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Johnson, Edward - Decision, May 17, 2000

Decision, May 17, 2000

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

In the Matter

- of -

the Application for a tidal wetlands permit pursuant to Environmental Conservation Law (ECL)
Article 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 661

- by -

EDWARD JOHNSON

Permit Application No. 1-4736-00491/00005

DECISION

May 17, 2000

Decision of the Commissioner

The attached hearing report of Administrative Law Judge Susan J. DuBois in the matter of the application of Edward Johnson for construction of a house and related structures in the Village of Westhampton Beach, Town of Southampton, Suffolk County, is hereby adopted as the Decision in this matter subject to my comments below.

The hearing record demonstrates that the project does not comply with the standards for issuance of a tidal wetlands permit nor with the standards for granting the variances from the development restrictions which would be necessary in order for the project to be approved.

Accordingly, the application is denied.

_____________/s/_____________
John P. Cahill, Commissioner

Dated: Albany, New York
May 17, 2000

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

In the Matter

- of -

the Application for a tidal wetlands permit pursuant to Environmental Conservation Law (ECL)
Article 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 661 by

EDWARD JOHNSON

Permit Application No. 1-4736-00491/00005

HEARING REPORT

- by -

____________/s/____________
Susan J. DuBois
Administrative Law Judge

Proceedings

Edward Johnson, 18 Twin Cedar Lane, Northport, New York 11768 (the "Applicant") applied for a permit from the New York State Department of Environmental Conservation (the "Department") for construction of a one-family dwelling, a sanitary system and surrounding retaining wall, and a bluestone driveway, to be located at a site in the Village of Westhampton Beach. The project would also involve placement of fill to raise the grade on the site. The site is on Stacy Drive, Village of Westhampton Beach, Town of Southampton.

The project would require a Tidal Wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 661"). The project would be in the adjacent area of a tidal wetland and would require variances from the setback requirements applicable to Tidal Wetlands permits. The requested variances, as identified in the Notice of Hearing, would allow for construction of the septic system 71 feet (as opposed to 100 feet) from the tidal wetland and for construction of the house 10 feet (as opposed to 75 feet) from the tidal wetland. At the hearing, an additional variance (for separation of the septic system from groundwater) was identified as an issue for adjudication.

Pursuant to ECL Article 8 (State Environmental Quality Review Act, "SEQRA") and 6 NYCRR Part 617 (SEQRA), the Department Staff determined that the proposed project would not result in significant adverse environmental impacts and that an Environmental Impact Statement was not necessary. The Department Staff issued a negative declaration on February 8, 1999.

On March 30, 1999, the Department Staff denied the application for a permit. On April 19, 1999, the Applicant requested a hearing on the application. The matter was referred to the Department 's Office of Hearings and Mediation Services in July 1999 to schedule a hearing.

A Notice of Hearing, which also served as the Notice of Complete Application, was published on October 21, 1999 in the Southampton Press and on October 20, 1999 in the Department's Environmental Notice Bulletin.

The hearing was scheduled to start on November 22, 1999 but was postponed to due to weather conditions that prevented the Administrative Law Judge from being at the hearing location at the scheduled time. The hearing began on November 23, 1999 and continued on February 14, 2000. The hearing took place at the Westhampton Beach Village Hall on the first date and at the Department's Region 1 Office in Stony Brook on the second date, before ALJ Susan J. DuBois.

Between the first and the second dates of the hearing, Edward Johnson passed away. Catherine A. Johnson, Executrix of Mr. Johnson's estate, authorized the representative of the Applicant to continue the hearing process for the project on behalf of the estate. As used in this report, the term "Applicant" includes the estate of Mr. Johnson.

The Applicant was represented in the hearing by Roy L. Haje, of En-Consultants, Inc., Southampton, New York. The Department Staff was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region 1, Stony Brook, New York. No other persons, agencies or organizations petitioned to participate in the hearing as parties. Several persons, primarily persons who own homes near the site, submitted comments in opposition to the application.

The witnesses who testified on behalf of the Applicant were Edward Johnson and Roy L. Haje. The following witnesses testified on behalf of the Department Staff: Charles T. Hamilton, Regional Supervisor of Natural Resources, DEC Region 1; Christfried Arfsten, Marine Resources Specialist; and Diana Hinkley, a neighbor of the site.

The transcript was received by the Office of Hearings and Mediation Services on March 9, 2000 and the hearing record closed on that date.

Positions of the Parties

The Applicant

The Applicant took the position that the variances from the setback requirements should be granted in view of the practical difficulties in siting the house and related structures on the site which were created by the Village zoning requirements. The Applicant had contested the Village's zoning determination in court but the Village had been upheld. The Applicant stated that the Department had issued a permit in 1995 for a project in which the septic system was at the same location as in the current application, and maintained that the proposed location of the house, which is closer to the wetland than that in the 1995 permit, meets the requirements for a variance under Part 661. The Applicant also took the position that the boundary of the tidal wetland should be the same as that identified by agreement of the Applicant and the Department Staff in 1992.

The Department Staff

The Department Staff opposed granting the variances and the permit. The Department Staff stated that the project does not meet the standards for issuance of a variance and that the impacts of the project on the wetland would be greater than those of the project that was approved in 1995. The Department Staff maintained that the impacts of the septic system on the wetland would be increased by the changes in the plans for the house, which would be between the septic system and the wetland. The Department Staff argued that the boundary of the tidal wetland should be the boundary as observed by the Department Staff on site visits which occurred in November 1999.

Issues for Adjudication

The issues to be adjudicated in the hearing are as follows:

Whether the project meets the standards in 6 NYCRR Sections 661.9(c)(1), (2) and (3), for issuance of Tidal Wetlands permits on adjacent areas of tidal wetlands; and

Whether the project should receive variances from the setback requirements in 661.6(a)(1), (2) and (3), including variances related to the septic system.

Neither party appealed the issues ruling.

Regulatory Provisions

6 NYCRR Sections 661.9(c)(1) through (3) state: "The department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed regulated activity:

(1) is compatible with the public health and welfare;

(2) complies with the development restrictions contained in section 661.6 of this Part;

(3) will not have an undue adverse impact on the present or potential value of any adjacent or nearby tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research or open space and aesthetic appreciation, taking into account the social and economic benefits which may be derived from the proposed activity[.]"

6 NYCRR Sections 661.6(a)(1) through (3) provide, in pertinent part, that: "No person shall undertake any new regulated activity on any tidal wetland or on any adjacent area except in compliance with the following development restrictions:

(1) The minimum setback of all principal buildings and all other structures that are in excess of 100 square feet (other than boardwalks, shoreline promenades, docks, bulkheads, piers, wharves, pilings, dolphins or boathouses and structures typically located on docks, piers or wharves) shall be 75 feet landward from the most landward edge of any tidal wetland...

(2) The minimum setback of any on-site sewage disposal septic tank, cesspool, leach field or seepage pit shall be 100 feet landward from the most landward edge of any tidal wetland;

(3) For any on-site sewage disposal cesspool, septic tank, leach field or seepage pit, there shall be a minimum of two feet of soil between the bottom of such pool, tank, field or pit and the seasonal high groundwater level, rock, hardpan, or other impermeable materials."

Variances from the provisions of Section 661.6 are governed by Section 661.11, which provides, in pertinent part, that: "Where there are practical difficulties in the way of carrying out any of the provisions of section 661.6 of this Part or where in the department's judgement the strict application of the provisions of section 661.6 of this Part would be contrary to the purposes of this Part, the department shall have authority in connection with its review of an application for a permit under this Part to vary or modify the application of any provisions in such a manner that the spirit and intent of the pertinent provisions shall be observed, that public safety and welfare are secured and substantial justice done and that action pursuant to the variance will not have an undue adverse impact on the present or potential value of any tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation..."

Rulings

Location of wetland boundary

The parties disputed whether the boundary line of the tidal wetland should be the boundary as identified by agreement of the parties in 1992 or a boundary based on the Department Staff's observations made during site visits in November 1999. As discussed below, I ruled that it would be unduly prejudicial to the Applicant to change the boundary under the circumstances and timing of events that occurred in the present hearing. The difference in location of the two lines in question is five feet, and the house would be located either five feet or ten feet from the wetland boundary depending on which boundary is used. Based on the record of the hearing, however, the question appears to be moot since the evidence supports denying the variances and the permit even if the boundary location more favorable to the Applicant is used, as was done in making the Findings of Fact and Conclusions of the present report.

The dispute initially arose on November 23, 1999, in the context of an objection by the Department Staff to testimony about the proceedings which took place in the early 1990's. There was argument by the parties regarding whether the tidal wetlands boundary for purposes of this hearing should be the boundary that was identified by agreement of the parties in 1992 or the boundary as observed by the Department Staff in November 1999.

The setback distances as identified in the Notice of Hearing were based on the 1992 location of the tidal wetland boundary; these were the setback distances that were specified in the hearing referral which the Department Staff had sent to the Office of Hearings and Mediation Services on July 14, 1999. The proposed change in the tidal wetland boundary (and consequently in the setback distances) had not been identified by the Department Staff as a proposed issue for adjudication when the issues were discussed earlier on the morning of November 23, 1999. Following argument by the parties, I made a ruling that for jurisdictional purposes the tidal wetlands boundary would be the boundary which had been agreed upon in 1992, but that I would not be ruling out testimony by either party concerning the current nature of the ground, the vegetation or the wildlife at this location on the site.

On February 14, 2000, at the close of the Department Staff's direct examination of their last witness, the Department Staff made a motion for reconsideration of the location of the tidal wetland boundary, citing Thompson v. Department of Environmental Conservation, 130 Misc. 2d 123, aff'd 132 A.D.2d 665 (2nd Dept., 1987). The Department Staff argued that this decision allows for changes in the tidal wetlands boundary even during the hearing process. The Department Staff stated there would be no need for a map amendment with regard to the change which they were proposing for the tidal wetland due to the small size of the change relative to the scale of the map, but that with or with out a map amendment the boundary should reflect the current conditions.

The Applicant opposed the motion and argued that the actual wetland boundary had not changed, but that also that the Applicant had not been notified of any proposed change and that the relevance of the Thompson decision was questionable since the Department Staff was not proposing to re-map the boundary.

I denied the Department Staff's motion for reconsideration on February 14, 2000, on the record at the hearing, and stated that if after re-reading the Thompson decision I were to decide to change my ruling, I would notify the parties in writing prior to preparation of the hearing report. I have not changed the ruling, and the ruling which I made on February 14, 2000 remains the same.

I would note that the hearing proceeded, all the way to the close of the Department Staff's direct testimony, on the basis that the standards at issue were those for activities in the adjacent area of a tidal wetland. These were the standards that were proposed as issues by the Department Staff. If the boundary were to be changed as proposed by the Department Staff, at least one regulated activity (land clearing for construction) would now be proposed to take place in the tidal wetland in addition to the adjacent area and an additional set of standards (6 NYCRR Section 661.9(b)) would become applicable. During the time between the first and the last days of the hearing, the Department Staff made no motion to amend the issues, and the Applicant proceeded on the basis that his burden of proof was with regard to the standards for permit issuance in 6 NYCRR Section 661.9(c) (adjacent areas), not 661.9(b)(tidal wetlands). While recognizing that the Department may amend a tidal wetland map at any time, and recognizing "the commissioner's need for the most recent and accurate scientific information when reviewing a tidal wetlands permit application" (132 A.D.2d at 665), allowing the proposed boundary change under the circumstances that occurred here would be unduly prejudicial to the Applicant's right to know what is at issue. In addition, both parties were allowed to present testimony regarding the current conditions at the site and these can be taken into account in applying the regulatory standards to the facts of this case.

Findings of Fact

  1. The application which was the subject of this hearing was made by Edward Johnson, 18 Twin Cedar Lane, Northport, New York 11768. The application is for a Tidal Wetland permit for construction of a one-family dwelling and related structures as described below, at a site owned by the Applicant at 18 Stacy Drive, Village of Westhampton Beach, Town of Southampton, Suffolk County, New York. The site is designated on the Suffolk County Tax Map as SCTM 905-10-5-18. (See Appendix A of this hearing report for a map illustrating the location of the site.)
  2. The Applicant proposes to construct a one-family dwelling, a deck, a sanitary system and surrounding retaining wall, and a bluestone driveway. The house would be a two-story house, measuring 25.1 feet by 47.3 feet. The house would be on piles and the first floor of the house would be located at an elevation 10.0 feet above sea level. The Applicant proposes to truck in approximately 315 cubic yards of fill from an upland site to raise grades to those shown on the plan which accompanied the application. The fill would be placed primarily over and around the septic system. The house would be 10 feet from the boundary of the tidal wetland and the septic system would be 71 feet from the tidal wetland boundary. The boundary is considered as being the tidal wetlands line agreed to by the Department Staff and the Applicant in 1992. It is depicted on the survey which was part of the application as "limit of tidal wetlands 10/05/92." The limit of land clearing surrounding the house footprint would extend to 10 feet from the house, and would be located on the 1992 tidal wetland boundary for a distance of about 20 feet. Vegetation on the east and west sides of the lot would remain undisturbed; the undisturbed area would be about half of the lot.
  3. The sanitary system for the house would be located at the southwest corner of the lot and would consist of a septic tank and five cesspools or leaching rings. The septic system would be surrounded by a concrete retaining wall, although it is unclear where the wall would be located at the place where it is overlapped by the house. Space for two additional cesspool rings is provided within the wall, as required by the Suffolk County Health Department, to allow for replacement of cesspools that might fail. The area within the wall, and around and over the septic system, would be filled with soil from an upland site, to an elevation of about nine feet above sea level. The bottoms of the cesspools would be located a minimum of 2 feet above the groundwater elevation reported on the survey for the site, but the bottom of the septic tank would be at or below this groundwater elevation. It is unclear whether the groundwater elevation shown on the survey is the seasonal high groundwater elevation or is a lower elevation. The groundwater level at the time of a lunar tide would be used to identify the seasonal high groundwater level.
  4. The vertical and horizontal locations of the septic tank, cesspools and expansion space are the same on the map which accompanied the current application as on the map which was part of a Tidal Wetlands permit issued by DEC in 1994. The wall around the septic system, along the side near the house, differs between the two maps.
  5. The lot on which the project would be located is on a bend in Oneck Drain, a tidal creek which drains south into Moriches Bay. The project would take place on the southern portion of the lot, which is in the adjacent area of the wetland. This southern portion is cut off from the northern part of the lot by Oneck Drain (see Appendices B and C of this report). The northern part of the lot is intertidal marsh, vegetated primarily with Spartina alterniflora. A narrow fringe of intertidal marsh vegetation and high marsh vegetation exists on the south bank of Oneck Drain along the portion of the site on which the project would be built. The bank of the creek drops off about a foot to a foot and a half going from the construction area into the creek. The existing vegetation in the non-wetland part of the lot consists mainly of red cedar and wild cherry trees, grasses, poison ivy, catbrier, sumac, blackberry, bayberry, honeysuckle, and other plants typically found in areas adjacent to wetlands. The site is densely vegetated at the present time.
  6. The Applicant purchased the site in June, 1977, as a location for a home to live in during retirement. The site is lot 59 of a subdivision known as Stillwaters, which was filed with the Suffolk County Clerk on March 5, 1973. In 1990, the Applicant applied to the Department of Environmental Conservation for a tidal wetlands permit for construction of a house and related structures, which was different from the project that is currently proposed although this earlier project would also have required variances from the setback distances for both the house and the sanitary system. A hearing on the application began on September 16, 1992, but was adjourned and eventually settled. The Department issued a permit dated February 16, 1994, which expired on February 28, 1999. Under this permit, the house would have been approximately 31 feet from the edge of the wetlands at its closest point, with a vegetated buffer of about 26 or more feet between the cleared area around the house and the edge of the wetland. The septic system would have been at the southwest corner of the site.
  7. On July 18, 1994, the Suffolk County Department of Health issued an approval for the DEC-permitted project, which approval was valid for three years. The Applicant then requested zoning variances from the Village of Westhampton Beach, with regard to the setback from the road, the setback from a side of the lot, and the minimum habitable space (1104 square feet versus the required 1200 square feet). The Village denied these variance requests on May 18, 1995, and allowed only a 10 foot variance from the road setback (40 feet versus the required 50 feet). The Applicant appealed this decision in a proceeding under Article 78 of the Civil Practice Law and Rules. The Applicant prevailed in Supreme Court, Suffolk County, but the Village appealed and its zoning decision was upheld by the Appellate Division (Johnson v. Village of Westhampton Beach, 244 A.D.2d 335 (2nd Dept., 1997)).
  8. The Applicant requested a modification of his existing DEC Tidal Wetlands permit in order to conform to the Village zoning decision. The Department Staff denied the request for a modification and told the Applicant to apply for a new permit instead. The Applicant submitted a new application, which is the subject of the present hearing.
  9. The site and the immediate surrounding area are susceptible to flooding during storms. In the area where the site is located, flooding in northeast storm events often goes to five or six feet above sea level. Such storms typically occur once or twice per year. The highest existing elevation on the site is approximately five feet above sea level. The upland portion of the site is also eroding and the wetland along Oneck Drain is encroaching southward into the upland portion of the site. The site is on the outside of a curve in Oneck Drain. At such a location, tidal currents could erode the creek bank. Additional factors which could be producing landward movement of tidal wetlands in the area of the site are storms that occurred in recent years, and increases in the tidal range and water flow due to changes in Moriches Inlet. The survey which was part of the application shows the northeast corner of the house as being 10 feet from the tidal wetland boundary as determined in 1992. The northeast corner of the house, as marked by a stake, was five feet from the wetland vegetation and the edge of the bank as observed and measured by the Department Staff on November 1999.
  10. The project would involve land clearing and construction activities that would occur right up to the edge of the tidal wetland, even if one considers the edge of the tidal wetland as being at the 1992 boundary and even if a ten foot area around the house is a realistic area in which to carry out these activities. The hearing record indicates that ten feet would actually be a minimal area in which to carry out these activities. The Applicant would place hay bales around the construction area, but this would take up a portion of the ten feet. Driving a piling ten feet from the wetland might destabilize the creek bank. It would be difficult to control runoff of sediment during construction.
  11. Runoff and erosion from the site after construction was completed would have adverse effects on the wetland. Although the Applicant's consultant stated that roof runoff would be directed by gutters into the ground, and these were proposed in the cover letter which accompanied the application, no drywells are shown on the drawing of the project. It would be difficult to have effective drywells on the site since the water table is close to the ground surface. Maintenance of the exterior of the house might also cause contaminants to get into the creek.
  12. During flooding after storms, the water table on the site would rise and contaminants from the septic system would be likelier to get into the creek. Even under normal conditions, however, the septic system would be located closer to the wetland than the distance which is specified in 6 NYCRR 661.6(a)(2) (71 feet versus the required 100 feet). The purpose of establishing the 100 foot distance was to provide for buffer zones of soil to absorb contaminants that might get into the tidal waters. Some research which was done after this regulation was adopted indicates that viruses can travel through soil farther than this, depending on environmental conditions such as temperature. Rooted vegetation which is located between a sanitary system and a wetland also serves to keep some contaminants out of the wetland. A septic tank which was constructed with its bottom at or below the groundwater level would be likelier to settle than one that was constructed above this level, and would be likelier to experience cracking and leaking of the pipes which carry waste from the septic tank to the cesspools.
  13. Although the septic tank and cesspools are at the same location as those which were approved in the 1994 permit, the adverse effect of the septic system on the wetland would be greater under the current proposal since the vegetated buffer zone between the septic system and the wetland would be less. The 1994 project included a buffer zone of dense natural vegetation 21 or more feet wide along the edge of the wetland, plus an additional five feet of buffer zone that would be re-planted after construction of the house. Such a buffer zone would not exist for the current project. At the hearing, the Applicant offered to plant a five foot wide strip of vegetation around the proposed improvements to serve as a buffer zone, as had been included in the 1994 project, but the areas that could be planted under the current proposal would not effectively substitute for the buffer zone which would have remained under the 1994 permit.
  14. The project would have an adverse effect on the value of the wetland for use by wildlife, due to removal of adjacent area vegetation up to or very close to the edge of the wetland and due to the increased human activity at the same location.
  15. Although no bulkhead or other shoreline stabilization structure is proposed as part of the current application, it is likely that such a structure would be proposed in the future in order to protect the proposed house from flooding, erosion, and landward migration of the wetland at the edge of Oneck Drain. This would potentially have additional adverse impacts on the wetland. Construction of a bulkhead or shoreline stabilization structure would be designated as presumptively incompatible if it were proposed to take place in a high marsh or intertidal marsh area (6 NYCRR 661.5(b)(29)).
  16. While a variance from the tidal wetlands setback requirements has been granted in at least one situation involving a swimming pool in the immediate area of the proposed project, no houses in the immediate area of the proposed project are located within 10 feet of the tidal wetland.

Discussion

The standard for granting variances from the provisions of 6 NYCRR Section 661.6, as quoted on page 4 of this report, allows for the requirements to be varied where there are practical difficulties in the way of carrying out the requirements. The Applicant has demonstrated practical difficulties in meeting the provisions of Section 661.6, which difficulties are partly due to the Village of Westhampton's zoning decision. The Applicant exhausted his avenues of legal appeal with regard to the zoning decision before making the present request for variances from Section 661.6.

The standard for granting variances also states, however, that the Department has authority to modify the provisions of 661.6 in such a manner that certain specified criteria are met. These include that the spirit and intent of these provisions is observed, that public safety is secured and that action pursuant to the variance will not have an undue adverse environmental impact on the present or potential value of the wetland for wildlife habitat, flood, hurricane and storm control, cleansing of ecosystems, and absorption of silt and organic material, as well as other wetland values.

The variances requested by the applicant would not satisfy these criteria, for reasons identified in the Findings of Fact. The variances would cause undue adverse impacts on a number of wetland values. Granting the variances would be very likely to cause contamination of Oneck Drain. The variance related to the house location is nearly as large a variance as could be requested, taking into consideration the ten foot zone in which construction would take place around the house footprint (using the 1992 line as the wetland boundary). The variances would not satisfy the spirit or intent of the provisions in Section 661.6.

The project also does not meet the standards for permit issuance for activities on adjacent areas of tidal wetlands. One of these standards is compliance with the development restrictions of Section 661.6, which the project does not meet. As discussed above, the project also does not qualify for a variance from these restrictions.

An additional standard for permit issuance which was in dispute was whether the project is compatible with the public health and welfare. The project does not meet this standard since it will probably result in septic contaminants getting into Oneck Drain. This would occur to a greater degree here than with a project that met the development restrictions. The development restrictions were adopted partly to protect the public health.

The project would also have an undue effect on several values of the adjacent wetland.

Conclusions

  1. The project does not comply with the standards for issuance of the requested variances from the development restrictions in 6 NYCRR Sections 661.6(a)(1), (2) and (3).
  2. The project does not meet the standards in 6 NYCRR Sections 661.9(c)(1), (2) or (3) for issuance of a Tidal Wetlands permit for activities on adjacent areas of tidal wetlands.

Recommendation

I recommend that the permit application be denied.

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