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Janssen, Edward J. - Decision, May 14, 1996

Decision, May 14, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Application of EDWARD J. JANSSEN for Freshwater Wetlands and Tidal Wetlands Permits
pursuant to Environmental Conservation Law (ECL) Articles 24 and 25, and Title 6 of
the Official Compilation of Codes Rules and Regulations of
the State of New York (6 NYCRR) Parts 663 and 661

DEC Project Nos.

1-4722-00304/00001-0 and 00002-0

DECISION

May 14, 1996.

Decision of the Commissioner

The attached Hearing Report (the "Report") of Administrative Law Judge ("ALJ") Frank Montecalvo, including its Findings, Conclusions and Recommendation, in the matter of the application submitted by Edward J. Janssen (the "Applicant"), 6 Roslyn Road, Mastic Beach, NY 11951, for Freshwater Wetlands and Tidal Wetlands Permits is hereby adopted as my Decision in this matter.

The Applicant proposes to construct a 25' x 40' single family dwelling with associated 30' x 24' deck, driveway and septic system with associated retaining wall and fill. The proposed dwelling and septic system are entirely within NYSDEC regulated freshwater wetlands and in tidal wetland adjacent area. The Proposed Project would be located on Woodland Drive approximately 155 feet north of Riviera Drive, Mastic Beach, Town of Brookhaven, Suffolk County, New York.

As indicated in the Report, the proposed project does not qualify for a freshwater wetlands permit because it does not meet the weighing standards for projects within a Class I freshwater wetland. The proposed project would result in the unmitigated loss of freshwater wetlands functions and benefits without a showing that it satisfies a "compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland" affected, as required under 6 NYCRR .663.5(e).

The proposed project also does not qualify for a tidal wetlands permit because it does not comply with the tidal wetland development restrictions and does not qualify for a variance of these restrictions; would have an undue adverse impact on the adjacent tidal wetlands; and has not been demonstrated to be compatible with the public health and welfare.

In view of the foregoing and on consideration of the entire record herein, the subject application of Edward J. Janssen for Freshwater Wetlands and Tidal Wetlands Permits is hereby denied.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
May 14, 1996

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 the Matter of

the Application of

Edward J. Janssen

for Freshwater Wetlands and Tidal Wetlands Permits pursuant to
Environmental Conservation Law (ECL) Articles 24 and 25, and Title 6 of
the Official Compilation of Codes Rules and Regulations of
the State of New York (6 NYCRR) Parts 663 and 661

DEC Project Nos.

1-4722-00304/00001-0 and 00002-0

HEARING REPORT

-by-

____________/s/_____________
Frank Montecalvo
Administrative Law Judge

The Proposed Project and Permits Sought

Edward J. Janssen, 6 Roslyn Road, Mastic Beach, NY 11951 (the "Applicant") seeks Freshwater Wetlands and Tidal Wetlands Permits from the New York State Department of Environmental Conservation (the "Department" or "NYSDEC").

The Applicant proposes to construct a 25' x 40' single family dwelling with associated 30' x 24' deck, driveway and septic system with associated retaining wall and fill. The proposed dwelling and septic system would be located entirely within NYSDEC regulated freshwater wetlands and in tidal wetland "adjacent area." The proposed project would be located on Woodland Drive, approximately 155 feet north of Riviera Drive, Mastic Beach, Town of Brookhaven, Suffolk County, NY (Suffolk County Tax Map numbers 0200-980.7-07-029 and 030).

Proceedings

The application for a Freshwater Wetlands Permit was initially filed November 27, 1989. Subsequently, other documents were submitted by or on behalf of the Applicant at the request of NYSDEC Region 1 Staff ("Staff"). During March, 1994, the Town of Brookhaven (the Town) as "Lead Agency" under SEQRA, submitted to NYSDEC the Final Environmental Impact Statement ("FEIS") for the project. Following the Town's issuance of a SEQRA Findings statement and a clarification of the FEIS, on April 21, 1995, NYSDEC Staff issued a "Certification of Findings to Deny" alleging that the requirements of 6 NYCRR part 617 had not been met. In a letter of the same date, Staff stated that it intended to deny the application because the proposed project allegedly did not meet the standards for permit issuance applicable to Class I wetlands under 6 NYCRR .663.5(e), including the weighing standards of .663.5(e)(2). On May 4, 1995, the Applicant requested that his application be referred to the Office of Hearings. On July 28, 1995, Staff acknowledged Applicant's request for a hearing, and requested that Applicant have the tidal wetland boundary delineated on an updated survey. On October 13, 1995, Applicant submitted the survey, and again requested that a hearing date be set.

On December 29, 1995, the NYSDEC Office of Hearings received Staff's request to schedule a public hearing. Staff also requested that the Notice of Complete Application be combined with the Notice of Hearing. On January 3, 1996, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

The Notice of Complete Application and Notice of Public Hearing (the "Notice") was issued January 19, 1996. The Notice was published on January 31, 1996 in NYSDEC's Environmental Notice Bulletin, and on January 25, 1996 in the Long Island Advance. The Notice was also directly mailed January 24, 1996 to the Supervisor of the Town of Brookhaven, to the Suffolk County Clerk, and to other persons deemed interested in this proceeding. The Notice indicated Staff's tentative determination that the proposal would not meet the weighing standards for a Class I wetland found at 6 NYCRR .663.5(e), that it would not meet standards for projects in tidal wetland adjacent areas under 6 NYCRR .661.9(c)(3), and that Staff would not issue the requested permits. The Notice required that petitions to intervene had to be filed by February 21, 1996, and that written public comments on the proposed project be received by February 27, 1996.

The ALJ received no petitions to intervene, nor any written public comments.

As advertised in the Notice, the ALJ convened the public hearing at 10:00 AM on February 27, 1996, at the Mastic-Moriches-Shirley Community Library, Meeting Rooms D and E, 475 William Floyd Parkway, Shirley, NY 11967. NYSDEC Staff was represented by Gail M. Hintz, Esq., Assistant Regional Attorney. The Applicant was represented by Mars, Sloane & Conlon; Glenn B. Gruder, Esq., of counsel.

One person spoke at the public statement session (which had previously closed with no speakers, but was reopened upon the Applicant's request with Staff's agreement). That person favored the proposed project. The ALJ denied a second request to reopen the public statement session, which request was made on the second day of the adjudicatory hearing.

The Issues Conference took place on February 27, 1996. Prior to the conference, the ALJ requested and received from Staff and Applicant written statements of their positions. These statements were incorporated into the conference record. The parties agreed that the issues listed below under "Hearing Issues" were the issues to be adjudicated. They also stipulated that buffer zones indicated on the plan shown on Exhibit 2B serve to prevent further degradation of that area of wetland, and also serve as some minimization of the impact of the proposed project. They also agreed that impacts to fisheries under 6 NYCRR .664.3(b)(5) were not in issue.

The adjudicatory hearing took place immediately following the Issues Conference. Applicant testified in his own behalf, and also called the following witnesses: Richard Jackson, PhD., and Michael Morris. Staff called the following witnesses: Susan Ackerman, Stephen Lorence, Roy A. Jacobson, Jr., and George Stadnik. The adjudicatory hearing concluded on February 28, 1996 with oral closing arguments. The record closed on March 21, 1996, upon receipt of the stenographic transcripts.

Hearing Issues

  1. Does the proposal meet the following weighing standards for a Class I freshwater wetland found at 6 NYCRR .663.5(e):
    1. Does the project "minimize degradation to, or loss of, any part of the wetland or its adjacent area and minimize any adverse impacts on the functions and benefits that the wetland provides"? Specifically, are impacts to the following 8 benefits listed under .664.3(b) minimized:
      1. flood/stormwater protection (.664.3(b)(1))
      2. wildlife habitat (.664.3(b)(2))
      3. water supply (.664.3(b)(3))
      4. water quality (.664.3(b)(4))
      5. food chains (.664.3(b)(6))
      6. recreation (.664.3(b)(7))
      7. open space and aesthetic appreciation (.664.3(b)(8))
      8. education and scientific research (.664.3(b)(9))?
    2. Does the proposed activity satisfy a "compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland"?
  2. Does the proposed project meet the following tidal wetland permit requirements:
    1. With regard to its location in tidal wetland adjacent area, will the proposed activity "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 ..." (.661.9(c)(3))?
    2. Does the proposed project qualify under .661.11 for a variance of the development restrictions found at .661.6(a)(1) [setback of principal buildings], .661.6(a)(2) [setback of septic system] and .661.6(a)(3) [elevation of septic system]?
    3. Is the septic system compatible with the public health and welfare considering its low elevation and the periodic flooding to which the site is subjected (.661.9(c)(1))?

Staff's Position

Staff acknowledges that the Applicant's site presents a difficult situation because it is freshwater wetland, and because anywhere on the site arguably not freshwater wetland would be tidal wetland. Staff argues that the proposed project meets neither the freshwater nor the tidal wetland permit issuance standards.

With regard to the Class I freshwater wetland in question, Staff points out that the applicant must not only show that he has minimized the activities that he plans to pursue, but also that the activities satisfy a compelling social or economic need that clearly and substantially outweighs the loss of or detriment to the Class I wetland involved. Staff opined that such showing has not been made.

In particular Staff contends that the proposed project would diminish the freshwater wetland's values for flood and stormwater protection, wildlife habitat, water supply, water quality maintenance, food chain maintenance, recreation, open space and aesthetic appreciation, and education and scientific research. Pointing out that single family dwellings are common, and noting that there are 200 lots in the area similarly situated on the wetland, Staff contends that the circumstances here are not unusual. Staff is of the opinion that only a public need would justify a reduction of the wetland benefits. Simply put, Staff believes that there is no compelling social or economic need to construct a single family dwelling here that would warrant any reduction of the wetland benefits.

Staff also notes that Applicant's proposed septic system fails to meet both the setback and the distance from the ground water rules found in .661.63; that this establishes its incompatibility with the public health and welfare; and further notes that the site is subjected to periodic flooding.

Staff argues that the project would have an undue adverse impact on the present and potential values of the tidal wetland adjacent area (which is fresh water wetland) and the nearby tidal wetland itself. Staff contends that all of the tidal wetland values listed in the regulations would be impacted, including wildlife habitat, marine food production, flood and storm control, etc. Staff contends that the Applicant has failed to provide any information to counter Staff's position.

Because of the perceived undue adverse impacts to the tidal wetland, and the concern over public health, Staff argues that the Applicant would not qualify for a variance of the tidal wetland regulations, nor qualify for the permit.

In sum, it is Staff's position that the application should be denied.

Applicant's Position

The Applicant does not dispute the benefits of the wetlands, the State's purpose to preserve wetlands, or the fact that the project site is almost entirely freshwater wetland with the remainder being tidal wetland. The Applicant contends that any degradation to or loss of any part of the wetland or wetland adjacent area, and any adverse impacts on the functions and benefits that the wetlands provide pursuant to the regulations, have already been minimized as detailed in the Town of Brookhaven's FEIS for the project. The Applicant argues that Staff has improperly disregarded the Town's findings.

The Applicant notes that the freshwater wetland regulations do not forbid construction of a home in a Class I wetland, but, rather, require that a permit be obtained. A permit may be obtained if the weighing standards are met. Noting Staff's testimony to the effect that no house would meet the weighing standards, Applicant argues that such a position would be inconsistent with the standards. The standards allow for a weighing or balancing of economic and social needs versus the loss of or detriment to the wetlands.

Contrary to Staff's position, the Applicant argues that because the regulations do not use the word "public" before the phrase "economic and social needs," the regulations refer to the economic and social needs of the Applicant. Applicant argues that Staff's "knee-jerk" denial of Mr. Janssen's permit application compounded with an erroneous interpretation of the regulations, resulted in their erroneously requiring the Applicant to show a compelling economic and social need of the public at large for him to build his single family residence.

The Applicant asserts that his economic or social needs substantially outweigh the loss of or detriment to the benefits of the Class I wetland. In this regard, the Applicant notes that the project site had no wetlands classification when he purchased it in 1989. He notes that he intends to disrupt only approximately 58 percent of his parcel, or approximately an eighth of an acre, within a 36-acre fresh water wetland. Applicant argues that common sense and fairness should entitle him to build his house, in which he intends to live, on that small piece of land. The Applicant contends that the benefit of his realizing something from his $60,000 investment outweighs the loss of or the detriment to wetlands benefits that would result from disrupting approximately one-eighth of an acre in a 36-acre wetland, in an area already developed with roads and other houses.

The Applicant contends that the project would have minimal or no impact on the present or potential value of the adjacent or nearby tidal wetlands for the list of items found in the regulations.

With respect to the setbacks for the septic system and the house, and the required elevation of the septic system, the Applicant contends that based on the myriad of governmental regulations and jurisdictions under which this project falls, specifically NYSDEC, the Town of Brookhaven, and the Suffolk County Health Department, there is no way to site the house and create a sanitary system that would be unanimously approved and would be satisfactory in relation to the conditions, obligations and regulations of these three entities.

Applicant contends that Staff did not properly weigh the factors, and requests that his application be granted.

Findings of Fact

Project Site and Setting:

  1. The project site consists of a 100 foot by 120 foot (12,000 square feet) parcel of land located on the west side of Woodland Drive, approximately 135 feet north of Riviera Drive, Mastic Beach, Town of Brookhaven, Suffolk County, NY. The site appears on the Suffolk County Tax Map as Lots 29 and 30, and part of tax map Lot 28, in District 200 Section 980.7 and Block 7. The project site is also identified as lots 3923-3928 on the map entitled "Map of Mastic Beach, Suffolk County Long Island, New York" filed in the Suffolk County Clerk's Office, June 3, 1926 in file No. 1004. The southernmost portion of the site (being of the dimensions of 20 feet measured north to south by 100 feet measured east to west) will be called the "buffer area" below.
  2. South of the project site is another parcel of land containing a single family dwelling which separates the project site from Moriches Bay (the Bay). There is also a dwelling to the southwest, and another dwelling across Woodland Drive to the southeast. Vacant properties surround the project site on the west and north, and across paved Woodland Drive immediately east.
  3. The project site is in an area zoned for single family dwellings on lots with a minimum size of 40,000 sq. feet. Because the site was part of an old subdivision established prior to the current zoning, no zoning change would be required to construct a single family dwelling even though the site is smaller than the current minimum.
  4. Land use within 1,000 feet of the project site consists of single-family dwellings on various sized lots interspersed with vacant parcels of land. Public water is available in close proximity to the site.
  5. The project site is currently unimproved with a generally flat topography, ranging in elevation from 2.55 to 3.2 feet.
  6. Almost the entire site is covered by freshwater wetland vegetation characterized as "emergent vegetation." The property is overgrown by Phragmites (Common Reed) interspersed by a few woody shrubs, of which Poison Ivy is very abundant. Other "emergent" species found there include, but are not limited to, Grape, Seaside Goldenrod, Swamp Smartweed, Jewelweed, Water-Pepper, and Swamp Rose-Mallow.
  7. Except for its extreme northwestern corner, the entire project site is located within what has been mapped as NYSDEC regulated freshwater wetland number "M-20." The extreme northwestern corner of the site is within the NYSDEC regulated tidal wetland shown on Tidal Wetland Map #682-512. Areas of the site within freshwater wetland "M-20" are also regulated as tidal wetland "adjacent area."
  8. Freshwater wetland "M-20" is approximately 36 acres in size, composed of numerous small wetland areas separated from each other by a grid of streets and some homes. NYSDEC has classified wetland "M-20" as a "Class I" wetland. Properties to the west, north and across Woodland Drive to the east of the project site are within this wetland, except for land to the northwest which is in the tidal wetland. Prior to being placed on the final freshwater wetland map, freshwater wetland "M-20" appeared on a tentative freshwater wetland map, to which Applicant had requested a change at a NYSDEC public hearing held on July 25, 1989.
  9. There is a "mosquito ditch" just north of the project site through which tidal waters reach the tidal wetland vegetation located on and adjacent to the site. Common killifish (which eat mosquito larvae) live in the ditch.
  10. The project site lies between a lagoon (approximately 450 feet to the west), and Lawrence Creek (approximately 950 feet to the east). It is also approximately 300 feet north of the surface waters of the Bay. The site is located within a 100-year floodplain, so it is subjected to flooding. In particular, the site is in an area designated as "V-10 (EL 11)" on the Federal Emergency Management Agency Flood Rate Insurance Map. This designation means that the base flood elevation of this site during a one hundred year flood is approximately 11 feet. Construction in this zone requires a first floor elevation above that level. The site is also known to flood on a regular basis, perhaps monthly.
  11. The site is within the direct water table recharge area. The depth to groundwater is expected to be 0.2 to 1.6 feet below the site's surface. Recharged water enters the shallow groundwater subsystem where it may be expected to be discharged to streams or other surface waters. Homes in the area use public water rather than ground water for their domestic supplies.
  12. The shallow water table, low elevation, and propensity for flooding makes critical the location of any septic system on the site. Care would have to be taken to ensure that the leaching pools are placed high enough to permit sufficient soil filtration to take place to prevent pollutants from reaching the groundwater.
  13. The Bay has a significant recreational and commercial fishery for various fish including bluefish, striped bass, weakfish, summer flounder, winter flounder, porgy, and blackfish. NYSDEC has classified Bay waters as "SA," meaning they are suitable for the consumption and harvesting of shellfish.
  14. Making the site suitable for a single family dwelling would require filling, use of pilings, and installation of a properly functioning septic system.
  15. Except for the buffer area, the Applicant purchased the project site on March 27, 1989, for $34,000. Prior to purchase, the Applicant was aware that the property might be impacted by tidal wetlands. The Applicant purchased the buffer area on September 14, 1993 for $2000. As a building lot, the project site would be valued in the $40,000 to $45,000 range. Applicant's witness estimated the site's dollar value to be zero if it could not be built upon.

Wetland benefits:

  1. The site's freshwater wetlands (which are also tidal wetland adjacent area) provide flood, hurricane and storm protection by controlling or containing water from flood tides and heavy rainfall. The benefit is provided by the physical space in the wetland, and by the presence of vegetation. The wetlands act similar to sponges in the sense they will hold flood water and then slowly release it through evaporation or transpiration by plants to the air, or through subsurface flow to other areas. The plants dissipate wave energy by their presence, slowing down water movement during significant storm events. This slowing helps to prevent erosion (causing suspended soils to drop out). Erosion is also prevented by the plants' roots holding soils in place. The freshwater wetlands therefore help protect the adjacent tidal wetlands from storm damage.
  2. The adjacent tidal wetlands also provide flood protection related benefits in the same manner as the freshwater wetlands. That freshwater and tidal wetlands are contiguous at the project site enhance their respective values in this regard.
  3. The site's freshwater wetlands provide habitat for various species of wildlife. The long-billed marsh wren is expected to use the site for both cover for nesting habitat and also for feeding on insects, spiders and plant material. The redwing blackbird is also expected to use this area for nesting and cover. A host of species that are not dependant on wetlands for their existence also are expected to use the site, including the yellow rump warbler (to feed on the poison ivy, particularly in winter), meadow voles and white-footed mice (for food and cover), raccoons (for cover), and white-tailed deer (for cover and food). Although no endangered or threatened flora or fauna are known to be on or otherwise depend upon the project site, the short-eared owl, a species of "special concern," may utilize the site for foraging. Egrets, blue herons, and sea gulls use the immediately adjacent tidal wetlands.
  4. The freshwater wetland vegetation helps to purify the water that flows across the surface, eventually making its way into the Bay and/or the groundwater. The adjacent tidal wetland performs much the same function. This helps to maintain water quality in the adjacent tidal wetland and in the Bay. The presence of the freshwater wetland adjacent to the tidal wetland enhances the tidal wetland benefits of cleansing ecosystems and absorbing silt and organics. The freshwater wetland will be the first point of absorbing silt, organics, and pollution from storm water runoff from the street. Whatever pollution the freshwater wetland system can't handle as a result of a rain event will enter the tidal wetland high marsh area, which performs the same function. The freshwater and tidal wetlands help keep the waters of the Bay clean for boating, swimming, and the fishery.
  5. The tidal ditch north of the site provides a marine connection and tidal waters to the tidal wetland vegetation on the site. The ditch provides some marine food production in the form of algae, snails, and crabs (feather crabs, blue claw crabs). This benefit is protected by the adjacent freshwater wetland controlling storm flows, controlling erosion, and purifying waters.
  6. The site's value for recreation, education and scientific research is somewhat limited by the poison ivy and thick vegetation that covers the site, making it difficult for people to do things there. Nevertheless, the birds and other wildlife attracted to the site will allow for passive recreation such as birdwatching to take place on near by public areas. Also, the site's contribution toward water quality is also a contribution toward maintaining the recreation values of the Bay. There is no known ongoing scientific or educational efforts being made at the site, and the site's value for these endeavors is debatable.
  7. The site is undeveloped open space. Whether or not it is aesthetically pleasing is a subjective determination dependant upon one's personal preferences.

The Proposed Project, Design Constraints and Expected Impacts:

  1. The Applicant proposes to construct a single family dwelling with associated 30' x 24' deck, driveway, and septic system with associated retaining wall and fill. Because almost the entire site is freshwater wetland and tidal wetland adjacent area, with the remainder tidal wetland, it is impossible to site these features where they would be unregulated or where they would avoid impacts to the wetlands. All of these structures would be located within NYSDEC regulated Class I freshwater wetland "M- 20," and within NYSDEC regulated tidal wetland "adjacent area." See Appendix A, incorporated herein by reference, which is a survey of the site and project plan.
  2. Clearing of the natural vegetation, filling, and the project elements would be located within the central and eastern portions of the project site. Approximately 0.13 acre of the site's original topographic features and freshwater wetland vegetation will be lost. This will be replaced with 0.10 acre low- maintenance turf and wildflowers (with replanted shrubs and vines around the septic system). The rest of the disturbed area will be replaced with the house, deck and the unpaved driveway. No fill would be placed in a "natural buffer zone" to be maintained around the constructed features. This "buffer zone" consists of the "buffer area" (see FF 1, above) in the southern portion of the site, plus the westernmost and northernmost portions of the project site extending 27 feet into the site from the western boundary and 10 feet into the site from the northern boundary. No buffer will be maintained along the eastern boundary which is Woodland Drive.
  3. Hay bales, siltscreens and mulch would be employed during construction to minimize the potential for siltation and erosion into those portions of the wetlands that the project would not touch.
  4. The project elements have been located close to the roadway to minimize the grading and disturbance to the wetland vegetation needed to meet Applicant's objective of building a house, and to enable the undisturbed wetland areas on site to remain linked with other wetland areas near by. The project would preserve 42% of the site's wetland vegetation and habitat.
  5. The dwelling would be two stories (28') tall, 25' x 40' dimensions, supported on piles with a first floor elevation of 13 feet. The deck would be attached to the west side of the dwelling. The dwelling and deck would be located less than 75 feet from the tidal wetland boundary. A certain amount of regrading would have to be done to construct the house.
  6. Drywells located at three corners of the dwelling would collect roof runoff. The driveway would be of "bluestone" (loose crushed stone). The drywells and bluestone driveway are intended to minimize and prevent the loss of nearly all of the runoff to groundwater recharge.
  7. The septic system, proposed to be placed adjacent to the south side of the house, would consist of a septic tank connected to 5 leaching pools with room reserved for two additional leaching pools. Existing grade where the system would be located is at an elevation of approximately 3 feet. The system would be surrounded by a timber retaining wall, the top of which would be at an elevation of approximately nine and a half feet. The area within the retaining wall will be filled with approximately 560 cu. yds. of clean sand and gravel. Fill will also be used against the outside of the retaining wall and sloped away. The retaining wall will protrude a maximum height of 12 inches above the new grade. Septic system structures will be located a minimum of 10 feet from the retaining wall and 10 feet from the dwelling. The base of the leaching pools is proposed to be maintained a minimum of 2 feet above groundwater elevation. The base of the septic tank would be located below groundwater elevation. The septic system would be located less than 75 feet from the tidal wetland boundary.
  8. Approval of the septic system by the Suffolk County Health Department (SCHD) is required under local law, but has not yet been obtained. In April, 1995, SCHD indicated that it would not approve the proposed system because it did not appear to conform to certain SCHD requirements. SCHD questioned the proper functioning of the system due to the site's soil conditions. Applicant's engineer in May, 1995, reported to SCHD that the base of the leaching pools would be 2 feet above the groundwater elevation of +2.43 feet measured on 4/14/88. The engineer noted that the groundwater elevation is subjected to tidal influence, and indicated his belief that the +2.43 ft. measurement was taken at high tide conditions. The diagram in the report indicates that the base of the septic tank would be in the groundwater. The lack of local health department approval on technical reasons, plus the system's physical setting, raise a public health concern, in spite of the engineer's certification to the contrary. The +2.43 ft. elevation was not indicated to be a maximum elevation, implying that there will be occasions where the separation of leaching pools from the groundwater will be less than the designed 2 feet. It is common knowledge that the height of high tides varies cyclicly with the relative positions of the earth, moon and sun. The engineer's report did not address at what point in the cycle the +2.43 ft. measurement was taken. More importantly, however, the report did not address the site's flood zone location and its regular flooding. The flood zone location, flooding, and shallow water table make it appear that at times groundwater will reach the leaching pools, and allow pollutants to travel.
  9. The proposed project will result in the loss of the specific freshwater wetland benefits that the freshwater wetland vegetation to be removed now provides. These benefits are flood and stormwater control, water purification, and wildlife habitat discussed in Findings 16 through 21 above.
  10. Loss of part of the freshwater wetland vegetation at the site will decrease the site's capacity to hold storm waters, and to absorb pollutants, silt and organics. This loss will increase the burden on the adjacent tidal wetlands to perform these functions, and potentially could contribute to a diminution in the adjacent tidal wetland's capacity for marine food production, and in the water quality of the Bay.
  11. The volume occupied by the proposed structures and fill will not be available to store storm water, further reducing the site's potential to hold storm water and to control floods.
  12. Wildlife habitat will be impacted by the physical disturbance of ground and removal of vegetation which will change the character of the area. Vegetative cover and/or food will be removed, making the site less hospitable for wildlife use.
  13. The presence of the house and associated human activities will cause many of the shyer species of wildlife (ones which don't tolerate human disturbance very well) such as the marsh wren to leave. Because of the noise and potential pollution, the wildlife values in the adjacent tidal wetland will also be diminished. Loss of wildlife will reduce opportunities for passive recreation immediately off site.
  14. Open space will be lost to the house.
  15. If the Applicant were permitted to construct the proposed project, he would have a house to live in. He has spent approximately $60,000 so far on the property, real estate taxes, and professional help in carrying the application forward to this point.

Discussion

The Proposed Project does not meet permit issuance standards, thus I must recommend that the requested freshwater wetland and tidal wetland permits be denied.

Freshwater Wetlands

The regulations specify the procedures to be followed when activities are proposed to be conducted in a freshwater wetland. Construction of a residence within a freshwater wetland has been classified as "P(X)" or "incompatible with a wetland and its functions and benefits" by 6 NYCRR .663.4(d) and (d)(42). With such a classification, a freshwater wetlands permit may be issued only if the Applicant demonstrates that the proposed activity will meet all of the "weighing" standards listed under .663.5(e)(2) for the particular class of wetland affected. Here, the affected freshwater wetland is a Class I wetland. To be permitted on a Class I wetland, incompatible activities (such as the proposed dwelling) "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" and "must minimize degradation to, or loss of, any part of the wetland or its adjacent area and must minimize any adverse impacts on the functions and benefits that the wetland provides." Also "[c]lass I wetlands provide the most critical of the State's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland." (See chart in .663.5(e)(2)). In other words, once an unmitigated loss in wetland benefits is shown, no permit may be issued without a compelling (etc.) need.

The site provides the freshwater wetland benefits of flood control, pollution control, wildlife habitat, open space and recreation. These benefits will be reduced by the removal of wetland vegetation, filling, and placement of structures. The proposed project minimizes this reduction in the sense that the record reveals no practicable improvements to the project's design (other than, perhaps, some extra plantings of a minor nature) that would lessen its impact to the wetland. Nevertheless, there will still be a reduction in benefits for which no mitigation has been proposed.

Where there is an unmitigated loss of freshwater wetlands functions and benefits, the Applicant must show a "compelling economic or social need that clearly and substantially outweighs the loss ..." to permit the project in a Class I wetland (.663.5(e)(2)). "The word compelling implies that the proposed activity carries with it not merely a sense of desirability or urgency, but of actual necessity; that the proposed activity must be done; that it is unavoidable." (.663.5(f)(4)(ii)). "Clearly means that the need for the proposed activity must outweigh the loss ... in a way that is beyond serious debate." "Substantially carries this further, in that not only must the need clearly outweigh the loss ... but the margin of outweighing itself must be large or significant." (.663.5(f)(4)(iii)). See Matter of the Applications of Richard Hannan d/b/a Canoga Shores Marina, Commissioner's Decision, March 17, 1989.

Staff and Applicant's disagreement over whether the regulation refers to a public need or an applicant's need is of no consequence here because the outcome is unfavorable to the Applicant even when employing his interpretation. The Applicant has only shown a desire to build a house for himself, and a desire for a return on the investment he made in the property and in the project's plans. However, it is not clear that the Applicant should have expected to be able to accomplish these things. The site's low elevation, periodic flooding, high water table, and coverage by Phragmites should have been a warning at the time of purchase that the site might not be suitable for his residence. Furthermore, the Applicant was on notice of the freshwater wetland restrictions on the project site at least as early as July, 1989. If the Applicant has an economic need to complete the proposed project, it is largely of his own making.

As indicated above, to get a freshwater wetlands permit, the Applicant must show that he must build the house, that it is unavoidable that he build the house, and that his need for the house outweighs the environmental loss it would cause in a manner which is beyond serious debate. (See Hannan, id.) The Applicant has shown none of these things. Allowing the reduction of Class I freshwater wetland benefits here would be contrary to the intent of the law to "preserve, protect and conserve freshwater wetlands" (ECL .24-0103).

The determination herein should not be construed to mean that houses are forbidden from Class I wetlands because that is not the case. In Matter of Rampulla, Commissioner's Decision of November 8, 1988, construction of a portion of a house was permitted in a Class I wetland on Staten Island. There, however, the issue of "need" was avoided because the record indicated that the project would have no adverse impact on the wetland functions and benefits. In that case, a much smaller area of wetlands was to be lost (on the order of one twentieth of the area here), no tidal wetland was adjacent to the site, and there were no public health impacts associated with the proposed septic system.

Tidal wetlands

An applicant for a tidal wetlands permit has the burden of establishing that its proposed project meets the applicable standards for permit issuance.

The proposed project clearly does not comply with the development restrictions of the tidal wetland regulations (6 NYCRR Part 661) because the dwelling and septic system will be less than 75 feet from the tidal wetland boundary (.661.6(a)(1) and (a)(2)) and the elevation of the septic system tank is not a minimum of 2 feet above seasonal high ground water level (.661.6(a)(3)). The question then becomes whether or not the proposed project qualifies for a variance from these restrictions under 6 NYCRR .661.11.

Section 661.11 authorizes the Department to vary strict application of the setback requirements where there are practical difficulties in complying with them, provided that the spirit and intent of the provisions is observed, public safety and welfare are secured, substantial justice done, and action pursuant to the variance will not have an undue adverse impact on the values of the protected tidal wetland.

Among the requirements for a variance under .661.11, and for projects proposed for tidal wetland adjacent areas in general under .661.9(c)(3), is that the proposed activity "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 ..." (.661.9(c)(3)).

Here, the site's tidal wetland adjacent area (which is freshwater wetland) provides the benefits of flood control, wildlife habitat, and pollution control, enhancing the value of the tidal wetlands itself. The proposed project will reduce these benefits, causing an adverse impact on the value of the tidal wetlands to provide these and other benefits as explained in the Findings of Fact above. The economic and social benefits to the Applicant of having a residence and gaining a return on investment do not require construction on this or any other particular site. Furthermore, the Applicant was aware prior to purchasing the site that it might be impacted by tidal wetlands. There is nothing unusual or compelling about the Applicant's situation. The tidal wetland benefits that would be reduced, however, are location dependent and are not going to be replaced. It is state policy that they be preserved. I conclude that the adverse impacts here are "undue," taking in account the Applicant's social and economic needs.

The Applicant has not shown that the septic system is compatible with the public health and welfare as explained in Finding 30. This means that the project does not comply with .661.9(c)(1), and provides additional basis for denying a variance of the development restrictions under .661.11 (which requires public safety and welfare to be secured).

Summary

The Applicant is not entitled to a freshwater wetlands permit because Applicant has not demonstrated a compelling economic or social need to build his house in a Class I freshwater wetland that clearly and substantially outweighs the loss of or detriment to the benefits of the Class I wetland.

The Applicant is not entitled to a tidal wetlands permit because the proposed project (1) does not meet the development restrictions for projects in tidal wetlands adjacent areas and does not qualify for variances of these restrictions, (2) would have an undue adverse impact on the tidal wetland, and (3) would not secure the public health and welfare.

Conclusions of Law

  1. The proposed project minimizes the degradation to, or loss of, the freshwater wetland and minimizes the adverse impacts on the functions and benefits which the wetland provides as required under 6 NYCRR .663.5(e).
  2. The proposed project results in unmitigated loss of freshwater wetlands functions and benefits. The Applicant has not demonstrated that the proposed project satisfies a "compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland" as required under 6 NYCRR .663.5(e).
  3. The proposed project will "have an undue adverse impact on the present or potential value" of the "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" contrary to the requirements of 6 NYCRR .661.9(c)(3).
  4. The septic system's compatibility with the public health and welfare has not been established as required by .661.9(c)(1).
  5. The proposed project neither meets, nor qualifies (under 6 NYCRR .661.11) for a variance of, the tidal wetland development restrictions found at .661.6(a)(1) [75' setback of principal buildings], .661.6(a)(2) [75' setback of septic system] and .661.6(a)(3) [minimum 2' elevation of septic system above ground water] because it will have an "undue adverse impact" on the tidal wetland as stated under Conclusion 3 above, and because compatibility with public safety and welfare has not been established as stated under Conclusion 4 above.

    Summary Conclusions:

  6. The proposed project does not qualify for a freshwater wetlands permit because it does not meet the weighing standards for projects within a Class I freshwater wetland as stated under Conclusion 2 above.
  7. The proposed project does not qualify for a tidal wetlands permit because it does not comply with the tidal wetland development restrictions and does not qualify for a variance of these restrictions, as stated under Conclusion 5 above; would have an undue adverse impact on the wetlands as stated under Conclusion 3 above; and may be incompatible with the public health and welfare as stated under Conclusion 4 above.

Recommendation

It is recommended that the applications for freshwater and tidal wetlands permits be denied.

Appendix A: "Survey of Lots 3923 to 3929" [project plan]

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