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Islip, Town of - Summary Hearing Report, February 26, 1998

Summary Hearing Report, February 26, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In Consideration of the Preliminary Coastal Erosion Hazard Area Maps for
Oceanfront property located on Fire Island within the Town of Islip
and within the Villages of Ocean Beach and Saltaire (Suffolk County)

SUMMARY HEARING REPORT

-by-

_____________/s/_____________
Frank Montecalvo
Administrative Law Judge

Background

Environmental Conservation Law ("ECL") Article 34 (Coastal Erosion Hazard Areas), also known as the "Shoreowner's Protection Act," recognizes the need to safeguard beaches and coastal areas from erosion caused by storm, flooding and the battering of waves. Article 34 is intended to ensure that activities in such areas are undertaken in a manner which minimizes damage to property and prevents the exacerbation of erosion hazards. (See ECL 34-0101, 34-0102).

Pursuant to this law, the Department of Environmental Conservation (the "Department" or "DEC") is charged with mapping critical erosion areas, notifying property owners, furnishing them with an opportunity to be heard, and issuing a final map (ECL 34-0104).

Once a final map has been issued, localities or counties are given the option of regulating these coastal erosion hazard areas with DEC's approval (ECL 34-0105, 34-0106). Where they fail to do so, the DEC is then required to regulate these areas (ECL 34-0107).

After the coastal erosion hazard management program has been implemented, any person proposing to undertake a regulated activity within a designated erosion hazard area must first obtain permission from the regulating entity (see e.g., ECL 34-0109), except where the law states that its provisions do not apply. ECL 34-0113 specifies those situations where the provisions of Article 34 do not apply, e.g., situations where certain actions may have been taken prior to approval or promulgation of coastal erosion hazard regulations. This non-applicability of Article 34 has been called "grandfather consideration" by persons who made the oral or written statements reported herein.

To implement Article 34, the Department promulgated rules and regulations found at Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York ("6 NYCRR") Part 505 (the "Coastal Erosion Management Regulations").

Proceedings

This proceeding involves consideration of the Department's Preliminary Coastal Erosion Hazard Area Maps for Oceanfront Property located on Fire Island within the Town of Islip, and within the Villages of Ocean Beach and Saltaire (Suffolk County) (the "Maps"), prepared pursuant to ECL 34-0104(l).

Preliminary Coastal Erosion Hazard Area Maps identify shoreline areas which contain natural protective features such as beaches, dunes, bluffs and near shore areas that protect coastal lands and development from the adverse impacts of erosion and high water. These maps delineate as accurately as practicable the actual erosion hazard area boundaries in accordance with the requirements of Article 34.

For oceanfront property located on Fire Island within the Town of Islip, and within the Villages of Ocean Beach and Saltaire, the Maps consist of panels of enlarged aerial photographs at a scale of 1 inch equals 200 feet (1" = 200 feet), upon which is superimposed a line identifying the landward limit of the coastal erosion hazard area. The Maps consist of 1 panel for the Village of Ocean Beach, 1 panel for the Village of Saltaire, and 8 panels for the Town of Islip lying outside the villages. An index map showing the geographic location of each panel is included with the Maps. These 10 panels cover the Atlantic Ocean shoreline of Fire Island from Robert Moses State Park eastward to the town line east of Seaview, plus part of Captree Island.

In accordance with ECL 34-0104(2), the Department scheduled a public hearing in order to afford an opportunity for any person to propose changes in the preliminary identification of the coastal erosion hazard areas shown on the Maps.

Notice of the public hearing (the "Notice") was published on September 10, 1997, in the Department's Environmental Notice Bulletin, and on and September 18, 1997, in the Islip Bulletin. Individual Notices were also sent by certified mail to the supervisor and clerk of the Town of Islip, the mayors and clerks of the Villages of Ocean Beach and Saltaire, and to each owner of record, as shown on the latest completed tax assessment rolls, of lands included within the preliminary identification of an erosion hazard area.

In addition to scheduling the public hearing, the Notice stated that copies of the Maps, and the applicable statute and regulations, were available for inspection during regular business hours at the following locations:

The preliminary Coastal Erosion Hazard Area Map for the Town of Islip was available at the Islip Town Clerk's Office, and at the Town's Office of Planning and Development, both located at 655 Main St., Islip, NY.

The preliminary Coastal Erosion Hazard Area Map for the Village of Ocean Beach was available for inspection at the Ocean Beach Village Clerk's Office, Village Hall, Ocean Beach, NY.

The preliminary Coastal Erosion Hazard Area Map for the Village of Saltaire was available for inspection at the Saltaire Village Clerk's Office, Village Hall, Saltaire, NY.

The Notice stated that copies of all the above maps were also available for inspection at the DEC Region 1 Office, SUNY Campus, Loop Road, Building 40, Stony Brook, NY. The Notice provided that a public information meeting would be held by the Department Staff at the Islip Town Hall West, 401 Main St., Islip, NY, on Tuesday, September 23, 1997 at 7:30 PM (two weeks before the public hearing), to explain the Coastal Erosion Management Program and to give the public an opportunity to review the Maps.

As advertised in the Notice, the public hearing was held before Frank Montecalvo, Administrative Law Judge, at the Islip Town Hall West, 401 Main Street, Islip, NY, on Tuesday, October 7, 1997, at 7:30 PM. The expressed purpose of the hearing was to hear any person and/or receive written statements concerning recommended additions, deletions or revisions to the Maps.

The Department's Coastal Erosion Management Staff was represented at the hearing by Boyd Kaler, Environmental Program Specialist. The Maps were available for reference and inspection at the hearing. Mr. Kaler provided additional information on the mapping process and the individual erosion hazard areas for anyone requesting such information.

Ten persons attended the hearing, of which eight persons (excluding DEC Staff) made statements for the record (six of which were supplemented by submissions that were marked as exhibits).

In accordance with the hearing Notice, written statements were also accepted for the record before, at and following the hearing through January 7, 1998. Forty (40) additional statements were filed by eleven (11) different representatives. The hearing was stenographically transcribed and the record of the hearing was closed upon the expiration of the advertised written comment period, January 7, 1998.

The written and oral statements are summarized below.

Summary of Oral and Written Statements

Because the Map places their properties within the Coastal Erosion Hazard Area ("CEHA"), the statements reflect an overriding concern that individual property owners may be unable to rebuild should they suffer property damage, even though various projects are now in the works which are expected to protect these areas from coastal erosion. Requests were made that the mapping process be deferred or the current line be changed to account for the protection that these projects are expected to provide. One project mentioned was called the "Interim Project," proposed by both the U.S. Army Corps of Engineers and the DEC. It would involve the entire length of Fire Island. Other more localized projects were also mentioned in the comments.

Even though this hearing was not intended to determine or establish the rights of particular individual property owners to be free of Article 34 application pursuant to ECL 34-0113, numerous documents were submitted for inclusion in the record for the purpose of establishing "grandfathered" status. Since such information is not germane to the mapping of the CEHA, the documents are not reviewed in this Report. Nevertheless, appended to this Report is a Table listing all persons making oral and written comments, the names of property owners and addresses where comments referred to specific parcels of land, and the number and type of additional documents submitted. Thus, there is a record of all items submitted (see Appendix A - Table of Submissions).

  1. Larry J. Chaitovitz wrote to establish grandfather status for his property.
  2. John Lund, president of the Davis Park Association, wrote to support the FIA position and reiterated the FIA's requests (see Mr. Stoddard, below).
  3. Charles W. Bowman, president of the Land Use Company, Inc., spoke on behalf of the Town of Islip Kismet Beach Erosion Control District. He noted that as a result of several storms during the 1991-1993 period which devastated sections of Fire Island, the Kismet Beach Erosion Control District, Saltaire, Fair Harbor, Dunewood, and others in Islip and Brookhaven undertook dune reconstruction beach renourishment projects in 1994 that were designed to restore the primary dunes. He pointed out what appeared to him to be a lack of criteria for placing the CEHA line, and opined that the line appeared to be drawn inconsistently from place to place. He pointed out that there was much historical data available and suggested that it be analyzed as part of the mapping process.

    Mr. Bowman also made twenty-five written submissions to request "grandfathered" status on behalf of particular property owners.

  4. Irving Like, an attorney with Reilly, Like, Tenety, Ambrosino &Vetri, read into the record a letter (Exhibit 6) from property owner Susan Barbash which requested that the Map be amended to be consistent with a recent survey of her property (Exhibit 6A) in Dunewood which indicates that the landward toe of the dune is located approximately 30 feet from her house.

    Mr. Like also spoke, submitted exhibits at the hearing, and later made seven written submissions to request "grandfathered" status on behalf of several property owners.

  5. Paul Pugliese, Mayor of the Village of Ocean Beach, spoke to request that a bulkhead which extends from Cottage Walk west to the village line (existing since at least 1942) be used as the measuring point for the 25 foot line rather than what appears in the aerial photographs to be the toe of the dune located 10 to 15 feet north (landward) of the bulkhead. 6 NYCRR 505.2(dd)'s definition of primary dune indicates that the landward limit of a primary dune is 25 feet landward of its landward toe. Claiming that it is arbitrary to draw a line based on the current conditions which reflect recent storm damage, Mr. Pugliese also argued for the line across the village to be based either upon the future location of the primary dune after the sand-replacement project is implemented, or upon the primary dune's historic location.
  6. Gerard Stoddard, as president of the Fire Island Association (FIA), spoke to oppose the implementation of Article 34 because of the belief that government actions at Moriches Inlet have caused the erosion problems which exist. These actions allegedly blocked the littoral drift of sand that otherwise would have protected Fire Island beaches, essentially creating the erosion hazard that the statute addresses. Since Article 34 entails establishing a "construction control line," FIA believes that the government should fix problems that it helped cause before it sets up a line that could restrict an owner's use of property. Essentially, FIA believes it is unwarranted to reduce an owner's right to rebuild property when the government played a significant role in creating the situation now used to justify the reduction.

    Mr. Stoddard pointed out that when Congress established the Fire Island National Seashore, the Seashore was charged with preparing zoning standards designed to insure that existing communities would remain substantially as they were when the seashore was established.

    He pointed out that property owners have been confused by the federal (36 CFR Chapter 28) and Town (Islip Town Code) "construction control lines" because they were drawn in different locations, and noted that the preliminary Maps place the state's line in an additional location. FIA anticipates that after the "Fire Island Interim Project" produces a new primary dune or "natural protective feature," the CEHA will be relocated to 25 feet landward of the limit of that project and Congress will relocate the federal line to coincide. FIA believes that property owners and regulators alike will benefit from having a single construction control line to deal with when this happens.

    In the meantime, however, Mr. Stoddard contended that the Department has tried to place the boundary at the landward toe of the existing primary dune (6 NYCRR 505.2(dd)) -- in a location believed to be undiscernible by stereoscopic photography, even when aided by on-site inspections. This is viewed to be arbitrary.

    Indicating that FIA was concerned that persons would be unable to receive permission to repair damage between the time the current boundary becomes effective and the time the boundary can be moved to conform to the Corps/DEC Interim Project, Mr. Stoddard requested that the CEHA boundary not become final until the Interim Project is completed, and that the Interim project be implemented as soon as possible. As an alternative to using Article 34 to regulate reconstruction before the Corps Project is completed, Mr. Stoddard suggested that the Department use its authority under Article 25, the Tidal Wetlands Act.

    FIA requests four things in particular: (1) that DEC provide written assurance that the CEHA boundary will not become final until the Corps of Engineers Interim Project has been completed, (2) that the Legislature formally adopt the Corps Interim Project as part of the state's coastal zone management program, (3) that DEC continue to regulate house reconstruction under Article 25 rather than Article 34 until the Corps project is begun, and (4) that at that point Article 25 no longer be applied to ocean beaches.

    FIA has already requested that the Town of Islip accept jurisdiction to implement the coastal erosion hazard program.

  7. Bruce Hyland spoke about his Ocean Beach property which has been placed within the designated hazard area on the preliminary Map. Noting that the line has been drawn uniformly back from the shore, but that actual conditions vary considerably along the length of the island, Mr. Hyland opined that the line has been arbitrarily drawn. Mr. Hyland pointed out that in the 25 years he has owned his property, he has not observed any erosion in front of his house, but, if anything, the dune has grown.

    Mr. Hyland later wrote and submitted surveys to detail his objections to the placement of the CEHA line along the northern boundary of his property (i.e., placing his entire parcel within the hazard area). Mr. Hyland understood that the part of the CEHA line running along his northern property line was intended to represent a location 25 feet landward of the landward toe of the primary dune. Mr. Hyland pointed out, however, that if this is true, then the landward toe of the dune would run through the middle of the lot underlying his house. He located this position on a survey which shows this location running through the middle of the house. Mr. Hyland noted that his western boundary going from south to north drops about 7 inches in elevation while his eastern boundary going in the same direction rises about 6 inches. Given the 505.2(pp) definition of the "toe" as the lowest point on the slope of a dune, and the elevations on his property, he argued that it is "preposterous" to suggest that the property sits on the anticline of the dune -- i.e., the finding of a toe of a dune on his property would be erroneous.

    Mr. Hyland also contended that the straight line on the Map varies from the reality of any dune. He said that dunes would be expected to be unpredictable in shape and change every year. Mr. Hyland argued that if the line was intended to be based on a theoretical or idealized version of the primary dune, the language of the regulation does not provide for such. Mr. Hyland contended that the line should be drawn 25 feet north of the retaining wall bounding the southern alignment of Ocean Beach Walk, the wall marking the end of the primary dune. Such a location would place the CEHA on only the southernmost 13 feet of Mr. Hyland's property, a location consistent with the line marking the limit of the Fire Island National Seashore dune district.

  8. Lark Schlimbaum spoke to point out that the landward toe of the dune is not under the southern deck of her Atlantique home as depicted on the Map. She reported that there have been some increases in elevation in the area.
  9. Welt Michael, an oceanfront property owner, spoke and opined that any line that did not place all existing houses north (on the unregulated side) of the line would be another regulation that would cause confusion and lawsuits. He recommended that if there are houses in areas that really should not be rebuilt upon, they should be condemned.
  10. J. William Manowitz, speaking on behalf of the Fair Harbor Taxpayer's Association, proposed that the CEHA line at Fair Harbor be moved 200 feet south before it is approved. He contended that the line should be moved to account for the presence of a 16 feet high, 80 feet wide dune which drops down to a 100-150 feet wide beach. He pointed out that the Fair Harbor Erosion Control District spent $1.5 million dollars to renew the beach to conform to FEMA guidelines and to enjoy FEMA protection. Continued maintenance of the renewed beach will remain the responsibility of the district. In light of these efforts, Mr. Manowitz contended that the Department erred when it categorized Fair Harbor as a serious erosion hazard area. Pointing to ECL 34-0102, particularly paragraphs 2 through 5, he argued that Fair Harbor has more than met the criteria for reducing the likelihood of damage to property, justifying relocation of the proposed line.

    If the CEHA line remains as currently drawn, Mr. Manowitz predicted that there will be a mass action to reduce tax assessments based on the diminished value of the affected properties. He estimated that this would impact about 8% of the taxable value and create a bigger tax burden for those persons owning properties north of the line. In essence, Mr. Manowitz would like the local efforts to be taken into consideration when the Department draws the final line.

  11. David S. Yudelson, an attorney with Sive, Paget & Riesel, PC, wrote to confirm the firm's discussions with Staff, that Staff was aware of a problem with the CEHA line's location near a client's Seaview property and intended to modify the line with respect thereto.
  12. Patricia Davis wrote to request grandfathered status for her property.
  13. Lawrence T. Jones, an attorney with Jones and Jones, wrote and submitted documentation, including maps and photos, to demonstrate that the landward limit of the natural protective feature area, as it is shown on the Map in the vicinity of Dune Avenue (Duneway) and Ocean View Walk in Seaview, should be shifted southerly approximately 150 feet. Mr. Jones indicated that his proposed location for the line would be to an area approximately 30 feet south of the southerly wall of his client's dwelling house on the east side of Dune Avenue fronting the beach.
  14. L. E. Cobb wrote and submitted photos and other documents to show that his Lonelyville house is just behind the dune which he alleged to be "in absolute contradiction to the DEC-claimed duneline, which has been arbitrarily positioned some 75 feet from the crest of the dune, and cutting through the Waterworks ...." behind his property. Mr. Cobb also requested grandfathered status.
  15. William E. Ervin wrote to protest the proposed location of the CEHA boundary which runs through the middle of his Saltaire house, and request that the boundary be relocated to at least 20 feet south of his house. He pointed out that after the dunes in front of his house were obliterated during the 1992-3 storms, and after he moved his home northward by 50 feet to a safer location, a private sand replenishment program funded by the Saltaire citizens placed a new dune which "arbitrarily" curves northward toward his house. Although his house is significantly father away from the water than his neighbors, the proposed CEHA line does not reflect this, apparently being based on the replacement rather than the former natural dune.

    Mr. Ervin argued that the implementation of the CEHA boundary now is unfair and unwarranted because erosion on Fire Island has been accelerated due to government action or inaction at Westhampton Beach and Moriches Inlet. He did not think property owners should have additional restrictions placed on their rights due to a crisis that resulted as much from what he called the government's short-sighted activities as from natural processes. He contended that DEC should take steps to restore the natural rate of sand replenishment on Fire Island and move on the Interim Project first, and draw the CEHA boundary afterward.

    Since Mr. Ervin believed his home is now located at least 50 feet behind the last measurable natural dune line, he argued that the Map should not place it within the CEHA.

Conclusion

The Department's Coastal Erosion Management Staff should review the challenges to the Maps for a precise determination in locating the erosion hazard line on each individual property (where such field inspections have not already been completed) and then make any necessary changes as may be needed or warranted to the preliminary map. Upon completing this review and making any necessary changes, the Staff should then forward the final Coastal Erosion Hazard Maps to Commissioner Cahill for appropriate further action pursuant to ECL 34-0104(3).

Appendix A - Table of Submissions

Appendix B - Exhibits List

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