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Hanson, David - Ruling, March 15, 1999

Ruling, March 15, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Alleged Violations of Articles 15, 25 and 71 of the New York
Environmental Conservation Law and Parts 608 and 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

DAVID E. HANSON
Respondent
(Suffolk County)

RULING ON PREHEARING MOTIONS
(March 15, 1999)

Introduction

By motion dated February 15, 1999, Respondent David E. Hanson seeks (1) to allow the Respondent to amend and clarify his discovery demand. Respondent asserts that the subject property is not within the Department's tidal wetlands jurisdiction because the property is not designated as a tidal wetland on the Official Tidal Wetlands Map; and (2) to amend his fifteenth affirmative defense to read "failure to commence an adjudicatory proceeding within a reasonable time pursuant to State Administrative Procedure Act §301(1); and (3) if said amendment is permitted, then to dismiss the 1989 charges against the Respondent as a result the agency's failure to timely prosecute said charges.

Staff have filed papers in reply to the pre-hearing motion, seeking denial of the Respondent's motion. Staff's reply filing was received by this Office on February 26, 1999.

Background

Staff initiated this action by service of a Notice of Hearing and Complaint dated June 26, 1998. Staff allege that the Respondent David E. Hanson owns property located at 90 West Meadow Road, Stony Brook, New York ("the site"), which contains regulated tidal wetlands and adjacent areas. Staff further allege that the Respondent altered areas of the site that are regulated tidal wetlands or regulated adjacent areas without a permit in violation of ECL Articles 15 and 25. Specifically, Staff allege that the Respondent (1) constructed a 262 ft. x 5 ft. berm in the adjacent area; (2) placed fill in a 262 ft. x 54 ft. area in the adjacent area; (3) deposited construction and demolition debris in a 25 ft. x 4 ft. area in and adjacent to the tidal wetland; (4) excavated a 145 ft. x 50 ft. area in the adjacent area; and (5) placed gravel in the 145 ft. x 50 ft. area.

A calendar call and pre-hearing conference was held in this matter on July 22, 1998. At that time, the Respondent appeared pro se and the matter was adjourned. Subsequently, on August 19, 1999 the Respondent appeared with counsel and filed an Answer to the Complaint. In his Answer, the Respondent alleges fifteen affirmative defenses. Disclosure has occurred in this case, and Staff filed a statement of readiness for adjudicatory hearing on October 30, 1998. This matter was scheduled for hearing on January 7, 1999. However, on that date the hearing could not proceed due to administrative error resulting in the unavailability of a stenographer. At that time, the Respondent indicated his intent to file the present pre-hearing motion, and a schedule was set for the filing and Staff's reply.

Discussion

1) The Motion to Amend and Clarify the Respondent's Discovery Demand

The Respondent seeks leave to amend his discovery demand to include any and all notices, orders, and maps, tentative or proposed, that were sent to the property owners and filed with the chief administrative officer of the municipality at the time the mapping inventory was established. Respondent's request for discovery demanded "any and all maps, reports, and other documents reflecting the location of tidal wetlands boundaries and the boundaries for the areas adjacent to tidal wetlands, relevant to the subject premises." The Respondent asserts that inherent in this request is the production of any document which would accurately identify, depict, and locate either a tidal wetland or an area adjacent to a tidal wetlands. The Respondent now seeks additional discovery including notices to the affected property owners or the local townships at the time the inventory was established.

The Official Tidal Wetlands Maps (the "Maps")are an inventory of tidal wetlands for the State of New York. These Maps identify boundaries which delineate all tidal wetlands of the state. ECL §25-0201. The regulated adjacent area is defined as the area measuring 300 feet landward of the tidal wetland boundary. 6 NYCRR §661.4 (b)(1)(I). The Tidal Wetland Maps have been created, pursuant to statute, to provide clear and accurate maps of the tidal wetlands of the state for the purpose of effectuating the polices and provisions of the Tidal Wetlands Act, ECL Article 25; See, ECL §§25-0102 and 25-0201(2).

ECL §25-0201 sets forth the procedure for creating the Maps, holding hearings and providing notice to both affected property owners and municipalities to challenge the Maps as well as publication of the notice, filing by the Commissioner of the final Maps and Order, including notice thereof to each affected property owner and municipality and publication of the final Order in two newspapers of general circulation in the area where the wetlands are located. Pursuant to ECL §25-0201(5), any person aggrieved by the Commissioner's Order promulgating the final Maps could, within thirty days from the filing of the Order and Maps, commence a proceeding pursuant to Civil Practice Laws and Rules ("CPLR") Article 78 to review the Commissioner's action.

Staff further represent that the Maps depicting the Respondent's property were duly promulgated more than 20 years ago that the time to challenge the Maps (or the Commissioner's Order promulgating the final Maps) has long since passed. The Respondent did not own the site at the time the mapping occurred, but instead became owner of the site more than a decade later.

The Respondent seeks through this renewed discovery demand, to explore the process leading to promulgation of the final Maps. Such material is irrelevant to the present action. The Official Tidal Wetlands Maps allow Staff and the public to identify specific tidal wetland boundaries and to measure the adjacent areas. To allow the Respondent's request for further discovery would be both unduly burdensome and irrelevant to matters at issue in the present action.

Ruling 1: The Respondent's motion seeking leave to amend his discovery demand to include any and all notices, orders, and maps, tentative or proposed, that were sent to the property owners and filed with the chief administrative officer of the municipality at the time the mapping inventory was established, is denied.

2) The Motion to Amend the Fifteenth Affirmative Defense: State Administrative Procedure Act §301(1)

The Department Staff have alleged that on or before June 6, 1989 the Respondent excavated a 145 ft. x 50 ft. area in the regulated tidal wetland adjacent area and placed gravel in this excavated area. Complaint Paragraphs Thirteen and Fourteen. The Respondent has alleged laches as its fifteenth affirmative defense, and now seeks to amend that defense to "unreasonable delay" under State Administrative Procedure Act ("SAPA") §301(1).

Consistent with the provisions of the CPLR, a party may amend its pleading at any time prior to the final decision of the Commissioner absent prejudice to the ability of any other party to respond. 6 NYCRR §622.5(b). Department Staff oppose granting dismissal of the charges under a SAPA §301(1) claim, but have not opposed the motion to amend Respondent's fifteenth affirmative defense to assert the SAPA claim. Since the adjudicatory hearing could not go forward on January 7, 1999 as previously scheduled, Staff is not prejudiced in their ability to respond to the new SAPA affirmative defense.

Ruling 2: The Respondent's motion to amend its Fifteenth affirmative defense from laches to SAPA §301(1) unreasonable delay, is granted.

3) The Motion to Dismiss the 1989 charges against the Respondent Pursuant to State Administrative Procedure Act §301(1)

The Commissioner has recently issued a determination in an expedited appeal from an Administrative Law Judge's ("ALJ's") ruling. Commissioner's Determination on Appeal, City of Hudson IDA, et al., NYSDEC Case No. R4-1960-97-03 (September 17, 1998). In that enforcement matter, all parties filed leave for expedited appeal of the ALJ's denial of a motion to dismiss and other rulings. Regarding the motion to dismiss, the Commissioner determined that the Respondents' appeal did not meet the standard of 6 NYCRR 622.6(e)(i), preventing undue prejudice or significant inefficiency. Instead, the Commissioner found that prior to commencement of an evidentiary hearing that would result in a fully developed record, a Commissioner's determination granting a motion to dismiss could be inadvertently prejudicial to either Staff or a Respondent. Commissioner's Determination on Appeal, City of Hudson IDA, et al., NYSDEC Case No. R4-1960-97-03 (September 17, 1998).

Ruling 3: I reserve ruling upon the Respondent's fifteenth affirmative defense (SAPA §301[1]). The parties may develop a factual record on this affirmative defense at hearing and provide further legal argument in their closing briefs.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge
Albany, New York

Dated: March 15, 1999

To:
Paula A. Miller, Esq.
Attorney for Respondent
255 West Main Street
Smithtown, New York 11787

Craig L. Elgut
Assistant Regional Attorney
NYSDEC Region 1
SUNY Campus - Building 40
Stony Brook, New York 11790-2356

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