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Fusco, Pasquale - Order, June 12, 1997

Order, June 12, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

ORDER

In the Matter of Alleged Violations of Article 24 of the Environmental Conservation Law of the State of New York and Part 662 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

PASQUALE FUSCO, Respondent.

WHEREAS:

  1. Administrative Law Judge ("ALJ") Kevin J. Casutto's attached Ruling on Staff's Motion for Order Without Hearing and Hearing Report (the "Ruling") is accepted as my decision in this matter, and made a part hereof. The record closed on May 13, 1997.
  2. The facts as found in the Ruling have been taken into account in determining the terms of this Order.

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

  1. Respondent Pasquale Fusco, the owner of certain real property in Richmond County (the "site"), has violated ECL 24-0703(5) and 6 NYCRR 662.2(b) by:
    1. Clearing vegetation at the site without a permit on or before March 12, 1986;
    2. Excavating at the site without a permit, on or before April 14, 1986; and
    3. Constructing a foundation at the site without a permit on or before April 14, 1986.
  2. The remaining two violations alleged by Staff are dismissed.
  3. For each of the three violations set forth in Paragraph I of this Order, a maximum monetary penalty of THREE THOUSAND DOLLARS ($3000.00) is hereby imposed upon Respondent for each of the three violations of ECL 24-0703(5) and 6 NYCRR 662.2(b), a total penalty of NINE THOUSAND DOLLARS ($9,000.00). SIX THOUSAND DOLLARS ($6,000.00; $2,000.00 per violation) shall be due and payable within thirty (30) days of service upon Respondent of a conformed copy of this Order. THREE THOUSAND DOLLARS ($3000.00; $1,000.00 per violation) shall be suspended, subject to the conditions set forth below.
  4. Within thirty (30) days of issuance of this Order, Staff shall specify in writing to Respondent what factual information or other material needs to be supplied to Staff in order for Respondent to complete his permit application. Within fifty-five (55) days of issuance of this Order, Respondent shall complete his permit application.
  5. In the event Respondent does complete his permit application within fifty-five (55) days of issuance of this Order, Staff shall expeditiously process that application. The site remediation required shall be consistent with any disposition on the permit application. In the event the Department's disposition on the permit application authorizes some construction on the site, then the remediation required, and the restoration plan, shall be modified to reflect the permitted structure(s), potentially including all or part of the existing foundation on the site. In the event the Department's disposition on the permit application does not authorize construction which incorporates all or part of the existing foundation on the site, then Respondent must restore the site including removal of the foundation.
  6. Within forty-five (45) days of the Department's determination on the permit application, Respondent shall submit a restoration plan and, if appropriate a construction plan, to Staff for review and approval. Respondent shall implement the restoration plan within ninety (90) days of written notice of Staff's approval of the plan, or pursuant to a schedule approved by Staff. In the event construction is authorized, Respondent shall implement the restoration plan within ninety (90) days of completion of construction, or pursuant to a schedule approved by Staff.
  7. In the event Respondent does not complete his permit application within fifty-five (55) days of issuance of this Order, Respondent shall submit to Staff for review and approval a restoration plan, including removal and disposal of the building foundation, within eighty-five (85) days of issuance of this Order. Such restoration shall be completed within one hundred (100) days of written notice of Staff's approval, or pursuant to a schedule approved by Staff.
  8. In the event Respondent fails to comply with any requirement of this Order, the suspended penalty shall immediately become due and payable upon receipt of written notice from Staff to Respondent.
  9. All communications between Respondents and Department Staff concerning this Order shall be made to: Mary Ellen Kris, Regional Director, Region 2, NYSDEC, 47-40 21st Street, Long Island City, New York, 11101. The Regional Director is authorized to adjust to the time schedules specified above upon the joint agreement of Staff and Respondent.
  10. The provisions, terms and conditions of the Order shall bind Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Acting Commissioner

Dated: June 12, 1997
Albany, New York

TO: Pasquale Fusco
37 New Dorp Plaza
Staten Island, New York 10306

Paschal A. Corbo, Esq.
182 Rose Avenue
Staten Island, New York 10306

Louis P. Oliva, Esq.
Assistant Regional Attorney
Region 2, NYSDEC
47-40 21st Street
Long Island City, New York 11101

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION RULING ON MOTION FOR ORDER WITHOUT HEARING
and
HEARING REPORT

[R2-0323-86-05]

In the Matter of Alleged Violations of Article 24 of the Environmental Conservation Law of the State of New York & Part 662 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York by

PASQUALE FUSCO,

Respondent.

SUMMARY OF RULING

This Ruling and Hearing Report ("Report") largely grants Department Staff's Notice of Motion for Order Without Hearing regarding Respondent Pasquale Fusco's erecting a building foundation on his Staten Island, New York property located in a regulated wetland. Respondent Fusco admitted that he was, and continues to be, owner of the site and that with his knowledge and consent, the site was cleared of vegetation, excavation occurred, and the erecting of a building foundation occurred. Respondent Fusco did not contest liability for the violations alleged by Department Staff nor liability for restoration of the site. The ALJ finds Respondent Fusco liable for three of the five violations of ECL 24-0703(5) alleged by Department Staff: clearing vegetation, excavating and erecting a foundation in a wetland, absent a permit. The ALJ recommends dismissal of the two remaining charges of excavating at the site and additional clearing of vegetation at the site. The ALJ recommends that the Commissioner impose upon Respondent Fusco a maximum monetary penalty of $3,000.00 for each of the three violations of ECL Article 24, a total penalty of $9,000.00, with a $6,000.00 payable penalty and a $3,000.00 suspended penalty. Separately, Respondent Fusco has applied to the Department for a freshwater wetlands permit that, if granted, would allow some alteration of the site. Department Staff has suspended processing of that permit application due to this enforcement action. However, Respondent Fusco requests that a disposition on his permit application occur before Respondent Fusco is required to perform any restoration at the site. Respondent Fusco thereby seeks to obtain retroactive approval for alteration of the site. The ALJ recommends providing Respondent Fusco with an opportunity to obtain a disposition on his permit application before restoring the wetland. But, the suspended monetary penalty would become payable if Respondent Fusco does not expeditiously pursue a disposition on his permit application and site restoration.

PROCEEDINGS

Introduction

At all times referred to herein, Respondent Pasquale Fusco owned and continues to own property located at Bloomingdale Road and Englewood Avenue on Staten Island (Richmond County), New York identified as Tax Block 7346, Lots 1, 25, and 32 (the "site"). On November 6, 1995 the New York State Department of Environmental Conservation ("the Department" or "NYSDEC") Region 2 Staff ("Staff") served Pasquale Fusco ("Respondent"), by certified mail, with a Notice of Hearing and Complaint. Subsequently, Staff served a Notice of Motion for Order Without Hearing dated October 28, 1996, and supporting papers upon Respondent regarding Respondent's erecting of a building foundation on Respondent's Staten Island, New York property located in a regulated wetland. Staff seeks removal and proper disposal of the foundation, restoration of the disturbed area to its natural condition and monetary penalties of $15,000.00 for Respondent's violations of ECL Article 24 and 6 NYCRR Part 662.

Motion for Order Without Hearing

Staff served Respondent with a Notice of Motion for Order Without Hearing, dated October 28, 1996, and supporting affidavits. Staff's notice of motion included affidavits of Louis P. Oliva, Esq., Assistant Regional Attorney, NYSDEC Region 2; Joseph Pane, Principal Fish and Wildlife Biologist, NYSDEC Region 2; and John F. Cryan, Deputy Regional Permit Administrator, NYSDEC Region 2 (all dated October 28, 1996). A memorandum of law dated October 28, 1996 was also filed with the motion.

Exhibits included with the motion and affidavits include copies of maps, including the Department's 1981 draft wetlands map depicting the site and the Department's 1987 final wetlands map depicting the site, Staff notes, including field notes and file notes, correspondence, transcript and Order and Decision of the Freshwater Wetlands Appeals Board regarding Respondent's appeal of the agency's determination that the site is a wetland (dated November 8, 1994, upholding the Department's determination), and Respondent's permit application dated April 11, 1995.

Respondent, by his attorney, Paschal A. Corbo, Esq., acknowledged service of Staff's motion by submitting an Affidavit in Partial Opposition, dated March 6, 1997, with supporting exhibits. By letter dated March 7, 1997, Staff filed a motion objecting to Respondent's discussion of the content of settlement negotiations in Respondent's opposing affidavit. Respondent then filed a reply, asserting that the affidavit should be considered without limitation. By ruling dated March 18, 1997, portions of Respondent's Affidavit in Partial Opposition describing the content of settlement negotiations were stricken, consistent with the agency's policy of encouraging and facilitating settlement through frank discussions among the parties. The Affidavit was limited in this respect, in sum and substance, to Respondent's statement that Respondent did engage in settlement discussions with Staff, but those discussions did not resolve the dispute.

Respondent's Affidavit in Partial Opposition raises two objections to Staff's motion, both of which concern the propriety of imposing a monetary penalty upon Respondent. Respondent does not otherwise deny Staff's factual recitation and accepts liability for removal of the foundation. However, Staff has ceased processing Respondent's permit application to develop the site, pursuant to 6 NYCRR 621.3(f), due to this pending enforcement action. Yet Respondent seeks to obtain approval for his alteration of the wetland via the permit application. Therefore, Respondent requests that the Commissioner order Staff to process the permit application to determine whether the existing foundation can be used in any authorized construction on the property, before the Commissioner imposes any order upon Respondent requiring removal of the foundation. Respondent also seeks denial of Staff's motion insofar as Staff seeks to impose monetary penalties upon Respondent.

Motion to Reargue

By letter dated March 18, 1997, Respondent sought permission to reargue the ruling on Respondent's affidavit, with respect to the striking of paragraphs 8 and 10 of the affidavit. A telephone conference was held on March 21, 1997, to hear Respondent's reargument on paragraphs 8 and 10 and to discuss further scheduling. Staff expressed no objection to Mr. Corbo's motion to modify the ruling regarding paragraph 8. The ruling to redact paragraph 8 was modified to allow paragraph 8 in the record. However, the ruling was not modified regarding paragraph 10. The information in paragraph 10 may be relevant in a permit action, but not in the enforcement action. Lastly, a schedule was set for additional filings by the parties to clarify their respective positions.

Amendment of Pleadings

Staff filed a cover letter and supplemental memorandum of law, dated April 3, 1997 and Respondent filed a cover letter and affidavit in opposition dated April 14, 1997. By letter dated April 24, 1997, Staff replied to Respondent's filing regarding penalty assessment. Enclosed with Staff's letter was a supplemental affidavit of John Cryan, dated April 24, 1997. The record in this matter closed on April 25, 1997 with receipt of Staff's filings. However, the ALJ reopened the record to allow Staff to clarify its theory of liability for the violations alleged. Therefore, pursuant to a schedule set by the ALJ, Staff filed a letter dated May 9, 1997 essentially seeking to amend its theory of liability for the violations alleged. This letter clarified that Staff alleges that Respondent committed five violations of ECL 24-0703(5), (which addresses conduct prior to issuance of a final wetlands map) rather than ECL 24-0701 and 6 NYCRR Part 663 (which apply to conduct occurring after issuance of a final wetlands map), as set forth in Staff initial motion papers. 24-0703(5) and 6 NYCRR 662.2(b); Compare, ECL 24-0701(1) and 6 NYCRR 663.3(a). Respondent, by facsimile transmission dated May 13, 1997 indicated no objection to Staff's motion to amend. The record closed with receipt of Respondent's May 13, 1997 filing.

Department Staff's Position

Staff alleges that Respondent committed five violations ofECL 24-0703(5), in that Respondent disturbed freshwater wetland AR-10 in Richmond County by

1) clearing vegetation in March, 1986,

2) excavating in March 1986,

3) further clearing vegetation in April 1986,

4) further clearing vegetation in April 1986 and

5) constructing the foundation of a house in April 1986.

Staff seeks an order imposing a maximum penalty of $3,000.00 for each violation, a total penalty of $15,000.00, upon Respondent. ECL 71-2303. Staff also seeks an order requiring Respondent to remediate the site in accordance with a plan and time schedule to be approved by Staff.

Respondent's Position

Respondent admits that with his knowledge and consent, the site was cleared of vegetation, that excavation occurred at the site, and that erecting of a building foundation occurred. Further, Respondent admits he was, and continues to be, owner of the site. Therefore, Respondent does not contest liability for the violations alleged by Staff nor liability for restoration of the site. However, Respondent does assert factors in his two affidavits in support of his position that no monetary penalty is appropriate in this case.

More specifically, Respondent asserts that any disturbance to the property was not performed by him, but was performed by an individual with whom Respondent had entered into a contract for sale of the property. Respondent asserts that he had obtained all necessary municipal approvals from the City of New York for commencement of construction on the property. Therefore, Respondent concludes, since he did not personally disturb or alter the site, he should not be burdened with a civil penalty.

Further, Respondent states that on April 11, 1995 he applied to the Department for a freshwater wetlands permit that, if granted, would allow some alteration of the site. Respondent seeks a disposition on that permit application before he is required to perform any restoration at the site. Respondent thereby seeks to obtain retroactive Departmental approval for all or part of the foundation on disposition of the permit application, before he is required to perform any site restoration that may be required in the present enforcement action.

Pursuant to 6 NYCRR 621.(3)(f), processing and review of a permit application may be suspended if an enforcement action has been commenced against the applicant for alleged violations of law related to the activity for which the permit is sought or for alleged violations of the ECL related to the facility or site. Such suspension of processing and review may remain in effect pending final resolution of the enforcement action. Under the circumstances of this case, it is appropriate to suspend processing the permit application until a disposition is reached on the enforcement case. But, it is not appropriate to require site restoration until a disposition has been reached on the permit case. Otherwise the anomalous result may occur of requiring removal of the foundation in the enforcement action, only to later authorize construction of all or part of the foundation on the permit action. However, in the event delays in processing the permit application are attributable to Respondent, site restoration should not be unduly delayed even if restoration would result in removal of the foundation before a disposition is obtained on Respondent's permit application.

FINDINGS OF FACT

  1. Tax Block 7346 Richmond County, New York consists of Lots 1, 7, 9, 25 and 32.
  2. At all times referred to herein, Respondent Pasquale Fusco owned and continues to own property located at Bloomingdale Road and Englewood Avenue on Staten Island (Richmond County), New York identified as Tax Block 7346, Lots 1, 25, and 32.
  3. Respondent originally owned all five lots comprising Tax Block 7346. However, prior to June, 1986, Respondent sold Lots 7 and 9.
  4. The site includes freshwater wetlands which are part of the AR-10 freshwater wetland (also known as the "Lemon Creek" freshwater wetland) as shown on the final freshwater wetlands map filed in Richmond County, New York on September 1, 1987.
  5. Freshwater wetland AR-10 centers around the Lemon Creek/Sandy Brook stream system, one of the major stream systems on Staten Island, New York.
  6. Freshwater wetland AR-10 is a Class I, 59 acre wetland located in the vicinity of Woodrow Road to Bayview Avenue, between West Shore Expressway and Maguire Avenue.
  7. Freshwater wetland AR-10 enters the tidal portions of Lemon Creek in the vicinity of Woodvale Avenue. It contains approximately 87% deciduous swamp, 9% wetland open water, 3% wet meadow, and 1% emergent marsh.
  8. Freshwater wetland AR-10 provides all of the benefits identified in ECL 24-0105(7).
  9. No Departmental wetland permit has been issued for the site.
  10. Department Staff originally mapped the AR-10 freshwater wetland on a tentative wetlands map of Richmond County in 1981. However, the site was not identified as a wetland on that 1981 tentative wetlands map.
  11. Following a public comment process, in 1986 a revised map for Richmond County was developed that was the subject of public hearings.
  12. On March 12, 1986, John F. Cryan, a NYSDEC Associate Environmental Analyst, visited the site and discovered that two men were cutting down trees on the site. Cryan observed that trees and vegetation had been cleared and that grading had occurred at the site. Cryan advised the two men that the site contained freshwater wetlands, that cutting down trees was in violation of the ECL, and that they should stop all work immediately.
  13. The two men responded that the property owner had told them to clear the land and build four houses. Cryan told the men to have the property owner call him to discuss the alleged violations.
  14. Later that day, Cryan received a telephone call from Respondent. Respondent stated that he was the owner of the site and asked why Cryan had advised his men to stop working. Cryan explained that the work was being done in violation of ECL Article 24. Cryan advised Respondent that he must obtain a Departmental permit prior to beginning any clearing of vegetation, grading, filling or construction on the site.
  15. On his March 12, 1986 site visit, Cryan observed that clearing of vegetation and grading had occurred at the site within Wetland AR-10.
  16. Following the March 12, 1986 telephone call with Respondent, Cryan completed a "Violation Report Form/Case Initiation Form" 1Pane Affidavit, Exhibit 12 (dated March 13, 1986 [Staff's List of Exhibits erroneously identifies the date as March 3, 1986]). detailing what he had observed at the site.
  17. On April 14, 1986, Matt Sanderson, a NYSDEC Fish and Wildlife Technician, visited the site. Sanderson discovered that portions of the site had been cleared and excavated, and that a building foundation had been erected on Lot 32 within the Wetland AR-10.
  18. On May 2, 1986, Department Staff issued to Respondent a Notice of Violation for clearing vegetation, excavating, and erecting a foundation in a wetland area without a permit in violation of ECL Article 24, and directed Respondent to stop all work at the site.
  19. No further construction occurred at the site after May 2, 1986 and the foundation has remained on the site.
  20. On September 1, 1987, the NYSDEC Commissioner adopted a final wetlands map of Richmond County that incorporated public comments, corrections, additions and deletions resulting from the public hearing process. (Pane Affidavit, Exhibit 22).
  21. Initially, the new owners of Lots 7 and 9 sought to work in conjunction with Respondent to resolve issues concerning development of Tax Block 7346. However, in the Spring of 1989, the owners of Tax Block 7346, Lots 7 and 9 filed a freshwater wetlands permit application with the Department; Respondent did not file a permit application at that time.
  22. On July 10, 1991, the Department issued permits to the owners of Lots 7 and 9 for the construction of one single family home on each lot.
  23. In 1992, Respondent filed an appeal with the Freshwater Wetlands Appeals Board (the "Board") challenging the designation of the site as freshwater wetlands.
  24. Staff suspended its enforcement action pending the decision of the Board.
  25. On November 8, 1994, the Board upheld the Department's designation of wetlands on the site. Respondent did not appeal the Board's decision.
  26. On January 17, 1995, after the statute of limitations regarding Respondent's right to appeal the Board's decision expired, Staff again notified Respondent, in writing, of the violations specified in the 1986 Notice of Violation and Respondent's continued non-compliance with ECL Article 24.
  27. On April 17, 1995, Respondent filed with the Department a freshwater wetlands permit application for the site. That application is dated April 11, 1995.
  28. On April 28, 1995, pursuant to 6 NYCRR 621.3(f), the Staff suspended review of Respondent's permit application, pending resolution of the alleged violations.
  29. In August 1995, Respondent filed a petition in New York State Supreme Court pursuant to CPLR Article 78 challenging Staff's suspension of the permit application review. That action is pending (Index No. 8489/95).
  30. On November 6, 1995 Staff served Respondent, by certified mail, with an administrative Notice of Hearing and Complaint.

CONCLUSIONS OF LAW

  1. ECL 71-2303 provides for a civil penalty of up to $3,000.00 for each violation of the statutes and regulations protecting wetlands (including ECL Article 24 and 6 NYCRR Part 662).
  2. Respondent violated ECL 24-0703(5) and 6 NYCRR 662.2(b) on or before March 12, 1986 by causing vegetation to be cleared at the site without a permit.
  3. Respondent violated ECL 24-0703(5) and 6 NYCRR 662.2(b) on or before April 14, 1986 by causing excavation to occur at the site without a permit.
  4. Respondent violated ECL 24-0703(5) and 6 NYCRR 662.2(b) on or before April 14, 1986 by causing a foundation to be erected at the site without a permit.

DISCUSSION

I. Standard of Review

Pursuant to 6 NYCRR 622.12(d), the Commissioner should grant a Motion for Order Without Hearing if, upon all the papers and proof filed, the cause of action (or defense) is established sufficiently to warrant granting summary judgment in favor of any party under the Civil Practice Law and Rules ("CPLR"). Pursuant to 6 NYCRR 622.12(e), the Commissioner should deny the motion for summary order if the Respondent shows any issues of fact sufficient to require a hearing. However, pursuant to 6 NYCRR 622.12(f), the existence of a triable issue of fact that is associated with relief, such as the amount of civil penalty, does not prevent the granting of the motion.

In order to succeed on its motions, with respect to each allegation, Staff must show on its papers alone without the aid of oral testimony, that there is no material issue of fact outstanding and that the facts mandate judgment in its favor. On a motion for summary judgment the court will accept as true, the opposing party's evidence and any evidence of the movant that favors the opposing party. Weiss v Garfield, 21 AD2d 156, 249 NYS2d 458 (3rd Dept., 1964). See, generally, CPLR 3212, and McKinney's Consolidated Laws of New York, CPLR 3212, Practice Commentary C3212:16 and C3212:17 (Siegel), (1992).

In the present matter, Respondent Fusco has personal knowledge of factual matters, and provided a reply affidavit on the motion.

II. Alleged Violations of ECL 24-0703(5) and 6 NYCRR Part 662

Staff alleges that Respondent committed five violations of ECL 24-0703(5), in that Respondent disturbed freshwater wetland AR-10 in Richmond County by 1) clearing vegetation in March 1986, 2) excavating in March 1986, 3) further clearing vegetation in April 1986, 4) further excavating in April 1986 and 5) constructing the foundation of a house in April 1986. ECL 24-0703(5) requires that prior to the promulgation of the final freshwater wetlands map in a particular area, no person shall conduct or cause to be conducted any activity for which a permit is required under ECL 24-0701, unless the person has obtained a Departmental permit. 6 NYCRR Part 662 provides an interim permit procedure to address periods prior to promulgation of the final freshwater wetlands map in a particular area. The alleged violations of ECL 24-0703(5) are also alleged violations of 6 NYCRR 662.2(b).

Pursuant to ECL 24-0701(2), activities subject to regulation include any form of excavation; erecting any structure whether or not changing the ebb and flow of the water; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are identified in ECL 24-0105. As noted above, Respondent does not dispute that the site has been altered by the clearing of vegetation, excavation and erecting of a foundation.

The Charge of Clearing Vegetation (March 12, 1986)

The site is a wetland and provides all benefits of wetlands identified in ECL 24-0105(7) 2See, Final Freshwater Classification Sheet, Affidavit of Joseph Pane, Exhibit 18. The clearing of vegetation is more likely than not, to substantially impair any of the several functions served by freshwater wetlands or the benefits derived therefrom which are identified in ECL 24-0105. Therefore, Staff has shown that Respondent caused vegetation to be cleared at the site on or before March 12, 1986, in violation of ECL 24-0703(5).

The Charges of Excavation and Erecting a Structure (April 14, 1986)

Staff has shown that Respondent caused material to be excavated at the site on or before April 14, 1986, in violation of 24-0703(5) and that Respondent caused a structure to be erected at the site (the foundation of a building), on or before April 14, 1986, in violation of ECL 24-0703(5).

The Charge of Excavation (March 12, 1986)

As to the March 12, 1986 charge of excavation, Staff has not shown by a preponderance of the evidence that excavation occurred. Cryan's affidavits and exhibits indicate he observed "clearing and grading" on the site within the wetland, not excavation. Excavating land means making a hole or hollowing out the land; grading land means leveling or smoothing the land to a desired slope. The American Heritage College Dictionary, Third Edition [1993].. Although grading might possibly be accomplished by excavating, grading may also be accomplished by depositing imported material on the land to level or smooth the land. Since Cryan does not specify what he observed in greater detail, Staff has not shown by a preponderance of the evidence that excavating occurred on or before March 12, 1986 Although grading of the site, whether by excavation or by deposition of imported material, would also constitute a violation of ECL 24-0703(5), Staff has not alleged a violation of "grading". Therefore, such a violation may not be sustained on this record. The April 14, 1986 Sanderson inspection documents do not include a narrative report. The documents consist of Sanderson's one-page sketch of the site, indicating excavated areas and the presence of a foundation, and photocopies of two photographs of the site. These documents are offered as exhibits to the Pane affidavit.

The Charge of Clearing Vegetation (April 14, 1986)

Regarding the April 14, 1986 charge of additional clearing of vegetation, Staff has not shown by a preponderance of the evidence that additional clearing occurred. Cryan indicates that he observed clearing of vegetation, including two men cutting down trees, on March 12, 1986. However, since no Sanderson affidavit or narrative report is included in Staff's filings, Staff relies upon the Pane and Cryan affidavits. Both Pane and Cryan assert that on April 14, 1986, Sanderson discovered that an extensive area had been cleared. However, Sanderson's map, with notations, does not indicate clearing, but only "fill/excavation earth", "fill/stumps, debris" and "excavated hole with foundation". The Pane and Cryan assertions that "Sanderson discovered that an extensive area had been cleared", are unsupported hearsay. Neither Pane nor Cryan provide any factual basis to support their respective characterizations of Sanderson's April 14, 1986 observations. Although uncontroverted, these assertions are accorded little weight.

Further, Staff provided no comparative statement from Cryan other than the above-cited statement, to show that in Cryan's opinion additional clearing occurred after March 12, 1986. The record fails to establish the allegation of additional clearing in April, 1986. Staff has not shown by a preponderance of the evidence that additional clearing of vegetation occurred at the site between the March and April inspection dates. However, as discussed above, this evidence, coupled with the Pane affidavit, is sufficient to establish that the foundation was erected between the March, 1986 and April, 1986 inspection dates..

III. Penalties

Respondent has not contested factual issues regarding Staff's allegations. Nonetheless, Respondent does oppose Staff's request for monetary penalty assessment and the scheduling of an order of site restoration. By not denying the allegations, Respondent concedes that the site has been altered by clearing vegetation, excavation and erecting a foundation. Respondent asserts that prior to March 1986, he entered into a real estate contract for sale of the site. He further states that during the pendency of that real property sale, which was never completed, Respondent allowed the prospective purchaser to enter the property and alter the site, including clearing vegetation, excavating and erecting a foundation. Respondent asserts that since the prospective purchaser and not Respondent, made the alterations of which Staff complains, Respondent should not be penalized with a monetary penalty. This argument must be rejected. Respondent concedes that he continued to be the owner of the property at all times at issue, and that he consented to the prospective purchaser's alteration of the property. Since Respondent owned the property and consented to the alterations, he is liable for the violations and for site restoration, including removal of the foundation. Nor is it a mitigating factor that Respondent asserts that all local (City of New York) approvals for commencement of construction at the site had been obtained before any alteration of the site occurred.

ECL 71-2303(1) provides for a maximum civil monetary penalty of three thousand ($3,000) dollars for each violation of ECL Article 24, or any rule or regulation promulgated pursuant thereto. Staff seeks maximum monetary penalties in this matter, citing Respondent's intentional and continued violation of statutory regulatory requirements. Underlying Staff's monetary penalty analysis in this matter, is the assumption that Respondent knew or should have known that a freshwater wetlands permit was necessary before altering the site as described above. ECL 24-0703(5), 6 NYCRR 662.2(b).

Factors articulated in the Commissioner's Civil Penalty Policy, militate toward a greater, rather than more moderate, penalty assessment in this case A copy of the Civil Penalty Policy was provided to Respondent with the Notice of Hearing and Complaint in this matter.

Civil Penalty Policy, Enforcement Directives, No. II, issued 6/20/90. As stated in the Penalty Policy, undertaking any action which requires a DEC permit without first obtaining that permit, is always a serious matter and is much more serious than a technical or paperwork violation.

Penalty Policy at 8. Further, parties undertaking activities regulated by the Department have a duty to familiarize themselves with the applicable legal requirements; ignorance of the law or rules is not a mitigating factor.

Penalty Policy at 9. Respondent's violations have resulted in significant environmental harm - - i.e., destruction of wetlands. That harm continues until the foundation is removed and the wetland has been restored. Imposition of the maximum civil monetary penalty will ensure deterrence of future violations, both by the Respondent and by other. "Penalties should persuade the violator to take precautions against falling into non-compliance again, as well as persuade others not to violate the law. Successful deterrence provides the best protection for the environment."

Penalty Policy at 3. Due to Respondent's intentional and continued violation of statutory and regulatory requirements, a recommendation of maximum penalty assessment is appropriate. However, as discussed below, it is also recommended that the Commissioner suspend a portion of the penalty in this case.

The Permit Application

On April 17, 1995, Respondent filed a wetland permit application, seeking authorization to construct a residential dwelling on the site. However, on April 28, 1995 Staff stayed processing of the permit application, pending disposition of this enforcement action. Respondent asserts that if the Commissioner ultimately grants his wetland permit application, the resulting permit could authorize the continued presence of the foundation and completion of a residential structure on the site. Therefore, Respondent requests that any order of site restoration requiring removal of the foundation be stayed, pending disposition of Respondent's permit application.

The issue of scheduling remediation and its relationship to the pending permit application is separate from the issue of propriety of monetary penalty. Legally, Staff has proven its case, and the Department is entitled to immediate restoration of the site. Since Respondent is liable for the violations, he is also liable for restoration of the site, including removal of the foundation. However, under the circumstances of this case, it is reasonable that, with certain limiting conditions, restoration of the site be delayed briefly to allow Respondent an opportunity to obtain an outcome on his permit application. In the event an outcome on the permit application authorizes some construction on the site, then the remediation plan should be modified to reflect the permitted structure(s), possibly including all or part of the existing foundation on Lot 32. Those conditions are that Respondent must expeditiously supplement his permit application by information adequate to allow Staff to determine the application "complete" for review. 6 NYCRR 621.1(d). Further, Respondent must diligently pursue both his permit application and site restoration. No substantial delay in the review process should be attributable to Respondent. In the event an expeditious determination is not forthcoming on the permit application due to Respondent's acts or omissions, then the Department must be assured that Respondent will implement timely restoration of the site.

RECOMMENDATIONS

Upon consideration of the foregoing, and upon a complete review of the record of this proceeding, including the affidavits, exhibits, motions and memoranda submitted, it is recommended that the Commissioner find Respondent liable for three violations of ECL Article 24 and 6 NYCRR Part 662, impose upon Respondent a monetary penalty and require Respondent's restoration of the site, as follows:

  1. The Commissioner should find that Respondent Pasquale Fusco has committed three violations of ECL 24-0703(5) and 6 NYCRR 662.2(b): Respondent caused vegetation to be cleared at the site without a permit on or before March 12, 1986; Respondent caused excavation to occur at the site without a permit on or before April 14, 1986; and Respondent caused a foundation to be erected at the site without a permit on or before April 14, 1986.
  2. The charges of excavating at the site in March, 1986 and additional clearing of vegetation at the site in April, 1986 should be dismissed.
  3. A maximum monetary penalty of Three Thousand Dollars ($3000.00) for each of the three violations of ECL 24-0703(5) and 6 NYCRR 662.2(b), a total penalty of Nine Thousand Dollars ($9,000.00), should be assessed against Respondent as follows: Six Thousand Dollars ($6,000.00; $2,000.00 per violation) should be due and payable within thirty (30) days of service upon Respondent of a conformed copy of the Commissioner's Order; Three Thousand Dollars ($3000.00; $1,000.00 per violation) should be suspended, as described below.
  4. Within thirty (30) days of issuance of the Commissioner's Order, Staff should be directed to specify to Respondent what material is necessary in order for Respondent to complete his permit application, or confirm to Respondent that Staff has already done so. Within fifty-five (55) days of issuance of the Commissioner's Order, Respondent should be directed to complete his permit application.
  5. In the event Respondent does complete his permit application within fifty-five (55) days of issuance of the Commissioner's Order, Staff should expeditiously process that application; and the site remediation required should be consistent with any disposition on the permit application. Within forty-five (45) days of the Department's determination on the permit application, Respondent should be required to submit a restoration plan and, if appropriate, a construction plan to Staff for review and approval. Respondent should be required to implement the restoration plan within ninety (90) days of notice of Staff's approval of the plan, or, in the event construction is authorized, within ninety (90) days of completion of construction, or pursuant to a schedule approved by Staff.
  6. In the event Respondent does not complete his permit application within fifty-five (55) days of issuance of the Commissioner's Order, Respondent should be directed to submit to Staff for review and approval a restoration plan, including removal and disposal of the building foundation, within eighty-five (85) days of issuance of the Commissioner's Order. Such restoration should occur within one hundred (100) days of notice of Staff's approval, or pursuant to a schedule approved by Staff.
  7. In the event Respondent fails to comply with any requirement of the Commissioner's determination in this matter, the suspended penalty should immediately become due and payable.

Albany, New York

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

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