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Johnson, Edward - Ruling, October 25, 1993

Ruling, October 25, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of EDWARD JOHNSON for a Tidal Wetlands Permit and variances from
setback requirements pursuant to Environmental Conservation Law Article 25 (Tidal Wetlands) and
Title 6 of the Official Compilation of Codes Rules and Regulations of
the State of New York, Part 661 (Tidal Wetlands)

RULINGS
and
ORDER of DISPOSITION

File No.
1-4736-00491/00001-0

Proceedings

EDWARD JOHNSON, 18 Twin Cedar Lane, Northport, NY 11768 (the "Applicant") seeks a Tidal Wetlands Permit and variances from setback requirements from the Department of Environmental Conservation (the "Department" or "DEC"). The Applicant proposed to construct a single family dwelling and a septic system (the "Proposed Project") a minimum of 20' and 55' from tidal wetlands respectively, place 490 cubic yards of fill in the area of the septic system, and construct retaining walls. The Applicant requests variances from the 75' and 100' setback requirements for the house and septic system respectively. The Proposed Project would be located on Oneck Drain, extending north from the westerly end of Stacy Drive, Village of Westhampton Beach Town of Southampton, Suffolk County, NY (Suffolk County Tax Map No. 0905-010-05-18).

Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 25 (Tidal Wetlands); and Article 8 (Environmental Quality Review). Also, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 661 (Tidal Wetlands); and Part 617 (SEQR).

DEC Region 1 Staff ("Staff") issued a Notice of Complete Application ("NOCA") for the Proposed Project (published on 7/31/91 in the Environmental Notice Bulletin, and on 8/1/91 in the Hampton Chronicle News) which provided the public with an opportunity to file written comments on the Proposed Project.

On May 22, 1992 the DEC Office of Hearings received from Staff copies of the application documents and the filed written comments for the purpose of scheduling a public hearing. On May 22, 1992, Frank Montecalvo, the undersigned, was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

The Notice of Public Hearing (the "Notice") was issued August 5, 1992 (as revised), and was published in the DEC's Environmental Notice Bulletin on August 12, 1992, and in the Hampton Chronicle News on August 13, 1992. Notice was also directly mailed on August 5, 1992 to the clerk or chief executive officer of the Village of Westhampton Beach, the Town of Southampton, and Suffolk County, as well as to other persons deemed interested in this proceeding.

With regard to the application, the Notice indicated Staff's tentative determination that a permit for the project as proposed was not issuable because the Proposed Project would not meet applicable set back requirements, and would not qualify for variances from same due to adverse environmental impacts and the availability of alternatives.

The Notice required that requests for Party Status to participate in an adjudicatory phase of the hearing (if one was found to be necessary) were to be filed with the ALJ on or before September 9, 1992. One such request was filed on behalf of a group of neighboring property owners with the following surnames (hereinafter the "Adjacent Owners Group" or "AOG"): Green, Hoyt, Katz, Muss, Steinberg, Tomashoff, Turkewitz, Weiner, and Wall.

As advertised in the notice, I convened the public hearing on Wednesday, September 16, 1992, at the Town of Southampton Town Hall, 116 Hampton Road, Southampton, N.Y., with a public statement session which began at 10:00 AM. DEC Staff was represented at all stages of the hearing by Kathleen Shea, Esq., Assistant Regional Attorney. The Applicant was represented at all stages of the hearing by Esseks, Hefter & Angel; Stephen R. Angel, Esq., of counsel. The Adjacent Owners Group was represented by Donald J. Noonan, PC; Donald J. Noonan, Esq., of counsel.

Only one oral comment was received from the general public, that being made on behalf of the Group for the South Fork, who was one of the two entities that filed written comments in response to the Notice. Group for the South Fork questioned the location of wetlands as shown on the plans, noted the project would not meet setback requirements for structures and septic systems, and questioned whether or not seasonal high ground water had been adequately measured. The Village of Westhampton Beach sent a letter indicating it did not seem feasible to grant a variance for a septic system on a wet piece of property.

An Issues Conference was convened immediately following the public statement session. Staff reiterated its determination to deny the application as stated in the Notice. Staff indicated that its determination of the tidal wetland boundary was at variance with what was on DEC's official map, that it was in the process of remapping the wetland, and that the setbacks mentioned in the Notice were from Staff's proposed new boundary, not the one appearing on the official map. The AOG voiced opposition to the project, essentially for the same reasons as DEC Staff. The Applicant contended that the AOG had not made the requisite showing to be granted Party Status. Since the tidal wetland boundary would be established in a separate non-adjudicatory proceeding, the timetable of which was unknown, Staff and Applicant agreed to attempt to settle the boundary's location in the field among themselves for the purposes of this proceeding, and the AOG stated it would defer to whatever Staff ultimately would agree upon regarding the boundary's location. Applicant also indicated it would make new measurements concerning the elevation of ground water on the site and submit same to Staff. Rulings on Issues and Party Status were held in abeyance until this information could be submitted, and the Issues Conference was adjourned without date.

Following the Issues Conference, Applicant and Staff reached agreement on the location of the Tidal Wetlands boundary line for the purposes of this case, and Applicant submitted the promised ground water information. The hearing was adjourned several times upon the agreement of the parties and the AOG to allow for possible settlement of the case.

On June 30, 1993, Applicant submitted modified plans (bearing a 5/12/93 revision date) to Staff and the AOG. On August 3, 1993, Staff submitted a draft permit to Applicant and the AOG which essentially approved of those plans. Applicant suggested that Staff make a change to Special Condition 7, which change Staff accepted by September 3, 1993 letter to Applicant and the AOG.

The existence of an agreement between Staff and Applicant on the project's details, and the terms of the permit that Staff would issue, was confirmed in a conference call between the parties, the AOG, and myself on September 24, 1993. Counsel for the AOG indicated that his clients did not intend to contest Staff's issuance of the agreed-upon permit for the modified project, and that I would receive written confirmation that the AOG either was withdrawing its application for Party Status, or would withdraw objections to issuing the permit.

On October 6, 1993, I sent a letter to the parties and the AOG noting that my file contained the Applicant's revised plans and Staff's draft permit, but not the revision to Special Condition 7. I directed that I be supplied with this information. Since I had not received any written confirmation from the AOG, I gave the AOG ten days from October 6, 1993, (or, if later, 10 days from the date their counsel was given a copy of the change to Special Condition 7) to formally respond to the changes in Applicant's and Staff's positions. Since the AOG's position at the Issues Conference and in subsequent conference calls had been aligned with that of DEC Staff, I stated that a failure to respond would be deemed to be the AOG's acquiescence to Staff's issuing Applicant the permit with the conditions contained in its draft permit with the change to Special Condition 7, a waiver of any right to further hearing, and an agreement that I may issue a Ruling and Order of Disposition finding that no issues for adjudication exist and remanding the matter to Staff to issue the permit. I also indicated that if the AOG wished to have a hearing, its response must demonstrate that hearing issues exist in spite of the settlement between Staff and Applicant.

Under a cover letter from Applicant's counsel to the AOG's counsel dated and sent via mail and facsimile on October 7, 1993, the AOG was given a copy of the revised text of Special Condition 7 that had been previously sent from Applicant to Staff on August 17, 1993. The AOG therefore had until October 17, 1993 to formally respond to the changes in Applicant's and Staff's positions.

On October 21, 1993 Applicant's counsel requested that I issue a ruling and order of disposition since the time for the AOG's response had passed. Later that day I received a letter from the AOG's counsel indicating that they waived their right to further hearing.

Rulings

Ruling I: There are no substantive or significant issues in dispute requiring a hearing to resolve.

Ruling II: Because the AOG has waived their right to further hearing, Party Status for the AOG is moot.

Order of Disposition

Absent the existence of issues requiring adjudication, the record is closed, the adjudicatory hearing is hereby cancelled pursuant to 6 NYCRR 624.6(c), and the applications, as modified (by Exhibit 5A), are hereby remanded to Department Staff for continued processing as may be required, leading to issuance of the permit as previously drafted (Exhibit 4A), and modified as articulated in the August 17, 1993 letter from Stephen R. Angel, Esq. to Kathleen M. Shea, Esq.

_____________/s/_____________
Frank Montecalvo,
Administrative Law Judge

Dated: October 25, 1993
Albany, New York

To: Official Service List attached
VIA FAX AND MAIL

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