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Oak Neck Inn - Ruling, August 5, 1997

Ruling, August 5, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application by OAK NECK INN (c/o General Utilities, Inc.) for a Permit Pursuant to
Environmental Conservation Law (ECL) Article 25 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of State of New York (6 NYCRR) Part 661

August 5, 1997

RULINGS ON ISSUES FOR ADJUDICATION
AND
PARTY STATUS

DEC #1-2824-00977/00001

The Legislative Hearing and the Issues Conference in the above matter were held on July 29, 1997 at the Bayville Village Hall.

Party Status

At the Issues Conference full party status was granted to Frank M. Flower & Sons, Inc. and to Action for Preservation and Conservation of the North Shore of Long Island, with the latter's party status limited to the set-back requirements [see Issue 2(a) and 2(d) below].

These two entities were the only ones to file petitions for party status.

Frank M. Flower & Sons Inc. was granted party status, with the consent of both the Staff and the Applicant, based upon the facts that its representative, David R. Relyea (who spoke at the Legislative Hearing and attended the Issues Conference), has been engaged in the Oyster Bay shell fishing business of his company for many years, he being now a part owner of the business which in some years produces 90 percent of the oysters consumed in New York State. In addition, Mr. Relyea has a college degree in biology. Thus, Mr. Relyea presumably will be alert to any possibility of Applicant's operation adversely affecting the water quality of Oyster Bay, with which most if not all issues for adjudication are concerned.

Action for Preservation and Conservation of the North Shore of Long Island was represented at the Legislative Hearing and the Issues Conference by Caroline S. DuBois, its Water Quality Coordinator.

While Ms. DuBois is college educated, she has no relevant college or other educational degrees or training. This said, she is very familiar with Oyster Bay in general and she has been to the site on more than one occasion, studying it both from the land and the water; and she has taken photos, annotated maps and so forth. She claims to know just about where the landward adjacent area boundary lies on the site, so that she may well have something substantial to contribute on the set-back issues (Issues 2(a) and 2(d) below). She having offered no other experts, however, her own lack of scientific qualification disables her on all other issues.

Having Ms. DuBois' organization as a party has other practical benefits in that she may be able to supply a motorboat for the site visit requested by the parties; and she has offered to keep track of the tides when it comes to timing a site visit.

Staff consented to Ms. DuBois' organization being a full party; the Applicant objected.

Issues for Adjudication

At the Issues Conference various issues were discussed and argued.

In the end, as I understand it, the issues were agreed upon as follows:

  1. Whether the project will be compatible with the public's health and welfare (as further specified by the Staff in letters to the applicant, in Staff's Hearing Request, and at the Issues Conference) as required by 6 NYCRR 661.9(c)(1).
  2. Whether the project will comply with the development restrictions set out at 6 NYCRR 661.6, specifically a) whether the septic system is to be a minimum of 100 feet from the most landward edge of the tidal wetland boundary [661.6(a)(2)]; b) whether there is to be a minimum of 2 feet of soil between the bottom of the septic system and the seasonal high groundwater level [661.6(a)(3)]; c) whether more than 20 percent of the adjacent area is to be covered by existing and new structures or other impervious surfaces [661.6(a)(4)]; d) whether any hard surface driveways, roads, parking lots and similar impervious surfaces exceeding 500 square feet on the site and any utility line poles are to be less than 75 feet from the tidal wetland [661.6(a)(7)]; and e) whether there will be any substantive increase in surface water runoff to tidal waters classified SA or to any other surface waters within 1,000 feet of any SA waters and adjacent or tributary to such SA waters; and if so whether such will be prevented by use of sufficient run-off control measures [661.6(a)(8)].
  3. Whether the project will cause undue adverse environmental impacts on the nearby tidal wetlands (as further specified by the Staff in letters to the Applicant, in Staff's Hearing Request, and at the Issues Conference [661.9(c)(3)]
  4. Whether the project represents construction of a commercial use facility not requiring water access and/or undertaking commercial use activities not requiring water access, and as such is a presumptively incompatible use requiring a permit 661.5(b)(48)].

Kindly confer with each other and myself as to how much time the adjudicatory hearing is likely to consume and as to an agreed date(s) for it. (The applicant is responsible for an adequate location, a qualified stenographer and so forth.) My present dates of unavailability are all Mondays and Fridays, the entire week of August 18, September 9 and 10, and September 23 and 24.

Appeals

Pursuant to 6 NYCRR 624.6(e) and 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner. Any appeals must be received at the office of Commissioner John P. Cahill (NYSDEC, Room 608, 50 Wolf Road, Albany, NY 12233-1010) no later than close of business August 20, 1997. Additionally, responses to appeals will be allowed and must be received by the Commissioner no later than close of business August 27, 1997.

The appeals and responses sent to the Commissioner's Office must include an original and two copies. Additionally, one copy of all appeals and reply papers must be sent to my attention and to all others on the enclosed Service List at the same time and in the same manner as to the Commissioner. Please note that transmission of appeals and reply papers by facsimile will not be accepted.

_____________/s/_____________
John H. Owen
Administrative Law Judge

Dated: Albany, New York
August 5, 1997

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