and the protected rivers laws.

In order to establish the tidal wetlands topping charges the Staff must have proven: 1) that the topping took place, 2) that it took place in a protected area, 3) that the topping "changed the natural condition", 4) that one or more of the respondents are responsible for the topping and 5) that the responsible respondent(s) had no relevant DEC permit.

In order to establish the rivers system topping charge the Staff must have proven 1) that topping took place, 2) that it took place in a protected area, 3) that topping was a use which was either prohibited or required a permit, 4) that one or more respondents are responsible for the topping and 5) if a permit was required, that the responsible respondent(s) had no relevant DEC permit or variance.

d) Use of Motorized Vehicles

Use of motorized vehicles is not specifically prohibited by the tidal wetland laws If the evidence supported it, Staff could have but did not charge that motorized vehicle use violated the tidal wetlands law by "... substantially [impairing] or [altering] the natural condition of the tidal wetland area" ECL 25-0401(2), as virtually the entire site appears to be in at least the tidal wetlands adjacent area, that is within 300 feet of the tidal wetlands boundary which DuBois stated ran roughly along the waterside edge of the lower deck. and to establish that their use violated the protected rivers laws the following elements must have been proven: 1) that the area where motorized vehicles were used was an area regulated by the protected rivers laws; 2) that the use either was prohibited or required a permit; 3) that the respondent(s) are responsible for the use; and 4) if a permit was required, the responsible respondent(s) had no relevant DEC permit or variance.

Procedural Matters, Rulings and Recommendations

There are two procedural matters which should be dealt with preliminarily: 1) Pleading matters, that is affirmative defenses and a "cross-complaint" and 2) an "appeal" by the Department Staff.

Pleading Matters

Respondents Mrs. Frie and the Corporation set forth four (4) affirmative defenses and Mr. Frie set forth seven (7) affirmative defenses and a "cross-complaint" against Mrs. Frie and the Corporation.

The Affirmative Defenses of Mrs. Frie and the Corporation and Rulings

  1. Mrs. Frie and the Corporation are not proper parties.

    Since both Mrs. Frie and the Corporation were charged with some if not all of the violations they are each proper parties.

    Ruling: This affirmative defense is stricken.

  2. The complaint fails to state a cause of action against these Respondents.

    The Complaint sets forth causes of action against these Respondents, alleging basically that they each were responsible for violating protective laws in protected areas. The allegations cover all elements of all charges as previously outlined.

    Ruling: This "affirmative defense" (which is really an application to dismiss the complaint as a matter of law) is denied.

  3. The location of the dock and other structures allegedly adjacent to the Nissequogue River "was not done by Mrs. Frie or the Corporation."

    Since is it alleged that the structures were adjacent to the River and that Mrs. Frie had some responsibility for the construction, this is not a proper affirmative defense for Mrs. Frie to assert. Indeed it is not necessary in that this defense could be pursued under a general denial of the operable allegations. The Corporation is not charged with any construction so that its affirmative defense is not related to any charge against it.

    Ruling: This affirmative defense is stricken as to both Mrs. Frie and the Corporation.

  4. Warren Frie is a necessary party.

    Since Warren Frie has long since been made a respondent, there is no merit to this claim.

    Ruling: This affirmative defense is stricken.

The Affirmative Defenses of Mr. Frie and Rulings

  1. Warren Frie is not and never has been an owner of the subject site.

    While Warren Frie may not have been an owner of the site, he is charged in this proceeding based upon alleged acts, failure to act or being responsible for such acts or failures.

    Since Mr. Frie's responsibility is not dependent upon any ownership interest, this affirmative defense lacks merit.

    Ruling: This affirmative defense is stricken.

  2. Warren Frie is not associated with 138 Oakside Drive Corporation.

    Mr. Frie's alleged liability is based upon his own alleged acts or failures or his alleged responsibility for the acts or failures.

    Since the claims against Mr. Frie stand independently of those against the Corporation, this affirmative defense lacks merit.

    Ruling: This affirmative defense is stricken.

  3. Warren Frie is not a proper party.

    The claims against Mr. Frie cover all of the elements of the violations with which he stands charged.

    He is properly charged and is a proper party.

    Ruling: This affirmative defense is stricken.

  4. The complaint fails to state a cause of action.

    What has been said of the second affirmative defense set forth by Mrs. Frie and the Corporation applies fully here as well.

    Ruling: This "affirmative defense" is denied.

  5. Any and all violations were committed solely by Mrs. Frie and the Corporation.

    As previously ruled, all respondents have been properly charged.

    Since apportionment or assignment of responsibility may be pursued under a general denial, this affirmative defense is superfluous.

    Ruling: This affirmative defense is stricken.

  6. The structures pre-dated the regulatory laws and regulations.

    Since this defense may be pursued under a general denial of the allegations that the structures are subject to the protective laws, it is superfluous.

    Ruling: This affirmative defense is stricken.

  7. Any acts as to which Warren Frie may be found responsible were known to and sanctioned by the DEC.

    Whether some or all of the violations were simply "known" to the Department, without more, is irrelevant.

    Whether the Department "sanctioned" some or all violations is an issue of fact that may be litigated under a general denial where the Department alleges that the respondents had no sanctions, that is no permits. Informal sanction smacks of some form of estoppel which is generally unavailable against the State [See e.g. Med. Transporter v. Perales, 77 NY2d 126 (1990)].

    Ruling: This affirmative defense is stricken.

  8. The "cross-complaint" of Mr. Frie against Mrs. Frie and the Corporation and the Ruling

    As ruled at the hearing the Department has no jurisdiction to determine recoupment or similar claims by one respondent against another. Thus this forum is not the proper forum to pursue such claims.

    Ruling: The "cross-complaint" is stricken.

The Appeal by the Staff

The Staff appeals rulings of the ALJ at this time upon two bases as follows:

  1. Site Inspection Reports

    The Staff was preparing to offer in evidence two site inspection reports, one of which was prepared in 1989 with the inspector being no longer with the Department at the time of the hearing and the other prepared by the witness then on the stand. Counsel to respondents objected that the 1989 report was hearsay and cumulative in that the structures on the site were not only the subject of earlier detailed evidence but were conceded by respondents. As to the 1992 Report the objection was it was hearsay, unnecessary (since the author was on the stand) and cumulative as well (Trans. pp. 193-197).

    The ALJ expressed concern about the repetitive nature of the evidence while indicating that the hearsay objection lacked merit. As this point Staff counsel voluntarily withdrew both reports, never having actually offered them in evidence.

    It is obvious from what has been stated that 1) there was no offer of the exhibits, 2) there was no adverse ruling by the ALJ, 3) even if there had been an adverse ruling, the Staff is not, as yet at least, aggrieved (there has been no ALJ Report with adverse rulings and no adverse order or other action by the Commissioner and 4) the Staff has not preserved the issue for appeal purposes in that it made no objection to any action or inaction by the ALJ.

  2. The Tidal Wetlands Maps

    The ALJ declined to receive in evidence, sustaining objections byrespondents' counsel, copies of unidentified, uncertified and otherwise unauthenticated aerial photographs stated by a Department witness to be copies of the applicable Tidal Wetlands Maps.

    Here again Staff is not aggrieved in that the copies were in fact ultimately received when Staff counsel finally qualified this evidence for admission pursuant to 6 NYCRR 622.12(e)(10).

    It is not for an ALJ to instruct Staff counsel in the proper manner of qualifying documents for receipt into evidence. Yet surely these official maps are on file with the Suffolk County Clerk whose office is authorized to certify as authentic mylars or other copies, thus saving Staff counsel from the 622.12(e)(10) requirement of proving that the maps have been in the possession of the Region for a continuance 10 years past.

Strategies of the Parties

The Staff sought to carry its burden of proof that the structures were in protected areas by its experts, DuBois (tidal wetlands) and Gehres (River corridor). That the structures violated those laws was the object of the testimony of Maggio and DuBois and their observations, measurements, diagrams, maps, and photos. That the respondents were responsible for the construction was to be shown by ownership deeds to the site and the observations of neighbors Miller and Veneziano. That there were no permits for the work was to be established by searches of Department records and alleged acknowledgements by the respondents.

The cutting of vegetation was the subject of Miller's alleged before and after observations and DuBois' after the factopinions.

Motorized vehicle use was to be established by the alleged observations of Miller and Veneziano and the photos they took.

For their part the respondents (largely through the testimony of Poveromo) sought to establish that the deck and shed were direct descendants of structures existing before the effective date of the laws, that the "deck" was exempt from the laws as a "dock" as was the ramp, that there was no topping of vegetation, and that any motorized vehicle use was beyond the protected areas. The respondents also contested the measurement of the shed, contending that is was 8' x 12' or 96 square feet, 4 square feetunder the maximum.

Discussion of Alleged Violations

The Site

As a survey, diagrams and photographs in evidence show (and as was observed at a site visit conducted on the last day of the hearing) the Frie property (the site) consists basically of the residence on a hill overlooking the River with an outside deck and pool facing the River. There is also a large lower deck with a ramp into the water (at other than low tide), and a shed off the landward side of that deck with decking around it. Off the waterside of the lower deck and running completely across the width of the site is what the surveyor referred to as a "pond" and the Department Staff refers to as a "lagoon". This body of water extends seaward well over 100 feet to a raised mound across the site with vegetation (grass and stunted trees) growing on it. The raised mound that is 25 to 30 feet thick and 4 to 5 feet higher than the high tide was breached north of the site and the breach is v-shaped approximately 20 feet across the top. It is possible to sail a small boat through the breach to the River proper, at least at high tide.

Poveromo who testified on behalf of all respondents stated that the breach occurred about 30 years ago (but prior to 1977 when the Tidal Wetland maps came into effect) due to hurricane action. Prior to the breach, the "ponds" were kept at a level several feet higher than the River's high tide so as to prevent salt water from entering these ponds that were then used for drinking water and swimming.

The Structures (Deck, Ramp and Shed)

Protected Areas Issue

Tidal Wetlands

Staff witnesses Maggio and DuBois established that both the River and the lagoon are tidal wetlands.

All of the structures are in an area designated on the Tidal Wetlands Maps (Exhibits 22 and 23) as either "IM" (intertidal marsh) and "SM" (shoals and mudflats), characteristics of tidal wetlands. It is not the characteristics that are important here but rather the designation. If a property owner believes that his property does not have tidal wetlands characteristics and has been improperly designated as tidal wetlands, the property owner may apply through proper channels to have his property "de-mapped".

The respondents produced a sort of subdivision map (Exhibit 40)The respondents never offered Exhibit 40 into evidence; however, since it was authenticated by the Smithtown Town Clerk official notice is taken for its depiction of the overall area and the history it supplies of the overall area including the site. of the area entitled "Map of Oakside Property of Oakside Realty Corporation" which shows the site as Lot 11C. The ponds between the land and the raised mound in front of Lot 11C and other lots are designated "Freshwater Ponds". The point of course was that the ponds were not part of the River, were not tidal and were not tidal wetlands; however it appears clearly that the map (Exhibit 40, certified July 14, 1954 and last amended as to Lot 11C on February 25, 1963) and the designation "Freshwater Wetlands" refers to a period before the mound was breached. When the mound was breached nature claimed the ponds for the River, the ponds became tidal, the ponds became quite saltyThe salt water apparently comes from Long Island Sound. especially at high tide, and the ponds became tidal wetlands, so designated by the DEC in 1977.

River Corridor

Section 15-2714(3)(ee) of the ECL (apparently effective September 1, 1975 designated the subject portion of the Nissequogue as a Recreational River Area. ECL 15-2711 set an outward boundary of jurisdiction under the statute at 1/2 mile to be confirmed or reduced following a public hearing on the issue for each river.

The final borders were defined following an ECL 15-2711 hearing on September 12, 1990. The Commissioner's Decision and Order defining the final outward boundaries of the Recreational River Area on the Nissequoque is dated July 17, 1991 (Official Notice). The Decision and Order includes narrative descriptions of the river area and sets boundaries. It also includes appendices containing maps of the area indicating the boundary of one half mile for the area of the river containing the site. The map on Page 5 of Appendix B of the Decision and Order illustrates that the entire lot which makes up the site is located within the Recreational River corridor.

Gehres testified without contradiction that the entire site is well within one-half mile of the westerly bank of the River, as shown by Exhibit 13, the survey of the site.

Structures as Violations

Tidal Wetlands

Of the structures (which are all regulated activities), the deck and ramp are each partly in the pond water at high tide and the shed is about 15 feet from the water at high tide. Thus all of these structures, unless exempt from the law or unless built with a relevant permit, being in the tidal wetlands or at least its adjacent area violate the tidal wetlands low, ECL 25-0401(2).

As to tidal wetlands land use regulations, the Staff did not contend that any structure constituted a "principal building", so what we are concerned with is whether the structures are over 100 square feet and within 75 feet of the tidal wetlands boundary.

There was no dispute that all structures were within 75 feet of the water at high or near high tide, but respondents contended, as noted, that the tidal wetlands boundary was about at the bank of the River proper, that is beyond the mound, so that all structures were beyond 75 feet from the boundary. Since, however, it has been found here that the tidal wetlands boundary runs roughly along the waterside of the deck, all structures are well within 75 feet of it.

As to the square footage of the structures, both Staff witnesses Maggio and DuBois measured the structures. The lower deck, although irregular in shape was basically 59 feet by 11 feet or 649 square feet. The shed was alleged to be 8 feet by 13 feet or 104 square feet. The ramp was 6 feet by 12 feet or 72 square feet.

Respondents conceded that the deck was over 100 square feet and the Staff conceded that the ramp was not.

The size dispute was about the shed; yet here, Poveromo's testimony is credited over Staff's measurements. More specifically Poveromo inspected the shed and stated its exterior was of 8 feet by 4 feet sheets of plywood or other material and that this was a standard construction method. This is also supported by the sketch attached to Exhibit 39 (Exhibits 38 and 39 are Mrs. Frie's 1989 application for a rivers system permit for the deck, shed and so forth). The sketch was made in 1989 by a contractor other than Poveromo. Thus the more credible proof shows that the shed was 8 feet across (two sheets 8 feet high) by 12 feet long (three sheets 8 feet high) or 96 square feet.

Thus only the deck violates the tidal wetlands land use regulations unless it was either exempt from the law or built with a proper permit.

River Corridor

As to the rivers system charges, however, all of the structures are at or only a few feet from the pond bank (thus within not only 500 feet but 150 feet) which became the River bank after the beach, such that all of the structures are well within the rivers system protected area.

As to screening so that the structures cannot be seen from the River, this is not a separate violation but rather a permit requirement. Hence it is not necessary to deal with the disagreement over whether the structures could be seen from "river", including whether the river is only the water beyond the mound or includes the pond water.

Thus all structures, unless exempt from the law or built with a proper permit, violated 6 NYCRR 666.8(a) and (b).

Exemption Issues

As to whether the structures are exempt as pre-existing structures, Poveromo testified that where the lower deck is presently there had been, going back generations, logs laid out and held in place by stakes and other logs with planking over them. The purpose of this was to be able to drag a boat, float or raft out of the water and secure it without getting all muddy. As to the shed he said there was always a shed in that spot to provide storage and security for water-related implements (oars and so forth) that were difficult to carry or drag up the hill to the residence or garage. The ramp, said Poveromo, was secured by a loose cable attached to the underpinning of the lower deck and would float up and down with the tide. When the tide was in sufficiently you could run, for instance, a jet ski right up onto the lower deck instead of having to lift or winch it straight up out of the water.

Poveromo's testimony was designed to establish that the lower deck was the direct descendent (a "repair") of the log boat-landing ("dock") area, or at most a sort of an upgrade of it, that the present shed is similarly an updated successor ("repaired or replaced or something") to the earlier sheds, and that the ramp is strictly a water-related implement.

There is sharp conflict between Miller's and Poveromo's testimony on the question of what was there before the lower deck. Miller said that a prior owner of the site had put down just two logs secured by stakes whereas Poveromo said that the logs were a "bulkhead" that covered the entire area under the lower deck and went 30 feet further landward. Poveromo added that the old bulkhead not under the lower deck is now covered by grass but if the grass is parted the logs may be seen. At the site visit old logs could be seen under the lower deck and areas landward of it when the grass was parted.

Poveromo said the old log bulkhead completely supports the lower deck which is attached to it. Poveromo, an area contractor for many years, stated that the only things that had to be done to the old bulkhead before laying out the decking was some shaving of the logs' elevated spots, adding some shim pieces and a "sleeper" to make the deck level.

Exhibit 39 (part of a DEC application for a permit for the subject structures) has two photographs attached one of which shows the underside of part of the lower deck looking from the pond area. From the photo it appears that considerably more framing of the log bulkhead, more than Poveromo indicated, was necessary.

The other photograph attached to Exhibit 39 shows the upper surface of the lower deck, a detached foot ramp, the jet-ski ramp attached, and the shed approach as really an extension of the lower deck.

Staff Counsel attempted to establish that none of the subject structures or their alleged predecessors were at the site in August of 1987. At that time a survey (Exhibit 43) was submitted to the Region 1 office in connection with a request for approval of an upper deck with pool. No structures are shown near the pond in the lower area. The same basic diagram was "updated 11/15/89" (Exhibit 13) to show the lower structures for a then application to the Town of Smithtown for approval of the subject structures. It is clear that neither the lower structures (nor their predecessors) were at issue in 1987 and that is the reason they were not shown in 1987. The "Timber Bulkhead," shown in 1989 with the lower structures, was surely there in 1987 but this was not then shown either. The point, of course, is that the 1987 document (Exhibit 43) tells us nothing about what was in the lower area at that time. Specifically as to the shed, the surveyor may well have overlooked the shed because it was back off the landward side of the deck partially into tree-cover or because he thought it not relevant because it appeared movable and thus easily removable.

There was no lower deck as such until after 1987. There may have been a log bulkhead with planking there for many years but that is not the same thing as a deck. The deck is a superstructure built over the bulkhead although supported by the bulkhead for the most part. The uses of the bulkhead were purely water-related, but the uses made of the lower deck are similar to the uses made of the upper deck which is quite removed from the water. Poveromo did say that prior owners would bring chairs onto the planking to enjoy the view of the water particularly at high tide but even this is water-related.

As to the deck being a pre-existing structure and thus exempt (as Respondents claim), while the deck has several uses similar to a dock, that is launching and securing boats and temporarily storing water-related implements such as rafts and jet skis, its predominant purpose and use is not water-related as with a dock. Exhibit 18, a photograph, shows on the lower deck an apparently attached table and benches suitable for serving a meal, playing cards or other games and so forth and other attached benches on the landward side.

The ramp is in itself strictly water-related, but has no function independent of the lower deck. It qualifies as an exempt dock under the Tidal Wetland regulations, but requires a permit under the River system regulations.

The shed, however, is another matter. As noted Poveromo (who grew up on the River, was a consultant to the Town Historian and a member of the Town Planning Board) testified that there had always been a shed in the same spot and put to the same uses as which it was put by the Fries. Miller's general statement that none of the structures were there when the Fries moved in is not nearly as appealing as Poveromo's relation of his continuous, first-hand observations.

There are other problems with Miller's testimony. He was clearly mistaken as to the number of old logs under the lower deck and landward of it. He first said he saw the Fries' workmen cutting vegetation and then said he did not see this. Miller was also mistaken about the composition of the pond bottom. The pond is also in front of his land and he said he swims in the pond. For him to then say the bottom was mud when it is sand and gravel is most notable.

Also I find Miller (and Veneziano as well) to be highly motivated against the Fries, particularly against the Frie children. I do not believe that these men ever cared at all about the lower deck, ramp, shed or vegetation, or ever took particular note of them.

Getting back to the shed specifically, the existence of a shed all along is entirely consistent with the nature and use of the site going back many years. The shed is a logical companion to the log bulkhead still visible today. The bulkhead served to ground the watercraft so they would not slip back into the water. It also was better to walk on than the mud under it. Still the prior owners would neither wish to leave valuable, unsecured equipment in the watercraft, such as oars, motors and so forth, nor drag it up the hill to the house or garage. A locked shed, as protection from river pirates, was the answer all along.

Poveromo indicated that the changes made in the shed by the Fries were only some repairs and cosmetic touches to make the shed compatible with the new lower deck, ramp and so forth. Denying the existence of any prior shed, the Staff has presented no comparison of the shed before the Fries and the shed after their work.

Responsibility for the Structures

Miller testified that for two years, mostly on weekends, he heard and saw contractors, carpenters, Mr. Frie and Mrs. Frie down on the lower deck area. He saw Mr. Frie working along with the workmen as they worked on the lower deck, shed and ramp. He saw Mrs. Frie down there looking at the work and talking to the workers. Veneziano corroborated Miller's testimony in almost all respects except as to what was there before the work began.

Miller also testified that when construction was complete the Fries, their children and their friends used the lower deck to sun themselves, hold parties, and recreate generally. The ramp was used to place in and take out of the water such implements as jet skies, rafts and boats. The shed was used to store jet skies, boats, rafts, motors and other implements.

Neither Mr. Frie nor Mrs. Frie testified at the hearing; however Mrs. Frie was the record owner of the site from November 13, 1987 to May 15, 1991 when she deeded the site to the Corporation. The Frie family had moved in about December 1987 and as Miller testified, the construction began about a year later and proceeded for about two years. It appears that construction was completed, at least for the most part, when Mr. and Mrs. Frie separated in August 1990 (divorced in May, 1992), after which Mrs. Frie and the children continued to reside at the site through at least the site visit in this proceeding.

It is clear that all subject structures were constructed with the knowledge and active participation of both Mr. Frie and Mrs. Frie and both actively and extensively made use of each.

Thus Mrs. and Mr. Frie are each responsible for the construction to the extent that they participated in it and authorized it. Yet the shed is totally exempt under both the tidal wetlands and rivers system requirements, the ramp is exempt under the tidal wetlands laws but not so under the rivers system laws, and the deck is not exempt from either set of requirements.

It follows then that while Mrs. Frie and Mr. Frie (unless they had proper permits) must each pay penalties for the deck under both sets of requirements, they must pay only river system penalties for the ramp.

Altering (Topping) Vegetation

As noted, Staff has charged Mr. Frie and Mrs. Frie with topping vegetation in 1989 and Mrs. Frie and the Corporation in 1991 and 1992.

The vegetation that was allegedly topped is in the area near the waterside edge of the lower deck and under it.

Miller testified that the vegetation "was there one day and gone the next", and Veneziano said the exact same thing in the exact same conclusory words.

DuBois said that photograph Exhibit 26 (taken in November 1992) shows that the vegetation was cut level for the most part; however, this photograph shows a sort of irregular bush at the edge of the deck appearing to lean over onto the deck and along the waterside edge of the deck and sort of reeds level because they were either suppressed by the level deck or inhibited by the level deck from growing any higher. Photograph Exhibit 25 shows the bush referred to as well as another, larger, irregular bush also appearing to go up onto the deck.

The Staff believes that the vegetation was cut to get it out of the way of the deck but one of the photographs attached to Mr. Frie's application (Exhibit 39) to Region 1 for permits for the structures (taken in the spring or summer) shows the deck already built and a wealth of irregular vegetation all along the area in between the bulkhead and the bottom of the waterside of the deck, and also a wealth of vegetation growing out of the pond bottom. If the Staff is claiming that vegetation was cut on the pond bottom, there is no comparison of the pond bottom at low tide at the same time of year before work was commenced.

For his part Poveromo testified that prior to the construction there was only very low grass (which grew after the planking was removed) and Poveromo pointed out the bushes and other vegetation shown by the photographs in the area post-construction.

The respondents cannot be held responsible for the crushing or loss of vegetation as a result of the placement of the bulkhead and planks by a prior owner. Thus Staff failed to carry its burden of proof here and no respondent has been shown to have cut vegetation in violation of either set of requirements.

Motorized Vehicle Use

Miller and Veneziano as, noted, testified to extensive motorized vehicle use by the Frie children and their friends, extending as well onto their properties.

Their photographs (Exhibits 31 through 37) show what appear to be tracks and ruts made by motorized vehicles in the upland between Oakside Drive and the "Easement Road" (an old ice road) coming off it and running then north and south below it. The photographs also show a number of tree stumps in the area and Miller and Veneziano accuse the Frie children of felling these trees to make room for their motorized vehicles and to provide borders for their "racetrack".

At the site visit there appeared no notable ruts or indication of any "racetrack". At the conclusion of the site visit, while still at the site, all counsel were given an opportunity to comment on the record as to what they had observed as compared to the evidence at the hearing. Staff Counsel thus had the opportunity to claim that the site had been altered for the site visit, but no such claim was made then or in the Staff's post-hearing memoranda.

The Staff bases its claim that motorized vehicle use (which is a regulated activity) in a river area is a violation upon 6 NYCRR 666.8(b)(1) (see also 666.23, 666.24(a), 666.22(a), 666.21(a), (h) and (j), and 666.19(c) and (d)) which states that "No person shall undertake a new land use...in a river area which is not allowed under this Part." Other land uses require a permit or variance and others require neither.

As Gehres conceded automobiles, trucks, tractors, riding lawnmowers and hunting with shotguns need no permit as they are either exempt as an agricultural use [666.2(b)], or are exempt pre-existing uses. Gehres also conceded that a "trail for dirt bikes" would be allowed without a permit as an "accessory" use under 666.21(l).

If soil disturbance is allowed (by tractors, dirt bikes and so forth) then all that is left is noise (allowed by tractors, shotguns and so forth) and wear and tear on the vehicles.

Also Miller and Veneziano said that motorized vehicles are only used when the Frie children cannot use their jet skis and so forth down at the water. Official notice is taken that Long Island has a considerably longer warm season than upstate areas. With the Frie children seeming to have just about every recreational implement, it seems to be a fair assumption that they also have wet suits which would further extend the period when jet skis and other water implements could be used.

The sole concern of Miller and Veneziano has been all along and is the motorized vehicle use by the Frie children and their friends in the upland which they say disturbs the peace and tranquility of the area, chased out the pheasants and otherwise reduces their enjoyment of the area. They see their cooperation with the Staff in connection with the structures and vegetation as a way to bring about such heavy penalties as will require Mrs. Frie and the children to leave the area. Lastly, it is noteworthy that the Region 1 Staff has never before had a similar complaint about children using motorized vehicles in protected areas and never has had an application for a permit for such use.

Basically the DEC enforces disturbances of the environment, while personal disturbance to individuals is a matter for local authorities.

The Staff alleges that Mrs. Frie and the Corporation "permitted" motorized vehicle use by the Frie children; however, no proof of permission was offered.

While there is some question of how Mrs. Frie or the Corporation would be liable for the 10 and 14 year old children's acts, the record as a whole is sufficient to establish at least an inference (on top of the fact that Mrs. Frie and the Corporation owned the land) that Mrs. Frie (or the Corporation) furnished the motorized vehicles to the children. Further, while there was no proof that Mrs. Frie was at home at any particular time that the vehicles were being used by the children, she must have known about and allowed the use generally.

Yet while Mrs. Frie and the Corporation (not shown to be anything but in Mrs. Frie's total control) are responsible for the motorized vehicle use (there was no showing that it was exempt or was permitted) the effect of that use upon the environment and the neighbors has been rather greatly exaggerated, such that a reduction in penalty is in order.

Lack of Permits

None of the respondents contested the allegations that they were never issued any DEC Tidal Wetlands or River System permits.

Findings of Fact As To Violations

The Structures

a. Tidal Wetlands
  1. All of the structures (which are regulated developments) are in tidal wetlands or at least in their adjacent area.
  2. Respondent Patricia Frie owned the site, was fully aware of the construction, consented to it and oversaw it. She is responsible for it.
  3. Respondent Warren Frie was fully aware of the construction and actually participated in it. He is responsible for it.
  4. None of the Respondents had any relevant DEC tidal wetlands permit.
b. Tidal Wetlands Land Uses
  1. The lower deck and ramp are regulated developments [ECL 25-0401; 6 NYCRR 661.6(a)(1), 661.8, 661.5(b), Use Guidelines 15, 25, 49 and/or 57].
  2. The lower deck is in excess of 100 square feet and is less than 75 feet from the tidal wetlands boundary [6 NYCRR 661.6(a)(1)].
  3. The ramp is less than 100 square feet but is within 75 feet of the tidal wetlands boundary; however, the ramp is a totally water-related implement and constitutes a floating dock of less than 200 square feet and requires no tidal wetlands permit [6 NYCRR 661.6(a)(1), 661.5(b), Use Guideline 16].
  4. The shed is an "existing land use and development...lawfully in existence on August 20, 1977" [6 NYCRR 661.10(a)].
c. River Corridor Construction
  1. All of the structures (which are regulated developments) are well within one-half mile of the river's western bank [ECL 15-2711, 2714(3)(ee); Commissioner's Decision and Order, dated July 17, 1991]; and all structures require a permit.
  2. None of the Respondents possessed any relevant rivers systems permit.
d. River Area Land Uses
  1. The lower deck and ramp are regulated developments [6 NYCRR 666.8(a) and (b)].
  2. All of the structures are within not only 500 feet but within 150 feet of the river bank [6 NYCRR 666.8(b)(2), 666.24(a) and 666.22(e) and (h)].
  3. Respondent Patricia Frie and respondent Warren Frie are each responsible for the construction of the subject structures (See Tidal Wetlands Findings of Fact, Numbers 2 and 3).
  4. The shed is a pre-existing land use and was rehabilitated, restored, replaced or rebuilt on the same scale and in the same location but it was not altered or expanded [6 NYCRR 666.9(a) and (c)].
  5. The ramp constitutes a dock which requires a rivers system permit [6 NYCRR 666.24(a), 666.22(e) and (h), and 666.21(1)].

Topping Vegetation Tidal Wetlands Law

  1. There is insufficient evidence that any respondent altered or cleared vegetation (which is a regulated activity) in tidal wetlands or adjacent area [ECL 25-0401; 6 NYCRR 661.8; see also 661.5(b), Use Category 57].

River Area Land Uses

  1. There is insufficient evidence that any respondent altered or cut (topped) vegetation within 100 feet of the River bank [6 NYCRR 666.8(b)(2); 666.31(b)(2)].

Motorized Vehicle Use

River Area Land Uses
  1. Respondent Patricia Frie and respondent 138 Oakside Corporation owned the site, provided motorized vehicles for the children's use, were aware of that use, and allowed that use.
  2. The motorized vehicle use (which is a regulated activity) took place in the river corridor's upland on the site as well as on the property of others.
  3. Respondent Patricia Frie and Respondent 138 Oakside Corporation are responsible for the motorized vehicle use which is a prohibited activity.

Discussion of Penalties

Penalty recommendations call into play the Commissioner's Civil Penalty Policy ("CPP") dated June 20, 1990 and a Tidal Wetlands Enforcement Guidance Memorandum from the Central Office Staff also dated June 20, 1990.

Since the Staff document is consistent with the Commissioner's policy and it does provide relevant guidance, it will be used in determining the penalty recommendation.

There is no separate penalty guidance document for river systems violations. In these circumstances the tidal wetlands guidance document, which appears generally applicable to Rivers system penalty considerations, will be referred to in connection with river systems penalty recommendations.

The Staff memorandum suggests when considering tidal wetlands penalty matters that these factors be taken into account: Nature and extent of violation, type and condition of tidal wetland involved, awareness of the existence of a regulated wetland or adjacent area, and willful, repetitive, or recalcitrant conduct.

Nature and Extent of Violation

In contending that the lower deck prevents vegetation which raises the possibility of erosion and that the same vegetation would buffer noise, provide food for wildlife and staging areas for song birds, Staff overlooks the fact that the primary inhibitor of vegetation is the pre-existing log bulkhead with planking over it for which these respondents are not responsible.

In claiming that the lower deck impacts adversely upon the scenic values by replacing part of the natural "river" bank with a wooden structure, the Staff overlooks the fact that "scenic" is entirely subjective and that many would consider a nice-looking deck as an acceptable replacement for about 70 feet of muddy pond bank.

Asserting that the ramp when setting on the bottom destabilizes the sediment and causes erosion which also disturbs fauna and invertebrates, Staff overlooks the fact that the record evidence shows the ramp either motionless on the pond bottom or completely out of the water; nor did the proof exclude the possibility that the ramp could be re-rigged so as to remain either in the water or suspended above the pond bottom, and never touch the pond bottom.

Type and Condition of Tidal Wetland Involved

The Memorandum states in connection with this factor:

"Disturbance of prime intertidal marsh ["IM" present at the subject site], for example may occur under circumstances warranting an equal or even lower penalty than disturbance of highly degraded formerly connected tidal wetlands..." (Page 13)

Hence the disturbance here was not as harmful as it could have been.

Relevant here also is the fact that if it were not for the breach in the mound the tidal wetland boundary would be nearer the bank of the River proper and the structures well back in the adjacent area.

There has been no input from Staff concerning this factor either under the tidal wetlands laws or the river system laws, yet as to the latter it seems relevant at the site the River is "recreational" and not "wild" nor "scenic"at the point of the incident.

Awareness of the Existence of a Regulated Wetland or Adjacent Area

While the Fries may not have been aware that their property was in a tidal wetlands adjacent area (neither ever applied for a tidal wetlands permit) they certainly were aware of the river system permit requirements in that they each, separately and as noted, had applied for river systems permit, one of which was for the upper deck and so forth.

Willful, Repetitive, or Recalcitrant Conduct

The conduct of Mr. Frie and Mrs. Frie was willful, especially in that they each applied for river system permits but then went ahead and built the structures without ever obtaining approval.

There was no evidence of any prior or other violations by these respondents.

Relevant also is that at least this Report finds that the respondents were in the right about the shed and about vegetation topping, violative as to motorized vehicle use, and violative but possibly entitled to permits for the deck and ramp. Thus there was only minor recalcitrance.

The Factors Overall

On balance, in the circumstances present here each of the tidal wetlands violations should be reduced from a maximum of $10,000 to $3,000 for at least two reasons: 1) Staff, in its assessment of the situation, has only requested $3,000 per violation; and 2) apparently the respondents were never advised of the need for a tidal wetlands permit. The maximum on the rivers system violation is $1,000 and that appears to be little enough for those violations.

Findings of Fact As To Penalties

  1. The lower deck in and of itself inflicts little if any environmental harm and the primary inhibitor of vegetation is the pre-existing log bulkhead with planking over it, for which these respondents are not responsible.
  2. The deck is not unsightly and is an acceptable replacement for about 70 feet of muddy pond bank.
  3. The ramp inflicts only minor environmental harm and may be re-rigged to virtually eliminate all environmental harm.
  4. In contending that the ramp when setting on the bottom destabilizes the sediment and causes erosion which also disturbs fauna and invertebrates, Staff overlooks the fact that the record evidence shows the ramp either motionless on the pond bottom or completely out of the water; nor did the proof exclude the possibility that the ramp could be re-rigged so as to remain either in the water or suspended above the pond bottom, and never touch the pond bottom.
  5. In contending that the lower deck prevents vegetation which raises the possibility of erosion and that the same vegetation would buffer noise, provide food for wildlife and staging areas for song birds, Staff overlooks the fact that the primary inhibitor of vegetation is the pre-existing log bulkhead with planking over it for which these respondents are not responsible.
  6. In contending that the lower deck impacts adversely upon the scenic values by replacing part of the natural "river" bank with a wooden structure, the Staff overlooks the fact that "scenic" is entirely subjective and that many would consider a nice-looking deck as an acceptable replacement for about 70 feet of muddy pond bank.
  7. The minimal disturbance involved here is at least in part in an intertidal marsh ("IM") area.
  8. Prior to construction of the structures Mr. Frie and Mrs. Frie were aware of at least the rivers system permit requirements.
  9. The environmental damage and disturbance of the neighbors caused by motorized vehicle use was exaggerated.
  10. There are no prior violations by any respondent.
  11. While the violations established were willful no respondent was recalcitrant, except to a minor extent.

Conclusions of Law

The Structures

a. Tidal Wetlands
  1. Respondent Patricia Frie and Respondent Warren Frie each violated ECL 25-0401(2) by constructing the lower deck.
  2. Neither Respondent Patricia Frie nor Respondent Warren Frie violated ECL 25-0401(2) by constructing the shed.
  3. Neither Respondent Patricia Frie nor Respondent Warren Frie violated ECL 25-0401(2) by constructing the ramp.
b. Tidal Wetlands Land Uses
  1. Respondent Patricia Frie and Respondent Warren Frie each violated 6 NYCRR 661.6(a)(1) by constructing the lower deck.
  2. Neither Respondent Patricia Frie nor Respondent Warren Frie violated 6 NYCRR 661.6(a)(1) by constructing the shed.
  3. Neither Respondent Patricia Frie nor Respondent Warren Frie violated 6 NYCRR 661.6(a)(1) by constructing the ramp.
c. River Corridor Construction
  1. Respondent Patricia Frie and Respondent Warren Frie each violated 6 NYCRR 666.8 by constructing the lower deck.
  2. None of the Respondents violated 6 NYCRR 666.8 by constructing the shed.
  3. Respondent Patricia Frie and Respondent Warren Frie each violated 6 NYCRR 666.8 by constructing the ramp.
d. River Area Land Uses
  1. Respondents Patricia Frie and Respondent Warren Frie each violated 6 NYCRR 666.25(a) by constructing the lower deck.
  2. None of the respondents violated 6 NYCRR 666.25(a) by constructing the shed.
  3. Respondent Patricia Frie and Respondent Warren Frie each violated 6 NYCRR 666.25(a) by constructing the ramp.

Topping Vegetation

a. Tidal Wetlands Land Use
  1. No respondent violated ECL 25-0401(2) (6 NYCRR 661.8) by cutting (topping) vegetation.
b. River Area Land Use
  1. None of the respondents violated 6 NYCRR 666.22(b) or 666.31(b)(3) or (4) by topping vegetation.

Motorized Vehicle Use

a. River Area Land Use
  1. Respondent Patricia Frie and respondent 138 Oakside Corporation each violated 6 NYCRR 666.8(b)(2) by permitting operation of recreational motorized vehicles in a recreational river area.

An Issue Not Raised

There is one other matter, not raised by the respondents, which should be addressed. This has to do with Mrs. Frie's application for a DEC rivers law permit for the subject structures in 1989. The Staff determined to deny the permit and sent Mrs. Frie a denial letter (Exhibit 38). This letter told Mrs. Frie that

"If we do not receive a response within ____ days of the date of this letter we will assume that you have abandoned your proposal and will consider your application withdrawn"

but failed to advise Mrs. Frie that she had the right to request a hearing about the denial. Given the deficiencies in the denial letter and its completion, Mrs. Frie's time to respond to the Staff or to request a hearing has yet to expire, that is to say the permit denial process has not been terminated and remains open.

Then, too, the deck and the ramp (the shed does not require any permit) appear to do only minimal environmental harm. As noted, the deck is built over the pre-existing log bulkhead and the ramp (when hooked up) only lays on the pond bottom at low tide and probably could be adjusted to eliminate it ever hitting the bottom which is sand and gravel.

On the other hand, the Fries went ahead with the deck and ramp anyway knowing they were not authorized to do so. Not only had Mrs. Frie applied for this permit but Mr. Frie had previously applied in 1988 for a river law permit for the upper area which is much further back from the River. Mr. and Mrs. Frie did not separate until 1990 such that is a fair conclusion that they each were fully aware of at least the river law permit requirements well before they had the construction done.

Yet, in all the circumstances, Mrs. Frie or the Corporation should be authorized to request a hearing on the river law permit denial as to the deck and ramp within a certain numbers of days after removing the deck and ramp and paying the penalty each within the time frame set in the Commissioner's order. Also Mrs. Frie or the Corporation at the same time should be allowed to submit an application for a Tidal Wetlands permit for the deck, something neither she nor the Corporation nor Mr. Frie has ever done.

The environmental damage inflicted by the structures is minimal, even de minimum. A rivers system permit application was commenced but never terminated. There appears no impediment to permitting, such that the rivers system permitting process should be completed while a tidal wetlands permit application is being processed. For these reasons it is recommended that the structures not be required to be dismantled until the permitting process is resolved.

Recommendations

A summary of the recommended disposition of the charges is attached to this Report as an Appendix.

The Structures

a. Tidal Wetlands Law
  1. Respondent Patricia Frie and Respondent Warren Frie, having violated ECL 25-0401 by constructing the lower deck, should be assessed a civil penalty of $3,000.
  2. The charges against Respondent Patricia Frie and Respondent Warren Frie under ECL 25-0401 for constructing the shed should be dismissed with prejudice.
  3. The charges against Respondent Patricia Frie and Respondent Warren Frie under ECL 25-0401 for constructing the ramp should be dismissed with prejudice.
b. Tidal Wetlands Land Uses
  1. Respondent Patricia Frie and Respondent Warren Frie, having violated 6 NYCRR 661.6(a) by constructing the lower deck, should be assessed a civil penalty of $3,000.
  2. The charges against Respondent Patricia Frie and Respondent Warren Frie under 6 NYCRR 661.6(a) for constructing the shed should be dismissed with prejudice.
  3. The charges against Respondent Patricia Frie and Respondent Warren Frie under 6 NYCRR 661.6(a) for constructing the ramp should be dismissed with prejudice.
c. River Corridor Construction
  1. Respondent Patricia Frie and Respondent Warren Frie, having violated 6 NYCRR 666.8 by constructing the lower deck, should be assessed a civil penalty of $1,000.
  2. The charges against Respondent Patricia Frie and Respondent Warren Frie under 6 NYCRR 666.8 for constructing the shed should be dismissed with prejudice.
  3. Respondent Patricia Frie and Respondent Warren Frie having violated 6 NYCRR 666.8 by constructing the ramp should be assess a civil penalty of $1,000.
d. River Area Land Uses
  1. Respondent Patricia Frie and Respondent Warren Frie, having violated 6 NYCRR 666.25(a), by constructing the deck, should be assessed a civil penalty of $1,000.
  2. The charges against Respondent Patricia Frie and Respondent Warren Frie under 6 NYCRR 666.25(a) for constructing the shed should be dismissed with prejudice.
  3. Respondent Patricia Frie and Respondent Warren Frie for having violated 6 NYCRR 666.25(a) by constructing the ramp should be assessed a civil penalty of $1,000.

Topping Vegetation

Tidal Wetlands Law
  1. The charges against Respondents Patricia Frie, Warren Frie and Respondent 138 Oakside Corporation under (6 NYCRR 661.8) and (4) for cutting or topping vegetation should be dismissed with prejudice.
River Area Land Uses
  1. The charges against Respondents Patricia Frie, Warren Frie and Respondent 138 Oakside Corporation under 6 NYCRR 666.22(b), 666.31(b)(3) and (4) and 666.8 for cutting or topping vegetation should be dismissed with prejudice.

Motorized Vehicle Use

River Area Land Uses
  1. Respondents Patricia Frie and Respondent 138 Oakside Corporation, having violated 6 NYCRR 666.8(b)(2) by permitting operation of recreational motorized vehicles in a recreational river area, should be assessed a civil penalty of $500.
Remediation
  1. Respondents Patricia Frie and Respondent 138 Oakside Corporation should be ordered to refuse to allow recreational motorized vehicle use on or from the subject site.
Future Permits
  1. Respondent Patricia Frie and Respondent Warren Frie should be required to remove the deck and ramp within ninety (90) days of the service of a conformed copy of the Commissioner's Order upon them, should they not fully abide by the Commissioner's Order and either Respondent Patricia Frie or Respondent 138 Oakside Corporation file a complete application for a tidal wetlands permit within sixty (60) days of the service of a conformed copy of the Commissioner's Order upon them. In such event, those Respondents should be allowed to request a hearing on the rivers system permit denial. After that, Respondents Patricia Frie and Warren Frie should be directed to remove those structures should either of the permits applied for be denied.
The Appeals
  1. The appeals should be dismissed.

APPENDIX

RECOMMENDED DISPOSITION OF CHARGES
DECK SHED RAMP VEGETATION M.V.USE TOTALS
MRS. FRIE & MR.FRIE
Construction
T.W. $3,000 Dismiss Dismiss $10,000
T.W. Land $3,000 Dismiss Dismiss Dismiss
River Cor. $1,000 Dismiss $1,000 Dismiss
River Land $1,000 Dismiss $1,000
Vegetation
T.W. Land
River Land
M.V. Use
River Land
MRS. FRIE & CORPORATION
Construction
T.W. $500
T.W. Land
River Cor. Dismiss
River Land Dismiss $500
Vegetation
T.W. Land
River Land
M.V. Use
River Land
TOTALS $8,000 $2,000 $500 $10,500

KEY

T.W. - Tidal Wetlands

T.W. Land - Tidal Wetlands Land Uses

River Cor. - River Corridor

River Land - River Area Land Uses

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