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Nasta, Linda - Ruling, January 29, 1993

Ruling, January 29, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

January 29, 1993

Linda Nasta
571 Oakdale Street
Staten Island, N.Y. 10312

Ann Hunter, Esq.
Assistant Regional Attorney
NYSDEC Region 2
47-40 21st Street
Long Island City, New York 11101

Re: Freshwater Wetland Application of Joseph, Gerald and Carmine Nasta; DEC No. 20-87-0152

Dear Ms. Nasta and Ms. Hunter:

This letter ruling addresses the matters raised before me regarding further processing of the Nasta application. On April 26, 1987, the Applicants filed an application to construct houses in a freshwater wetland adjacent area. After publishing a Notice of Complete Application, a conference between the DEC and the Applicants was held before an ALJ. The resulting ALJ report was issued on April 11, 1988. On June 2, 1988, the Chief Permit Administrator remanded certain issues to the ALJ for further review. Another conference was held and the subsequent report was issued on August 17, 1988. Both ALJ reports recommended issuance of the permit. On September 2, 1988, the Chief Permit Administrator issued a modifying decision providing for one instead of two, two family homes. Shortly thereafter on September 14, 1988, the Applicant filed appeals with the Freshwater Wetlands Appeals Board ("Board"), which were decided in September and November 1992. These appeals challenged the freshwater wetlands designation and sought relief under the hardship provisions in ECL 24-1104. The outcome of the Board's decision established the 'precise' wetland boundary and found that the Applicant did not suffer a hardship. The Applicants also appealed to the Board the September 2, 1988 decision of the Permit Administrator, which appeal was dismissed by the Board. The arguments are basically whether the application submitted in 1987 was abandoned by the Applicant. A related concern is whether, through passage of time, the information is stale. For the reasons stated below, the application is deemed to have been abandoned and the information is stale; therefore I am dismissing the application. Such dismissal does not bar the Applicant from reapplying to the DEC, consistent with the applicable regulations.

Procedurally, the Applicants failed to respond to my initial October 17, 1988 letter requesting information to cause the Notice of Hearing to be published. Again, on February 17, 1989 I requested a response but set a date by which to receive this information. No such information was forthcoming and therefore the application would not be processed. On that basis, the application is deemed to have been abandoned.

Apart from the procedural ruling above, the substantive considerations appear significant and warrant further discussion. The lapse of time between the 1987 completeness date and the Applicant's October 31, 1992 request for hearing, brings into question the freshness of the information, e.g., what events have transpired that would impact on a renewed staff determination. For example, the September 23, 1992 decision of the Board indicates that the wetland boundary has changed. This alone raises concerns over the staleness of the previous application. Further, as of October 1991, the City of New York obtained a certified application to purchase the Nasta property and DEC has determined to oppose permit issuance on those grounds as well.

The Applicants are entitled to pursue development of their property through an application with the DEC. The new application should take into account all information not previously available since the application was first deemed complete in 1987. To the extent the previous information is the same, it is acceptable to include that information in the new application. The Department Staff will review the application and make its determination. Should the Applicants disagree with the determination, they may request an adjudicatory hearing.

I note the Applicants are concerned with costs associated with a hearing. The Applicants might trim these costs be negotiating a favorable rate with any stenographic court reporter they may wish to retain.

/s/
Daniel E. Louis
Chief Administrative Law Judge
Albany, New York

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