NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Jocrast Homes, Inc - Order, December 12, 1994

Order, December 12, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 24 of the New York State Environmental Conservation Law
and Part 663 of Title 6 of the New York Codes, Rules and Regulations

- by -

JOCRAST HOMES, INC., KENNETH VIKSE,
MINKBROOK FARMS LTD., BLUE HERON
BUILDING CORP., TERRY ANN GAGLIARDI
AND ANTHONY COSTA

Respondents

ORDER

DEC Case No. R2-0562-92-11

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated May 25, 1993, later amended pursuant to a ruling of Administrative Law Judge ("ALJ") John H. Owen issued September 17, 1993, an administrative enforcement hearing was convened before ALJ Owen on December 9 and 10 and March 22, 23, 24 and 25, 1994 against the above named Respondents. The Department's Region 2 Staff ("Staff") appeared by Ann H. Hunter, Esq., Assistant Region 2 Attorney. Jocrast Homes, Inc. ("Jocrast"), Kenneth Vikse ("Vikse"), Minkbrook Farms Ltd. ("Minkbrook") and Blue Heron Building Corp. ("Blue Heron") were represented by Anthony Bisignano, Esq. of Staten Island, New York except for the hearing session of March 25, 1994. Terry Ann Gagliardi and Anthony Costa represented themselves except for the session of March 25, 1994 when they each were represented by Ross Gadye of New York, New York.
  2. Upon review of ALJ Owen's Hearing Report, a copy of which is attached, I concur with its Findings of Fact, Conclusions of Law and Recommendations.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. Respondent Jocrast Homes Inc. having violated Permit Special Condition 8, ECL 24-0701 and 6 NYCRR 663 is assessed civil penalties as follows:
    1. For responsibility for the residence on Lot 30 FIVE HUNDRED DOLLARS ($500); and
    2. For responsibility for the residence on Lot 35 FIVE HUNDRED DOLLARS ($500);
  2. Respondent Kenneth Vikse having violated ECL 24-0701 and 6 NYCRR 663 is assessed civil penalties as follows:
    1. For building the residence on Lot 30 without a DEC permit ONE THOUSAND DOLLARS ($1,000) for which he is jointly and severally liable with Respondent Minkbrook Farms Ltd.;
    2. For having built the rear deck on Lot 30 without a DEC permit THREE THOUSAND DOLLARS ($3,000) for which he is jointly and severally liable with Respondent Minkbrook Farms Ltd.;
    3. For having built the curb wall on Lot 30 without a DEC permit FIVE HUNDRED DOLLARS ($500) for which he is jointly and severally liable with Respondent Minkbrook Farms Ltd.;
    4. For building the residence on Lot 35 without a DEC permit ONE THOUSAND DOLLARS ($1,000) for which he is jointly and severally liable with Respondent Blue Heron Building Corp.;
    5. For having built the rear deck on Lot 35 without a DEC permit THREE THOUSAND DOLLARS ($3,000) for which he is jointly and severally liable with Respondent Blue Heron Building Corp.;
    6. For having built the curb wall on Lot 35 without a DEC permit FIVE HUNDRED DOLLARS ($500) for which he is jointly and severally liable with Respondent Blue Heron Building Corp.
  3. Respondent Minkbrook Farms Ltd. having violated ECL 24-0701 and 6 NYCRR 663 is assessed civil penalties for which it is jointly and severally liable with Respondent Kenneth Vikse as follows:
    1. For building the residence on Lot 30 without a DEC permit ONE THOUSAND DOLLARS ($1,000);
    2. For building the rear deck on Lot 30 without a DEC permit THREE THOUSAND DOLLARS ($3,000); and
    3. For building the curb wall on Lot 30 without a DEC permit FIVE HUNDRED DOLLARS ($500).
  4. Respondent Blue Heron Building Corp. having violated ECL 24-0701 and 6 NYCRR 663 is assessed civil penalties for which it is jointly and severally liable with Respondent Kenneth Vikse as follows:
    1. For building the residence on Lot 35 without a DEC permit ONE THOUSAND DOLLARS ($1,000);
    2. For building the rear deck on Lot 35 without a DEC permit THREE THOUSAND DOLLARS ($3,000); and
    3. For building the curb wall on Lot 35 without a DEC permit FIVE HUNDRED DOLLARS ($500).
  5. Respondents Terry Ann Gagliardi and Anthony Costa having violated ECL 24-0701 and 6 NYCRR 663 by building the gabion wall on Lot 30 without a DEC permit are jointly and severally assessed a civil penalty of THREE THOUSAND DOLLARS ($3,000).
  6. The following charges are dismissed with prejudice:
    1. Against Respondent Jocrast Homes, Inc. pursuant to ECL 24-0701 and 6 NYCRR 663 alleging that it is responsible for the gabion wall on Lot 30.
    2. Against Respondent Kenneth Vikse pursuant to ECL 24-0701 and 6 NYCRR 663 alleging that he is responsible for the gabion wall on Lot 30.
    3. Against Respondent Minkbrook Farms Ltd. pursuant to ECL 24-0701 and 6 NYCRR 663 alleging that it is responsible for the gabion wall on Lot 30.
  7. Respondents Kenneth Vikse and Respondent Minkbrook Farms Ltd. are directed to remove the rear deck on Lot 30 and restore the area below to its former state.
  8. Respondents Kenneth Vikse and Respondent Blue Heron Building Corp. are directed to remove the rear deck on Lot 35 and restore the area below to its former state.
  9. The Department Staff is directed to allow the two residences, the two curb walls and the one gabion wall to remain as they are.
  10. All communications between the Respondents and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 2, 47-40 21st Street, Long Island City, New York 11101.
  11. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

Dated: December 12, 1994
Albany, New York

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter

- of -

the Alleged Violation of Article 24 of the New York State Environmental Conservation Law
and Part 663 of Title 6 of the New York Codes, Rules and Regulations

- by -

JOCRAST HOMES, INC.,
KENNETH VIKSE, MINKBROOK FARMS LTD.,
BLUE HERON BUILDING CORP, TERRY ANN GAGLIARDI
AND ANTHONY COSTA

Respondents

DEC Case No. R2-0562-92-11

HEARING REPORT

- by -

____________/s/____________
John H. Owen
Administrative Law Judge

Proceedings

This matter involves alleged violations of the Environmental Conservation Law ("ECL") and regulations in connection with two residences on Keating Street, designated Lots 30 and 35, in Staten Island, New York.

The alleged violations arise basically out of the fact that the rear of each lot is bordered by Lemon Creek, a freshwater wetland.

Chronology of the Events Leading to the Charges

Respondent Jocrast Homes Inc. ("Jocrast"), which owned both lots and apparently others in the area, wished to obtain a permit from the Department of Environmental Conservation ("DEC") to build a residence on each of the two lots and others. Apparently not satisfied with the conditions attached to the DEC permit it obtained, Jocrast appealed in early 1988 to the DEC's Freshwater Wetlands Appeals Board, as a result of which a stipulation of settlement was reached and put in writing and a modified permit was issued.

Jocrast deeded both lots 30 and 35 in late 1988 without referencing and incorporating the modified permit as required by the stipulation and without informing the grantees of the freshwater wetlands restrictions, including giving to them a copy of the modified permit, the approved plans and so forth, as required by the modified permit itself.

Jocrast deeded one lot to the daughter of Jocrast's principal, Arthur Decker ("Decker")"Arthur Decker, doing business as Jocrast Homes Inc." was the sole original respondent but all charges against him were withdrawn during the hearing. and the other to a Jocrast shareholder. It is apparent that neither grantee intended to build on the lots but merely to hold the titles, so that Jocrast could be dissolved.

In 1992 the Jocrast dummies each deeded their lot to two separate corporations controlled by respondent Kenneth Vikse ("Vikse"), that is respondent Minkbrook Farms Ltd. ("Minkbrook") and Blue Heron Building Corp. ("Blue Heron").

Vikse and Minkbrook then built the residence on lot 30 and Vikse and Blue Heron then built the residence on lot 35. Both residences were completed by the end of 1992. The construction on each lot included a raised deck off the rear of each residence and a curb wallA curb wall is somewhat similar to a curb at a sidewalk, absent of course the sidewalk. on each lot. Of these additions the DEC Staff seeks to have only the rear decks removed.

In May of 1993 Minkbrook deeded lot 30 to respondent Terry Ann Gagliardi and Anthony Costa, husband and wife ("Gagliardi/Costa"). Gagliardi/Costa then hired a contractor to build a gabion wallA gabion wall is constructed with open wire boxes with irregular stones in them, piled on the others. It is either a straight wall, pyramid shaped at its width, or a tiered wall. Here the wall, because it is not generally subjected to water flow, is pyramid shaped at its width. which the Staff wishes removed. In July of 1993 Blue Heron deeded lot 35 to one Alfred Galpine and one Kathleen A. Krieg. Neither Galpine or Krieg have ever been respondents since neither built anything on lot 35 or deeded out lot 35.

Procedural History

Pursuant to an earlier Notice of Hearing with complaint (attached) dated May 25, 1993 the DEC Region 2 Staff (the "Department Staff" or "Staff") had initiated a civil administrative enforcement proceeding conducted in accordance with the State Administrative Procedure Act ("SAPA") Article 24 of the ECL and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") against Decker, doing business as Jocrast.

Anthony Bisignano, Esq. of Staten Island, New York submitted an answer on June 16, 1993 on behalf of this respondent admitting the existence of the permit and stipulation and that the stipulation stated what had been agreed to, but denying the violations.

On August 3, 1993, after allegedly learning of the construction of the gabion wall and also that the lots had been transferred, the Department Staff applied for leave to amend the Complaint against Decker, to add Vikse, Blue Heron, Minkbrook, "Anthony Gagliardi", Terry Ann Gagliardi and one Jeanette Gagliardi. Jeannette Gagliardi is apparently Terry Ann Gagliardi's mother who aided Gagliardi/Costa with the purchase of lot 30 and is on the deed to that lot. as respondents, and also to add additional charges relating to the alleged transfers of the lots, alleged failure to complete plantings required by the permit and the alleged construction of the gabion wall. By Ruling dated August 16, 1993, Administrative Law Judge ("ALJ") John H. Owen granted the Department's application and directed respondents to serve and file an answer within ten days, which they never did, except for Decker as noted above.

On September 3, 1993, the Department applied for leave to amend the complaint for a second time to delete the charges relating to failure to complete plantings, because an application had been submitted to modify the plantings, and to clarify the facts stated in the complaint pertaining to the history of the stipulation and permit. By Ruling dated September 17, 1993, ALJ Owen granted the application.

The Ruling of September 17, 1993 stated that no additional written answers would be required of the Respondents, who were deemed to have denied all allegations in the second amended complaint. It also stated that any affirmative defenses were retained and that any additional affirmative defenses should be placed on the record at the opening of the hearing.

In accordance with the latest Notice of Hearing and Second Amended Complaint, an adjudicatory hearing was convened before ALJ Owen on December 9 and 10, 1993, and March 22, 23 24 and 25, 1994 (when it was concluded) at the Department's Region 2 Headquarters at Long Island City, New York. Ann H. Hunter, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff. Mr. Bisignano appeared on behalf of respondents Decker, Jocrast, Vikse, Blue Heron, and Minkbrook and attended all hearings sessions except for March 25, 1994; Ross Gadye, Esq. of New York, New York appeared for Gagliardi and Costa but not until March 25.

At the opening of the hearing, Mr. Bisignano (now representing all respondents except Terry Ann Gagliardi, "Anthony Gagliardi" and Jeanette Gagliardi) moved to dismiss the charges against Decker, Vikse, Minkbrook and Blue Heron as improper parties on the ground that Jocrast was the permit holder. The ALJ reserved decision on this motion and during the hearing the parties agreed that Jocrast would be substituted as a party for Decker doing business as Jocrast, that Jeanette Gagliardi and "Anthony Gagliardi" would be deleted as parties, and that Anthony Costa would be added as a party, with Terry Ann Gagliardi and Anthony Costa being husband and wife. The Department Staff also withdrew the charges against Jocrast pertaining to the decks and curb walls, on the basis of evidence introduced at the hearing.

The Staff called as witnesses Joseph Pane, Principal Fish and Wildlife Biologist, Region 2 and Christina Dowd, Conservation Biologist, Region 2; respondents Jocrast, Vikse, Blue Heron and Minkbrook called as witnesses Decker, Vikse, a Linda Nasta, and a John Wellekens, Esq.; respondents Gagliardi and Costa called themselves as witnesses as well as a Joseph Visci, Esq. and an Andrew Prejs; some thirty-seven exhibits were received in evidence; and the record closed upon receipt of the last of the parties' post-hearing submissions on May 2, 1994.

Discussion of Alleged Violations

The relevant portions of the Stipulation (Exhibit 7), in which the Department agreed to accept and process the modified permit application by Jocrast, are as follows: "...

3. A. The application will be for the construction of up to two houses, which may be one or two-family homes located on the southern portion of each of the aforementioned lots. Each house will have a maximum buildable footprint of two thousand (2,000) square feet.

B. If accessory structures are desired for either house, a permit must be applied for any structure which has a footprint greater than one hundred (100) square feet.

C. The houses and any accessory structure must be at least twenty (20) feet from setback Line A as drawn on the map identified as Alternative C, ...and being the same map which is referenced in permit 20-86-0158. A copy of said map is attached hereto. Line A has been generally marked in red on said map and constitutes the southern wetland line on said map or the 20-foot contour line, whichever is more northerly.

...

7. The modified permit will specifically state that it may be assigned subject to the approval of the Department and an agreement in writing by the assignee to be bound by the terms of the permit... 8. Any deed for any parcel or house on the subject lots will reference and incorporate the permit as granted and modified."

The modified permit was issued and contained the following relevant provisions:

"...

8. This permit authorizes construction only by the permittee or by the permittee's contractor. It may be transferred to another owner or builder only with the written permission of the Department of Environmental Conservation.

13. The DEC permit sign enclosed with this permit shall be protected from the weather and posted in a conspicuous outdoor location at the work site. This sign is to be posted for the duration of work authorized by this permit.

15. All home buyers are to be informed of the presence of freshwater wetlands and of regulations that apply to wetlands. This information is to include giving a copy of this permit, together with all drawings, to all home purchasers before contract closing..."

Condition 1 of the modified permit required that the construction conform to a DEC approved site plan prepared by an architect (Exhibit 10). That plan clearly shows the wetlands boundary and the 20 foot set-back on each lot. The set-back would allow the construction of each house as shown but the 20 foot mark is right at the rear wall of each house. In other words nothing was allowed beyond the rear walls, and that is where each deck, curb wall and the gabion wall are located.

The lots are designated 30 (easterly) and 35 (westerly) on Keating Street. The transfers of the lots were as follows:

Lot Grantor Grantee Date Freshwater
Wetlands
Notice
30 Jocrast Sharon Lynn Decker 12/17/88 (Exh. 32) None
30 Sharon Lynn Decker Minkbrook 6/4/92 (Exh. 32) None
30 Minkbrook Gagliardi, Costa and
Jeanette Gagliardi
5/12/93 (Exh. 17) None
35 Jocrast Ann Marie Sorena 12/27/88 (Exh. 32) None
35 Ann Marie Sorena Blue Heron 6/4/92 (Exh. 32) None
35 Blue Heron Alfred Galpine and
Kathleen A. Krieg
7/2/93 (Exh. 32) None

Thus the charges, Staff's penalty requests and Staff's remediation proposal are:

Respondent Violation Requested
Penalty/Remediation
Jocrast Authorizing Minkbrook to
construct on Lot 30 without
assignment of permit
$3,000/allow to remain
Authorizing Blue Heron to
construct on Lot 35 without assignment of permit
$3,000/allow to remain
No notice to Gagliardi/Costa $3,000/Remove gabion wall and restore
Construction of Lot 30 home without permit $3,000/allow to remain
Lot 30 deck $3,000/remove and restore
Lot 30 curb wall $3,000/allow to remain. Staff Counsel,
in the Department's Post-Hearing Memorandum,
has withdrawn the request that the curb walls be
removed and these areas restored.
Vikse Construction of Lot 35 home without permit $3,000/allow to remain
Lot 35 deck $3,000/Remove and restore
Lot 35 curb wall $3,000/Allow to remain5
No notice to Gagliardi/Costa $3,000/Remove gabion wall and restore
Construction of Lot 30 home without permit $3,000/Allow to remain
Minkbrook Lot 30 deck $3,000/Remove and restore
Construction of Lot 30 curb wall $3,000/Allow to remain5
No notice to Gagliardi/Costa $3,000/Remove gabion wall and restore
Blue Heron Construction of Lot 35 home without permit $3,000/Allow to remain
Construction of Lot 35 deck $3,000/Remove and restore
Construction of Lot 35 curb wall $3,000/Allow to remain5
Gagliardi/Costa Construction of gabion wall $3,000/Remove and restore

Discussion of Liability

The Staff proved to the degree required that 1) on September 1, 1987 the Department filed the final freshwater wetlands mapping for Richmond County (Staten Island), Exhibit 6, 2) the map, included portions of lots 30 and 35, Wetlands Identification Code AR-33, Classification 1, 3) that the approved site plan (Exhibit 10) accurately locates the wetland boundary as running roughly along the southerly bank of a ravine or ditch through which Lemon Creek flows and 4) the adjacent area [100 feet from the boundary - ECL 24-0701(2)] extends back from the ravine bank through the rear yards of the two residences and through and beyond the houses themselves.

None of the respondents, except Jocrast, contended that they had any relevant DEC permit or assigned permit.

Jocrast's Liability

As noted, Jocrast is charged with "authorizing" Minkbrook and Blue Heron to construct without permits on lots 30 and 35 (Second Amended Complaint, paragraphs 31 and 33). Staff also alleges that "...Vikse was under contract with Jocrast to build the houses" (Ibid, paragraph 14).

There was no proof supporting any of the above allegations. Moreover, after Jocrast's dummies deeded the lots outright to Vikse's corporations, any authorization from Jocrast would be entirely unnecessary and academic and Vikse would not need Jocrast in order to construct on the lots owned outright by Vikse's corporations.

Jocrast's liability is not along these lines; rather it is founded upon not complying with the stipulation it signed and the modified permit it was issued by not referencing and incorporating the permit in the deeds to the dummies and passing along the approved plans and so forth. Jocrast was obligated to start a chain of notice in the title history of the subject property. When someone is buying real estate, a title search is made or extended. Generally it shows the title history going back at least 40 years and further until a warranty deed ilocateded. Decker, Jocrast's principal, is an attorney and would know this. If Jocrast complied, when it came to his dummies selling the lots, the notice of freshwater restrictions would appear in the title search for Gagliardi/Costa, there for them to see, and this would lead to the approved plans and so forth. The purpose of the notice requirements is to avoid arguments (as there were here between Vikse and Gagliardi/Costa) as to whether Gagliardi/Costa had been orally informed of the restrictions.

Jocrast is responsible, not because it authorized Vikse to construct or had a contract for Vikse to construct, but because it failed to start the chain of notice as required. That omission eliminated a potential obstacle to the sale and was to Jocrast's interest to omit that notice. Jocrast is responsible for each house on lots 30 and 35.

Vikse's Liability

Vikse was much more than a corporate officer and shareholder. He was in total control of the corporations (Minkbrook and Blue Heron) and he personally supervised and participated in all construction.

He was the one who dealt with the Staff representatives, made the decisions and represented the corporations as well as himself at the hearing in this matter, albeit with the aid of counsel.

Indeed Vikse testified that he had reviewed not only the approved plans but the permit terms and the stipulation terms.

Vikse also testified that the decks were not a violation under the Stipulation (Exhibit 7) which states "...any accessory structure which has a footprint greater than 100 square feet..." requires a permit. His reasoning (and he said he had legal advice to the same effect) was that "footprint" means what is on the ground and since the only parts of the raised decks which are on the ground are the supports which all concede are less than 100 square feet total. If this was correct, however, many types of structures could be built at the rear of the houses and off the ground as long as the supports did not total over 100 square feet. Clearly here "footprint" includes what the supports hold up.

Vikse is personally responsible for all construction on lots 30 and 35 because he personally directed it and worked at it. Thus Vikse is responsible for Minkbrook constructing on 30 without a permit, Minkbrook adding on the deck and curb wall at lot 30, and Blue Heron building on lot 35 without a permit and adding the deck and curb wall at lot 35. The two decks and two curb walls each extended over into the restricted 20 foot area shown on the approved plans.

Vikse's responsibility for the gabion wall is a different matter. Vikse and one of his corporations, Minkbrook, are sought to be held responsible for the gabion wall because neither of them furnished to Gagliardi/Costa, prior to signing the purchase contract, the documents required by the stipulation and modified permit. Yet neither Vikse nor Minkbrook were party to the stipulation or otherwise bound by it and neither ever received the modified permit from Jocrast or ever became bound by its terms and conditions.

It would be strange indeed to hold Vikse and Minkbrook liable for the construction on Lot 30 without a permit and then to hold them to liability for the gabion wall as if they were obligated under the permit terms.

Neither Vikse nor Minkbrook had any obligation to notify Gagliardi/Costa of wetland restrictions. Gagliardi/Costa had counsel during negotiations over their contract of purchase and there were several indications of DEC restrictions and involvement (which should have been pursued further) before Gagliardi/Costa became bound to purchase Lo30. Suchch as a Rider to the contract which dealt with the deck and advised Gagliardi/Costa that it "may have to have be altered or moved...to comply with the N.Y.S. Dept. of (sic) DEC requirements", a written agreement in which Gagliardi/ Costa relieved Vikse of responsibility for the deck "and any changes required by NYSDEC...", and two surveys each showing the "wetland line". There were also many and more specific indications between the contract signing and the title transfer such as the Title Report (Exhibit 19) which stated at Exception 12: "A portion of the premises is subject to the procisions (sic) of the Wetlands Act." and if Vikse or Minkbrook had any obligation to advise Gagliardi/Costa of restrictions, by the same token, these further notifications would have provided an opportunity for Gagliardi/Costa to withdraw from the purchase.

Minkbrook's Liability

Vikse working through Minkbrook built the residence on lot 30 without a permit, assigned or otherwise valid. The same is true of the rear deck and the curb wall there, also without a permit.

Simply because Vikse is personally liable for the construction does not mean that the corporate forms through which he operated have been disregarded or are invalid. These are valid corporations (so far as appears) and are responsible for the actions carried out in their names.

Whether Minkbrook is responsible for the gabion wall on lot 30 as has been previously discussed in connection with Vikse's personal liability. Minkbrook is no more liable than Vikse for the gabion wall.

Blue Heron's Liability

Vikse working through Blue Heron built the residence on lot 35 without a permit, assigned or otherwise valid. The same is true of the rear deck and the curb wall there, also without a permit. Blue Heron is responsible for this construction in the same way as Minkbrook is on lot 30 and even though Vikse is personally liable.

Gagliardi/Costa's Liability

The gabion wall is well within the adjacent area and is within the 20 foot set-back. There is no question but that Gagliardi/Costa hired an experienced contractor to construct the wall, and that the wall required a DEC permit.

Discussion of Civil Penalties

Penalty recommendations in freshwater wetlands matters call into play the Commissioner's Civil Penalty Policy ("CPP") dated June 20, 1990 and Freshwater Wetlands Enforcement Guidance Memorandum issued February 4, 1992.

The Memorandum is intended to apply to CPP to the specific freshwater wetlands consideration.

Both the CPP and the Memorandum refer to economic benefit as a part of penalty calculations. Economic benefit is the estimated amount of money saved by a respondent or an additional profit or potential profit realized by a respondent as a result of non-compliance. The Staff has made no economic benefit calculation and none can now be made by the ALJ.

The other main factor in penalty calculation is the gravity component.

The CPP divides the gravity component into two main subdivisions: 1) Potential harm and actual damage caused by the violation and 2) Relative importance of the type of violation in the regulatory scheme.

The potential harm here is minimal in that the decks, curb walls and gabion wall. The residences themselves are overlooked here because a permit was issued for them. appear not to be capable of inflicting any different or greater damage than they are presently inflicting. The actual harm does not appear to be great either. The decks prevent most sunlight from reaching organisms in the soil below, the curb walls disturb the soil and organisms growth, and the gabion wall creates some disturbance of soil, organisms and vegetation.

The importance in the regulatory scheme is addressed in the Memorandum in terms of the compatibility of the structures with the environment. More specifically, 6 NYCRR 663.4, Item 42 classifies constructing a residence in an adjacent area as "P" (Permit required) "N" ("Usually compatible"). Under the Memorandum (page 5) this places the structures here in the middle ground of the gravity factors.

The CPP states that the gravity component is subject to downward or upward adjustment based on certain factors such as culpability, violator cooperation, history of non-compliance ability to pay, and any other relevant factor.

Penalties and the Respondents Separately

Jocrast

Jocrast (the "Corporation") is responsible for the two houses. Decker, Jocrast's principal, cooperated with the Staff attending a number of conferences even after his dummies had sold the lots to Vikse's corporations. Decker apparently agreed with Vikse that the decks were not a violation, but this did not amount to lack of cooperation.

Neither Decker nor Jocrast were proven to have violated DEC requirements. This is true of all respondents and no respondent raised the issue of inability to pay penalties.

Some special factors are relevant concerning Jocrast:

Decker testified without contradiction that Jocrast had nothing whatsoever to do with either lot at least after Jocrast's dummies conveyed them out to Vikse's corporations. Decker also testified that neither he nor anyone else from Jocrast had anything whatsoever to do with construction on the lots. Vikse, in his testimony, conceded that he had supervised and participated in the construction of each house including the rear decks.

After the Jocrast dummies conveyed the lots outright to Vikse's corporations, Jocrast was not in any position to control construction.

Jocrast's dummies performed no construction and Vikse, an experienced Staten Island contractor, well knew when he was in or near freshwater wetlands or their adjacent areas.

While Jocrast violated the notice requirements, this cannot be said to be the actual cause of the rear decks, curb walls or gabion wall violations. Vikse, in addition to knowing when he was in or near freshwater wetlands, had to examine at least the approved plans (how else would the rear walls of the residences end up right on or so near to the 20 foot boundary). As to Gagliardi/Costa and the gabion wall, there were many indications, as noted, of freshwater wetlands restrictions made known to them even before they signed up to buy lot 30. Moreover Vikse, attorney John Wellekens (representing Minkbrook and Vikse) and real estate broker Linda Nasta testified that Gagliardi/Costa were told over and over again that they should not do anything further at the property without talking to the DEC. Vikse specifically advised Gagliardi/Costa to not build anything at the rear of their home without DEC approval. Gagliardi/Costa had more than adequate advance notice.

Thus Jocrast's failure, five years earlier, to notify Decker's daughter of the restrictions is simply too attenuated, academic, lacking any substance or causal connection, and entirely superseded by Vikse's experience, knowledge and obligations, such that Jocrast's penalties should be reduced to a total of $500.

Vikse, Minkbrook and Blue Heron

These respondents are the most culpable. They built the houses and rear decks without permits. Vikse, principal of both Minkbrook and Blue Heron, as noted, reviewed not only the approved plans, but the permit and the stipulation as well; he therefore knew what was allowed and what was not.

Vikse did more or less cooperate with the Staff in much the same way that Decker did, and neither Vikse nor his corporations were shown to have any previous non-compliance.

The aggravating factors totally outweigh any mitigating factor for the rear decks such that Vikse and his corporations deserve the maximum penalties for the two rear decks; however, building the houses without DEC permits is not as serious as building the decks, such that the penalties for each house should be reduced to $1,000.

As noted, the curb walls were constructed under the duress arising out of New York City's requirement. They inflict only minimal environmental damage, and Staff has agreed that they be allowed to remain. Based upon these circumstances, the penalties for the curb walls construction should be reduced to $500 each.

Gagliardi/Costa

Gagliardi/Costa had the gabion wall constructed to prevent erosion which would otherwise have caused their residence to collapse, but they went ahead after receiving more than ample notice of wetland restrictions and being told over and over again not to do anything in the back without contacting the DEC, such that their penalty for the gabion wall should be the maximum.

Remediation

As noted, however, Staff is proposing that the residences remain, with the curb walls, but that the rear decks and the gabion wall be dismantled.

I agree with the Staff that the residences and the curb walls remain.

I also agree with the Staff that the rear decks must be removed and penalties paid.

As to removal of the gabion wall, however, I disagree with the Staff and it should remain. This is because without the gabion wall the residence would collapse as further noted below.

Respondents Gagliardi/Costa made a strong showing in support of allowing the gabion wall to remain. They called the contractor who constructed the wall and submitted a report by a Professional Engineer who had inspected the ditch, the erosion, and their residence. Their witnesses and the engineering report established that, without the wall, the residence would collapse (See Appendix A to this Report where Gagliardi/Costa's showing is set out more fully.) Vikse also testified that their house would collapse without the gabion wall. In view of this strong and unrebutted evidence it is reasonable to allow the gabion wall to remain. However, some penalty should be assessed for constructing the wall without a permit.

DEC Staff had argued to move the gabion wall closer to the house. Prevention of erosion into streams, such at Lemon Creek, is a prime policy of the DEC. Apparently acknowledging this, the Staff has now proposed in its Post-Hearing Brief that Gagliardi/Costa be allowed to construct a "retaining wall next to the house"; however, the cost (up to $26,000) to take down the gabion wall plus the cost of a retaining wall a few feet further back, plus the destruction of vegetation and the curb wall, renders the proposal unreasonable. The gabion wall has been up for about 15 months. Since the stones in the wire baskets are irregular in shape, it seems entirely likely that vegetation will grow through and around the baskets.

To remove the gabion wall would, it appears, cause more environmental harm than would be prevented, plus severely threaten the house.

Findings of Fact

As to Violations

  1. None of the Respondents, except Jocrast Homes Inc., possessed any relevant DEC permit for anything constructed on Lots 30 or 35.
  2. On September 1, 1987 the Department filed the final freshwater wetlands mapping for Richmond County (Staten Island).
  3. That map included portions of Lots 30 and 35, Wetlands Identification Code AR-33, Classification 1.
  4. The approved site plan accurately locates the wetlands boundary as running roughly along the southerly bank of a ravine or ditch through which Lemon Creek flows.
  5. The adjacent area to the freshwater wetlands [100 feet from the boundary] extends back from the ravine bank through the rear yards of the two lots and through and beyond the residences themselves toward Keating Street.
  6. All of the structures (two residences, two curb walls and one gabion wall) are well within the freshwater boundary or at least its adjacent area.
  7. Respondent Kenneth Vikse reviewed the approved plans, the modified permit and the stipulation and he knew what would be allowed and what would not.
  8. Respondent Kenneth Vikse directed, supervised and personally participated in the building of the two residences, two rear decks and two curb walls on Lots 30 and 35.
  9. Respondent Kenneth Vikse is personally responsible for the construction.
  10. Respondent Kenneth Vikse was not a party to the stipulation or the modified permit and was not bound by their terms.
  11. Respondent Kenneth Vikse had no obligation to advise Respondent Terry Ann Gagliardi or Respondent Anthony Costa of the freshwater wetlands restrictions, the stipulation, the modified permit or anything else concerning construction on Lot 30.
  12. Respondent Kenneth Vikse did not construct the gabion wall or participate in any way in that construction.
  13. Respondent Kenneth Vikse is not responsible for the construction of the gabion wall.
  14. Respondent Minkbrook Farms Ltd. is responsible for the construction of the residence, one rear deck and one curb wall on Lot 30.
  15. Respondent Minkbrook Farms Ltd. is not responsible for the construction of the gabion wall on Lot 30.
  16. Respondent Blue Heron Building Corp. is responsible for the construction of the residence, one rear deck and one curb wall on Lot 35.
  17. Respondents Terry Ann Gagliardi and Anthony Costa hired a contractor to construct the gabion wall on Lot 30 and they are each responsible for that construction.

    As to Penalties

  18. Potential harm from the decks, curb walls and gabion wall is minimal.
  19. Actual harm from the decks, curb walls and gabion wall is minimal.
  20. The decks, curb walls and gabion wall fall in the Memorandum's mid-range as to compatibility with the environment.
  21. As to culpability the construction of the two decks on lots 30 and 35 was intentional.
  22. As to culpability the two curbs walls on lots 30 and 35 were constructed under duress arising out of New York City's regulations.
  23. As to culpability the gabion wall on lot 30 was constructed under duress arising out of fear that the residence would collapse.
  24. As to violator cooperation, the Respondents cooperated to some extent and had good reason for insisting upon allowing the curb walls and gabion wall to remain. Concerning the rear decks, however, the responsible respondents did not cooperate.
  25. None of the respondents committed any prior violations and had no history of non-compliance.
  26. There was no claim or proof of inability to pay penalties as to any respondent.
  27. While respondent Jocrast Homes Inc. is responsible for not complying with the stipulation and modified permit by not passing along notice of the freshwater wetlands restrictions, that failure was not the actual cause of the construction violations and is too attenuated to bring about a heavy penalty.
  28. While respondents Kenneth Vikse, Minkbrook Farms and Blue Heron Building Corp. are each responsible for the curb walls, the curb walls were required by New York City authorities, inflict only minor environmental damage, and Staff has agreed that they remain, such that a heavy penalty is not in order here either.
  29. While Respondents Terry Ann Gagliardi and Anthony Costa are each responsible for the gabion wall, the gabion wall was required to prevent erosion which would result in the collapse of their home, to remove it would cause more environmental damage than would be cured, and to remove it would result in the collapse of the house.
  30. Respondents Terry Ann Gagliardi did proceed with the gabion wall in spite of more than amble advance notice of the wetland restrictions and that they should have applied for a DEC permit, such that the maximum penalty is appropriate here.

Conclusions of Law

  1. Respondent Jocrast Homes Inc. violated the stipulation, modified permit terms and ECL 2303 and 24-0701 and 6 NYCRR 663.4 by failing to comply by not passing along notice of the freshwater wetlands restrictions.
  2. Respondent Jocrast Homes Inc. is responsible for the houses on each lot by violating the stipulation, the modified permit and ECL 2303, 24-0701 and 6 NYCRR 663.4.
  3. Respondent Kenneth Vikse violated ECL 24-0701 and 6 NYCRR 663.4 by building the residence on Lot 30 without a DEC permit.
  4. Respondent Kenneth Vikse violated ECL 24-0701 and 6 NYCRR 663.4 by building the rear deck on Lot 30 without a DEC permit.
  5. Respondent Kenneth Vikse violated ECL 24-0701 and 6 NYCRR 663.4 by building the curb wall on Lot 30 without a DEC permit.
  6. Respondent Kenneth Vikse did not violate ECL 24-0701 and 6 NYCRR 663.4 by building the gabion wall on Lot 30.
  7. Respondent Kenneth Vikse violated ECL 24-0701 and 6 NYCRR 663.4 by building the residence on Lot 35 without a DEC permit.
  8. Respondent Kenneth Vikse violated ECL 24-0701 and 6 NYCRR 663.4 by building the rear deck on Lot 35 without a DEC permit.
  9. Respondent Kenneth Vikse violated ECL 24-0701 and 6 NYCRR 663.4 by building the curb wall on Lot 35.
  10. Respondent Minkbrook Farms Ltd. violated ECL 24-0701 and 6 NYCRR 663.4 by building the residence on Lot 30 without a DEC permit.
  11. Respondent Minkbrook Farms Ltd. violated ECL 24-0701 and 6 NYCRR 663.4 by building the rear deck on Lot 30 without a DEC permit.
  12. Respondent Minkbrook Farms Ltd. violated ECL 24-0701 and 6 NYCRR 663.4 by building the curb wall on Lot 30 without a DEC permit.
  13. Respondent Minkbrook Farms Ltd. did not violate ECL 24-0701 and 6 NYCRR 663.4 by building the gabion wall on Lot 30.
  14. Respondent Blue Heron Building Corp. violated ECL 24-0701 and 6 NYCRR 663.4 by building the residence on Lot 35 without a DEC permit.
  15. Respondent Blue Heron Building Corp. violated ECL 24-0701 and 6 NYCRR 663.4 by building the rear deck on Lot 35.
  16. Respondent Blue Heron Building Corp. violated ECL 24-0701 and 6 NYCRR 663.4 by building the curb wall on Lot 35 without a DEC permit.
  17. Respondent Terry Ann Gagliardi and respondent Anthony Costa each violated ECL 24-0701 and 6 NYCRR 663.4 by building the gabion wall on Lot 30.

Recommendations

As to Penalties

  1. For having violated the stipulation, the modified permit terms, ECL 2303, and 24-0701 and 6 NYCRR 663.4 by failing to comply by not passing along notice of the freshwater wetlands restrictions and thus being responsible for the residence on Lot 30, respondent Jocrast Homes Inc. should be assessed a civil penalty of $500. (A Penalty Summary is attached as Appendix B to this Report.)
  2. For being responsible on the same basis for the residence on Lot 35, respondent Jocrast Homes Inc. should be assessed a civil penalty of $500.
  3. For having built the residence on Lot 30 without a DEC permit, respondents Kenneth Vikse and Minkbrook Farms Ltd. should be jointly and severally assessed a civil penalty of $1,000.
  4. For having built the rear deck on Lot 30 without a DEC permit, respondents Kenneth Vikse and Minkbrook Farms Ltd. should be jointly and severally assessed a civil penalty of $3,000.
  5. For having built the curb wall on Lot 30, respondents Kenneth Vikse and Minkbrook Farms Ltd. should be jointly and severally assessed a civil penalty of $500.
  6. The charge against respondent Kenneth Vikse alleging that he is responsible for the gabion wall on Lot 30 should be dismissed with prejudice.
  7. For having constructed the residence on Lot 35 without a DEC permit, respondents Kenneth Vikse and Blue Heron Building Corp. should be jointly and severally assessed a civil penalty of $1,000.
  8. For having constructed the rear deck on Lot 35 without a DEC permit, respondents Kenneth Vikse and Blue Heron Building Corp. should be jointly and severally assessed a civil penalty of $3,000.
  9. For having constructed the curb wall on Lot 35 without a DEC permit, respondents Kenneth Vikse and Blue Heron Building Corp. should be jointly and severally assessed a civil penalty of $500.
  10. The charge against respondent Minkbrook Farms Ltd. alleging that it is responsible for construction of the gabion wall on Lot 30 should be dismissed with prejudice.
  11. For having constructed the gabion wall on Lot 30 without a DEC permit, respondents Terry Ann Gagliardi and Anthony Costa should be jointly and severally assessed a civil penalty in the amount of $3,000.

    As to Remediation

  12. The Commissioner should order Respondents Kenneth Vikse and Respondent Minkbrook Farms Ltd. to remove the rear deck on Lot 30 and restore the area below to its former state.
  13. The Commissioner should order Respondents Kenneth Vikse and Respondent Blue Heron Building Corp. to remove the rear deck on Lot 35 and restore the area below to its former state.
  14. The Commissioner should direct that the two residences, the two curb walls and the one gabion be allowed to remain as they are.

APPENDIX A

Gagliardi/Costa called Andrew E. Prejs, principal of Richmond Gabion Wall Co., Inc. as a witness. Prejs, who built the gabion wall, testified that the wall was about 100 feet long, 6 feet wide at the base then up 3 feet 4.5 feet wide then up 3 feet 3 feet wide, a pyramid, and about 12 feet high. The wall cost $13,500 and Prejs said it would cost up to twice as much to move it closer to the house, not counting the destruction of the curb wall and all vegetation in the area.

Testifying to what he observed near the ditch in May, 1993 before the wall went in, Prej's said:

"There was a drainage ditch, approximately 30 feet from the back of the house or so, whatever. It ran irregular. There were anywhere from 60, 45 degree to 30 degree slopes running down towards the drainage ditch. There was erosion there, fallen trees and whatnot..."

Prejs also took photographs at that time (Exhibits 22, 23, 24 and 25) which show severe erosion threatening not only trees near the residences but the very footings of the two decks as well.

Prejs, who had been building gabion walls for 25 years, explained the problems getting started with this wall and the effect of a single heavy rain:

"I went down, I explained how the weather was to be a big factor in starting the job, due to the existing severe slopes ranging from 60-degree to 30-degree slopes, and the existing erosion problem.

If it rained, we would have a bigger problem. The drainage ditch ran, when someone either discharged into it or during a rainstorm -- in the interim or work, there was a rainstorm and it did drain during the rainstorm, drained from upstream, downstream, through a pipe, exiting into the stream.

June 3rd I remember we had a torrential rain; I think it was just about a tornado, and I had just about completed the job. There was a little bit, a few more feet to do. And after the storm I went down to inspect the job and a tree had overturned. The tree leaned on a gabion wall, and the gabion wall was the only thing that saved the house. I believe it hit, it hit the wall at the base or five feet above the base. Then it hit another tree and it hit the deck and it just took off the corner of his house.

I let everything dry a few days, went back to check the erosion around the, where the tree had moved over, and I told Mr. Costa that if he didn't take care of the rest of the problem, he would have a bigger problem. So we continued the wall from the existing wall around the tree and to an existing curb wall.

Q. What would be the problem if you didn't continue the wall?

A. I guess the tree stump would have been in the stream and the corner of the house where the side entrance is probably would have eroded drastically. The rest of the that was up tended to stabilize the erosion that was coming from the middle of his foundation or under the deck.

Q. When you first inspected the property before erecting the wall, you told us that you noticed an erosion problem.

A. Yes.

Q. Can you tell us where the erosion problem existed primarily?

A. Yes. The right side of the large tree that fell over."

After the wall went up, Gagliardi/Costa retained professional engineers to inspect the property and report in writing. The inspection, by a professional engineer from Tauscher, Cronacher P.E. of Rockville Centre, New York, took place on August 24, 1993. The report is set forth in full:

"In accordance with your request, an inspection of the above subject property was made by the writer on August 24, 1993. The following report has been prepared based on those findings. For your information, a copy of my resume is attached to this report.

The basement floor slab and foundation walls were examined for signs of settlement. A crack approximately 13' long was found in the concrete floor slab located approximately 18' from the left side foundation wall (facing the house from the rear). This crack could also be observed running up the outside of the rear foundation wall.

Based on your information as to the location, size and depth of the erosion trench, the foundation and floor slab cracking are the result of settlement caused by the erosion in this trench.

In addition to the relatively steep slope of the ground from the rear of the house, the ground also slopes sharply from left to right.

Based on the above facts, the only practical way to prevent eventual undermining and collapse of the rear foundation wall and basement slab was through the construction of a retaining wall along the entire length of the rear property and the back-filling behind this wall to raise the ground level and thereby reduce the slope in order to prevent uncontrolled erosion.

The retaining wall, as built, meets the existing drop-off on both the left and right sides of the property, and has been soundly constructed.

The erosion and undermining of the foundation has been corrected and no further action is required or recommended. Removal of all or part of this retaining wall would most likely create a resumption of the original problem."

In February 1994, Prejs wrote to Gagliardi/Costa and although somewhat self-serving a portion of it is as follows:

"Due to the many severe snow, ice and rain storms of December 1993 into February 1994, I re-inspected the gabion wall installation at the above mentioned location. Everything is well stabilized and the original erosion problem fully controlled by the gabion wall. By having said gabion wall installed, you, as homeowners, not only protected your property from further severe erosion from unpredictable weather conditions, but you also helped in maintaining the integrity of the natural area."

APPENDIX B

Penalty Summary
Lot 30
House
Lot 35
House
Decks Curb
Walls
Gabion
Wall
Totals
Jocrast $500 $500 $ 1,000
Vikse & Minkbrook $1,000 $3,000
(Lot 30)
$500
(Lot 30)
$ 4,500
Vikse & Blue Heron $1,000 $3,000
(Lot 35)
$500
(Lot 35)
$ 4,500
Gagliardi/ Costa $3,000 $ 3,000
Totals $1,500 $1,500 $ 6,000 $1,000 $3,000 $13,000
  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions