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Naftali, Raymond - Ruling, July 7, 1993

Ruling, July 7, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application for a permit to construct a bulkhead in a tidal wetland, 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 - Land Use Regulations),

by

RAYMOND NAFTALI,
(Suffolk County)
Applicant.

ISSUES RULING

Introduction

On March 31, 1993 at 7:00 p.m., a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Southampton Town Hall, Hampton Road, Southampton, New York. An issues conference was held on April 1, 1993 at 10:00 a.m., at the same location. The stenographic record of the proceedings was received by the ALJ on May 3, 1993. Memoranda of Law and Replies were filed with this Office by the parties, by June 1, 1993.

Raymond Naftali, (the "Applicant") appeared by Stephen R. Angel, Esq., Esseks, Hefter & Angel, 108 East Main Street, Riverhead, New York 11901. Appearing with counsel were Thomas Samuels, President, James H. Rambo, Inc., Charles Guilloz, James H. Rambo, Inc., and, at the legislative hearing only, Thomas Whelan, Esq.

Department Staff ("Staff") appeared by Kathleen Shea, Esq., Assistant Regional Attorney, New York State Department of Environmental Conservation ("NYSDEC") Region 1. Appearing with counsel were technical Staff, Charles Hamilton, Roger Evans, Robert Greene and William Daley.

At the legislative hearing, three members of the public offered comments on the permit application: a detailed statement in opposition to the application on behalf of the Group for the South Fork; and two individual citizen comments, one opposed and one supporting the application. The concerns identified by The Group for the South Fork are essentially those issues raised by Staff (and described below).

The deadline for receipt of filings for party status was March 26, 1993. No applications for party status were received; therefore, Applicant and Staff are the only parties to this proceeding.

Background

Applicant has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Tidal Wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 25, Title 4 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). Applicant proposes to construct a 270 linear feet, sheet steel bulkhead plus approximately 47 linear feet return, fronting the Atlantic Ocean within the adjacent area of a tidal wetland, seaward of Applicant's property at Meadow Lane, Southampton, Suffolk County, New York.

Regional Staff, after review of the application, made a tentative determination to deny the project as proposed, and Applicant has requested a hearing on the permit denial.

Applicant bears the burden of proof that, "the proposed activity will be in complete accord with the policy and provisions of [the tidal wetlands] act." ECL 25-0402(1).

Applicant's Position

Applicant seeks to construct a steel bulkhead below the surface of the beach to protect his house, in the event of a substantial storm. He claims that similar structures have performed a property-saving function in the past, without affecting the beach. Applicant denies Staff's alleged undue adverse environmental impacts, and asserts that the proposed bulkhead will protect his property, without affecting the beachfront bordering his property or adjacent properties. Applicant asserts that the Department has deemed the application complete (pursuant to 6 NYCRR 617.3(f)(2) and ECL 70-0105[5]), and cannot now reopen the issue of sufficiency of the ("DEIS").

Applicant raises a jurisdictional issue, asserting that ECL Article 34, (Coastal Erosion Hazard Areas or Shore Owners Protection Act) and regulations issued under authority of that statute, 6 NYCRR 505, vest exclusive jurisdiction with the locality, the Village of Southampton. On that basis, Applicant asserts that the Department lacks jurisdiction to regulate these matters under the provisions of ECL Article 25.

Additionally, Applicant raises a constitutional issue under the 5th and 14th amendments of the U.S. Constitution, that a denial of Applicant's permit application precludes Applicant from protecting his property, and thereby amounts to an unconstitutional taking of property without compensation.

Staff's Position

Staff has asserted six issues for adjudication with respect to Staff's denial of the permit application, as follows:

  1. The existence of less damaging alternatives, required to be examined under 6 NYCRR 617.14(f)(5). Alternatives include armoring of the steel structure as proposed; different types of construction such as a cantilevered steel bulkhead; a rock revetment instead of the bulkhead; a dune development maintenance program for this area; a beach dune filling program at this particular location; relocation of the proposed structure to a more landward (northerly) position; and a "no action" alternative;
  2. That the proposed project will cause undue adverse environmental impacts. 6 NYCRR 617.14(f)(3) and (4), and 6 NYCRR 661.9(c)(3). Primarily, that the concentration of wave energy, resulting from the structure, will ultimately erode the beach area in front of the structure and to either side of the structure. Staff asserts that this is particularly so regarding the unprotected side of the structure, which will be adversely affected as a result of reflection of incoming wave energy at any time when the bulkhead will be involved in the surf zone;
  3. That Applicant has not complied with the requirements of SEQRA, in that Applicant has not demonstrated "need" for the proposed project (6 NYCRR 617.14[f][1]); and that the "no action" alternative has not been adequately addressed (6 NYCRR 617.14[f][5]);
  4. That the proposed project does not comply with state policies, e.g., the NYS Department of State ("DOS") State, Coastal Management Program, State Coastal Policies (State of New York Coastal Management Program and Final Environmental Impact Statement, Section 6 [August, 1982]; Executive Law Article 42; and 19 NYCRR 600;
  5. The DEIS is deficient. Staff asserts that the DEIS is poorly organized; research in the DEIS is not adequate to support its conclusions; it fails to discuss (or insufficiently discusses) the four issues identified above, including but not limited to, adequate impact alternatives and needs; sea level rise; weather patterns; and barrier island mitigation; and
  6. That approval of the project would violate the principles of the "public trust doctrine" - - e.g., that Departmental approval of the proposed project would be a violation of the public trust, with which the Department is charged in its role as steward of publicly held natural resources.

Discussion

Jurisdiction

Under the current 6 NYCRR 624, the jurisdictional issue of whether the Tidal Wetlands Act applies to the Applicant's proposed project, must be determined in accordance with the provisions of 6 NYCRR 619 (Declaratory Ruling). 6 NYCRR 624.7(b)(8). However, under the current regulations, an ALJ has implicit authority to rule upon such an issue and thereby send the issue to the Commissioner for final agency determination. Jack Gray Transport, Inc., Ruling on Motion, page 3 [Issued March 27, 1986]. Compare, proposed revision of 6 NYCRR 624, 6 NYCRR 624.8(b)(1)(viii) which explicitly authorizes the ALJ to rule on such matters [rulemaking pending; See, N.Y.S. Register, October 28, 1992, page 19]. Nonetheless, upon Applicant's motion, the ALJ will refer this issue to the General Counsel for a Declaratory Ruling, should Applicant wish to do so. Otherwise, the jurisdictional issue raised by Applicant will not be considered further in this proceeding. Staff's motion for adjournment of this proceeding is denied.

Constitutional Issue

Generally, constitutional issues may not be resolved in the administrative forum, but instead must be submitted to a judicial tribunal. See, In the Matter of Seaboard, Supplemental Decision of the Commissioner [July 22, 1992], citing, Matter of Di Maggio v Brown, 19 NY2d 283, 291-292, 279 NYS2d 161, 225 NE2d 871 [1967]. Due to agency expertise, the courts have afforded great deference to administrative agencies regarding statutory and regulatory construction. This judicial deference has also been applied to administrative construction of a constitutional provision. 2 NY Jur 2d 78, and 20 NY Jur 2d 35, citing, Kolb v Holling, 285 NY 104, 112 [1941]. In my view, the issue of whether permit denial rises to the level of an unconstitutional taking in the present matter, is not within the expertise of this agency, and therefore is not properly addressed in the administrative forum.

Furthermore, merely asserting a constitutional claim, does not excuse a party's failure to pursue established administrative procedures that can provide adequate relief. See, generally, Roberts v Coughlin, 165 AD2d 964, 965-966, 561 NYS2d 852 [Third Department 1990]; Corcella v Seifert, 181 AD2d 677, 678, 580 NYS2d 784 [Second Department 1992]. A constitutional claim that hinges upon factual issues reviewable by at the administrative level, must first be addressed to the administrative agency so that the necessary factual record can be established. Corcella, supra. Accordingly, it would appear that this issue is not ripe for adjudication until the Commissioner issues the Department's final determination on this permit application. Applicant must pursue this constitutional claim, if Applicant so desires, in a court of competent jurisdiction.

Completeness and Sufficiency of the DEIS

Staff asserts it accepted the DEIS as "complete" only for purposes of review, and that issues (1) through (4), described above, are also DEIS deficiencies - - i.e., either not addressed, or not adequately addressed in the DEIS (Applicant concedes that the alleged deficiencies may be asserted by Staff as issues for adjudication). Applicant asserts that Staff accepted the DEIS as "complete" for public comment purposes, and that procedurally, Staff is precluded from now raising perceived DEIS deficiencies, seeking supplementation of the DEIS. Pursuant to 6 NYCRR 617.3(f)(2), an application is not complete until a DEIS has been accepted by the lead agency as satisfactory with respect to scope, content and adequacy. See, also, ECL 70-0105(5).

If the application is deemed "complete", then it is "sufficient" (adequate) by operation of law. However, prior to the filing of a findings statement, the lead agency may require a supplemental EIS, limited to specific issues not addressed or insufficiently addressed in the DEIS, if changes are proposed for the project which may result in a significant adverse environmental effect; or newly discovered information arises about significant adverse effects which were not previously addressed; or a change in circumstances arises which may result in a significant adverse environmental effect. 6 NYCRR 617.8(g)(1). Staff has not asserted that any such circumstance exists in the present matter 1The Department's SEQR Handbook provides guidance that SEQRA and its regulations place no limit on the number of times which the lead agency may reject a draft EIS. If Staff's request for inclusion of necessary information was ignored or refused, Staff could have continued to reject the document. SEQR Handbook, page 70, item #7 [issued November, 1992]. Further, if such request was in fact ignored or refused, pursuant to 6 NYCRR 621.15(b), this may be grounds for denial of the application.. In this case, Staff accepted the DEIS as adequate for public review (and determined that the permit application was complete) on November 9, 1992. Therefore, Applicant's argument is correct, with respect to completeness of its application.

Staff has identified DEIS deficiencies as an issue for adjudication, essentially claiming that this application is wholly insufficient. The purpose of a DEIS is to secure specific factual input from the Applicant and other interested parties, to aid the lead agency in making its final determination and in drafting its mandatory findings. A DEIS must address only reasonable alternatives, and not all alternatives; it need not be encyclopedic. It should address only those specific adverse or beneficial environmental impacts which can be reasonably anticipated or have been identified in the scoping process. 6 NYCRR 617.14(b) and (c). Therefore, a test of "reasonableness" should be applied in determining DEIS sufficiency.

In the present matter, the DEIS provides enough information regarding impacts and alternatives that Staff (and, at the legislative hearing, The Group for the South Fork) was able to meaningfully assess the proposed project and raise the six proposed issues identified above. At least one court has applied a different standard to private applicants than government applicants for assessing the adequacy (i.e., sufficiency) of discussion of alternatives in a DEIS, depending upon the nature of the applicant. See, Webster Associates, et al. v Town of Webster, et al., 112 Misc.2d 396, 410, 447 NYS2d 401 [Sup.Ct., Monroe County, 1981].

In light of these considerations, the issue of DEIS deficiencies may not be pursued as an adjudicable issue. However, the substance of those alleged deficiencies may be pursued as issues for adjudication - - separate and apart from the issue of completeness and sufficiency of the DEIS - - if those issues are "substantive" and "significant" within the meaning of ECL Article 70 and 6 NYCRR Part 624 (as discussed more fully in the following section). As noted above, Applicant concedes that the alleged deficiencies may be asserted by Staff as issues for adjudication.

If Staff continues to assert that additional information is required in order to review the DEIS, then pursuant to 6 NYCRR 621.15, Staff may request that Applicant provide any additional information which is reasonably necessary to make any findings or determinations required by law. Further, if that information is required in the review (or preparation) of a DEIS, Staff may obtain that information itself, or retain an engineering firm to provide that information and charge the Applicant a fee to recover costs incurred. ECL 8-0109(7). Staff should exercise these options as it deems appropriate.

Impacts of the Proposed Project

The adjudicable issue in this matter is what, if any, adverse environmental impacts would be caused by the proposed project. Applicant has essentially eliminated all other alternatives to the proposed project for various reasons, and has, with brief attention, dismissed the "no action" alternative as not viable, in light of Applicant's risk of loss of property in the event of a severe storm. For the same reason, e.g., risk of loss of property, Applicant asserts it has demonstrated "need" for the proposed project.

The adjudicatory hearing is intended to address "substantive and significant issues relating to any findings or determinations the department is required to make. . . " ECL 70-0119(1); See, also, 6 NYCRR 624.6(c). "Substantive" means that the issue is not based on mere speculation, but on facts that can be subjected to adjudication. (In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2D 759 [Third DEPT., 1982], Aff'd., 58 NY2D 919 [1983]); "Significant" means that the outcome can result in permit denial or the imposition of significant permit conditions (See, In the Matter of NYC Dept. of Environmental Protection, Chelsea Pumping Station, Third Interim Decision of the Commissioner, October 6, 1988). Clearly, Staff has identified an adjudicable issue with respect to its denial of the permit application. Basically, the issue is, what adverse environmental impacts (if any) would the proposed project have on the tidal wetland. Staff has identified three sub-issues which relate to this basic issue. Both Applicant and Staff are prepared to address these issues through testimony of expert witnesses:

  1. The existence of less damaging alternatives, required to be examined under 6 NYCRR 617.14(f)(5). Alternatives include armoring of the steel structure as proposed; different types of construction such as a cantilevered steel bulkhead; a rock revetment instead of the bulkhead; a dune development maintenance program for this area; a beach dune filling program at this particular location; relocation of the proposed structure to a more landward (northerly) position; and a "no action" alternative.
  2. The proposed project will cause undue adverse environmental impacts. 6 NYCRR 617.14(f)(3) and (4), and 6 NYCRR 661.9(c)(3). Primarily, that the concentration of wave energy, resulting from the structure, will ultimately erode the beach area in front of the structure and to either side of the structure. This is particularly so regarding the unprotected side of the structure, which will be adversely affected as a result of reflection of incoming wave energy at any time when the bulkhead will be involved in the surf zone.
  3. Applicant has not complied with the requirements of SEQRA, in that Applicant has not demonstrated "need" for the proposed project (6 NYCRR 617.14[f][1]); and that the "no action" alternative has not been adequately addressed (6 NYCRR 617.14[f][5]).

Department of State Coastal Policies

Staff also asserts that the proposed project does not comply with state policies, e.g., the NYS Department of State ("DOS") State, Coastal Management Program, State Coastal Policies (State of New York Coastal Management Program and Final Environmental Impact Statement, Section 6 [August, 1982]; Executive Law Article 42; and 19 NYCRR 600. This issue is peripheral to the main issue, e.g., compliance with the ECL and 6 NYCRR. The DOS policies are essentially subsumed in the DEC regulations; if the Applicant does not meet the requirements of the DEC regulations, then it will not meet the requirements of the DOS coastal policies. Therefore, compliance with these DOS policies may be asserted or rebutted in the course of the adjudicatory hearing, but this remains a peripheral matter.

The Public Trust Doctrine

Lastly, Staff's identification of the public trust doctrine as applicable to the Department's final determination on the permit application is not an issue for adjudication, but a theory of law. The ALJ granted Applicant's request for briefing of this issue to further clarify the exact nature of the legal theory which Staff is referring to, as the "public trust doctrine". Staff has provided that clarification, and this legal theory may be asserted or rebutted by the parties in the adjudicatory hearing.

Rulings

  1. The jurisdictional and constitutional issues raised by Applicant will not be considered further in this proceeding.
  2. Staff's motion to adjourn this proceeding is denied.
  3. An adjudicatory hearing will be held on the issue of what adverse environmental impacts (if any) the proposed project would have on the tidal wetland. Within this issue, the following sub-issues (described at greater length above) may be addressed by the parties:
    1. The existence of less damaging alternatives.
    2. That the proposed project will cause undue adverse environmental impacts.
    3. That Applicant has not complied with the requirements of SEQRA, in that Applicant has not demonstrated "need" for the proposed project (6 NYCRR 617.14[f][1]); and that the "no action" alternative has not been adequately addressed (6 NYCRR 617.14[f][5]).
  4. Since the nature of evidence presented in the adjudicatory hearing is expected to be of a highly technical nature, and in the interests of administrative efficiency, each party's direct case shall be pre-filed. Attorney for Staff shall arrange a conference telephone call with the Applicant's attorney and the ALJ, on or before July 22, 1993, to set a schedule for filing of pre-filed testimony, and a hearing date.

Appeals

Pursuant to 6 NYCRR 624.4(f) and 624.6(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within three business days of receipt of the Rulings. However, I am extending the time period for filing such appeals to five business days from receipt of the Rulings. Reply briefs to any such appeals must be filed by July 19, 1993. Any appeals and replies must be addressed to the office of Commissioner Thomas C. Jorling, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-5500, and must be received by that office by the dates indicated herein. A copy of all such appeals, briefs and related filings must also be sent to the ALJ's attention at the Department's Office of Hearings, and to the other party at the address indicated below. Transmittal of documents shall be made in the same manner to all persons.

____________/s/____________
Kevin J. Casutto
Administrative Law Judge

July 7, 1993
Albany, New York

TO:
Stephen R. Angel, Esq.
Esseks, Hefter & Angel
108 East Main Street
Riverhead, New York 11901

Kathleen Shea, Esq.
Assistant Regional Attorney
NYSDEC REGION 1
SUNY Campus
Building 40
Stony Brook, New York 11794

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