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Perrotta, Frank - Summary Order, January 10, 1996

Summary Order, January 10, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 15 and 25 of the New York State
Environmental Conservation Law (ECL) and Parts 608 and 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR),

by

FRANK PERROTTA,

Respondent.

PARTIAL SUMMARY ORDER

DEC File No. R2-0307-94-11

WHEREAS:

  1. Pursuant to a Notice of Motion without Hearing and supporting papers dated November 28, 1995, issued against Respondent Frank Perrotta and an Answer to Motion for Order without Hearing dated December 15, 1995 and supporting papers, this matter was referred to Administrative Law Judge (ALJ) Helene G. Goldberger for decision pursuant to 6 NYCRR 622.12.
  2. Upon review of the attached Ruling on Motion for Summary Order and Summary Report, I accept its Findings of Fact, Conclusions and Recommendations.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

  1. The Respondent is liable for violating ECL 25-0401 for his construction activities conducted in a tidal wetland adjacent area without a permit and for violation of four conditions of the Article 25 permit issued to him in January 1993.
  2. The Respondent is liable for violating ECL 15-0505 by placing fill in Shellbank Basin, Jamaica Bay, a navigable waterway of the State.
  3. The Respondent is liable for violating the Consent Order he signed on October 27, 1992, that required him to obtain a permit prior to any further activities in the regulated areas of the site.
  4. Based upon the Respondent's allegations with respect to potentially mitigating factors, the ALJ shall convene an adjudicatory hearing to develop a record upon which to base a recommendation with respect to the appropriate penalty and remediation.
  5. The provisions, terms and conditions of this Partial Summary Order shall bind the Respondent, his agents, employees, successors and assigns, and all persons, firms and corporations acting for or on behalf of the Respondent.
  6. All Communications between the Respondent and the Department concerning this Partial Summary Order shall be made to the Department's Region 2 Director, 47-40 21st Street, Long Island City, New York 11101.

State of New York
Department of Environmental Conservation
_____________/s/_____________
Michael D. Zagata, Commissioner

Albany, New York
January 10, 1996

TO: Sheldon Lobel, P.C.
9 East 40th Street
14th Floor
New York, New York 10016 (by certified mail)

Mr. Frank Perrotta
154-59 95th Street
Howard Beach, New York 11414 (by certified mail)

Steve Goverman, Esq.
Assistant Regional Attorney
New York State Department of
Environmental Conservation
Region 2
47-40 21st Street
Long Island City, New York 11101 (1st class mail)

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 15 and 25 of the New York State
Environmental Conservation Law (ECL) and Parts 608 and 661 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR),

by

FRANK PERROTTA,

Respondent.

RULING ON MOTION FOR SUMMARY ORDER AND SUMMARY REPORT

DEC File No. R2-0307-94-11

Proceedings

Staff of the Department of Environmental Conservation Region 2 office served a notice of motion for order without hearing on the Respondent, Frank Perrotta, by certified mail. As required by 6 NYCRR 622.12(a), a copy of the motion and supporting papers was filed with the Department's Chief Administrative Law Judge (ALJ), together with an affidavit of service. The Respondent acknowledged service on December 2, 1995, and this office received his answer, affidavits in opposition to Staff's motion and supporting exhibits on December 19, 1995, within the twenty days provided by 6 NYCRR 622.12(c) for such response.

The regulations provide that a contested motion for an order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party. 6 NYCRR 622.12(d). Summary judgment is appropriate when no genuine, triable issue of material fact exists between the parties and the movant is entitled to judgment as a matter of law. CPLR 3212(b); Friends of Animals v. Association of Fur Mfgrs., 46 NY2d 1065, 1067 (1979). As more fully explained below, I recommend that an order without hearing be granted to Department Staff with respect to a finding of liability against the Respondent.

Department Charges

According to the Department, Respondent, Frank Perrotta, owns a home and real property located at 164-59 95th Street, Howard Beach, New York. The Department accuses Mr. Perrotta of unlawfully building a seawall in the adjacent area of a regulated tidal wetland as well as placing fill consisting of sand and soil within a regulated tidal wetland adjacent area and the navigable waters of the State. The Staff maintains that this site is within DEC's tidal wetland adjacent area jurisdiction that extends 150 feet landward of the tidal wetland line due to the absence of a functional manmade structure in excess of 100 linear feet. The Staff notes the presence of a nonfunctional timber bulkhead at the site. However, because it is not functional, the area landward of the structure is regulated as tidal wetland adjacent area. 6 NYCRR 661.4. The site appears on Tidal Wetlands Inventory Map No. 598-500 and is in the area of Shellbank Basin in Jamaica Bay, a navigable waterway of the state. The Staff claim that Respondent's actions were in violation of Articles 15 and 25 of the ECL, a 1992 Consent Order as well as an Article 25 permit issued to Respondent in January 1993.

Relief Requested

The Staff contend that the unpermitted structure and fill continue to affect the wetland adversely by destroying its productivity and thus, the seawall should be removed pursuant to ECL 71-2503. In order to ensure that further environmental damage is not caused by the remediation, the Staff request that first the Respondent be required to install the bulkhead described in the previously issued permit, to then remove the fill between the new bulkhead and the illegal seawall, and then to remove the seawall. The Staff requests further that the Respondent be required to dispose of the seawall components and fill in a lawful manner.

The Staff has requested that the Respondent be subject to payment of penalties of $10,000 for each of four violations of the permit provisions pursuant to ECL 71-2503. The Staff allege that the penalties are for violations of special condition nos. 18/19 (all work shall conform to drawing prepared by Airtechnica, Inc. dated 11/4/92 except the plans are modified to allow for the construction of a timber pile bulkhead no farther than 15.2 feet from existing patio), no. 24 (notification prior to start of work), no. 25[a] (the entire landward face of the new bulkhead shall be covered with filter fabric adequate to retain sediment for the life of the bulkhead) and no. 25[b] (the new bulkhead shall include adequate tie-backs and deadmen. According to DEC Marine Specialist Stephen Zahn, filter fabric is used in shoreline stabilization projects to prevent sediments from washing through the stabilization structure and fouling the wetland. Tie-backs and deadmen are horizontal lines and stays that tie the structure to the upland, thus reducing the possibility of collapse and of debris entering the waterway. and shall be designed and constructed to withstand tides up to ten feet above mean high water). In addition, the Staff request a penalty of $5,000 for Respondent's violation of Article 15 pursuant to ECL 71-1107. And, because Staff claims that Respondent violated the 1992 Consent Order, it requests that the suspended portion of the civil penalty ($5,000) contained in the Order be found due in addition to the penalties in the sum of $45,000 described above.

Respondent's Position

In his response to Staff's motion, Respondent Perrotta admits many of the Staff's allegations. He admitted that he had started construction of a pool on his property without a required tidal wetlands permit and in 1992, to settle this violation, he entered into a Consent Order with the Department that among other conditions required Respondent to erect a shore stabilization device.

However, with respect to the remediation requirements for the illegal pool construction, Mr. Perrotta claims that DEC was wrong in setting a distance of 15.2 feet from his patio for the construction of the new bulkhead. Respondent's rationale for this conclusion is his belief that because his property extends 29 feet seaward from the patio, the construction of a bulkhead closer to the patio would limit the use of his land and would constitute a taking of his property. He also contends that the original bulkhead (which he does not state is presently functional) was 29 feet away from the patio and this distance was even with other properties to the north of his land. Respondent also alleges that placing the bulkhead fourteen feet closer to the land than the neighboring structures would create currents and waves that would cause erosion to neighboring properties.

Respondent claims that he attempted to resolve the bulkhead location dispute with DEC Staff through his architect. In support of this position, he submitted a copy of a letter dated March 5, 1993, from Airtechnica, Inc. to the former Region 2 Regional Permit Administrator John Ferguson. In this letter, the consultant requests a permit modification to allow construction of the bulkhead closer to the water because the placement of the bulkhead as permitted would cause further erosion. Respondent Perrotta also submits a letter dated July 13, 1993 from a Region 2 Legal Intern to the Respondent that states that Mr. Perrotta met his remedial obligations with respect to the dredged materials.

Respondent claims further that he has attempted to reach a resolution with Department Staff through the creation of wetlands as a mitigation measure, and submits a letter dated April 26, 1994 from DEC Associate Environmental Analyst Michelle M. Moore in support of this position. In this letter, Ms. Moore is responding to a pending application for a tidal wetlands permit that proposes to eliminate tidal wetland areas, littoral zone and intertidal beach habitat. She sets forth the standards that must be met for the Department to consider a mitigation project that would allow approval of filling at the site. Respondent Perrotta argues that he contacted the New York City Department of Parks and Recreation (Parks) to facilitate such mitigation but that Parks staff was unable to obtain a response from DEC Staff.

FINDINGS OF FACT

  1. Respondent Frank Perrotta is the owner and resident of real property located at 164-59 95th Street, Howard Beach, New York.
  2. In 1992, at this property, Respondent conducted excavation and filling activity in the adjacent area of a tidal wetland without a permit.
  3. The area in question is adjacent to tidal wetlands that appear on Tidal Wetlands Inventory Map No. 598-500 and that are part of the Shellbank Basin in Jamaica Bay, a navigable waterway of the state. At the times in question, a non-functional bulkhead existed at this site.
  4. On October 27, 1992, the Respondent entered into a Consent Order with Department Staff in which he admitted violations of Article 25 and 6 NYCRR Part 661. The Consent Order required the payment of a $5,000 penalty as well as the suspension of a $5,000 penalty subject to compliance with the Order; the return of previously-dredged materials to the excavated site, below mean high water; the removal of construction debris; and the installation of appropriate shore stabilization subject to permit approval.
  5. On or about January 12, 1993, the Department issued Respondent a permit (no. 2-6308-00154/00001-0) pursuant to Article 25 of the ECL to replace forty linear feet of timber bulkhead within 15.2 feet of the rear of the existing patio and to place 150 cubic yards of backfill landward of the new bulkhead. The permit contained a number of special conditions including requirements that the Respondent conform the bulkhead construction with plans submitted by Airtechnica, Inc. and ensure its placement was no more than 15.2 feet from the existing patio; that he provide notification to the Department prior to construction and construct the bulkhead with certain sedimentation controls and stabilization mechanisms.
  6. In March 1993, Airtechnica, Inc., on behalf of Respondent, wrote to former Region 2 Permit Administrator John Ferguson requesting that the Department modify the permit to allow the placement of the bulkhead farther seaward.
  7. Based upon an inspection performed by DEC Marine Resource Specialist Lisa Brown, by letter dated June 24, 1993, Assistant Regional Attorney Steven Goverman informed Mr. Perrotta that the 1992 Consent Order had been violated as dredged materials had not been returned to the excavated site; the construction debris had not been removed and the bulkhead had not been installed.
  8. By letter dated July 13, 1993, DEC Staff notified Respondent Perrotta that he had complied with the Consent Order with respect to the dredged materials.
  9. Inspections made by L. Brown on October 13, 1994, and other DEC personnel on November 8, 1994, revealed that the bulkhead had been placed 29 feet from the seaward edge of the patio and 552 square feet of littoral zone had been filled.
  10. Department personnel issued Respondent a Notice of Violation dated November 8, 1994, indicating that a regulated activity had been performed at the site without an Article 15 Protection of Waters permit.
  11. Respondent placed the bulkhead in an unpermitted location. He also failed to obtain a required permit modification for this work and he did not notify the Department Staff of his intention to commence the work.
  12. In addition to the unpermitted placement of the seawall, Respondent filled the area between the patio and the new seawall, that was formerly a natural beach, converting it to lawn. Respondent failed to use the filter fabric or to include an adequate system of tie-backs and deadmen as required by the permit.
  13. Shellbank Basin is a part of the waters of Jamaica Bay. This area supports a varied and abundant marine biota. As over 70% of Jamaica Bay's tidal wetlands have been destroyed by development, DEC has designated the Bay a critical environmental area.
  14. By placing the seawall farther seaward than permitted and by filling the area behind the extended seawall, Respondent has destroyed 552 square feet of littoral zone that previously functioned as marine habitat.

DISCUSSION

The essential facts in this matter are not in dispute. While Respondent questions DEC's determination to require the placement of the bulkhead 15.2 feet from the concrete patio, he does not deny building a structure 29 feet from the patio nor does he deny filling the area "up to the position of that structure." While the Respondent now claims that he was without benefit of counsel when he signed the Consent Order, he does not dispute the agreement. Generally, the courts view consent orders as contracts and unless fraud can be established or the parties agree to modification, they will not revisit their terms. See, State of New York v. Town of Wallkill, 170 AD2d 8, 10 (3d Dep't 1991). And, although Respondent has produced a copy of a letter from his consultant that requested a permit modification based upon the disagreement with the placement of the bulkhead, Mr. Perrotta does not contend that he received approval for such modification.

Pursuant to ECL 25-0401, no person may conduct excavation, construction, filling, dredging, etc. in a tidal wetland or adjacent area without a permit. Similarly, ECL 15-0505 prohibits excavation or placement of fill below the mean high water level in any of the navigable waters of the state or in marshes, estuaries, tidal wetlands that are adjacent to the navigable waters. ECL 71-2503 and 71-1101 provide for penalties and for restoration of the affected wetland.

It is uncontroverted that Respondent's construction of the bulkhead and filling is regulated activity under ECL 25-0401 and 15-0505 and that the permit Respondent had obtained from DEC did not allow the activities undertaken. In addition, the Respondent has not disputed Staff's contentions that he failed to provide DEC with notification of the construction activities or to place the required stabilization and sediment control mechanisms on the seawall.

The issue of whether the permit provided for an inappropriate location for the bulkhead is not relevant with respect to an assessment of whether the Respondent violated the law. He did not obtain a modification that would permit a changed location. As to Respondent Perrotta's arguments that the permitted placement of the bulkhead would result in a "taking", this constitutional issue is not a subject that can be decided in this forum as it is reserved for the courts. However, the law requires that a property owner prove a loss of substantially all economic value in his land as a result of the alleged regulatory taking before such a claim can be considered. In any event, as Respondent did not apply for a permit modification before performing the work, any such claim appears to be, at best, premature. See, Spears v. Berle, 48 NY2d 254 (1979).

Based upon the uncontroverted facts related to Respondent's activities conducted in violation of Articles 15 and 25, the 1992 Consent Order and the four cited conditions in the tidal wetlands permit, I must conclude that the Department Staff is entitled to an order that finds Respondent responsible for these violations. However, I also find that a hearing is necessary to determine the appropriate remediation and penalties.

The Staff has asked for $55,000 in penalties pursuant to ECL 71-1107 and 71-2503 based upon an assessment of a $10,000 penalty for each of the four permit conditions that Respondent violated in addition to a penalty of $5,000 for the violation of ECL Article 15 and the imposition of the $5,000 suspended penalty provided in the Consent Order. While the Staff has shown the Respondent to be a repeat offender with respect to these violations and the Civil Penalty Policy does provide for significant penalties in cases where permit conditions are violated, the Respondent has raised some potentially mitigating circumstances in his response.

The Respondent presented a copy of a March 5, 1993 letter from his consultant that requested a permit modification from Staff prior to Respondent's activities based upon the potential for erosion. However, it appears that Staff did not respond to this request. In addition, Respondent has alleged that he has made efforts to develop a mitigation plan but Staff has not responded to communication attempts made by the New York City Department of Parks to convey such proposals.

With respect to the requested remediation, again, Respondent has not controverted Staff's allegations with respect to the value of the resource destroyed, and thus it is appropriate to grant an order requiring remediation that returns the adjacent area to its former state. However, Respondent's repeated allegation that the placement of the bulkhead would cause damage to adjacent properties should be examined at hearing prior to requiring that the bulkhead be installed as required in the permit.

In summary, further proceedings are necessary to address the appropriate amount of any penalty assessed based upon any mitigating circumstances and to determine whether the required remediation is consistent with the goals of shore protection.

CONCLUSIONS

The Respondent, Frank Perrotta, is liable for violations of ECL 25-0401 and 15-0505 and 6 NYCRR Part 661 and 6 NYCRR 608.4 and tidal wetlands permit no. 2-6308-00154/00001-0 by undertaking regulated activities in the adjacent area of a tidal wetland; by failing to comply with four special permit conditions in the issued tidal wetlands permit; by failing to notify staff prior to construction; by erecting a seawall in a location that was not permitted and not in accordance with plans submitted; by failing to install required stabilization and filtration devices on the structure and by conducting unpermitted filling in a littoral zone and in navigable waters of the state. Respondent is also found to be in violation of the October 1992 Consent Order by failing to obtain a permit for the work he performed on the site.

Penalties and appropriate remediation are to be determined after an administrative hearing pursuant to 6 NYCRR 622.12(f).

RECOMMENDATIONS

  1. The Commissioner should find that the Respondent violated ECL 25-0401 and 15-0505 and 6 NYCRR Part 661 and 6 NYCRR 608.4 by conducting unpermitted activities in tidal wetland adjacent area and by violating Special Condition Nos. 18/19, 24, 25(a), 25(b). In addition, the Respondent violated the 1992 Consent Order by failing to obtain a permit for the work he performed on the site.
  2. Based upon the potentially mitigating circumstances described by the Respondent, the Commissioner should order that a hearing be held to develop the record upon which to base the penalty determination.
  3. Similarly, based upon the Respondent's allegations that the proposed remediation would cause damage to neighboring properties, the hearing should also address the remediation requirements.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

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