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Sauvageau, Rene and Anne - Order, September 22, 1999

Order, September 22, 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
(Without Hearing)

Case No. R9-4191-94-10

WHEREAS:

  1. Pursuant to a Notice of Motion and Motion dated February 3, 1999, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 9 Staff ("Staff") 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.
  2. This matter was assigned to Administrative Law Judge Frank Montecalvo (the ALJ) who issued an Order of Continuance on March 19, 1999.
  3. On April 23, 1999, the Staff amended its Motion for Order Without Hearing to allege that the Respondents violated 6 NYCRR §505.7(a) and (a)(2) by having constructed a movable deck and stairs within a structural hazard area without a coastal erosion hazard area permit, and having placed said structure closer to the landward limit of a bluff than 25 feet. The Staff also described and presented their justification for the relief sought.
  4. Following proceedings more particularly described in the attached Summary Report from the ALJ, on June 2, 1999, the Respondents filed affidavits answering the Staff's motion. The Staff subsequently filed papers in reply.
  5. ALJ Montecalvo has reviewed this matter, determined that no substantive facts are disputed, and submitted a Summary Report pursuant to §622.12.
  6. Upon review of the ALJ's Report and the record of this proceeding, I concur with its Findings of Fact, Conclusions of Law, and Recommendation which establish that no substantive facts are disputed, no hearing is necessary, and that Respondents violated 6 NYCRR §505.7(a) by placing or constructing a movable structure (a deck and stairs) within a structural hazard area without a coastal erosion management permit, and also violated §505.7(a)(2) by placing said structure closer than 25 feet to the landward limit of a bluff. In determining an appropriate penalty, I have taken into account the circumstances of this case as established in the record.

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

  1. Respondents René and Anne Sauvageau are found to have violated 6 NYCRR §505.7(a) by placing or constructing a movable structure (a deck and stairs) within a structural hazard area without a coastal erosion management permit. Respondents are also found to have violated §505.7(a)(2) by placing said structure closer than 25 feet to the landward limit of a bluff.
  2. Respondents are assessed a penalty of Twenty Thousand Dollars ($20,000) payable as follows: Ten Thousand Dollars ($10,000) are payable within 30 days of the date of service of this Order; the remaining Ten Thousand Dollars ($10,000) are suspended on the condition that the deck either be removed, or reduced in size to 187.5 square feet or less and other permit requirements of §505.7(a) are adhered to, within 6 months. In the event that the deck is not brought into compliance within 6 months, the suspended penalty will become payable, and the Respondents will become subject to additional penalties, for every day beyond 6 months that the deck remains.
  3. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.
  4. All communications between the Respondents and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 9 Headquarters, 270 Michigan Avenue, Buffalo, NY 14203-2999.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Carl Johnson,
Deputy Commissioner
Albany, New York

Dated: September 22, 1999

TO: René and Anne Sauvageau VIA CERTIFIED MAIL W/ RETURN RECEIPT
105 North 4th Street
Lewiston, NY 14092

Peter J. Burke, Esq.
255 Pearl Street
Buffalo, NY 14202

Maureen A. Brady, Esq., Assistant Regional Attorney
NYS Department of Environmental Conservation, Region 9
270 Michigan Avenue
Buffalo, NY 14203-2999

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

RULING and SUMMARY REPORT
(Amended Motion for Order Without Hearing)

Case No. R9-4191-94-10

PROCEEDINGS

Pursuant to a Notice of Motion and Motion dated February 3, 1999, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 9 Staff ("Staff") 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. Staff alleged that Respondents violated 6 NYCRR §505.7(b) by having constructed a non-movable deck and stairs within a structural hazard area established pursuant to ECL Article 34. Staff requested a penalty of $93,500. Following an exchange of correspondence between the parties, I issued an Order of Continuance on March 19, 1999, to permit Staff to renew its motion upon the submission, by April 23, 1999, of additional information on both the deck's movability and the requested penalty. Responsive pleadings were due 30 days thereafter.

On April 23, 1999, Staff submitted an Amended Motion for Order Without Hearing with supporting affidavits from Environmental Program Specialist Rebecca Anderson and Regional Permit Administrator Steven Doleski, plus an affidavit from counsel Maureen Brady, Esq., explaining Staff's penalty request. The Amended Motion changed Staff's cause of action to allege that Respondents violated 6 NYCRR §505.7(a) and (a)(2) by having constructed a movable deck and stairs within a structural hazard area. In other respects, the Amended Motion was essentially the same as the earlier Motion. Respondents followed with a request for dismissal which Staff opposed. On May 12, 1999, I denied the request for dismissal, and amended my March 19, 1999, Order of Continuance to provide that Respondents file their responsive papers by June 4, 1999, and that Staff could specifically respond to Respondents' affidavits no later than June 11, 1999.

Answering the Amended Motion, the Respondents, through their counsel, Peter Burke, Esq., submitted their own affidavits and exhibits along with an affidavit and exhibits from Jack Steinkamp of the Lake Ontario Riparian Alliance. Staff submitted an affidavit from counsel Maureen Brady, Esq., in reply.

RULING

Upon all the papers and proof filed, the facts, as found below, are uncontroverted and establish Staff's cause of action sufficiently to warrant granting Staff summary judgment on same. Moreover, there are no triable issues of fact regarding the appropriate relief, as discussed below. Therefore, pursuant to 6 NYCRR §§622.12 and 622.18 , this summary report is hereby submitted to the Commissioner for issuance of an order.

FINDINGS OF FACT

  1. Respondents own a parcel of property, roughly 515 to 519 feet deep (North-South dimension) by 47 feet wide (East-West dimension), located at 2511 Lake Road, Porter, New York (the "property"), the northern border of which is the shore of Lake Ontario. A steep bank extends from the lake shore southward into the property roughly 26 feet. The property contains a 24.6' (E-W) x 30.5' (N-S) one-story frame house (750 square feet), set back from the top of the bank almost 42 feet at the house's Northwest corner to almost 57 feet at the house's Northeast corner(1). The house was constructed some time prior to enactment of the Shoreowner's Protection Act in 1981. As depicted in a September 5, 1992 - dated photograph, there was no porch or deck on the house when the photo was taken. The house is capable of being moved.
  2. During the 1980s, the Department identified on the Town of Porter Coastal Erosion Hazard Area Map that portion of the Lake Ontario shoreline which includes the property as containing both Natural Protective Feature and Structural Hazard Areas. Said Map indicates that at the property, the shore is expected to erode an average of 1.50 feet/year. In 1991, the Department began procedures to administer a local Coastal Erosion Hazard Area Management Program in the Town of Porter. Certain activities within identified Coastal Erosion hazard Areas would require a permit from the Department.
  3. On April 19, 1993, following a telephone call, Mr. Sauvageau wrote to Rebecca Anderson of NYSDEC via facsimile seeking a permit to build a detached 10' deep deck or porch running the width of his house on its North (lake) side. He enclosed a survey which depicted the dimensions and location of the proposed deck. The facsimile was on company letterhead indicating that Mr. Saugaveau was a professional land surveyor, and stated that he was "seeking permit to so build the porch, from your department, and request authorization if needed."
  4. On April 23, 1993, Rebecca Anderson wrote to Mr. Sauvageau and informed him that based on the 1.5 ft./yr. erosion rate, there was a set back distance of 85 feet from the top of the bluff for new construction or major additions. She said that his "proposed porch addition qualifies as a major addition and cannot be permitted according to 505.7(b)." She noted that probably 100 feet or more of lawn at the site had probably eroded in the past, but (referring to the house) "[f]ortunately, the lot is deep and the structure can be moved landward if needed."
  5. On April 26, 1993, Respondents wrote to NYSDEC Commissioner Jorling to appeal Ms. Anderson's determination, contending hardship, lack of notice of the regulations, etc.
  6. On April 30, 1993, Ms. Anderson returned the letter of appeal to Respondents, enclosed a Joint Application for Permit, and stated that the Respondents' telephone call and fax "were interpreted as an informal request for information," and that the Department "cannot process your appeal unless a permit application is submitted and denied." Ms. Anderson also noted that the Department, in implementation of ECL Article 34, had mailed various notices to the owners of the property at the time and/or published notices, and that the regulations became effective in the Town of Porter on May 8, 1991.
  7. On May 4, 1993, the Department received Respondents' Joint Application, Short Environmental Assessment Form, a picture of the premises, a survey and other maps.
  8. On June 1, 1993, Michael J. McMurray wrote to Respondents stating that the application "has been reviewed and is incomplete for processing." Citing 6 NYCRR 505.7(b), Mr. McMurray stated that the request for a 10' x 25' deck or porch was not approvable as proposed, that as a detached structure it would have to be set-back 85 feet from the edge of the bluff, and that as an attached addition, it is limited to 25% of the existing structure or 187.5 square feet and would have to be added to the side of the structure rather than the lake side. Mr. McMurray instructed Respondents to either reduce the size of the porch to less than 187.5 square feet and construct it on the side, or request a variance per §505.13. Mr. McMurray told respondents that if they decided to modify their proposal, they were to submit revised drawings and an application fee of $50.
  9. In a June 2, 1993, letter, the Respondents pointed out that Mr. McMurray did not state how their application was incomplete. Respondents requested a variance and said that they had previously explained their practical difficulties in their April 26, 1993 letter, and added that the deck could not be added on either side of the cottage as suggested by Mr. McMurray because the lot width was less than 49 feet and the cottage occupied 25 feet.
  10. On June 24, 1993, in response to the Respondents' June 2, 1993 request, Regional Permit Administrator Steven Doleski denied the variance stating that reasons supporting a hardship variance may not be personal in nature (i.e., a physical disability or economic), but rather, that the hardship must run with the land, remain with the land, be unique to the parcel, and not be shared by adjacent parcels. He stated that economic justification, the price paid for the Lake Ontario shore land, is not acceptable as a variance and that the use of the parcel is not impeded by the Department's refusing a porch or deck that exceeds the allowable standards under Part 505. He refuted Respondents' earlier assertion of lack of notice by pointing out that a prior owner of the property was notified by letter and that all public notice requirements had been met. He suggested that Respondents "submit revised plans showing the exact dimensions, location and design of a movable deck (on skids or wheels) of less than 187.5 square feet. The proposed structure could be placed on the front (lake) side of the cottage provided it would be detached from the cottage. A structure which meets these requirements could be permitted per 6 NYCRR 505.7(5), [sic] Movable structures, which have been located within an erosion hazard area pursuant to a coastal erosion management permit, must be removed before the receding edge recedes to within 10 feet of the most seaward point of the movable structure."
  11. On June 2, 1994, the Town of Porter Assessor informed Rebecca Anderson that the deck had been built by the Respondents. Ms. Anderson verified the deck's construction by a site inspection that same day.
  12. On June 14, 1994, Ms. Anderson took measurements of the deck. The deck measured 12' 9" by 31' 3" plus a stairway. Excluding the stairway, the deck comprised 398 square feet. The deck's Northwest corner was 30' from the receding edge of the bluff . The deck's Northeast corner was 46' from the receding edge of the bluff. The deck appeared as shown on Exhibit A attached hereto and made part hereof.
  13. Ms. Anderson re-inspected the deck on August 4 and September 23, 1998. The deck's Northwest corner was 29' from the receding edge of the bluff . The deck's Northeast corner was 44' from the receding edge of the bluff.
  14. By letter of December 6, 1994 which enclosed a Consent Order assessing a civil penalty of $10,000 and requiring removal of the deck and stairs, Staff alleged that Respondents had violated the Environmental Conservation Law. Respondents offered to pay a $250 penalty, requested that the deck be permitted to remain, asserted that the deck would be removed if threatened by erosion, and further asserted that if it were damaged the debris would be removed and no claim would be made on any government or personal insurance funds to pay for the damaged deck. No communication was received by Respondents until the Notice of Motion was received on or about February 5, 1999.
  15. The deck and stairs in question abut, but are not attached, to the house, and are a movable structure.
  16. The Department never issued Respondents a permit to construct the deck and stairs.

CONCLUSIONS OF LAW

  1. In accordance with the definition of "structural hazard area" in 6 NYCRR §505.2(nn), the inland boundary of the structural hazard area on the property is 85 feet landward of the top of the bank (the receding edge of the bluff). This is derived from the annual recession rate on the map of 1.50 feet per year multiplied by the factor of 40 given in §505.2(nn) (i.e., 60 feet) and measured from the landward limit of the "bluff," which §505.2(d) defines as being 25 feet landward of the receding edge. The deck and stairs is located entirely within this area.
  2. Respondents violated 6 NYCRR §505.7(a) by placing or constructing a movable structure (the deck and stairs) within a structural hazard area without a coastal erosion management permit.
  3. Since the deck and stairs are located primarily (but not completely) within 50 feet of the receding edge of the bluff, Respondents also violated §505.7(a)(2) by placing said structure closer than 25 feet to the landward limit of a bluff (which limit is 25 feet landward of the receding edge).

DISCUSSION

The Respondents have argued that the deck replaces one that existed at an earlier time. The argument is without merit. Although Part 505 allows for "restoration" of "existing structures" damaged or destroyed by events unrelated to coastal flooding and erosion without a permit, it is only for those situations specifically enumerated in the regulations (e.g., on bluffs in "natural protective feature areas" §505.8(c)(5)). There is no similar provision for structures that are within "structural hazard areas" like that here (see §505.7). Even if there were such a provision, there is no showing that the earlier deck was an "existing structure" on the date that the Department assumed regulatory responsibility for the coastal erosion management program in the Town of Porter. (See the definition of "existing structure" at §505.2(q)). Simply put, I find nothing in the regulations that would authorize the Respondents to "replace" without a permit the porch that may have existed in the past but did not exist when the regulations became effective.

In the answering papers, the Respondents offered a number of other arguments, essentially complaining of the manner in which the regional Staff is administering the coastal erosion program. However, this proceeding is about the Respondents' actions. The arguments change neither the fact that violations took place, nor the character of the violations. Therefore, the arguments are not considered further.

Since violations are established, a penalty must be assessed. The Commissioner's Civil Penalty Policy directs that a penalty be within the legally authorized maximum amount and be composed of a "benefit" component (an amount which removes any economic benefit from not complying with the law) and a "gravity" component (an amount which reflects the seriousness of the violation in terms of actual or potential harm or damages, and the importance of the violation to the regulatory scheme). The penalty may then be adjusted for other factors such as culpability. The Policy states that "[p]enalties should persuade the violator to take precautions against falling into non-compliance again, as well as persuade others not to violate the law."

Here, the Department Staff calculated a potential maximum penalty approaching two million dollars (based on the $500/day per violation authorized by the statute). Staff arrived at the $93,500 figure it originally sought by summing the maximum daily penalties for each day from June 2, 1994 (the day the violation was discovered) through December 6, 1994 (the day the Department sent the Respondents a proposed Order on Consent). Of this amount, the Staff attributed $25,000 to the violation's potential for harm and another $25,000 to the violation's importance to the regulatory scheme (both factors of the "gravity" component). Staff found that the "benefit" component was inapplicable to the facts here. The remaining $43,500 was an increase that Staff based on the intentional nature of the violation. However, the Staff now propose a penalty of $20,000 provided that the Respondents reduce the size of the deck to 187.5 square feet or less and adhere to the permit requirements of §505.7(a).

All of Staff's penalty requests have been well within the maximum penalty authorized by statute. Since the Staff have found the "benefit" component inapplicable, no benefit component is applied here.

Although the Staff concluded "there is great potential for harm to human health and safety and for damage to the natural resource," the conclusion appears to be based on the general policies underlying the statute and regulations rather than on the specifics of these particular violations. Staff admitted that there has been no actual damage thus far. Staff neither alleged that the deck threatens the integrity of the bluff, nor explained how the deck and stairs might otherwise cause harm or damage. More importantly, Staff placed no dimension on the potential harm or damage. The Shoreowner's Protection Act was intended to prevent the economic loss caused by coastal erosion (ECL §§ 34-0101 and 34-0102). It would be incongruous for the law to impose a penalty out of proportion with the loss that the law seeks to prevent. The Penalty Policy, which speaks of "measures of potential harm and actual damage," looks for an assessment of same.

Given the pictures of the deck (Attachment A) and other information in the record, it is difficult to conceive of harm or damage other than, perhaps, to the deck itself. Assuming that the average annual recession rate listed on the hazard map will occur, it will be 18-20 years before the edge of the bluff reaches the deck. The actual recession observed during 1994-1998 suggests an even longer period. Even when the deck is reached, it will take another 8 years at the average recession rate for the bluff's edge to erode back the distance of the deck's depth (12 feet). The record does not tell us what the fate of the deck will be once it is reached by the bluff's edge, but, given the rate of recession and the height of the slope above the lake's waves, it seems unlikely that the deck would move very far very fast due to natural forces. Rather, it is more likely that the deck will be moved by its owner before any significant harm would occur.

The "gravity" of these particular violations comes from their harm to the regulatory scheme. For the deck that was constructed, both permit and variance of the setback were required, but neither were obtained. The Policy notes that "undertaking any action which requires a DEC permit, without first obtaining the permit, is always a serious matter ... even if the activity is otherwise in compliance." "Failure to first obtain required permits deprives DEC of the opportunity to satisfy its obligation of review and control of regulated activities. Failure to assess significant penalties for such violations would be unfair to those who voluntarily comply with the law by satisfying the requirements of the permit process."

The same may be said for the lack of a variance of the setback requirement. Setbacks are required to protect both the resource and structures. Even when the variance of a setback is appropriate (see Matter of Susan Tasker Commissioner's Decision 12/29/94 and attached Hearing Report for an example of an allowable variance of a setback), the Department still needs the opportunity to review the proposal before construction is carried out.

And finally, the regulatory scheme must be applied equitably. There would be others who obtained permits and variances by conforming their plans to meet the regulatory criteria. It would be inequitable to these persons for the Respondents to benefit from their wrongdoing.

The uncontroverted facts establish that the Respondents not only violated the law by not obtaining a permit and variance, but that they did so knowingly since the deck was constructed after the Respondents were told that their project was not approvable and would not qualify for a variance. The Penalty Policy contemplates an upward adjustment in penalty for a knowing violation. Although the Staff's failure to identify how the Respondents' application was incomplete, and their apparent assumption that the proposed deck would be non-movable, suggest there were errors in processing the Respondents' permit application, the regulatory scheme employs permit hearing procedures (6 NYCRR Part 624) to resolve such issues. Rather than work within these regulatory safeguards, the Respondents proceeded to build their deck with neither a permit nor a variance. Therefore, the Commissioner's Penalty Policy requires a significant penalty. A $20,000 penalty with half suspended on the condition that compliance is attained appears to be proportional to this knowing offense.

The offending deck is currently unpermitted and violates the setback requirement. In its "compromise proposal" (Brady Affidavit, April 23, 1999, at ¶11), the Staff indicated they would allow the deck to remain, in spite of the setback requirement, provided it was reduced in size to 187.5 square feet or less and that the other permit requirements of §505.7(a) were adhered to. Essentially, the Staff is willing to permit the structure and vary the setback requirement as long as its size is reduced and the other permit requirements are met. Although this size limitation appears to be based on the inapplicable §505.7(b) prohibition of a non-movable "major addition"(2) in a structural hazard area, it would not be unreasonable or improper for the Staff to use that regulation as guidance in determining the appropriateness of varying the setback requirement in §505.7(a). Therefore, the deck and stairs should be allowed to remain as long as the deck is reduced in size to 187.5 square feet or less, and the other permit requirements of §505.7(a) [including the submission of a plan for moving the deck] are adhered to.

RECOMMENDATION

It is recommended that the Commissioner assess a $20,000 penalty against the Respondents: $10,000 payable within 30 days of the order, and the remaining $10,000 suspended on the condition that the deck either be removed, or reduced in size to 187.5 square feet or less and other permit requirements of §505.7(a) be adhered to, within 6 months. In the event that the deck is not brought into compliance, the full penalty will become due, and the Respondents will become subject to additional penalties, for every day beyond 6 months that the deck remains.

_____________/s/_____________
Frank Montecalvo
Administrative Law Judge
Albany, NY

Dated: August 19, 1999

Attachment: Exhibit A - 4 Photographs

TO: Hon. John P. Cahill, Commissioner

Exhibit A - 4 Photographs

1 These set-back distances are based on measurements taken in 1998 (infra).

2 i.e., greater than 25% of the area of the structure being added upon.

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