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Sauvageau, Rene and Anne - Order of Continuance, March 19, 1999

Order of Continuance, March 19, 1999

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 34
of the New York State Environmental Conservation Law, and
6 NYCRR Part 505.7(b) by René and Anne Sauvageau
Respondents

ORDER OF CONTINUANCE

(Motion for Order Without Hearing)

Case No. R9-4191-94-10

PROCEEDINGS

Pursuant to a Notice of Motion and Motion dated February 3, 1999, and duly served February 5, 1999, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 9 Staff ("Staff") have moved for an Order Without Hearing pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 622.12 against René and Anne Sauvageau, Respondents. Maureen A. Brady, Esq., Assistant Regional Attorney, filed the motion for the Department Staff along with Affidavits in Support from the Regional Permit Administrator and an Environmental Program Specialist, and several attached exhibits. Respondents filed a response dated February 9, 1999. Staff thereafter sent a letter dated February 24, 1999, and Respondents sent another letter dated February 27, 1999. Staff responded with another letter on March 10, 1999.

Staff's Motion:

The Staff charge Mr. and Mrs. Sauvageau with a violation of Environmental Conservation Law ("ECL") Article 34 (Coastal Erosion Hazard Areas), and 6 NYCRR Part 505 (Coastal Erosion Management). In particular, Mr. and Mrs. Sauvageau are alleged to have violated 6 NYCRR §505.7(b) for having constructed a non-movable deck and stairs, constituting a major addition to an existing structure, within a structural hazard area established pursuant to ECL Article 34.

The Staff seek an Order Without Hearing which: (i) finds that no hearing is required to determine whether the Respondents have violated 6 NYCRR 505.7(b); (ii) finds that the relief sought may be granted as a matter of law; (iii) finds the Respondents in violation of 6 NYCRR Part 505.7(b); (iv) directs the Respondents to pay a civil penalty in the amount of $93,500 pursuant to ECL Section 71-4003; and (v) grants such other and further relief as the Commissioner shall deem appropriate.

Staff's supporting affidavits describe provisions of ECL Article 34. and 6 NYCRR Part 505, describe the process through which the structural hazard area was mapped and affected landowners notified, describe how Respondents had requested a permit and variance and Staff's denial of same, and describe the decks' surface area and relationship to the bluff. Also included with Staff's motion papers are pictures depicting Respondents' cottage before and after the deck was built, a diagram depicting the location of the cottage and deck, a copy of the relevant portion of the coastal erosion hazard area map for the Town of Porter, and copies of various documents exchanged between Staff and the Respondents.

Respondents' February 9, 1999 Response:

Respondents claim that the deck or porch replaced one that previously existed, and claim that they need a minimum of 120 days to respond to the motion and prepare for a hearing. They also claim that no one told them about the regulations. Respondents make a Freedom of Information Law (FOIL) request seeking the identification of shoreline property owners who have made construction changes since the date of the regulations and the Department's response, documentation of authorizations from landowners to the Department for access to shoreline properties, any and all other types of information pertinent to Respondents' defense, and detailed specifications for violation and penalty determinations. The Respondents argue that it is illogical and unjust for the Department to issue violations and other directives unless there is a single demarcation line, and that it is irrelevant how long a structure may have existed. The Respondents contend that it would be a violation of equal rights if a neighbor has a structure closer to the bank than Respondents' structure and the neighbor is not fined either due to a different construction date or the lack of discovery. The Respondents contend that they need the requested information in order to prepare their defense. Respondents point out that the Department's motion papers omitted details of meetings between their counsel and Staff concerning Respondents' proposals for settlement.

Staff's February 24, 1999 Reply

Staff are willing to agree to the Respondent receiving an additional 60 days to respond to the Motion, but contend that 120 days is excessive. Staff pointed to the letters exchanged between Staff persons and the Respondents to show that the Respondents had requested a permit and a variance to construct a porch, which Staff denied, but Staff presented Respondents with options that were not pursued. Staff indicated that they would respond separately to Respondents' FOIL request. Noting the type of information requested and contending that an administrative proceeding is not the proper forum for a defense of "selective enforcement," Staff argued that the time needed to assemble the information does not warrant a delay of the administrative proceeding.

Regarding Respondents' intent to use a pre-existing porch as a defense, Staff point out that the porch did not exist when the Respondent's purchased the property. Staff contend that since only an existing structure can be restored without a coastal erosion management permit pursuant to 6 NYCRR §505.8, the provision cannot be used as a defense.

Staff indicated that they were willing to stipulate that they discussed the matter with Respondents' counsel, but had no record of a proposed settlement. Staff indicated they were informed that Respondents would not enter a Consent Order.

Respondents' February 27, 1999 Letter

Respondents contend that "there are many inconsistencies [sic], misinterpretations, and a broad amount of interpretations of the NYSDEC Regulations, and particularly those under which [Respondents] have been cited for violation." Respondents contend that there is "room for question" with respect to the definition of "permanent structure," line of delineation of hazard, etc. Respondents request that the matter be dismissed or that Staff issue an "After-the-Fact Permit."

Staff's March 10, 1999 Letter

Staff indicated they would not dismiss the matter and would not issue an "After-the-Fact Permit." Staff requested direction from the Office of Hearings and Mediation Services on how to proceed with the case.

DISCUSSION and ORDER

Although Staff have agreed to Respondents having more time to respond to Staff's motion, Respondents have already indicated they contest Staff's motion. This provides an occasion to review both the sufficiency of the evidence submitted in support of Staff's charge(1), as well as Respondents' contentions thus far.

At this point, Staff's motion could not be granted because the evidence submitted fails to support a material element of the charge. Respondents are charged with violating 6 NYCRR 505.7(b) which provides that "[t]he construction or placement of a nonmovable structure, or nonmovable major addition to an existing structure, is prohibited within structural hazard areas." To establish the charge, Staff must prove that the deck and stairs are "nonmovable." Staff's affidavits provide information on the deck's area to show it is a "major addition," but do not address the "nonmovable" element. The latticework skirting depicted in the pictures of the deck suggest that the deck may be on piles. Because §505.2(x), which defines "movable structure," cites structures on piles without a permanent foundation as an example of a moveable structure, to sustain the charge the record needs information which demonstrates that the deck is nonmovable. Perhaps the size or construction could lead to such an inference, but this needs to be explained since it is not clear when the regulation's example of a "movable structure" is considered.

In their February 9, 1999 letter, Respondents requested a minimum 120 days to respond to Staff's motion and prepare for hearing, citing the need for documentation of what other shoreline owners have done and the Department's response, and arguing violation of equal rights. Staff's charge, however, concerns only the Respondents' conduct and property, and not those of other persons. The information about other property owners is irrelevant to the charge. Claims of violation of equal protection are a matter for the courts and will not be entertained here. See Cannon v Urlacher, 155 AD2d 906 (4th Dept., 1989); DiMaggio v Brown, 19 NY2d 283, 291-292. Respondents indicate they may wish to challenge the demarcation line. It is pointed out that special procedures are provided under §505.10 for appealing the designation of erosion hazard areas. This hearing is not the proper place for such a challenge. Respondents' request for a detailed penalty specification is appropriate, however, and Staff should provide an explanation of how it arrived at the requested penalty of $93,000 with reference to the relevant DEC penalty policy (and provide Respondents with a copy of same).

Rather than proceed directly to a hearing where Staff would put in its proof on the deck's status, it appears more efficient to continue the matter and let Staff put in its information about both the deck and the penalty sought by affidavit, and to renew its motion. Respondents will then be better positioned to respond by having a better idea of why Staff believes there is a violation and why Staff is requesting the particular penalty. If Respondents disagree with Staff's rationale, they can file affidavits in opposition and I will address Staff's motion as provided for in §622.12. If there are issues of fact, I will schedule a hearing to resolve them.

It should be noted that if the deck can be considered a movable structure under the regulations (making Staff's charge under 505.7(b) unsustainable), Staff likely would have an alternative cause of action under 505.7(a), which requires a permit for movable structures. While the continuation is being made for the exchange of particular information, both parties may wish to reconsider their positions in light of what has been said here, and use the time to try to settle the case. The Office of Hearings and Mediation Services can supply a mediator to assist the parties in reaching a settlement if both parties agree they would like to pursue this route. If this be the case, Department Staff should contact the Chief Administrative Law Judge for arrangements.

Pursuant to §622.12 (c), it is ordered that this matter is continued until June 1, 1999 during which time the parties are to do as follows:

By no later than April 23, 1999, Department Staff is to file with me and serve upon Respondents supplemental information concerning the deck's movability and the requested penalties as indicated above, and renew its motion. Within 30 days of receiving this information, Respondents are to file with me and serve Staff their responsive affidavits.

March 19, 1999
Albany, NY

__________________________
Frank Montecalvo
Administrative Law Judge

1 Pursuant to 622.12 (d), "a contested motion for 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."

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