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Palmieri, Paul - Commissioner's Ruling, February 1, 2002

Commissioner's Ruling, February 1, 2002

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

In the Matter

- of -

the Application for a tidal wetlands permit, pursuant to Environmental Conservation Law
of the State of New York ("ECL") Article 25 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 661

- by -

PAUL PALMIERI,

Applicant

Application No. 1-4720-00666/00009

RULING OF THE COMMISSIONER

February 1, 2002

Ruling of the Commissioner

Pursuant to 6 NYCRR Part 624.8(b)(i) Staff of the New York State Department of Environmental Conservation ("DEC Staff", "Department") duly served a motion for administrative judicial intervention upon Paul Palmieri (the "Applicant") on or about June 28, 2001. Said motion was supported by the affirmation of assistant regional attorney Craig L. Elgut, Esq. and the affidavit of DEC staff Charles T. Hamilton, Supervisor of Natural Resources, Region One. Applicant opposed said motion by affidavit of Richard Young, Esq., counsel for Applicant.

The motion seeks an Order determining the Applicant's failure to appear for a hearing an abandonment of the hearing process, thereby deeming the applicant's request for a hearing on his tidal wetlands application withdrawn and denying any further administrative remedy. In the alternative, Staff seeks an Order that affirms Staff's denial of the permit application due to the permit application being incomplete.

Staff documents by affirmation of Craig L. Elgut, Esq. that:

  1. Applicant applied for a tidal wetlands permit to expand a residential dock an additional 50 feet and to add an 80,000 lb. boat lift;
  2. By letter dated July 7, 2000 DEC Staff denied the application after notifying applicant that the Staff required access to the site to complete the application review and Staff was denied access;
  3. Applicant requested a hearing after receipt of the denial;
  4. An adjudicatory hearing was rescheduled to be held on June 25, 2001.

A copy of the motion and supporting papers and the Applicant's opposing affidavit were filed with the Office of Hearings and Mediation Services. The hearing and the motion were assigned to Administrative Law Judge Molly T. Mc Bride ("ALJ"). Attached to this Ruling is the ALJ's Ruling on Motion and Summary Report, which I adopt as my own, subject to my comments below.

Under the Department's permit processing rules, applicants are required to supply Department Staff with sufficient information to afford Staff a reasonable opportunity to evaluate information in determining whether to approve, modify or deny a request for a Department permit. As set forth in the ALJ's report, applicants must supply this information or otherwise cause their application to be deemed incomplete requiring further information before Staff can make a reasonable determination on the proposed project.

I find that the Applicant's tidal wetlands application under review must be deemed incomplete for the purposes of permit processing under the Department's Uniform Procedures, 6 NYCRR Part 621. The Applicant's denial of access to his property prevented Department Staff from evaluating the on-site conditions and the proposed project. The ability to gather such information is necessary to make the determination that the permit application is complete. The Applicant's actions effectively relieves Department Staff from taking any further action on the permit application until access to the site and site information is available for Staff's review. Further, I am determining that the Applicant's request for hearing on its proposed project is void until such time as the site access and the necessary information is made part of the permit application. Thereafter, if and when said information is supplied and Staff's redetermination is to deny the proposed project, then the Applicant will be afforded a hearing on Staff's denial of the requested permit.

_____________/s/_____________
Erin M. Crotty, Commissioner

Dated: Albany, New York
February 1, 2002

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

In the Matter

- of -

the Application for a tidal wetlands permit, pursuant to Environmental Conservation Law of the State of New York ("ECL") Article 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 661

- by -

PAUL PALMIERI,

Applicant

Application No. 1-4720-00666/00009

RULING ON MOTION AND SUMMARY REPORT

- BY -

____________/s/____________

Molly McBride
Administrative Law Judge

Procedural Background

Applicant Paul Palmieri ("Applicant") applied to the New York State Department of Environmental Conservation ("DEC", "Staff", "Department") in May, 1999 for a tidal wetlands permit pursuant to ECL Article 25 and 6 NYCRR 661. The application was denied on July 7, 2000 and Applicant requested an adjudicatory hearing. A hearing was scheduled for March 27, 2001 but was adjourned due to the unavailability of Staff's witness. The hearing was rescheduled for June 25, 2001. Applicant failed to appear for the hearing. DEC Staff served a notice of motion for administrative judicial intervention pursuant to 6 NYCRR 624.8(b)(i) on or about June 28, 2001. DEC Staff submitted the following in support of the motion: affirmation of assistant regional attorney Craig L. Elgut, Esq. and the affidavit of Charles T. Hamilton, Supervisor of Natural Resources for the DEC, Region One, sworn to on June 28, 2001. Applicant opposed the motion by Affirmation of Richard W. Young, Esq. counsel for Applicant, dated July 9, 2001.

Staff's Motion was served on the Office of Hearings and Mediation Services as was Applicant's opposing papers. The hearing and now this motion were assigned to Administrative Law Judge Molly T. McBride ("ALJ").

Staff moves for an order deeming the Applicant's failure to appear at an adjudicatory hearing as an abandonment of the hearing process which in turn deems the Applicant's request for a hearing withdrawn. In the alternative, Staff seeks an Order that affirms Staff's denial of the permit application.

Background

Applicant owns a private residence at 123 East Shore Road, Babylon, New York, on the Great South Bay. This Applicant has a history of filing permit applications with the Department. In 1991 the Applicant applied for a permit to reconstruct a bulkhead and to construct a 30' x 10' ramp and a 5' x 45' float and pilings. The permit was issued. Approximately 5 months later, Applicant applied for a permit to construct a 52' fixed pier with additional pilings. This application was also granted.

One year after the second permit was issued, Applicant sought to expand the existing 52' pier an additional 110', to add 2 boat lifts with 80,000 lb. and 16,000 lb. capabilities and to add 4 mooring pilings clusters. Staff denied this application. A hearing was requested by the Applicant after the denial. The parties entered into settlement discussions and ultimately resolved the matter. A Stipulation of Settlement was entered into by the parties on May 30, 1995 wherein the Applicant agreed to modify the application and reduce the extension of the boat dock from 110' to 40' and to reduce the boat lift request from two boat lifts to one boat lift. Based upon these changes, Staff withdrew its objections to the issuance of the permit and a permit was issued in June, 1995.

In May, 1999 the Applicant applied for a permit to construct an additional 50' extension of the dock and to add an 80,000 lb. boat lift. This is basically what was requested by the Applicant in his 1995 application, when combined with what was permitted in June, 1995.

The May, 1999 application was denied by Staff by letter dated July 7, 2000. The Notice of Permit Denial states, in part: "You failed to allow Department Staff to inspect your property to observe the conditions at the site in order to determine whether or not your proposal complies with the standards for permit issuance. Therefore, this application for permit is hereby denied." It is undisputed that Applicant has refused Staff access to his property to inspect it as part of the permitting process. Applicant contends that Staff can conduct whatever inspection is necessary from the water, without entering his property.

An adjudicatory hearing was scheduled for March 27, 2001 in Babylon, New York. The hearing was adjourned due to the unavailability of Staff's witness. The parties finally settled on June 25, 2001 as the rescheduled date for the hearing. The ALJ served on both parties by facsimile, a letter dated May 10, 2001 and a Notice of Public Hearing confirming the June 25, 2001 hearing date. The ALJ and Staff appeared at the hearing site on June 25, 2001. Neither the Applicant nor his counsel appeared. Counsel for the Applicant later indicated that he did not believe that a firm date had been set for the hearing.

Staff's Position

Staff seeks a denial of the application based on Applicant's failure to appear for the hearing and due to the incompleteness of the application. Staff advised Applicant that an inspection of his property, from his property rather than by boat, is essential for the review of the application. Absent the inspection, the permit can not be granted.

Applicant's Position

Applicant's counsel's affidavit in opposition to the motion only addresses Staff's request to deny the application based on Applicant's failure to attend the hearing. However, he has addressed the issue of the site inspection in earlier correspondence with the Department. Applicant has denied the DEC all access to his property. He insists that Staff conduct "it's inspection from the least intrusive manner available that being from the waterway."(1)

Findings of Fact

After a review of the pleadings and papers submitted herein by the parties, I find that the following facts are not in dispute:

  1. By application dated May 25, 1999 Applicant Paul Palmieri applied for a tidal wetlands permit to construct a 50' extension to an existing pier and to add one boat lift.
  2. Staff attempted to inspect Applicant's property in April, 2000 as part of the application review process. Access was denied by the Applicant.
  3. By letter dated July 7, 2000 DEC Permit Administrator Mark Carrara advised Applicant's counsel that due to Applicant's failure to allow an inspection from the property, the permit application was being denied.
  4. A Notice of Permit Denial was issued to the Applicant by the DEC on July 7, 2000. The Notice stated, in part, "You failed to allow Department staff to inspect the property to observe the conditions at the site in order to determine whether or not your proposal complies with the standards for permit issuance. Therefore, this application for permit is hereby denied."
  5. Applicant requested an adjudicatory hearing on the denial of the application.
  6. The hearing was scheduled for June 25, 2001 in Babylon, New York. Applicant failed to appear for the hearing.

Discussion

6 NYCRR 624.6(c) allows for the bringing of a motion at any time. Motions made prior to the hearing shall be filed with the ALJ and served on all parties. The ALJ shall then rule upon the motion prior to the completion of testimony. 6 NYCRR 624.8(b)(i) grants the authority to an ALJ to rule upon all motions and requests, including those that decide the ultimate merits of the case.

Dismissal due to Applicant's Failure to Appear

Staff requests that the Applicant be denied an adjudicatory hearing due to his failure to appear for the hearing scheduled for June 25, 2001. Applicant claims to have not been aware that the hearing was rescheduled. To deny the hearing based upon the Applicant's failure to appear for the hearing is a drastic remedy. While the Notice for the hearing was sent by facsimile by the Office of Hearings to the Applicant's counsel on May 10, 2001, there is no confirmation that counsel saw that letter and Notice. Frankly, scheduling errors occur and such a severe penalty as requested by Staff is not warranted here. Also, Staff has submitted no law in support of the request.

Right to Inspect

The application is for a tidal wetlands permit. Tidal wetlands in New York State are regulated by Part 661 of 6 NYCRR. It is the public policy of the State to protect and preserve tidal wetlands and to prevent their despoliation and destruction. Part 661.2(a) states: "Tidal wetlands constitute one of the most vital and productive areas of the natural world and collectively have many values... Therefore, the protection and preservation of tidal wetlands is essential." There are five standards that govern whether the Department will issue a tidal wetlands permit. Those standards are defined at 6 NYCRR 661.9(b)(i)-(v).

The Applicant has the burden of establishing that the applicable standards will be met. 6 NYCRR 661.9(a)

In the instant case, the Applicant failed to allow Staff onto his property. Staff notified Applicant in writing that it was a necessary part of the permit process to have access to the property to conduct the inspection. Despite being notified of the Department's need to inspect, the Applicant continued to deny access. As stated, the Applicant has not addressed the issue of an inspection from the property in his opposing papers. However, in April, 2000 Applicant's attorney sent a letter to DEC indicating that his client would not consent to the inspection from his property. Counsel cited 3 cases in support of his position that the inspection from the property was tantamount to an illegal and warrantless search. After reviewing the cases cited, I disagree. The circumstances of those cases, which I will address below, were significantly different than here and, therefore, the rulings are not controlling here.

The leading case cited by the Applicant is Sokolov v. Village of Freeport, 52 N.Y. 2d 341.

In Sokolov, the Court of Appeals held that a Village ordinance that required an inspection of residential rental property in order for the owner to rent out the property was a warrantless search and therefore unconstitutional. The Village had enacted an ordinance requiring all owners of rental property to have a permit issued before renting the property. The permit would only be issued after the Village inspected the property. The Court held "We hold today that the imposition of a penalty upon a landlord for renting his premises without first consenting to a warrantless search violates the property owner's Fourth Amendment rights." (Sokolov at 343)

The Court noted that if the property owner does not consent, he will be deprived of the economic benefit of his property. Here, the Applicant is seeking a privilege. He is asking to be allowed to construct a pier extension and add a boat lift into the Great South Bay. The issue is, does the construction harm the delicate nature of the tidal wetlands. The DEC is entrusted with the important task of preserving and protecting tidal wetlands. That job requires the Department to carefully review each application for a tidal wetlands permit to ensure that it meets the standards enumerated in part 661. As stated by Charles Hamilton, DEC Region One supervisor of Natural Resources, the Department can not complete their job without inspecting the property. The suggestion of the Applicant that the inspection take place from the water is not viable. Staff has refuted that in the Hamilton affidavit. First, it would be wrong to have the Applicant dictate to Staff how they should do their job. But, more importantly, it is crucial for Staff to have complete access to the wetlands and no other type of inspection will suffice. Staff has been entrusted with the responsibility of ensuring that the existing and potential values of tidal wetlands for marine food production and wildlife habitat and other values associated with tidal wetlands are protected.

The Hamilton affidavit addresses why an inspection from the Applicant's property is a necessary part of this application process. Hamilton asserts that Staff must conduct an extensive site review to assess a specific project and it's specific wetland environment. (Hamilton, p. 2) By denying Staff access, Staff is denied the opportunity to conduct a meaningful technical review of the project site as required by the regulations. (Hamilton, p. 2) "...staff must access the condition of the wetlands in the area of the existing structure as well as the area where the proposed extension would be located. Staff needs to determine whether the existing structure is causing impacts which may be compounded by increasing the size of the structure." (Hamilton, p. 5) Applicant does not address any of these issues in it's opposing papers. While Applicant's counsel submitted case law that he alleges supports his client's position that an inspection is a warrantless search, he has offered no response to Staff's specific arguments on why they need to enter the property in this case. Applicant has never stated how Staff can determine if the application meets the standards for permit issuance without actually inspecting the property.

I find Staff's arguments persuasive and agree that in order to meet the duties imposed by Part 661, an inspection of the site is necessary.

The Applicant's attorney also cited Town of Brookhaven v. Ronkoma Realty Corp., 154 A.D. 2d 665, Second Dept., 1989. This case also involved an ordinance requiring rental property to be inspected and a permit issued prior to rental. For the same reasons cited in Sokolov, the Court found that the ordinance was unconstitutional. Finally, Applicant cited People v. Ost, 121 A.D. 2d 571, Second Dept., 1986. In Ost, the police had entered the defendant's business, without a warrant, examined his books, without permission, and used the information gathered to charge the defendant criminally. The Court found the warrantless inspection a violation of the defendant's constitutional rights and the charges were dismissed. For obvious reasons the facts in Ost can not be equated with the facts here.

One of the differences between a tidal wetlands permit and a permit to operate rental property is that the tidal wetlands permit is asking for a privilege, not a right. There is no right to a tidal wetlands permit. The Applicant here will not lose his property in any way or suffer economic harm if the permit is not granted. There is no monetary or criminal penalty for him if he fails to allow the inspection. The only consequence is that the application must be denied.

The Applicant is still free to enjoy his property as he did before filing the application. He has previously been granted permits to construct the pier, reconstruct the bulkhead and install a boat lift. The pier has already been extended from it's initial 52' to 92'. The Applicant is free to chose which route to take. He has elected to refuse Staff access to his property. Surprisingly, the permits previously issued to the Applicant all provide the DEC with the right to enter the property to ensure that the permit conditions are being complied with. All permits issued by the DEC grant the Department that right. Applicant has already consented, by accepting the permits, to Staff entering his property. It is illogical for Applicant to deny access to Staff as a part of this application. However, that is his right.

Staff can not determine if the application meets the standards for permit issuance without inspecting the property. Therefore, the application is incomplete. Staff has no discretion with regards to applying the standards. If it can not be determined that the standards are met, the application simply can not be deemed complete.

Denial due to Incompleteness

Staff argues in it's motion that the application is in fact incomplete due to the lack of an inspection. Staff notified Applicant in writing on April 7, 2000 that it was a necessary part of the permit process to have access to the property to conduct the inspection. At that time, Mark Carrara, Deputy Permit Administrator for the DEC stated to the Applicant that the permit application would be denied if Staff was not allowed to inspect the property. Despite being notified of the Department's need to inspect, the Applicant continued to deny access.

Clearly, the application can not be reviewed by Staff without the inspection and therefore, the application is in essence incomplete. Staff cites the Interim Decision in Bath Petroleum Storage, Inc, November 6, 2000 in support of it's argument that the completeness of the application is an issue that is not subject to review.

The Interim Decision, issued by Deputy Commissioner Carl Johnson held that there is a bar against adjudicating the completeness of a permit application in 6 NYCRR section 624.4(c)(7).

A review of relevant administrative decisions reveal the basis for the bar. The purpose of the prohibition where an application is deemed complete is to give an Applicant comfort and certainty that its application cannot be undone at the hearing stage, i.e., assertions by intervening parties to adjourn the hearing on incompleteness grounds. See, Matter of Applications of Department of Sanitation Southwest Brooklyn Incinerator, Interim Decision, March 2, 1994. "...the completeness determination...is intended to reflect the point at which the application contains sufficient information to commence regulatory review." Matter of LaFever Excavating, Inc., Interim Decision, October 28, 1991. "...once the completeness determination is made, there is no turning back." Matter of Applications of NYC Department of Environmental Protection, Preliminary Ruling of ALJ, March 24, 1994; See also, Matter of Applications of Fulton County Board of Supervisors, Decision of Commissioner, February 13, 1987. Bath at p.7

I agree with Staff that the application is in fact incomplete when Staff can not access the property. The Applicant bears the burden of showing that the application meets the standards enumerated in Part 661. That burden is met with written submissions AND an inspection of the site. The application information submitted must be field verified. Qualified, trained biologists visit the site to assess the area. A tidal wetlands permit can be issued only if the proposed activity meets the standards for permit issuance in 6 NYCRR 661.9(b)(i)-(v). Nothing in Part 661 gives Staff the discretion to work outside of these standards. Obviously, Staff can not assess whether the standards are met without sending trained professionals to the site to do their job. If Staff can not determine if the standards are met, Staff can not conduct a complete the review of the application.

Based upon the Interim Decision in Bath, I have no authority to review Staff's determination that the application is incomplete.

Conclusion

Staff has requested that the denial of the application based upon incompleteness be affirmed or in the alternative, the application be dismissed due to the Applicant's failure to attend the hearing. Staff has cited no legal authority to deny the application solely due to Applicant's failure to appear at the hearing. Further, the penalty is too harsh to deny the application when Applicant's attorney claims to not have been aware of the hearing being scheduled. Also, the permit denial issued by the Department was not the proper vehicle in this circumstance. Staff acknowledges that the application is incomplete. Staff's remedy to that particular circumstance is to issue an Notice of Incomplete Application rather than a denial of the application based upon incompleteness.

Recommendation

Based upon the record before me and the Findings of Fact herein, I recommend that the Notice of Denial be vacated and that Staff's determination that the application is incomplete as stated in correspondence to the Applicant and the motions papers herein, be deemed a Notice of Incomplete Application. Further, the Request for Hearing filed by the Applicant is void since such a request can not be made in response to a Notice of Incomplete Application. The application can not be processed further until such time as it is complete. This Ruling can be referred to the Commissioner for final determination.

1 By letter dated April 27, 2000, counsel for the Applicant advised DEC that his client would not consent to an inspection from the property and suggested an inspection from the water.

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