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Londino, Gwendolyn - Decision, April 14, 1995

Decision, April 14, 1995

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

In the Matter

- of -

The Application of The Estate of GWENDOLYN LONDINO for a tidal wetlands permit pursuant to Environmental Conservation Law Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York

Application Number 10-87-1671

DECISION OF THE COMMISSIONER

April 14, 1995

DECISION OF THE COMMISSIONER

This Decision is issued in relation to the application of the Estate of Gwendolyn Londino for a tidal wetlands permit to construct a single family dwelling, a sewage disposal system, and attendant appurtenances, on a two and one-half acre parcel adjacent to Shinnecock Bay in the Village of Southampton, Suffolk County, New York. The statutory authority for the permit is contained in Environmental Conservation Law (ECL) Article 25, Tidal Wetlands and the regulatory criteria to be met is contained in Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR).

The attached hearing report of Administrative Law Judge (ALJ) Francis W. Serbent, including its Findings of Fact and Conclusions, is adopted subject to my comments below.

It is important to set forth the regulatory scheme that applies to a tidal wetlands project because of the land use issues that are normally attendant to tidal wetland applications. The regulatory criteria, which carry out the intent of the statute, are those against which the project must be evaluated. The burden rests on the Applicant to demonstrate that the development proposed meets the tidal wetland standards for permit issuance.

The Applicant seeks to construct a house and sewage disposal system in the adjacent area of a regulated tidal wetland. To issue a permit, both activities must meet the requirements of 6 NYCRR 661.9. Under the land use guidelines, construction of a single family residence and the installation of a sewage disposal system in an adjacent area are determined to be generally compatible uses. Under 6 NYCRR 661.9(c)(2), both must satisfy the development restrictions in 6 NYCRR 661.6. If there are practical difficulties in meeting these restrictions, an applicant may request a variance. To obtain a variance the Applicant must demonstrate that the action for which a variance is sought will not have an undue adverse impact on the present or potential value of any 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 (6 NYCRR 661.11(a)).

In order to obtain a variance, the burden rests with the Applicant to show that a variance should be granted. As indicated in the hearing report, the design and location for the house and sewage disposal system on this site would require variances from the respective 75-and-100 foot setback requirements from tidal wetlands (6 NYCRR 661.6(a)(1),(2)).

While the Applicant has demonstrated the requisite practical difficulties in placing both the house and the sewage disposal system on the site, it has failed to establish that there will be no undue adverse impact on the present or potential value of the tidal wetlands if these setbacks were not met. The project would contravene several of the development restrictions in the Tidal Wetlands Land Use Regulations and in particular would diminish the benefits of the high quality tidal wetlands for wildlife habitat, food production, recreation, cleansing and absorption of silt and organic materials, open space, aesthetic appreciation, education and research. It is important to note that the range of possibilities for alternative uses of the site was not explored by the Applicant, since only a single family dwelling was considered.

The record reveals that even if the project were to meet the setback requirements, there would be undue adverse impacts. The site is located in a high quality tidal wetland adjacent area. The tidal wetland has an abundance of wildlife populations and is used for waterfowl migration, nesting and feeding. Some wildlife are intolerant of human activities and edifices and would be displaced. The site is adjacent to an extensive open marsh habitat that is part of a largely undisturbed tidal wetland system extending for several miles. The site is located in a dynamic portion of the tidal wetland. As such, the site is in transition toward more, not less, tidal wetland species. The site is adjacent to Shinnecock Bay and beach, which have been designated by the Department as significant coastal fish and wildlife habitats. Other sites in the area have been used for coastal marine habitat studies which resulted in determining the area to be irreplaceable.

The placement of the sewage disposal system would be inconsistent with the public health and welfare. The subject site is classified by the Federal Emergency Management Agency as being in a V-6 zone, one prone to frequent flooding. The hearing report found that the Applicant's site floods annually. Septic systems located in such zone can be expected to fail during flooding. As found by the ALJ, flooded sewage disposal systems will result in the escape of pathogen bacteria and viruses into surface waters. Flooded sewage disposal systems pose a risk to public health and safety.

Upon review and evaluation of the entire record of this proceeding, I find that there are undue adverse impacts to the present and potential value of the tidal wetlands on and adjacent to the site and to the waters of Shinnecock Bay, which on balance, substantially outweigh the limited social and economic benefits which would accrue solely to the Applicant should this project be

completed as proposed. I conclude the Applicant failed to make the showing required for a variance pursuant to 6 NYCRR 661.11. The application is hereby denied.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed same with all maps, plans, reports and other papers relating thereto in its office in the County of Albany on this day of April, 1995.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

/s/
MICHAEL D. ZAGATA
COMMISSIONER

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road Albany NY 12233-1550

In the Matter of the Application for a tidal wetlands permit pursuant to the Environmental Conservation Law Article 25 by The Estate of GWENDOLYN LONDINO

Application Number 10-87-1671

HEARING REPORT

-by-

Francis W. Serbent
Administrative Law Judge

PROCEEDINGS

The attorney for the estate of Gwendolyn Londino, (the "Applicant") applied to the New York State Department of Environmental Conservation (the "Department") for a tidal wetlands permit and for variances from certain setback requirements [application #10-87-1671]. The Applicant proposes to construct a single family residence and appurtenances on a two and one half (2.5) acre site adjacent to Shinnecock Bay in the Village of Southampton, Suffolk County.

The Department held a legislative hearing as noticed on November 30, 1994 at 10:00 AM in the Southampton Village office, 23 Main Street, Southampton. Francis W. Serbent, administrative law judge, ("ALJ") presided. The Department continued on that day to hold a prehearing issues conference and began an adjudicatory hearing at the same location. The adjudicatory hearing examinations ended the next day, December 1, 1994. The Parties and the ALJ then visited the site.

The ALJ received the transcript on January 13, 1995, advised the Parties of the availability of the transcript and then scheduled the receipt of post hearing submittals for February 10, 1995. The record was closed on February 13, 1995 when the Applicant's submittal arrived. The record includes the application, 289 pages of hearing transcript, 23 exhibits in evidence (5 rejected exhibits accompany the record) and the post hearing submittals.

The applications were submitted and these proceedings were conducted pursuant to the Environmental Conservation Law ("ECL") Article 3 (General Functions), Article 8 (Environmental Quality Review), Article 25 (Tidal Wetlands), Article 70 (Uniform Procedures) and also Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 (State Environmental Quality Review, "SEQR"), Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures) in effect before the revisions of January 9, 1994 and Part 661 et seq. (Tidal Wetlands-Land Use Regulations).

Parties

The Applicant and the Department Staff are parties by regulation. There were no filings for party status or filings proposing issues for adjudication.

The Applicant was represented by Esseks, Hefter & Angel Counselors at Law (Stephen R. Angel of counsel), 108 East Main Street PO Box 279, Riverhead, NY. Anderson Environmental, Inc., (Philip Anderson, President) PO Box 1640 Southampton NY 11968 originally represented the Applicant as authorized by the executors of the Estate of Gwendolyn B. Londino, Kurz, Dick & Friedenberg, (Stanley Friedenberg, executor) 80 Wheatley Road Old Westbury NY 11568. For the Article 78 proceeding of December 30, 1988, the Applicant was represented by Lite & Lite, PC, (Joseph Lite of counsel) 239 Higbie Lane, West Islip NY 11795.

At the hearing, Roy Haje, President of En-Consultants Incorporated, 1329 North Sea Road Southampton, testified for the Applicant and counseled Esseks, Hefter & Angel.

Marc S. Gerstman, Esq., General Counsel and Deputy Commissioner of the Department, 50 Wolf Road, Albany (Gail Hintz Esq., Region 1 TW Attorney of counsel) represented the Department Staff. Appearing for Staff was George Hammarth, Deputy Regional Permit Administrator, George Stadnik, Marine Specialists I and Louis A. Chiarella, Regional Manager for the Bureau of Marine Habitat Protection.

SEQR

The Applicant filed the permit application on September 21, 1987. On October 13, 1987 the Staff initiated the lead agency coordination by mailings to various agencies, including the Village Board of Trustees. The Staff determined the coordinated review was performed and then, as lead agency, determined the Project would not have a significant adverse environmental effect. Staff filed a Negative Declaration on May 19, 1988 and had it published as part of the Notice of Complete Application. On November 18, 1994, the Southampton Village Zoning Board of Appeals ("ZBA") advised the ALJ that it assumed SEQR lead agency status (presumably under Section 54 of the Village Code). The ALJ sent copies of the ZBA papers to the Applicant and Staff. There is no other subsequent action of ZBA activity or its intent in this record.

Chronology

On March 25, 1988, the Department's Region 1 Staff ("Staff") told the Applicant that it would deny the permit. The Staff advised the Applicant, should the Applicant desire to pursue the matter, its options were to pursue either a public hearing or a decision conference with the Staff. On April 15, 1988, the Applicant requested a decision conference as soon as possible. Without mention of a decision conference, the Staff then issued a Notice of Complete Application dated May 19, 1988 and caused the Applicant to published it in the Southampton Press on June 2, 1988. The Notice was also published in the Department's Environmental Notice Bulletin ["ENB"] on June 1, 1988. On June 30, 1988, the Applicant filed the proof of publication and renewed its request for a decision conference.

The Applicant then requested a decision on its application (via a five day letter pursuant to 6 NYCRR 621.9). The request of November 9, 1988 was received at the Department's Albany office on November 25, 1988 and the Staff denied the permit application on December 2, 1988.

The Department issued a public hearing notice also dated December 2, 1988 for a public hearing on January 11, 1989.

In a letter dated January 5, 1989, the Applicant, through its attorneys Lite & Lite, advised the assigned ALJ Susan DuBois that the Applicant started an Article 78 proceeding on December 30, 1988. The ALJ then adjourned without date the hearing scheduled for January 11, 1989. On June 23, 1989, the court dismissed as premature the Article 78 action.

This office returned the file and hearing request to Staff.

The Applicant, through its attorneys Esseks, Hefter & Angel, asked the ALJ of the status of the application in the Applicant's telephone call of July 30, 1991. The Applicant restated its interest in the application in a letter dated August 30, 1991. The Applicant also revised the application by reducing the size of the proposed house to the minimum allowed by local zoning.

The Staff was in the process of remapping the tidal wetlands in Shinnecock Bay and apparently anticipated the process would yield more accurate wetland data at the Applicant's site. The Staff then coordinated the review of the application with the remapped wetlands filed in September 1994.

The case and the hearing request on the revised application was reassigned on October 6, 1994 to ALJ Francis W. Serbent and he scheduled the hearing. The Applicant published the public hearing notice ["Notice"] on November 3, 1994 in the Southampton Press, a weekly newspaper in the Village of Southampton and filed proof of publication. The ALJ had the Notice published in the ENB on November 2, 1994 and mailed it to the Village and County Clerks and others known or deemed to have an interest.

Legislative hearing

The sole speaker, Steven Biasetti, spoke for the Group for the South Fork in opposition to the permit. The Southampton Village ZBA did not answer the call at either the legislative hearing or the issues conference.

Issues

The filed wetland map shows the Applicant's site as entirely tidal wetland except for a small mound of adjacent area. However the Applicant and the Staff found the actual wetland boundary in the field on November 9, 1994. The wetland boundary is bayward of the proposed house and sewage disposal system. The entire proposed work would be in an adjacent area. Even with the proposed construction now in an adjacent area, the Staff's tentative determination to deny the permit application remains unchanged.

At the Issues conference, the Applicant proposed two alternative arrangements for the locations of the house and sewage disposal system. The ALJ advised that since the Department would issue only one permit if the application is approved, the alternative of the Applicant's choice would be the primary consideration at the hearing.

The ALJ ruled that reasons for the Staff's denial of the application and the variance requests were issues for adjudication. There were no appeals. The Staff denied the application for failure of the proposed house and sewage disposal system to meet the various standards for permits [6 NYCRR 661.9(c)] because of the following issues.

Issue #1. The Applicant's proposed sewage disposal system would create hazards to water quality that are not compatible with the public health and welfare [6 NYCRR 661.9(c)(1)].

Issue #2. The proposal would have an undue adverse impact on the present and potential values of the adjacent tidal wetland [6 NYCRR 661.9(c)(3)].

Issue #3. Since the proposal would not meet the standards for a permit, it is not compatible with the preservation, protection and enhancement of the wetlands [6 NYCRR 661.9(c)(4)] and the proposal can not be considered "generally compatible" as referenced in the use guidelines of 6 NYCRR 661.5.

Issue #4. The house location does not qualify for a variance from the seventy five (75) foot minimum setback landward from the tidal wetland [6 NYCRR 661.6(a)(1)].

Issue #5. The location of the on-site sewage disposal system does not qualify for a variance from the one hundred (100) foot minimum setback landward from the tidal wetland [6 NYCRR 661.6(a)(2)].

Applicant's position

The Applicant contends there would be no impacts on the standards for permit issuance in an adjacent area. The Applicant has the practical difficulty of meeting the setback requirements of both the Department and local zoning. The adjacent area on the site is too small to satisfy all the setback requirements. Without the variances the Applicant cannot use the parcel for its zoned best use as a single family residence (i.e., a denial would be a regulatory taking of the Applicant's land).

Correction to the record

The transcript page 275 has witness Hammarth testifying in one instance that a home is not allowed to be built etc., and subsequently testifies: "You are not allowed to use fill to gain the minimum elevation in a V zone. The building has to be built on pilings to allow the possible flood waters to pass beneath it unobstructed." The word "not" emphasized above should be deleted to enable the testimony to be internally consistent.

Stipulation

The Applicant and the Staff agreed that the filed wetland map does not accurately portray the wetland boundary at the Applicant's site. On November 9, 1995, both Parties visited the site and found the wetland boundary by scientifically identifying upland and wetland vegetative species.

Exceptions

On November 30, 1994 during the hearing, Staff took exception to the ALJ's ruling on exhibit 11. The ALJ rejected it as evidence as obsolete because he could not reconcile the exhibit with this application. On review of the record, exhibit 11 could have been accepted as additional evidence of the wetland boundary, but this report's conclusions would not change.

FINDINGS OF FACT

  1. The Applicant owns a two and one half (2) acre parcel of land located adjacent to and north of Meadow Lane, a.k.a. Beach Road or Dune Road, to the south shore of Shinnecock Bay in the Village of Southampton Suffolk County.
  2. The parcel is over one thousand (1,000) feet west of Road F and immediately east of an adjacent paved area used as a helicopter pad. The County tax map identifies the parcel as District 0904 Section 021.00 Block 01.00 Lot 003.00. The parcel fronts Meadow Lane to the south for two hundred and twenty-eight (228) feet and is five hundred and sixty-six (566) feet along the westerly boundary from Meadow Lane to the waters of Shinnecock Bay. The north and east property lines are at various angles and for various lengths going back to Meadow Lane.
  3. The final tidal wetland map [#712-524 as duly amended September 4, 1994] shows the wetland boundary at Meadow Lane except for a small isolated island of adjacent area. The Staff and the Applicant mutually established the wetland boundary on site on November 9, 1994. The result is that the wetland boundary is actually bayward of the proposed construction (i.e. the house and appurtenances would be in an adjacent area).
  4. There are no houses or principle buildings north of Meadow Lane near the Applicant's parcel. The nearest house north of Meadow Lane is over a mile to the east. There is residential development south of Meadow Lane toward the ocean shore, however there are no structures within five hundred feet of the proposed house that are closer to the subject wetland.
  5. The classification of uses described in 6 NYCRR 661.5 indicate that both the proposed house (use #46) and the sewage disposal system (use #45) in an adjacent area are generally compatible uses requiring a permit.

The House

  1. 6 NYCRR 661.6(a)(1) requires a house to be setback a minimum of seventy-five (75) feet landward of the tidal wetland. The northwest corner of the proposed house would be approximately thirty-four (34) feet from the wetland boundary. The northeast corner of the house stairs would be thirty-seven (37) feet from the wetland boundary. Between the two rear (north) corners, the irregular wetland boundary would vary up to one hundred (100) feet away from the house.
  2. Because local zoning requires a front setback, there is not enough adjacent area to consider moving the location of the proposed house to meet all setbacks. The Applicant reduced the size of the house to the smallest size allowed locally to get the longest setbacks.
  3. The general area, including the Applicant's site, floods annually so the Applicant would build the house on piles to allow flood waters unobstructed passage underneath. The underside of the house would be at a minimum elevation ("el.") of twelve feet (el. 12), local datum.
  4. To prevent erosion, a gravel driveway would percolate storm water runoff and house gutters would drain to dry wells.

The Sewage Disposal System

  1. 6 NYCRR 661.6(a)(2) requires any part of the sewage disposal system to be setback a minimum of one hundred (100) feet landward of the tidal wetland. The sewage disposal system would be as far from the wetland as the site allows. The nearest part of the disposal system to the wetland boundary is the septic tank, seventy-three (73) feet away to one point on the boundary and eighty (80) feet to another. The nearest effluent to the wetland would be from a proposed future seepage ring eighty-three (83) feet away.
  2. The Applicant would build the sewage disposal system in sand on site and partially in fill behind a retaining wall. The grade elevation over the sewage disposal system would vary from el. 11.53 feet over the septic tank to el. 8.2 feet over the seepage rings.
  3. The bottom of the seepage rings for the sewage disposal system would be two (2) feet higher than the seasonally high ground water [as required by 6 NYCRR 661.6(a)(3)].

Effluent Impacts

  1. The effluent from this proposed sewage disposal system by itself, if permitted, would not cause a change in the shell fishing practices in Shinnecock Bay.
  2. The effluent would typically contain, among other things, bacteria, nutrients and if the users of the system are so infected, viruses. Except during storm flood events, effluent from the sewage disposal system would travel down a minimum of two (2) feet to ground water and one hundred and sixty (160) feet horizontally to the surface water in Shinnecock Bay.
  3. The sand below the seepage rings and above the groundwater would filter most of the nutrients and bacteria in the effluent from the sewage disposal system.
  4. The soil would absorb sewage system effluent bacteria within five (5) feet of discharge.
  5. Viruses can travel with the effluent through the soil for over two hundred (200) feet on the way to Shinnecock Bay.
  6. Nutrients travelling towards Shinnecock Bay would be taken up by organic soils but not sand and, during the growing season, by the roots of wetland vegetation. Off season when the plants are not growing, the plants release nutrients into the water.
  7. With the additional nutrients in the water, algal blooms would occur. Algal growths, initially and in decay, create an oxygen liability and can use all the oxygen in the water needed to support marine life.
  8. Because the surrounding topography and soils are so similar, the impacts of sewage effluent from a disposal system meeting the required setback of one hundred (100) feet would be virtually the same as setback of seventy-three (73) feet but with a minimum theoretical decreased contaminant load.

The Tidal Wetlands

  1. The shore topography and wetland boundary will continue to change due to coastal dynamics of barrier beach dune migration, storms and storm flooding. The wetland on the Applicant's parcel is part of this dynamic system with its boundary subject to significant measurable changes.
  2. Since 1986, portions of the adjacent area on site has shifted over eighty (80) feet north towards Shinnecock Bay. The upland boundary of tidal wetlands are determined in scientific terms by identified vegetative growths (ECL 25-0103.1) and now typical upland vegetation is dying and being replaced naturally by more salt tolerant wetland vegetation.
  3. Staff identifies the wetland and adjacent area along Shinnecock Bay at and on either side of the Applicant's parcel as irreplaceable because it is one of the best wetlands and habitats on Long Island. It is one of the longest continuous undisturbed wildlife habitats, provides unobstructed scenic views and produces marine foods. It acts to cleanse the ecosystem in maintenance of the high quality waters of Shinnecock Bay.
  4. People, at various times, cross the Applicant's parcel for access to the wetland area on and off shore for water access, to swim, snorkel, hunt, net fish, watch birds, boat, see views, walk and for a great amount of recreational fishing.
  5. If a permit is issued, both indigenous and transient wildlife would still have the use of the remaining habitat area about the house and in the nearby wetlands. Certain species of wildlife typical of this wetland, however, are shy of human activities and edifices.
  6. The Staff monitors water quality for coliform bacteria in shell fishing areas near shoreline developments on Shinnecock Bay. Coliform bacteria are indicator organisms typical of septic tank effluent. After two (2) or more inches of rain in a twenty-four (24) hour period, Staff typically closes these shell fishing areas from three to seven days.
  7. Flooded sewage disposal systems in developed areas would result in the escape of pathogen bacteria and viruses into surface waters including waters where shell fishing is allowed.
  8. The Applicant would accept a requirement to create additional wetland. The Applicant would then propose to eliminate adjacent areas between the most upland points of the irregular wetland boundary by landscaping and plantings of wetland grasses or shrubs.

CONCLUSIONS

Issue #1, compatibility with the public health and welfare

[6 NYCRR 661.9(c)(1)].

Conclusion #1. The proposed house and appurtenances would meet the compatibility standard for a permit in an adjacent area, 6 NYCRR 661.9(c)(1).

Discussion: Since Staff predicts that the proposed house and sewage disposal system would not create a present need to change the classification of the shell fishing practices in Shinnecock Bay, a believable prediction, any immediate public health and welfare consequence would be insignificant. The public health and welfare would not be impacted.

Issue #2, undue adverse impact on the values of a tidal wetland. [6 NYCRR 661.9(c)(3) mandates:

"(c) Standards for permits on adjacent areas. The Department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed activity: ...

(3) 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 ..."]

Discussion: The standard for permit issuance in an adjacent area relies on the determination that the permitted activity would not have an undue adverse impact on any adjacent or nearby wetland value not only now but also potentially in the future.

Present wetland values:

The present value of this wetland for open space and aesthetic appreciation would be abruptly discounted by the presence of the Applicant's house. It would be the first and only edifice for thousands of feet fronting the south shoreline of Shinnecock Bay. The house would adversely impact the wildlife habitat, a wetland value, but not significantly.

Potential wetland values:

Permitting the Applicant's proposal would be expected to spur future development along the south shore of Shinnecock Bay. The cumulative effect of shoreline development in the future would destroy the value of open space and aesthetic appreciation potential of the wetlands by cluttering the space with man made edifices obliterating the views.

Future development would severely and unduly impact potential wetland value for wildlife habitat with physical displacement by each construction, each above grade structure and most importantly, with the human presence both in the adjacent area and in the tidal wetland.

Existing shoreline developments about Shinnecock Bay have resulted in high coliform bacteria counts in the waters, with sewage disposal system discharges probably the major source of coliform bacteria. Under these circumstances the sewage overflows and other contaminant loads from future developments would diminish the potential wetland value by impairing the wetland's ability to cleanse the ecosystem.

Further, even with proper functioning of sewage disposal systems along the shoreline, the effluents would increase nutrient loadings into the wetlands. These nutrients would fertilize plant and algal growths in the water with their oxygen demands while growing and then again exert an oxygen demand in decay. Off season, vegetation would release nutrients adding to the current effluent nutrient load in the water and thus further aiding algal growth. The algal demand on dissolved oxygen reasonably has the potential to completely deplete the oxygen needed for marine food production, another identified wetland value.

Conclusion #2. On balance, the undue adverse impacts on the present and potential tidal wetland values and the public outweigh the unidentified social and economic benefit of the house to the public or, to a lesser extent, the benefit to the Applicant. The application does not meet the standards for permits in 6 NYCRR 661.9(c)(3).

Issue #3, compliance with the use guidelines. [6 NYCRR 661.9(c)(4) mandates:

"(c) Standards for permits on adjacent areas. The Department shall issue a permit for a proposed regulated activity on an adjacent area only if it is determined that the proposed activity: ...

(4) complies with the use guidelines contained in section 661.5 of this Part. ..."]

Discussion: The stated guidance in 661.5 is that the proposed house and sewage disposal system are both generally compatible uses in an adjacent area. The guidelines further tell us that these uses are generally compatible with the preservation, protection and enhancement of the present and potential value of the tidal wetlands. However, as noted above in the discussion of issue #2, the permitting of the Applicant's proposed house and sewage disposal system is not compatible with either the preservation, protection or enhancement of the present and potential values of the adjacent tidal wetlands.

Conclusion #3. This proposal is not a compatible use of an adjacent area and therefore does not meet the standards for a permit in an adjacent area.

Issue #4. The Applicant seeks a variance from the seventy-five (75) foot minimum setback for a house.

Discussion: The Applicant needs a variance under 661.11(a) from the development restrictions in 661.6 to meet the standards for permits on adjacent areas under 661.9(c)(2). 661.11 gives the Department the authority to change the setbacks provisions if the new setback meets the spirit and intent of the original setback. The proposed house, whether setback seventy-five (75) feet as required or thirty-four (34) feet as requested would have an undue adverse impact on the present and potential wetland values. The wetland value for wildlife habitat would be impacted by displacement and proximity. The proposed house and the future development it triggers would impede access to the wetlands on and off shore for swimming, snorkeling, hunting, fish netting, bird watching, viewing, walking and the popular recreational fishing. These activities are wetland values of recreation, education, research, open space and aesthetic appreciation. Neither a house built with the required set back of seventy-five (75) feet nor a house built with a lesser setback would meet the standards for a permit.

Conclusion #4. The proposed house at both the required setback or at the requested variance would be contrary to the purposes of tidal wetland preservation and protection. The proposed house would have an undue adverse impact on the present and potential wetland values of recreation, education, research, open space and aesthetic appreciation. The variance request fails to meet the requirements of 6 NYCRR 661.11(a).

Issue #5. A variance from the one hundred (100) foot minimum setback landward from the tidal wetland for the location of the sewage disposal system.

Discussion: The proposed sewage disposal system, whether setback one hundred (100) feet as required or seventy-three (73) feet as proposed would be expected to have the same undue adverse impact on the potential wetland values. The potential wetland values would be subject to the impacts and cumulative impacts from future additional development prompted by the precedent this sewage disposal system, if permitted, would set. Potential wetland values are expected to be unduly and adversely impacted. The adverse impacts would be lost marine food production, lost recreational fishing due to less food production and lost shell fishing due to bacteria contamination. Greater numbers of flooded sewage disposal systems would be expected to surface discharge their contents creating undue adverse impacts on the wetland values for wildlife habitat, cleansing ecosystems, absorption of silt and organic materials, all by additional loadings. The wetland value of aesthetic appreciation would be unduly impacted adversely by the appearance of the septic tank contents in the surface discharges. The permitting of the Applicant's proposed sewage disposal system is not compatible with either the preservation, protection or enhancement of the present and potential values of the adjacent tidal wetlands.

Conclusion #5: The proposed sewage disposal system at both the required setback or at the requested variance would have an undue adverse impact on the potential wetland values and be contrary to the purposes of tidal wetland preservation and protection. The present and potential wetland values expected to be subject to undue adverse impacts are food production, recreation (fishing and shell fishing), wildlife habitat, cleansing and absorption due to surface discharges when flooded and lost open space and aesthetic appreciation by the appearance of surface discharges. The variance fails to meet the requirements of 6 NYCRR 661.11(a).

RECOMMENDATION

  1. The application for the permit and the applications for variances should be denied with explanations as provided in the conclusions above.
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