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Novack, Paul J. - Decision, July 25, 2001

Decision, July 25, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter of the Application for a Freshwater Wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 24 and Part 663 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR") to construct a single family dwelling, driveway, and septic system on the south side of Fall Street, in Montauk, Town of East Hampton, Suffolk County, New York in the adjacent area of freshwater wetland MP-18 in the Montauk Point Quadrangle

by

Paul J. Novack

DEC Project No. 1-4724-00741/00001

DECISION

July 25, 2001

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge ("ALJ") Daniel P. O'Connell in the matter of the application of Paul J. Novack (the "Applicant") for the construction of a house, driveway and septic system in Montauk, Town of East Hampton, Suffolk County, New York, is hereby adopted as the Decision in this matter subject to my comments below.

The legislature has declared it to be the public policy of the state to preserve, protect and conserve freshwater wetlands and the benefits derived from them. See, ECL 24-0103, Declaration of Policy. The Department's regulations contain the regulatory standards to implement the legislative public policy. See, 6 NYCRR 663, Freshwater Wetlands Permit Requirements. All applicant's for freshwater wetland permits must satisfy the implementing regulations to be granted a permit.

An applicant for a Department permit bears the burden of proof to show that its proposed project meets the applicable regulatory criteria. 6 NYCRR 624.9(b)(1). The Department's freshwater wetlands regulations are established to evaluate the environmental compatibility of a proposed project. 6 NYCRR 663.5. In this instance, it is clear that the Applicant did not present a prima facie case that would arguably be sufficient to show conformity with the regulatory criteria. Such a showing is necessary to, at minimum, favorably pass on a proposed project. As noted in the ALJ's Hearing Report, the Applicant did not show how the usually incompatible activities associated with its proposal would comply with the applicable regulatory criteria. Accordingly, the Applicant's application for a freshwater wetlands permit is denied.

For the New York State Department of Environmental Conservation

/s/
By: Erin M. Crotty,
Commissioner
Albany, New York
July 25, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings and Mediation Services
50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Application of Paul J. Novack for a freshwater wetlands permit pursuant to Environmental Conservation Law Article 24 and Part 663 of Title 6 of the New York Compilation of Codes, Rules and Regulations to construct a single family dwelling, driveway, and septic system on the south side of Fall Street, in Montauk, Town of East Hampton, Suffolk County, New York in the adjacent area of freshwater wetland MP-18 in the Montauk Point Quadrangle

DEC Project No. 1-4724-00741/00001

HEARING REPORT

-by-

/s/
Daniel P. O'Connell
Administrative Law Judge

PROCEEDINGS

Background

In 1997, the Applicant, Paul J. Novack, bought real property on the south side of Fall Street in Montauk, New York, the Town of Easthampton. On January 28, 1998, the Applicant applied to the New York State Department of Environmental Conservation (the Department) for a freshwater wetlands permit pursuant to Environmental Conservation Law (ECL) Article 24 to construct a single family residence, driveway, and septic system on the site. On February 2, 1998, the Department Staff (the Staff) issued a notice of incomplete application to Mr. Novack, indicating that a wetlands survey must be performed. The Staff concluded that this project was a Type II action pursuant to §617.5 of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), the regulations implementing the State Environmental Quality Review Act (SEQRA; ECL Article 8), and therefore, would not require an environmental impact statement (EIS).

By letter dated July 1, 1998, the Staff denied Mr. Novack's permit application because the proposed activities would be incompatible with the wetland and its functions. By letter dated April 9, 1999, Mr. Novack requested a hearing. The matter was referred to the Department's Office of Hearings and Mediation Services on November 10, 1999.

A Notice of Public Hearing was published in the February 24, 2000 edition of the East Hampton Star and posted on the on-line edition of the Environmental Notice Bulletin on February 9, 2000. As provided for in the Notice, the legislative hearing and issues conference were held on April 11, 2000, at the American Hotel in Sag Harbor, New York.

Legislative Hearing

Three people presented public comments at the legislative hearing. Daniel G. Voorhees, an attorney, spoke on behalf of his clients, 511 Equities Corporation and Frank Tuma.

Mr. Voorhees' clients own a parcel of property adjacent to Mr. Novack's, and at the time of the legislative hearing, had an incomplete application pending before the Department. During the legislative hearing, Mr. Voorhees proposed to enter into an agreement with Mr. Novack for the Department's consideration of a shared, or common, driveway that would provide access to both Mr. Novack's property and Mr. Tuma's property. Mr. Voorhees stated that the common driveway would provide access to two parcels, and would limit potential adverse effects upon the freshwater wetland.

Henry Mund supported Mr. Voorhees' proposal, and urged the Department to consider it. Jim Barnes, the realtor who sold the property to Mr. Novack, said that the Department should issue a permit that would require a culvert to maintain the hydrologic connection. Mr. Barnes also requested guidance from the Department as to the sites where development should not occur due to the presence of freshwater wetlands, so that Mr. Barnes could advise his clients accordingly. According to Mr. Barnes, Mr. Novack has asked all of his neighbors for access easements, and they have either refused, or requested substantial compensation (e.g., $40,000 or more). Written comments in support of the application were also received.

Issues Conference and Site Visit

Immediately following the legislative hearing, the Issues Conference began. The Applicant was represented by Steven Grossman, Esq. The Department Staff was represented by Craig Elgut, Assistant Regional Attorney. No intervenors filed petitions for party status.

To identify the issues for adjudication, the parties reviewed the permit issuance criteria outlined at 6 NYCRR 663.5(e). There was a break in the conference for the Applicant to discuss alternative proposals with Mr. Voorhees and DEC Staff. After these discussions, the Applicant moved to adjourn the Issues Conference to consider whether to revise the proposal, or submit a joint proposal with Mr. Voorhees' clients. DEC Staff did not oppose the motion, and the ALJ granted the motion.

After the Issues Conference on April 11, 2000, the Applicant, Department Staff and the ALJ went to the property in Montauk for a site visit. During the site visit, Mr. Novack explained that he had approached all of his neighbors in an effort to obtain an easement that would allow him upland access to his property and would avoid the wetlands. No one would give Mr. Novack an easement, without the payment of a substantial sum of money.

About a year later, the Issues Conference reconvened on April, 10, 2001 at the American Hotel in Sag Harbor, New York. During the conference, the parties, who are limited to the Applicant and the Department Staff, agreed that the issues for adjudication would be whether the Applicant's proposal would comply with the three-part compatibility test outlined at 6 NYCRR 663.5(e)(1), and the weighing standards listed at 6 NYCRR 663.5(e)(2).

Adjudicatory Hearing

After the parties reached agreement about the issues for adjudication, the adjudicatory hearing began. The Applicant did not retain a wetlands expert to testify. Paul Novack, the Applicant, testified on his own behalf. Stephen P. Lorence, the Regional Manager of the Bureau of Habitat in DEC Region 1, testified on behalf of Staff.

Following the presentation of the Applicant's direct case, counsel for the Department Staff moved for summary judgment, based upon the Applicant's failure to present a prima facie case. After hearing argument from counsel for the Applicant, the ALJ denied the motion on the grounds that the Commissioner, and not the ALJ, is the final decision maker in this matter.

The Office of Hearings and Mediation Services received the stenographic record of the April 10, 2001 hearing on May 14, 2001. On that date, the hearing record closed.

FINDINGS OF FACT

  1. The DEC Commissioner promulgated the official freshwater wetlands survey maps for Suffolk County in 1991. Freshwater Wetland MP-18 is identified on the Montauk Point Quadrangle as a Class I wetland.
  2. The features outlined in 6 NYCRR 664.5(a) that are associated with Freshwater Wetland MP-18, and which form the basis for its Class I designation are not part of this hearing record.
  3. In 1997, the Applicant, Paul J. Novack, bought real property on the south side of Fall Street in Montauk, New York, the Town of Easthampton. The Applicant's property consists of a 59,493 square foot parcel of undeveloped land. There, the Applicant proposes to construct a two-story, single family dwelling and deck with a footprint of 1,325 square feet, an approximately 400 square foot attached garage, and a sanitary septic system. The Applicant also proposes to construct a driveway from Falls Street to his home.
  4. Portions of the Applicant's property are located in wetland MP-18 and its adjacent area. The house would be located about 95 feet from the freshwater wetland boundary. A portion of the driveway would be located in the freshwater wetland, and the remainder would be located in the adjacent area.
  5. To construct the house and garage, the septic system, and the driveway, the Applicant would clear vegetation from a 2000 square foot area within the freshwater wetland, and approximately 9000 square feet of the adjacent area adjacent. The total area to be cleared amounts to approximately 11,000 square feet.
  6. Filling would be necessary in the adjacent area, in order to construct the driveway. Fill would also be placed in the wetland where the end of the Applicant's driveway would connect with Falls Street.
  7. To date, there has been no disturbance or clearing in the areas depicted as roads (e.g., Falls Street) on the Applicant's survey, and these areas are still naturally vegetated on the "paper" roadways. The Applicant's proposal calls for a driveway about 20 feet in length from his parcel to where Falls Street appears on the survey. An additional 100 feet of Falls Street would then need to be constructed through the wetland to reach the actual paved roadway.
  8. The fill material added to construct the Applicant's driveway and to extend the roadway would need to be graded, which would compact soils in the regulated wetland and adjacent area.
  9. At the time he purchased the property, the Applicant was aware that the site included wetlands. Since filing his permit application with the Department, Mr. Novack has asked all surrounding property owners for an easement to access his property in order to avoid impacting the wetland and adjacent area. However, the surrounding property owners have either refused, or would require substantial compensation on the order of $40,000 or more.
  10. Mr. Novack will move out of the area if the pending permit is denied because he cannot afford housing in Montauk.

DISCUSSION

A portion of the Applicant's property is located in Freshwater Wetland MP-18, which is identified as a Class I wetland. Pursuant to 6 NYCRR 664.5, Class I wetlands are considered to be the most highly valued type of wetland.

The chart provided at 6 NYCRR 663.4(d) includes a list of regulated activities, and assigns a level of compatibility based on the nature of the activity and whether a proposed activity would take place in either a regulated freshwater wetland or the adjacent area. For regulated activities that require a permit, the levels of compatibility are usually compatible (C), usually incompatible (N), or incompatible (X).

The regulated activities that the Applicant proposes to undertake are identified in the chart provided at 6 NYCRR 663.4(d). Item 42 is the construction of a home and related structures. In the adjacent area, this activity is considered usually incompatible. Items 20, 23, and 25 on the chart at 6 NYCRR 663.4(d) are clearing, filling and grading, respectively. In the adjacent area of a freshwater wetland, these activities are considered usually incompatible. Moreover, in a regulated wetland, these same activities are considered incompatible.

The standards for permit issuance include a three-part compatibility test and, when applicable, weighing standards. The three-part compatibility test is set forth in 6 NYCRR 663.5(e)(1) and provides that:

[a] permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area, if it is determined that the activity (i) would be compatible with preservation, protection and conservation of the wetland and its benefits, and (ii) would result in no more than insubstantial degradation to, or loss of, any part of the wetland, and (iii) would be compatible with public health and welfare.

Section 663.5(e)(2) requires that the weighing standards must be applied to all activities identified as P(X) in 6 NYCRR 663.4(d), as well as all activities classified as P(N) that do not meet the three-part compatibility test discussed above. For Class I wetlands, a proposed project must be compatible with the public health and welfare, be the only practicable alternative that could accomplish the Applicant's objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area. In the case of a Class I wetland, the proposed activity must also minimize degradation to, or loss of any part of the wetland or adjacent area or the functions and benefits the wetland provides. Finally, "[a] permit shall only be issued if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss or detriment to the benefit(s) of the Class I wetland."

The Applicant has the burden of proof to demonstrate that his proposal would meet the applicable permit issuance criteria [See, 6 NYCRR 624.9(b)(1) and 663.5(a)]. The Applicant's direct case focused primarily on the weighing standards, rather than on the compatibility standards. The Applicant argued that his proposal would be compatible with the applicable weighing standards. According to the Applicant, his proposal would be compatible with the public health and welfare. Although the scale of the Applicant's proposal suggests that it may be compatible with this weighing standard, the Applicant did not offer any proof to substantiate this argument. This is in contrast to the testimony offered by Stephen P. Lorence, who is the Regional Manager of the Bureau of Habitat in DEC Region 1. At the hearing, Mr. Lorence testified that the Applicant's proposal would not meet this weighing standard.

In addition, the Applicant contended, and Mr. Novack testified, that his proposal is the only practical alternative to accomplish his objectives, and that he does not have any practicable alternative on a site that is not a freshwater wetland or adjacent area. Mr. Novack credibly testified that he asked all surrounding property owners for an easement to access his property in order to avoid adversely impacting the wetland and adjacent area. Based on Mr. Novack's uncontested testimony, the surrounding property owners, however, have either refused, or required substantial compensation on the order of $40,000 or more.

It is not clear, however, that the Applicant's proposal is the only practical alternative to accomplish his objectives. For example, the purpose of the adjournment of this matter was to explore the possibility of a joint application between Mr. Novack and Mr. Voorhees' client since they are neighboring property owners. The record of the adjudicatory hearing does not include any information about whether Mr. Novack and Mr. Voohees' client filed a joint application, and if they did what the DEC Staff's position about it is. Although it is clear from this record that Mr. Novack cannot obtain an easement from a neighbor that would allow him access to his property without adversely impacting the wetland, it is not clear whether the Applicant's proposal is the only practical alternative.

The final applicable weighing standard is whether the Applicant's proposal would minimize degradation to, or the loss of, any part of the Class I wetland or its adjacent area, and that the proposal would minimize any adverse impacts on the functions and benefits that the wetland provides. Although the scale of the Applicant's proposal compared to the total area of the subject wetland suggests that the proposed project may meet this weighing standard, the Applicant has an affirmative obligation to make this demonstration. The Applicant, however, did not offer any expert testimony or other evidence to show how his proposal would minimize degradation to, or the loss of, any part of the subject wetland.

This weighing standard also concerns the potential adverse impacts on the wetland's functions and benefits, which are closely associated with the wetland's classification [See,

6 NYCRR 664.5(a)]. Mr. Lorence from the DEC Staff testified that the captioned permit application would not minimize any adverse impacts on the functions and benefits that the wetland provides. The scope of Mr. Lorence's testimony, however, was very general, and did not include any specific information about which Class I features outlined in 6 NYCRR 664.5(a) are associated with Freshwater Wetland MP-18. The burden, however, is on the Applicant, and he did not present any information about the wetland's particular functions and benefits. Absent this information, the Applicant failed to show that his proposal would minimize potential impacts to the functions and benefits of the wetland.

The Applicant cannot rely on the Town Zoning Board of Appeal's November 17, 1998 determination (Exhibit 2) as sufficient evidence to demonstrate that his proposal would meet the weighing standards outlined at 6 NYCRR 663.5(e)(2). The standards for obtaining a natural resources special permit from the Town are different from the standards for obtaining a freshwater wetlands permit from the Department pursuant to ECL Article 24. Consequently, Exhibit 2 was given little weight, and was not relied upon for any Findings of Fact.

The Applicant also argued that the need for affordable housing on the eastern end of Long Island satisfies a compelling economic or social need that clearly and substantially outweighs the loss or detriment to the benefits of the Class I wetland. To support this argument, Mr. Novack testified that he would move out of the area if the Commissioner denies the pending permit.

Mr. Novack explained that he cannot afford housing in Montauk, and that the availability of housing for working people in the Town of East Hampton is an issue.

Pursuant to 6 NYCRR 663.5(e)(2), the benefits of a Class I wetland may only be reduced in "unusual circumstances." Section 663.5(f)(4)(i) provides further that "[p]ermits for the vast majority of activities that could not avoid reducing a benefit provided by a Class I wetland would not be approved." Even a partial reduction, such as the losses that may result if the Applicant's proposal were approved, falls within the purview of this provision, and should not be authorized in this case.

At the hearing, the Applicant cited to the Commissioner's decision In the Matter of the Application of Rampulla Assoc., 1988 WL 158349 (November 8, 1988). In Rampulla, the Commissioner determined that because the applicant demonstrated that the proposed project would not impair wetland functions or benefits, other than the actual loss of a small area along the wetland boundary, the applicant was not required to satisfy the need standards for Class I wetlands. Id., at * 1.

The Rampulla decision went on to note that the holding "should not be construed as establishing a general policy that this would permit construction of residences along the edges of wetlands" in the State. The decision cited "unique factors" in the application, including approvals granted by the City of New York demonstrating compatibility with public health and welfare; affirmative proof that the project would not impair the wetland's stormwater retention capacity or wildlife benefits; the partly disturbed nature of the site; the presence of adjacent residential development; the tiny area of disturbed wetland in relation to the entire wetland system; the lack of cumulative impacts on the wetland in question; the limited alternatives available to the applicant; and the minimization of wetland intrusion and mitigation by wetland plantings. Unlike the Rampulla applicant, the Applicant in this matter did not offer any evidence to substantiate any "unique factors" associated with the captioned permit application. Thus, the Applicant's reliance on Rampulla is misplaced.

CONCLUSIONS

  1. Pursuant to 6 NYCRR 663.5(a), the Applicant has the burden of proof to demonstrate that his proposal would be compatible with the applicable standards for permit issuance.
  2. The standards for permit issuance are outlined at 6 NYCRR 663.5(e). Based on the foregoing discussion, the Applicant did not show how the usually incompatible activities associated with building a house and septic system in the adjacent area of a regulated freshwater wetland would, in this instance, comply with the three-part compatibility test outlined in 6 NYCRR 663.5(e)(1). In addition, the Applicant did not demonstrate that the incompatible activities associated with building a driveway in the regulated freshwater wetland would, in this instance, comply with the three-part compatibility test. Finally, the Applicant failed to prove how his proposal would meet the weighing standards relevant to Class I wetlands, which are outlined in 6 NYCRR 663.5(e)(2).

RECOMMENDATION

Since the Applicant has not met his burden of demonstrating that his project meets the requirements set forth in Part 663 for issuance of a permit to proceed with the project in a Class I wetland and adjacent area, the Commissioner should deny the requested freshwater wetland permit.

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