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Grimaldi, Stephen - Decision, August 8, 2000

Decision, August 8, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Application of Stephen Grimaldi for a freshwater wetlands permit
pursuant to Environmental Conservation Law Article 24 and Part 663 of Title 6
of the New York Compilation of Codes, Rules and Regulations to construct a single
family dwelling, driveway, and septic system on South Etna Avenue in Montauk, New York
in the adjacent area of freshwater wetland MP 13 in the Montauk Point Quadrangle

DEC Project No. 1-4724-00885/00001

DECISION

August 8, 2000

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Helene G. Goldberger in the matter of the application of Stephen Grimaldi for construction of a house, driveway and septic system in Montauk, New York, is hereby adopted as the Decision in this matter.

The hearing record demonstrates that the project does not comply with the standards for issuance of a freshwater wetlands permit.

Accordingly, the application is denied.

For the New York State Department
of Environmental Conservation

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

Dated: Albany, New York
August 8, 2000

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550

In the Matter

of

the Application of Stephen Grimaldi for a freshwater wetlands permit pursuant to
Environmental Conservation Law Article 24 and Part 663 of Title 6 of
the New York Compilation of Codes, Rules and Regulations to construct a single family dwelling,
driveway, and septic system on South Etna Avenue in Montauk, New York in
the adjacent area of freshwater wetland MP 13 in the Montauk Point Quadrangle

DEC Project No. 1-4724-00885/00001

HEARING REPORT

-by-

___________/s/____________

Helene G. Goldberger

Administrative Law Judge

PROCEEDINGS

Background

Helen Stubbman, a contract purchaser of the project site, made application to the New York State Department of Environmental Conservation (DEC or Department) on January 18, 1999 for a freshwater wetlands permit in order to construct a single family residence and septic system on South Etna Avenue in Montauk, New York. On January 22, 1999, the Department issued a notice of incomplete application to Ms. Stubbman and on February 8, 1999, Ms. Stubbman submitted the outstanding materials to DEC staff. The Department staff concluded that this project was a Type II action pursuant to § 617.5 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), the regulations implementing the State Environmental Quality Review Act (SEQRA, Environmental Conservation Law [ECL], Article 8), and therefore, would not require an environmental impact statement (EIS). However, by letter dated April 26, 1999 the staff advised Ms. Stubbman that it would not issue a permit for the project because it found the activity proposed incompatible with the wetland and its functions. By letter dated May 17, 1999, Land Planning Services, Ltd., an environmental consulting firm representing Mr. Stephen D. Grimaldi, wrote to the Department staff requesting a hearing in response to the staff's permit denial. By application dated August 12, 1999, Ms. Stubbman requested that the permit application be transferred to Stephen Grimaldi, the owner of the property and the applicant before the Department at this time.

The hearing notice was published in the November 5, 1999 edition of the East Hampton Star and posted on the on-line edition of the Environmental Notice Bulletin of November 12, 1999. The legislative hearing, issues conference, and adjudicatory hearing were held on December 13-14, 1999 at the Town of East Hampton Emergency Services building on Pantigo Road in East Hampton, New York commencing at approximately 10:30 a.m. The applicant, an attorney, represented himself. The Department staff was represented by Craig Elgut, Assistant Regional Attorney.

Legislative Hearing

While the ALJ did not receive any petitions to intervene or any comments, two individuals, both neighbors of the project site, did choose to speak against the project at the legislative session. Mr. Richard Beresford, who lives next to the site, commented that due to the clay that underlies this property, water does not drain off the site but instead ponds up. He was concerned about flooding and drainage problems resulting from the construction of a house on this site. He also mentioned that the house would ruin his current view of the water. Ms. Anastasia Quigley, who lives at 17 Etna, across the street from the project site, and who represents the Surfside Neighbor's Association, stated that the project does not conform with current setback requirements and the house would be right at the road. She also commented that the 55' setback for the septic system was inadequate and the Town of East Hampton usually requires 200'. She said that this area contained wet lots and that much of it is often under water.

Issues Conference

As no intervenors filed petitions for party status, the issues conference was devoted solely to a summary discussion of the positions of the staff and applicant. The staff represented that it relies on the permit standards in 6 NYCRR § 663.5(e) regarding the compatibility of projects with wetlands and adjacent areas. According to Mr. Elgut, the construction of a dwelling, septic system, driveway, the clearing of the area, and the placement of fill were not compatible with these standards. Mr. Elgut stressed that although clearing will take place in the adjacent area, based upon the proximity of the work to the boundary of the wetland, there will inevitably be clearing and filling in the wetland itself. He stated that according to staff's review of the survey, the wetlands map, and its in-field investigations, the intended location of fill is on the wetland boundary and will require placement of fill in the wetland. Mr. Elgut also argued that the placement of a septic system in an adjacent area is classified as an incompatible activity according to 6 NYCRR § 663.4(d)(38). The staff has identified the impacts of the project and the benefits of the wetland - MP 13 - a Class I wetland - and determined that the project cannot go forward.

Mr. Grimaldi stated that there was an incorrect presumption that there would be impacts to the wetland. He argued that there would be no reduction of benefits to the wetland and that the house can be constructed so that there will not be any injury to this resource.

At the outset of the issues conference, the ALJ and the parties identified the issues conference exhibits including the project application containing the site survey. The staff also wished to include a marked-up copy of the applicant's survey that indicates a discrepancy between the wetland boundary as noted on the survey and where the staff find it to be. In discussing this document, the staff explained that it was not changing the boundary of the wetland. Rather, based upon a site visit in early December the staff determined that the surveyor had incorrectly drawn the wetland boundary onto the survey. However, the staff did not inform the applicant of this finding until the issues conference. As the issues conference and adjudicatory hearing progressed, this issue became a strong point of contention between the parties.

Adjudicatory Hearing

The adjudicatory hearing proceeded immediately after the close of the issues conference. Testifying on behalf of the applicant was: Roy L. Hage, an environmental consultant and Aldo Andreoli, P.E., a civil engineer. Testifying on behalf of the staff was: Christopher Balk, a biologist in DEC's Region 1 office and Steven Paul Lorens, the Regional Manager of the Bureau of Habitat in Region 1. At the conclusion of the testimony on December 14, the parties and the ALJ agreed to visit the site the following morning. At the site visit were Craig Elgut, Christopher Balk, Steven Lorens, Stephen Grimaldi and Laurie Wiltshire of Land Planning Services, Ltd. in addition to the ALJ. While the staff and applicant representatives wished to engage in further discussion about the survey and the wetland boundary issues, the ALJ limited her involvement at the site to identification of the project and wetland locations.

Because the applicant learned for the first time at the issues conference that the survey he relied upon to design his project was flawed with respect to the wetland location, the ALJ determined that it was appropriate to leave the record open for additional submissions from Mr. Grimaldi. By February 14, 2000, the applicant was to file a submission with the staff and the ALJ either rebutting the staff's findings with respect to the wetland location on the survey or revising the project. At that time, the parties were also to advise the ALJ as to whether an additional hearing session is required or whether written submissions will be sufficient to complete the record. With respect to the applicant's proposal to reconfigure his project, the staff made clear that it did not foresee any means by which such redesign would meet the regulatory requirements. However, the applicant voiced his determination to make the record as complete as possible in the event he is not satisfied with the outcome of these administrative proceedings. The applicant submitted a revised survey of the property dated January 31, 2000 to the Department and based upon the agreement of staff and the applicant on the accuracy of this map, I have included it as Hearing Exhibit 16.

In addition to the applicant's submission, by cover letter dated January 3, 2000, the staff provided the applicant and the ALJ with copies of the Northeast Regional Plant List, a 1995 supplement to that list, and the 1986 field assessment designating M-13 as a Class 1 wetland. I have designated the freshwater wetlands assessment form for MP-13 as Exhibit 15 in the hearing record.

On June 5, 2000, this office received a letter dated June 1, 2000 from Mr. Elgut that states the staff's position with respect to the revised survey. While concluding that the new survey corrected errors in the one previously submitted by Mr. Grimaldi, the staff maintains its position that the proposed project would have unacceptable impacts on the involved wetland. I provided Mr. Grimaldi with an opportunity to respond by July 1. Apparently, his response dated June 28 was misrouted and did not arrive in this office until July 11, 2000. At the same time, this office also received a revised version of Mr. Grimaldi's response dated June 29, 2000. In this response he reiterates the positions he has stated previously and also argues that this tribunal should consider equitable factors in its determination. He also maintains that because staff relied upon the old surveys, its testimony at the hearing is no longer reliable. Prior to my receipt of these responses, Mr. Elgut submitted a reply dated July 3, 2000 which provided that the staff recognized the errors in the survey presented by the applicant and was therefore amenable to the presentation of one that corrected these. While agreeing to the new survey presented by the applicant, the staff maintains its position regarding the project in all respects. The hearing record was closed on July 11, 2000 with the receipt of the applicant's submissions.

FINDINGS OF FACT

Project Site

  1. The project site consists of a 9,977 square foot parcel of undeveloped land located on the north side of South Etna Avenue in Montauk, New York in the Town of East Hampton. Going north from the designated location for the proposed house the size of which is 32 feet by 23 feet, there is the freshwater wetland boundary, the man made ditch that conducts water through the site, and .08 acres on the northern side of the ditch that will be restricted from further development by a scenic easement. The Town of East Hampton required this easement as a condition of granting the variance from its building requirements for this project. In the southwest corner of the property, the applicant proposes to construct the septic system - approximately 42 feet from the wetland boundary. To the north of the applicant's property are two additional building lots and Montauk Highway. To the south of the property is an existing water main and South Etna Avenue. To the east of the site is the home of Richard Beresford and to the west is South Essex Street. There are more vacant parcels of land as one travels east down South Etna Avenue interspersed with residential development. The survey of the applicant's property indicates that on the County Tax Map the property appears as Lot 20 in a subdivision called Surfside Estates.
  2. The project site slopes from the northeast corner of 60 feet above mean sea level to a low of 52 feet along a ditch through the center of the lot with a 2 foot rise in elevation to 54 feet along the south property line. In order to make the site level for a house, the applicant will have to fill and/or grade the site. The area's topography and geological makeup derives from the Ronkonkoma Drift Moraine - the advancement and retreat of a glacier. A test hole dug on the site in December 1997 indicates that there is clay, silt, and till beneath the surface of the property. There is ponding of water on the site and pockets of wetlands throughout the area.
  3. In order to construct the septic system for this house, the applicant will have to dig out approximately 50 feet of impervious soils and back fill with sand up to grade. On March 7, 1988, the Suffolk County Department of Health Services (SCDHS) stated its intention to permit the issuance of a variance for construction of this home provided that the excavation for the leaching pools be done prior to the issuance of a permit to construct by the SCDHS. The depth to groundwater on the site is approximately 12 feet. The 1974 hydrogeology map of Suffolk County indicates that the groundwater flow is generally divided along Montauk Highway with areas to the south flowing southward. The residences in the area use a public water supply.
  4. Due to the depth of clay and the proximity of the site to the wetland, to the water main, and to the road, space on this site is limited and one upon which to perform the construction necessary to dig the leaching pools and to build the house will be difficult.
  5. As part of the plans for this project, the applicant has included a project limiting fence that is meant to ensure that construction activities do not occur beyond this boundary. This fence shares 20 feet with the wetland boundary on the western side of the property and is within 5 feet of the wetland for the remaining easterly portion of it.

The Wetland and its Characteristics

  1. The project site contains a portion of DEC-designated freshwater wetland Forrest Run - MP-13 and its adjacent area. MP-13 is a series of hydrologically similar wetlands that are located in the area of the subject parcel and moving north towards Lake Montauk. This wetland contains emergent marsh and deciduous swamp as well as open water and has been designated on DEC's freshwater wetland as part of the Montauk Point Quadrangle. Emergent marsh is defined in 6 NYCRR § 664.6(a)(2) as containing "the most valuable individual cover type" because it contains valuable resources for nesting habitat, food and cover. Deciduous swamp is "relatively valuable because it is frequently used by nesting water fowl and is also heavily used by songbirds and other wildlife." 6 NYCRR § 664.6(a)(3). MP-13 is a Class I freshwater wetland that is considered to be the highest valued type of wetland pursuant to 6 NYCRR § 664.5. In the assessment of the wetland when it was classified in 1986, DEC staff found the wetland to support animal species unusual in state abundance or diversity and to be a traditional migration habitat of endangered or threatened species in addition to its function of flood control.
  2. The specific species of plants that were found in the area designated as freshwater wetland on the project site are swamp azalea, highbush blueberry, arrowwood, and cinnamon fern, among others. These plants are found on the U.S. Fish and Wildlife service wetland plant list for the northeast region which is relied upon by DEC staff in wetlands delineation. These plants are facultative (34%-66% likely to occur in wetlands), faculative wetland (occur in wetlands 67%-99%) or obligate wetland (occur in wetlands 99%).
  3. The wetland boundary is 23 feet from the center of the stream that runs through the ditch. The demarcation from wetland to upland is found at the point where wetland species start to become less than 51% dominant over upland species. The house and septic system would be located 12 feet and 42 feet from the wetland boundary, respectively.
  4. Currently, the wetland acts as a drainage system that allows for storage of stormwater. Development in the adjacent area and in the wetland will result in the reduction of capacity to hold stormwater. The construction of a house will increase the amount of impervious surfaces in the vicinity, causing an increase in runoff.
  5. Because the wetland contains diverse natural vegetation, it provides habitat for a number of birds and mammals. This habitat will be diminished in the event the adjacent area and parts of the wetland are filled and there is a residence in such close proximity to it.
  6. The potential for transport of pesticide residues and human pathogens is enhanced due to the proximity of the proposed project to the wetland boundary.
  7. The wetland vegetation helps to purify the water that flows across its surface and consequently, filling in the adjacent area and/or wetland will limit this function.
  8. The site's value for recreation, education and scientific research is limited by the dense vegetation on the site and because it is privately owned. However, the habitat provided by the wetlands and adjacent area would allow for such activities on nearby public areas. And, as undeveloped open space, the site provides a natural environment in the community that many would view as an aesthetic enhancement.

DISCUSSION

The proposed project does not meet permit issuance standards; thus, I recommend that the requested freshwater wetland permit be denied.

The standards for issuance of permits for activities in freshwater wetlands are set forth in 6 NYCRR § 663.5. A determination regarding permit issuance must be based upon a determination of compatibility and a weighing of need against benefits lost. 6 NYCRR

§ 663.5(d). First, it must be determined by referring to the chart contained in 6 NYCRR

§ 663.4(d) whether the activities proposed for this project are defined as usually compatible (C), usually incompatible (N) or incompatible (X). Clearing, filling and/or grading (20, 23, 25) in the adjacent area of a freshwater wetland are considered usually incompatible (N), while in a wetland these activities are considered incompatible (X). The introduction of septage (38) into either a wetland or the adjacent area is considered incompatible (X). The construction of a home and related structures (42) is considered incompatible in a wetland (X) and usually incompatible in an adjacent area (N). Thus, pursuant to 6 NYCRR § 663.5(d), a three part compatibility test must be applied to the applicant's project.

The compatibility test is contained in 6 NYCRR § 663.5(e) and provides: "[a] permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area, if it is determined that the activity (i) would be compatible with preservation, protection and conservation of the wetland and its benefits, and (ii) would result in no more than insubstantial degradation to, or loss of, any part of the wetland, and (iii) would be compatible with public health and welfare."

The applicant opposed the staff's positioning of the wetlands boundary on the survey map that the staff submitted into evidence (Exhibit 14) at the hearing. However, this dispute was largely based on the surprise element that the staff introduced rather than on substantive disagreement with the line that the staff drew. Mr. Grimaldi did not offer any evidence to show that the line drawn by his surveyor was correct nor did he present any proof that the staff's demarcation was incorrect. The map submitted by Mr. Grimaldi after the hearing and that was revised by the surveyor on January 31, 2000 comports with the staff's observations at the site. Thus, based upon the revised survey the house would be located 12 feet from the wetland boundary and the sanitary system 42 feet from this point. In addition, without any dispute, the construction of the septic system will require an excavation of at least 50 feet in depth as well as considerable backfilling. The site also has a slope that would have to be graded. These construction activities in such close proximity to the wetland will inevitably result in filling and grading activities in the wetland itself. And, even if it was possible to exclude such impacts directly on the wetland, the buffer area for the wetland will essentially be eliminated by virtue of this construction because the entire project site is in the adjacent area.

Mr. Andreoli testified credibly that this was a "challenging" site to build upon. He foresees problems during construction due to the amount of material that would have to be removed and the extra care needed to protect the wetland. Due to the nature of this excavation, Mr. Andreoli testified that there could not be a prediction as to how wide or how far down the excavation would have to be - the outcome is soil dependent. In addition, the location of the road and water main in proximity to the project present additional obstacles that require special measures. Sheathing would be needed to support these facilities; however, placement of sheathing more than 50 feet down is costly and difficult.

While the applicant's witness, Roy Haje, stated that he did not foresee impacts to the wetland resulting from this project, his testimony on this subject was general and conclusory. Mr. Haje only came to the site during November prior to the hearing and thus, he did not have a chance to see the wetland plants that would be visible during the growing season. He was not persuasive in demonstrating a good understanding of the functions of this wetland nor the particular issues presented by this project and thus, I did not give his testimony great weight. And to some extent his testimony was contradictory, because he did acknowledge the presence of ponding in the area of the project, an indicator of the impermeability of the soils and the wetland's importance in terms of storm water retention.

Mr. Haje attempted to demonstrate that the groundwater flow is southerly by use of a hydrogeology map of Long Island. With this information, Mr. Haje was trying to show that the flow of groundwater would be away from the wetland and any potential contamination would not affect the wetland. However, Mr. Haje is not a hydrogeologist and the scale of this 1974 map is not adequate to make such precise determinations with respect to the flow of groundwater under the site. In addition, this theory does not relate to the flow of contaminated surface waters into the wetland.

Based upon the findings that this project would diminish the wetland's benefits in terms of water retention, wildlife habitat, and water quality, the project is not compatible with preservation, protection and conservation of the wetland and its benefits. The filling, grading, and excavation activities that are essential to this project will result in a loss of adjacent area and potentially, wetland as well. And, the project could not be considered compatible with public health and welfare given the loss of these wetland benefits particularly those of storm protection, water filtration, and the possibility that contamination of surface and ground waters from pesticide runoff and human pathogens could result. In addition, the loss of wildlife habitat will diminish potential wildlife viewing and associated aesthetic attributes of this area. Clearly, too, the construction of this home will add to pressures to continue development in this vicinity further adding to potential impacts to MP-13.

Section 663.5(d)(2) provides that weighing standards must be applied to all activities identified as P(X) in 6 NYCRR § 663.4(d) as well as all activities classified as P(N) that do not meet the three tests of compatibility discussed above. For Class I wetlands, the proposed project must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the applicant's objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area. For Class I wetlands, the proposed activity must also minimize degradation to, or loss of any part of the wetland or adjacent area or the functions and benefits the wetland provides. And, "[a] permit shall only be issued if it determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss or detriment to the benefit(s) of the Class I wetland."

Since all of the activities proposed are either X (septic system) or N with a failure to meet the compatibility standards, the above described weighing standards must be applied. As discussed above, the project is not compatible with public health and welfare due to the loss of wetland benefits that are an inevitable result of this residential development. Apart from general statements, the applicant did not present any evidence of whether this project was the only practicable alternative to accomplish his objectives. Given the dimensions of the site and the proximity to the wetland, it is not readily apparent how the applicant could design a project that would meet the regulatory requirements contained in Part 663. Therefore, in addressing the concept of a house on this site, the project could be represented to have minimized impacts because no obvious and practical improvements can be made that will additionally alleviate wetland benefits losses. However, there was no presentation of any reason why a home must be sited here. While the applicant may believe that such construction fulfills his own compelling economic need - there was no evidence of any compelling social economic or other public need derived from this project.(1) However, the potential for flooding and water contamination caused by the filling, grading and excavation required by this house construction can result in economic and social burdens for the community.

While the project is located in an adjacent area of only a portion of MP-13, 6 NYCRR

§ 663.5(e) (2) provides that the benefits associated with Class I wetlands may only be reduced in "unusual circumstances." Section 663.5(f)(ii) further explains that "[p]ermits for the vast majority of activities that could not avoid reducing a benefit provided by a Class I wetland would not be approved." This includes losses that are only partial, as here.

In his submission of June 29, 2000, the applicant argues that staff's hearing testimony is no longer reliable because it relied upon the applicant's earlier and flawed survey. Clearly, the staff recognized the errors and noted them at the hearing giving rise to the applicant's submission of a revised survey, Exhibit 16. The staff has adhered to its original positions and I don't find any basis to find the testimony less credible based upon Mr. Grimaldi's later submission. Mr. Grimaldi also argues that because he owned the property prior to the freshwater wetland mapping, there should be some additional consideration. However, his current application is not grandfathered and he has no vested rights in obtaining a permit. See, e.g., D.B.S. Realty Inc. v. State Dep't of Environmental Conservation, 201 AD2d 168 (3d Dep't 1994). Mr. Grimaldi also raises other issues concerning takings and property rights which were not the subject of the hearing and that are not germane to this proceeding. Instead, such facts and arguments must be raised, as stated by Assistant Regional Attorney Elgut, in a court of competent jurisdiction. See, Spears v. Berle, 48 NY2d 254 (1979).

RECOMMENDATION

Mr. Grimaldi has not met his burden of proving that his project meets those requirements set forth in Part 663. Because the project would impair storm water storage and water filtration capabilities of the wetland, reduce wildlife habitat, and potentially degrade the wetland through contamination, it is not compatible with public health and welfare or with the wetland's preservation. There is no proposed mitigation for this project. In conclusion, I recommend that the application for a freshwater wetland permit be denied.

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

Appendix A: Survey of Lot 20 - Block 350 - with project plan - revised: January 31, 2000

1 With respect to the applicant's own economic needs, there was no presentation of evidence regarding his costs and reasonable expectations given the limitations of the site.

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