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Manak Properties - Decision, May 24, 1996

Decision, May 24, 1996

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

In the Matter of

- of -

the Application of MANAK PROPERTIES, INC. for a Water Supply Permit, a State Pollutant Discharge Elimination System Permit and a Stream Disturbance Permit pursuant to Environmental Conservation Law Articles 15 and 17 for a residential development in the Town of Shandaken, Ulster County

DEC Application No. 3-5150-75/3-0
Water Supply Application No. 8094

DECISION

May 24, 1996

DECISION OF THE COMMISSIONER

Based on the attached Summary Hearing Report of Administrative Law Judge Susan J. DuBois in this matter, which is made a part hereof, I hereby dismiss the application of Manak Properties, Inc. in this matter. Manak applied to the Department prior to 1988 for various permits (Water Supply, SPDES) and prepared a draft environmental impact statement to obtain Department approval for its plan to construct townhouses in the Town of Shandaken, Ulster County. The matter was referred to the Office of Hearings in 1988. Legislative hearings and an issues conference were held in December 1988.

As explained in the attached hearing report, the hearing process on Manak's application continued intermittently thereafter, with adjournments, an appeal, requests for information, and discussion on settlement of outstanding issues, at least through late 1991. Thereafter, the applicant lost interest in pursuing the project, and it appears that applicant no longer owns the property proposed for development.

The attached Summary Report was sent to the parties by certified mail on March 27, 1996 under cover of a letter from the Department's Assistant Commissioner for Hearings, and comments were requested by May 15, 1996 from the parties. No comments were received. Accordingly, I declare the record closed in this matter, and dismiss the application because of the Manak's failure to provide necessary information.

For the New York State Department of Environmental Conservation

/s/
By: Michael D. Zagata, Commissioner
Albany, New York
May 24, 1996.

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION 50 Wolf Road
Albany, New York 12233-1550

In the Matter of

- of -

the Application of MANAK PROPERTIES, INC. for a Water Supply Permit, a State Pollutant Discharge Elimination System Permit and a Stream Disturbance Permit pursuant to Environmental Conservation Law Articles 15 and 17 for a residential development in the Town of Shandaken, Ulster County

DEC Application No. 3-5150-75/3-0
Water Supply Application No. 8094

SUMMARY HEARING REPORT

- by -

/s/
Susan J. DuBois
Administrative Law Judge

SUMMARY REPORT

Manak Properties, Inc. (the "Applicant"), West Branch Road, Oliverea, New York 12462, applied to the New York State Department of Environmental Conservation (the "Department") for various permits for a 64 unit residential development (to be known as Silver Creek Townhouses) in the Town of Shandaken, Ulster County. The application was referred to the Department's Office of Hearings in September, 1988 and the initial session of the hearing took place on December 8, 1988. The present Summary Hearing Report has been prepared in response to recent correspondence which indicates that the Applicant is not likely to provide the information which would allow the hearing to go forward and that the Applicant no longer owns the site of the proposed project.

Proceedings

The Applicant applied for a Water Supply permit pursuant to Environmental Conservation Law ("ECL") Article 15, Title 15 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 601, a State Pollutant Discharge Elimination System ("SPDES") permit pursuant to ECL Article 17, Title 8 and 6 NYCRR Parts 750 through 758, and a stream disturbance permit pursuant to ECL Article 15, Title 5 and 6 NYCRR Part 608.

The proposed project would involve construction on 35 acres of a 170 acre site, in two phases of 40 and 24 dwelling units, respectively. Construction would also include a bridge crossing of Warner Creek (also known as Silver Hollow Brook), a central water supply system, various recreational amenities and common sewage facilities to treat up to 14,400 gallons per day of sanitary wastes by means of septic tanks and leach fields. The project site is located south of Silver Hollow Road approximately one mile east of the intersection with New York State Route 214, within the New York City watershed. The project was designated as DEC Application No. 3-5150-75/3-0 and Water Supply Application No. 8094.

Pursuant to the State Environmental Quality Review Act (ECL Article 8, "SEQR") and 6 NYCRR Part 617 (SEQR), the Department, as lead agency, determined that the project may have a significant impact on the environment and that a Draft Environmental Impact Statement ("DEIS") was necessary. On July 14, 1988, the Department accepted a DEIS for the project as adequate for public review.

A hearing session for receipt of comments on the application and the DEIS took place on the evening of December 8, 1988 at the Shandaken Town Hall before Susan J. DuBois, Administrative Law Judge. An issues conference took place on December 9, 1988 at the .same location. The Applicant was represented at the issues conference by Wayne Graff, Esq., of the law firm of Wilkie and Graff, Kingston, New York. The Department Staff was represented by Judith Almgren Ferry, Esq., Regional Attorney, DEC Region 3, New Paltz, New York. Two entities which had requested party status were represented at the issues conference: Residents and Friends of Silver Hollow, represented by Franklyn J. Engel, Esq., Woodstock, New York, and the New York City Department of Environmental Protection ("NYCDEP"), represented by Joseph Boek, Catskill District Engineer. The Ulster County Planning Board, Theodore Gordon Flyfishers, Inc. and the Ashokan/Pepacton Chapter of Trout Unlimited requested party status but did not appear at the issues conference.

At the issues conference the Department Staff requested additional information from the Applicant regarding the plans for the bridge and clarifications of the Applicant's revisions of the proposal for work in and around the stream. The hearing remained adjourned during 1989 and 1990 while correspondence was exchanged regarding this and a number of proposed issues for the hearing.

On August 3, 1990 I made a ruling which identified a potential issue for adjudication (contamination of the water supply wells) but requested certain additional information in writing from the parties before the final ruling on issues and party status would be made. Following additional correspondence regarding proposed issues, the issues conference reconvened on November 16, 1990.

On January 17, 1991, I made rulings which identified the Applicant, the Department Staff and Residents and Friends of Silver Hollow as parties to the hearing and denied the other requests for party status, including that of NYCDEP. The rulings identified issues for adjudication which may be summarized as follows: whether the site was the habitat of certain threatened species or species of special concern (see 6 NYCRR Parts 182 and 193) and, if so, what mitigation measures might be necessary; air quality impacts of fireplaces and/or wood stoves at the project and mitigation of these impacts; and whether the proposed septic systems would adequately protect water quality in Warner Creek.

The Applicant, the Department Staff and the NYCDEP appealed the rulings. On April 29, 1991, while the appeal was pending, I wrote to the parties regarding the habitat issue, stating that, "This issue is still a part of the hearing and would remain so unless the ruling is reversed by the Commissioner. This issue would best be resolved by additional study of the Site, by appropriately qualified persons, to look for the species in question." At the issues conference, there had been a statement that the season during which these species could be identified, if present, would begin in May. In my memo, I recommended that the parties arrange a site visit for this purpose. On May 8, 1991, counsel for the Applicant notified me that the parties were making arrangements for a site visit.

On October 7, 1991, former Commissioner Thomas C. Jorling issued an Interim Decision which stated that the sole issue requiring further proceedings related to the habitat question as identified in the issues ruling. The Interim Decision upheld the denial of NYCDEP's request for party status. On October 10, 1991, I requested that the Applicant notify me of the nature of any additional information which the Applicant had obtained since the date of the issues ruling, and that the parties notify me of whether this issue was still in dispute.

On June 29, 1992, having received no response to the October 10, 1991 letter, I requested that the Applicant notify me regarding whether the Applicant wished to proceed with the hearing. On September 30, 1993, having received no response, I set a deadline of November 15, 1993 by which the Applicant would need to respond or I would consider the application to have been abandoned. On November 2, 1993, counsel for the Applicant notified me that the Applicant had filed a petition for reorganization and requested that the hearing be postponed for nine months. On November 24, 1993, I postponed the hearing and asked to receive an update on the status of the project in August, 1994.

On July 27, 1994, Richard Manak wrote to me and stated that he had obtained new financing for the project. He stated that due to financial constraints he had not obtained the report of the habitat study, but that he would now contact his consultant to obtain the study and proceed with the hearing. By a letter of August 4, 1994, I asked that Mr. Graff or Mr. Manak notify me when the habitat study was final and that the parties notify me regarding their positions on it. In a letter dated October 3, 1994, counsel for Residents and Friends of Silver Hollow stated that it was his understanding that the waste disposal system for the project had been completely re-designed and that he expected that the application would be amended and the issues conference re-opened.

I received no additional correspondence regarding the project until November 2, 1995, when counsel for Residents and Friends of Silver Hollow wrote to me and requested that the application be dismissed. On December 6, 1995, I wrote to the Applicant and asked that the Applicant notify me by January 31, 1996 concerning whether the Applicant still intends to build the project. On January 10, 1996, Mr. Manak wrote to me and stated, among other things, that the habitat study was on file with the Applicant's consultant and that the Applicant still intended to finalize the report and submit it for the record. Mr. Manak sent copies of this letter to Mr. Graff and to the mortgagee of the property but not to counsel for the other two parties to the hearing.

On February 14, 1996, I wrote to Mr. Graff and stated that there did not appear to have been a significant change from the situation in the summer of 1994, as regards the habitat study. I described the procedures which would be necessary in order for the matter to be concluded, in view of the passage of time and the possible changes in circumstances since the October 7, 1991 Interim Decision. This letter stated that an issue for adjudication had been identified "...based on there being inadequate information regarding whether certain species are present at or otherwise use the site. The Applicant has not provided this information. The omission of this information alone would warrant denial of the application. There may also be new issues depending on any changes in the project, the site or the applicable regulatory requirements which have occurred since the October 7, 1991 Interim Decision."

The February 14, 1996 letter continued, "As discussed above, a number of additional things would have to happen in order to bring this application process to completion. The Applicant has the option of providing the information from the field study and going forward with the remainder of the hearing process. If this does not occur, I anticipate that at some point I would recommend to the Commissioner that the application be denied. On the other hand, if the hearing is completed and the project is shown to be in compliance with all applicable requirements, the permits would be granted." The letter requested notification about what the Applicant intended to do with regard to completing this process, and also asked that Mr. Graff notify me of whether correspondence directed to the Applicant in this hearing should be sent to Mr. Graff, Mr. Manak, or both. A copy of Mr. Manak's January 10, 1996 letter was transmitted to the other parties with the February 14, 1996 letter.

As of March 27, 1996, I have received no further response from the Applicant regarding the study or any additional activity in the hearing process. I did receive a letter dated March 21, 1996 from Mr. Graff in which he stated that he had not received any communication from the Applicant in response to his most recent letters and that since Mr. Manak had been writing directly to the parties and the ALJ, Mr. Graff presumed that Mr. Manak wished to represent himself in this matter.

I also received a letter of February 21, 1996 from Mr. Engel, on behalf of Residents and Friends of Silver Hollow, which stated that since a foreclosure sale held in Catskill, New York on January 31, 1996, Mr. Manak no longer owns the project site. Enclosed with Mr. Engel's letter was a photocopy of a Notice of Sale from the January 9, 1996 Kingston Daily Freeman in the matter of Key Bank of New York v. Manak Properties, Inc., Richard T. Manak, and other defendants. The letter asked that the application be dismissed in the interest of finality and closure.

Mr. Engel's February 21, 1996 letter indicated that copies of it had been sent to Mr. Graff and to Katherine Hudson, Esq., an Assistant Regional Attorney in the DEC Region 3 Office, although not to Mr. Manak. I have received no response to this letter from Mr. Graff, Mr. Manak, or Ms. Hudson.

There is no provision in the Department's permit hearing procedures for dismissal of an application but an application would be denied if the applicant failed to meet its burden of demonstrating by a preponderance of the evidence that the proposed activity will be in compliance with all applicable laws (see former 6 NYCRR 624.11(f) and a similar provision at 6 NYCRR 624.9(b)(1) of the current regulations). The Applicant in the present hearing has failed to demonstrate that the proposed project will be compliance with the State Environmental Quality Review Act since the application, as discussed in the Interim Decision, contained inadequate information on the habitat issue. In the continuing absence of the necessary information, the findings required by ECL Section 8-0109.8 cannot be made.

In view of the Applicant's failure to provide the information necessary to complete the hearing process and the unrefuted information which indicates that the Applicant no longer owns the project site, I am recommending that the application be denied.

As stated in the March 27, 1996 letter of Assistant Commissioner G.S. Peter Bergen, the present summary report is being circulated to the parties as a recommended decision.

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