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Seewald, Alan - Decision, August 9, 1994

Decision, August 9, 1994

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Application of

Alan Seewald

for Tidal Wetlands and Protection of Waters Permits; a Water
Quality Certification; and Variances from minimum lot size and
setback requirements of the tidal wetlands regulations; pursuant
to Environmental Conservation Law Article 25 (Tidal Wetlands);
Article 15, Title 5 (Protection of Waters) and Title 6 of the
Official Compilation of Codes Rules and Regulations of the State
of New York, Part 661 (Tidal Wetlands), and Part 608 (Protection
of Waters)

Application No. 1-2820-00935/00001-0

DECISION

August 9, 1994

Decision of the Commissioner

The attached Hearing Report (the "Report") of Administrative Law Judge ("ALJ") Frank Montecalvo, including its Findings of Fact, Conclusions and Recommendation, in the matter of the application submitted by Alan Seewald, c/o Valley Dental Group, 510 West Merrick Road, Valley Stream, NY 11580 (the "Applicant"), for Tidal Wetlands and Protection of Waters Permits, a Water Quality Certification, and variances from minimum lot size and setback requirements of the tidal wetlands regulations, is hereby adopted as my Decision in this matter.

The Applicant proposes to construct 82 linear feet of bulkhead with 15 foot return and backfill, a 45 ft. x 27 ft. single family dwelling, and a driveway; and dredge an area 5 feet off the bulkhead to 4 feet below the mean low water level; at a location on James Creek (the Tideway River), north of Island Place, 220 feet east of Riverside Avenue, Village of Seaford, Town of Hempstead, Nassau County, NY.

The proposed project must demonstrate that it meets the standards for permit issuance in a tidal wetland and in adjacent area [6 NYCRR 661.9(b) and (c)]. Among other criteria, the rules require that projects proposed in the adjacent area demonstrate compliance with the development restrictions in 6 NYCRR 661.6 [see 6 NYCRR 661.9(c)(2)]. Although there is a dispute concerning the setback that would be required for the proposed dwelling under the development restrictions, there is no question that the setback cannot be complied with and that a variance of some magnitude is needed in order to permit the project.

As indicated in the Report, the proposed project would have an undue adverse impact on, and be incompatible with, the subject tidal wetland's values for wildlife habitat, marine food production, and cleansing ecosystems. Also, regardless of the extent of the variance, the Applicant failed to make the requisite showing pursuant to 6 NYCRR 661.11. Accordingly, I conclude that the permit issuance standards of 6 NYCRR 661.9 have not been met.

In view of the foregoing, and on consideration of the entire record, the subject application of Alan Seewald is hereby denied.

IN WITNESS WHEREOF, the Department of Environmental
Conservation has caused this Decision to be signed
and issued and has filed the same with all maps, plans,
reports and other papers relating thereto in its office
in the County of Albany this 9th day of
August, 1994.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
LANGDON MARSH, COMMISSIONER
/s/

TO: Alan Seewald
c/o Valley Dental Group
510 West Merrick Road
Valley Stream, NY 11580

Alan Seewald
c/o En-Consultants, Inc.
1329 North Sea Road
Southampton, NY 11968
Attn: Roy L. Haje, President

Gail Hintz and Kathleen M. Shea, Esqs.
Assistant Regional Attorneys
Region 1
New York State Department of
Environmental Conservation
Building 40, SUNY
Stony Brook, NY 11790-2356

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings
50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Application of

Alan Seewald

for Tidal Wetlands and Protection of Waters Permits; a Water
Quality Certification; and Variances from minimum lot size and
setback requirements of the tidal wetlands regulations; pursuant
to Environmental Conservation Law Article 25 (Tidal Wetlands);
Article 15, Title 5 (Protection of Waters) and Title 6 of the
Official Compilation of Codes Rules and Regulations of the State
of New York, Part 661 (Tidal Wetlands), and Part 608 (Protection
of Waters)

DEC Project No. 1-2820-00935/00001-0

HEARING REPORT

-by-

/s/
Frank Montecalvo
Administrative Law Judge

Proceedings

Alan Seewald, c/o Valley Dental Group, 510 West Merrick Road, Valley Stream, NY 11580 (the "Applicant") seeks Tidal Wetlands and Protection of Waters Permits; a Water Quality Certification; and variances from minimum lot size and setback requirements of the tidal wetlands regulations, from the Department of Environmental Conservation (the "Department" or "DEC").

The Proposed Project consists of construction of 82 linear feet of bulkhead with a 15 foot return, a 45 ft. x 27 ft. single family dwelling, and a driveway. The area 5 feet off of the bulkhead would be dredged to 4 feet below mean low water level. The bulkhead would be located seaward of an area of inter-tidal marsh and when backfilled would eliminate approximately 400 square feet of inter-tidal marsh. The single family dwelling would be located 7 feet from the mean high water line, and the driveway, approximately 1 foot from mean high water. The Proposed Project would be located on James Creek (also called Tideway River), north of Island Place, 220 feet east of Riverside Avenue, Village of Seaford, Town of Hempstead, Nassau County, NY. (See Nassau County Tax Map Lot Nos. 6-65-70-1216 through 1219).

Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 25 (Tidal Wetlands); Article 15, Title 5 (Protection of Waters); and Article 8 (Environmental Quality Review). Also applicable are Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures), Part 661 (Tidal Wetlands), Part 608 (Protection of Waters); and Part 617 (SEQR).

DEC Region 1 Staff ("Staff") issued a Notice of Complete Application ("NOCA") for the Proposed Project which was published October 21, 1991 in the Environmental Notice Bulletin and the Hempstead Beacon.

On August 18, 1993 the DEC Office of Hearings received from Staff copies of the application documents and the filed written comments for the purpose of scheduling a public hearing. On the same day, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

In their referral of to the Office of Hearings, Staff indicated that they were opposed to giving Applicant the requested permits and variances, because the house and driveway would be too close to the water, the requested variances were considered to be "extreme," and intertidal marsh would be filled. Staff also noted they were in the process of amending the applicable Official Tidal Wetlands Map. For that reason, while requesting that a hearing be scheduled, Staff also requested that it be immediately adjourned until the boundary location at the project site was finalized.

On August 20, 1993, the ALJ sent the parties a letter suggesting that they try to agree on the location of the tidal wetland boundary at the site for the purposes of the proceeding before scheduling the matter for a public hearing. The parties agreedto this procedure, and, after several weeks, ultimately agreed on the location of the boundary line.

The Notice of Public Hearing (the "Notice") was issued January 18, 1994, and was published in the DEC's Environmental Notice Bulletin on January 26, 1994, and in the Hempstead Beacon on February 4, 1994. The Notice was also directly mailed on January 26, 1994 to the clerk and/or chief executive officer of the Town of Hempstead and Nassau County, as well as to other persons deemed interested in this proceeding.

Requests for Party Status to participate in an adjudicatory phase of the public hearing were due to be filed with the ALJ on or before February 22, 1994. No requests were received.

As advertised in the notice, the ALJ convened the public hearing on Tuesday, March 1, 1994, at the Town of Hempstead Department of Conservation and Waterways Building, Lido Boulevard, Point Lookout, NY, with a public statement session which began at 11:00 AM. Members of the general public were invited to make unsworn statements on the Proposed Project at that session only. No one took this opportunity to speak. In addition, the ALJ was available to receive written statements, as advertised in the Notice, through March 1, 1994. No written comments were filed.

Except for final briefing, DEC Staff was represented at all stages of the proceedings by Kathleen M. Shea, Esq., Assistant Regional Attorney. Gail M. Hintz, Esq., Assistant Regional Attorney, represented Staff for final briefing.

The Applicant was represented at all stages of the proceedings by En-Consultants, Inc., through Roy L. Haje, its President.

An Issues Conference was convened immediately following the public statement session to determine which Issues required adjudication. The parties agreed to a hearing on the Issues identified below. The parties also settled an issue by a project modification also identified below. Staff stated that the project modification was not significant enough to require any renoticing of the proposed project.

Testimony was taken on the identified hearing issues on March 1 and 2, 1994, and concluded on the latter date. Applicant called as his witnesses Roy L. Haje, President, En-Consultants, Inc.; and Robert Wenegenofsky, Environmental Analyst with the Town of Hempstead. Staff called as their witness Kevin DuBois, DEC Marine Resource Specialist I. Before going off the record, a conference call was scheduled to establish a timetable for the parties to file arguments, briefs and certain additional information they had agreed could be submitted without additional testimony.

The timetable for final submissions was subsequently agreed upon and adjusted twice with Applicant's consent to accommodate the change in Staff counsel. Per the timetable, "simultaneous" written closing arguments were submitted which included a brief on the proper method to establish average setbacks of structures from tidal wetlands under 661.6(a)(1). Applicant also submitted documentation to establish Town of Hempstead maintenance dredging. Staff also submitted a recalculation of the percentage of "adjacent area" to be covered by impervious surfaces, to account for the modification to the project that Applicant made at the Issues Conference. The parties also submitted "simultaneous" replies.

The final transcript was received on May 25, 1994, closing arguments and other documents were received on or before June 10, 1994, and replies were received on or before June 23, 1994, upon which the record closed.

ISSUES

  1. What is the applicable setback requirement under 6 NYCRR 661.6(a)(1) for principal structures (i.e., for the proposed dwelling)?
  2. Does the proposed project qualify, under 6 NYCRR 661.11(a), for a variance from the setback provisions of 661.6(a)(1) for principal buildings (either the 75' setback argued by Staff or a 40.4' setback argued by Applicant)?
  3. How will the proposed activity be compatible with the area involved and with the preservation, protection and enhancement of the present and potential values of tidal wetlands, with reference to 661.9(b)(1)(i), (b)(1)(iii), (b)(1)(v), (c)(2), (c)(3), and 661.5? Although the proposed project also must meet requirements under 6 NYCRR Part 608, specifically 608.6(a) (the proposal must be reasonable and necessary) and 608.6(c) (the proposal must not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the state), these regulations were not considered by the parties to present issues distinct from those identified above (i.e., resolution of the Tidal Wetlands issues will effectively resolve all issues relative to Part 608).

Resolved Issue / Project Modification

An issue of whether or not the proposed driveway qualifies under 661.11(a) for a variance from the 75' setback provision of 661.6(a)(7) (which specifies the minimum setback for hard surfaced driveways and similar impervious surfaces exceeding 500 square feet) was resolved by Applicant's agreement to substitute a bluestone (pervious) driveway for the impervious surface originally proposed (asphalt) and to reduce the size of the driveway to 500 sq. ft. The project considered herein is the project so modified.

Summary Positions of the Parties

Citing the Gazza matter, Staff contends that the average setback provisions in the regulations do not apply because less than half of the lots on the tax map within 500 feet of the project site contain single family dwellings (therefore they are not "numerous and substantial"), thus the house needs to be set back 75' from the wetland. Staff contends that the proposed project would have an undue adverse impact on the tidal wetland's value for marine food production, wildlife habitat and other benefits listed in the regulations. Because of the impact, Staff posits that the proposed project qualifies for neither the variance from the required setback, nor the permit.

Applicant contends that the average setback of all the pre-1977 waterfront homes within 500' of the project site is 40.4', that the aerial photo of these homes shows them to be "numerous and substantial", that its calculation is consistent with the average setback calculated for the project across the street, and that Staff's reason for finding the average setback inapplicable is a "tortuous contrivance" inherently biased against the Applicant. Applicant contends that the resource will not be unduly adversely affected by the proposed project, that the project is consistent with the neighborhood and similar to the "Brehl project" being constructed across the street, and that the site was already disturbed having been created by a dredging operation. Because there will be no undue adverse impact, Applicant contends both the variance and permit are reasonable and warranted.

Findings of Fact

Project Site and Setting:

  1. The 8,000 square foot project site, purchased by Applicant in 1987, consists of four 20' x 100' lots (identified as Nos. 1216 through 1219 on tax maps) located on Island Place, Seaford, Town of Hempstead, Nassau County, NY. The site includes both upland (approximately 3,300 square feet) and land under water (approximately 4,700 square feet, the water being part of the Tideway River).
  2. The project site is bounded on the north by the Tideway River, a body of water with a tidal range of approximately 2 feet, classified by NYSDEC as "SA," but closed to shell fishing due to its location in a densely populated area. The official Tidal Wetlands Map No. 626-500 classifies the Tideway River at the project site as "LZ," littoral zone with no vegetated tidal wetlands. The Tideway River is navigable, and provides recreational boat access to waterfront properties. The Tideway River is periodically maintenance dredged by the Town of Hempstead to remove shoals which impede navigation, most recently during January 1991 from a location immediately north of Island Place.
  3. The project site is bounded on the south by Island Place, an unimproved road whose right of way is approximately 33 feet. Island Place runs approximately down the middle of a small peninsula that extends into the Tideway River. Directly opposite the project site on the south side of Island Place is another house and bulkhead project (the "Brehl project"), located on a 6,000 square foot parcel also bordering the Tideway River, currently being constructed under a DEC Tidal Wetlands permit.
  4. The project site is bounded on the west by a 6,000 square foot parcel improved with a one family dwelling, garage, decks and bulkhead, built in 1984 or 1985.
  5. The project site is bounded on the east by unimproved lots which extend to the tip of the peninsula.
  6. The neighborhood's character is residential with sites of similar size. Virtually all developed waterfront sites are bulkheaded and have one or more recreational boats kept at the bulkhead. Most of the waterfront within 500 feet of the project site was already developed by 1977.
  7. The degree to which the project site may provide wetland benefits is somewhat impacted by the development or activities already present or allowed in the neighborhood. Vacant land in a developed area can be conducive to clandestine dumping which has occurred at the site. Domestic dogs and cats could impact use of the site by wildlife, and their droppings, which have been seen at the site, could pollute the waterway. Boating activities can disturb wildlife. The Town's maintenance dredging on or near the site would kill any infauna in the dredged area and disrupt any dependant food web.
  8. Thirty-four "pre-1977" residences on parcels bordering the Tideway River exist within 500 feet of the project site. The average water setback for these residences is 40.4 feet. Out of these 34 residences, 30 are less than 75 feet from the water. The closest distances to the water from these residences is 10 feet for one structure and 12 feet for two others. Because of bulkheading, the distance to the water is generally also the distance to the tidal wetland.
  9. Out of approximately 80 lots on the Nassau County tax maps which were identified as being within 500 feet of the project site, 34 parcels contain single family residences. Several of the 34 parcels are groups of 2 or 3 lots.
  10. Historically, the upland portion of the project site was once larger than it is today, having extended to a bulkhead that used to exist seaward of the current shoreline. Even earlier, however, the project site was at least partially a bog, likely made into fast land through a "cut and fill" operation. A portion of that bog is now visible along the current shoreline. Chunks of bog and sand and "fill" are now eroding into the adjacent waterway. Up to 11 feet has eroded from the old bulkhead line.
  11. The project site is only partially vegetated, with much of the "filled" area being barren. Of the vegetation, the common reed Phragmites (an invasive species often found on disturbed and/or filled land which thrives to the virtual exclusion of other species) is dominant. Poison ivy also abounds on the upland portion of the site as do typical upland weeds and grasses. Phragmites diminishes the potential for erosion and has capacity to absorb and remove sediments from overland flow that might otherwise enter the tidal wetlands and marine waters. Because it has the capacity to remove water from the soil via evapotranspiration faster than other types of vegetation, Phragmites could assist in removing storm water. Phragmites, through buffering of noise and human disturbance, makes the area more amenable for use by insects, mammal species such as muskrats and raccoons, and song birds. Phragmites provides quiet areas for waterfowl such as ducks and swans to nest or rest. Phragmites decomposing over the winter contributes to algae growth in the spring, which algae is food for isopods and shrimp which are in turn fed upon by fish higher up the food chain.
  12. Although the silty nature of the beach created by the loss of fill is not conducive to the growth of Spartina alterniflora (a type of grass that is listed in the Tidal Wetlands Act), the project site has developed a narrow discontinuous band of that species, which occupies 150 to 400 square feet within a 5 foot wide area along the site's 82 feet of shoreline.
  13. The sediments of the site's shoals and mudflats provide a known or likely home for clam worms (Nereis virens), soft clams (Mya arenaria), mussels, and the mud snail (Nassarius obsoletus, a detritus feeder which lives on soft muddy areas). Algae associated with the sediments provides food for marine life. These sediments also have some capacity to clean ecosystems through the absorption of chemicals from the water. The sediments' presence as a shoal helps to diminish flood waters and their velocity.
  14. Killifish (Fundulus heteroclitus) and silversides (Menidia menidia) live in the shallow waters near the project site's shoals and mudflats, and likely use these waters to spawn and evade predators. Where it is uncovered, the site's bog provides a place where silversides might lay eggs. These shallow waters also provide habitat which may be similarly used by other fish and by crabs and other crustaceans such as isopods and shrimp. Juvenile fish congregate in such shallow waters.
  15. The Killifish and silversides also inhabit the deeper waters of the site. These common species are often used by fishermen as bait. They are preyed upon by other fish and by waterfowl. They can also be found off bulkheads in the vicinity of the project site.
  16. Because of the bulkheading in the vicinity, the slope on the project site provides one of the few places in the neighborhood where birds are able to climb out of the water and either rest or nest along the shoreline.
  17. Mallard ducks (which are adapted to living in developed areas), hooded mergansers (a species of duck which feeds on fish such as the killifish and silversides that inhabit the site's waters), and swans swim in the project site's waters. Mallards have also been observed resting in the site's shoal and mudflat area. Swans have been seen resting or nesting on an undeveloped parcel immediately adjacent to the site.

The Proposed Project and Expected Impacts:

  1. The proposed project contains the following components:
    1. constructing a bulkhead attached to and in line with the existing bulkhead to the west of the site, ending in a 15 foot return on the east side of the site, and filling the area behind the bulkhead with approximately 20 cubic yards of spoil from the dredging, supplemented with approximately 300 yards of clean fill to be trucked in from elsewhere, to raise the property to a maximum elevation of 7.5 feet;
    2. dredging the area in front of the bulkhead out a distance of 5 feet to a depth 4 feet below mean low water level to permit boat mooring;
    3. constructing a 27' x 45' one-family two story house to upon timber pilings with a first floor elevation of 9 feet, and a pervious driveway no larger than 500 square feet east of the house.
  2. The proposed bulkhead and filling would reverse the erosion that has taken place at the project site by extending the upland portion of the project site approximately 6 feet seaward of the shore. The upland portion would attain a depth from 40 to 60 feet measured from the road to the bulkhead. The proposed bulkhead and filling would essentially return the shoreline to its historical bulkheaded location (see Finding 10), and consequently relocate the tidal wetland boundary seaward to that location.
  3. The proposed bulkhead and backfilling would eliminate the 150 to 400 square feet of Spartina alterniflora and the site's slope and shallow areas. This change would essentially make the site similar to other developed sites in the neighborhood where upland abruptly meets littoral zone at the edge of a bulkhead. The benefits that come from the areas to be bulkheaded or filled, as described in Findings 13, 14, and 16 above, would be eliminated.
  4. The proposed bulkhead and backfilling of the project site to raise its level would help keep the project site above flood waters. It would also change the direction in which water flows over the site. As proposed, the area behind the house that is now in portions almost level or steeply pitched toward the water would be replaced with a surface gently pitched toward the water. The pitch of the driveway could be made toward the road so little or no runoff would spill over the bulkhead.
  5. The proposed dredging in front of the proposed bulkhead in waters currently used for navigation would not introduce new environmental impacts over those already present since the Town of Hempstead periodically maintenance dredges the navigable waters.
  6. The proposed house would cover 1215 square feet or 36% of the project site's 3560 square feet of "adjacent area." As an impervious surface, the house would be expected to produce "runoff." The runoff could be caught by fitting the house with dry wells.
  7. The proposed house would be oriented with its longest dimension parallel to the road, located 8 feet from the road (purportedly the minimum allowed under local ordinances), 5 feet from the site's western boundary, and, at its closest point, 12 feet from the proposed bulkheaded shoreline. At its closest point, the house would be 2 feet from what is now the tidal wetland boundary.
  8. Given the proposed dimensions for the house, the house could not be repositioned on the project site without encroaching on either the 8' distance to the road, the 5' distance from the western boundary, or reducing the distances between the house and what would become the bulkheaded shoreline, or the current tidal wetland boundary.
  9. Reducing the house's length to 37.1', as Applicant offered in a February 12, 1992 letter to DEC Staff, would increase the closest distances to the proposed shoreline and the current wetland boundary by approximately 2 feet.
  10. The proposed filling, house and driveway would destroy the vegetation (predominantly Phragmites) on the project site, and the benefits associated with its presence (see Finding 11).
  11. Occupancy of the site with a house would reduce the likelihood of clandestine dumping on the site.

The Brehl Project:

  1. The Brehl project involved construction of a dwelling, bulkhead with backfill, floating dock, ramp, pier and dredged mooring area at a site that had an old bulkhead which was in disrepair, but retained fill. The old bulkhead contained an indentation into the shoreline for a boat slip. The new bulkhead will eliminate the indentation and, except for the area previously occupied by the old indentation, will be landward of the old bulkhead. At its closest point, the Brehl house will be 19 feet from the new shoreline and relocated tidal wetland boundary, though only about 10 feet from the former boundary (the indentation). Brehl's repositioning of the bulkhead will result in a net gain of about 300 square feet of tidal wetlands. The dredged material from the mooring area will be used as backfill behind the bulkhead and in the old indentation. In correspondence with NYSDEC, Mr. Brehl's representative alleged that the average setback was 42'.

Discussion

To receive a permit, Applicant's project must meet all the permit issuance standards of 6 NYCRR 661.9. Those most critical to the decision here are compatability with the wetland (i.e., no undue adverse impacts) [661.9(b)(1)(i), or 661.9(c)(3) for activities in areas adjacent to wetlands], and compliance with development restrictions [661.9(b)(1)(iv), or 661.9(c)(2) in adjacent areas]. Here, the house admittedly will not comply with the "setback" development restriction, so the project cannot go forward unless the project also qualifies for a variance from that restriction. As explained below, the project fails to meet permit issuance standards at least on both counts, either of which is sufficient for a denial: the house will not qualify for a variance, and the project will cause undue adverse impact to the wetland.

Setbacks and Variance:

The issue of "which setback applies" is moot because the house will not qualify for a variance from either the standard 75' setback or the average 40.4' setback. It's noted, however, that Applicant's method regarding average setback (Finding 8) appears at least on its face to be consistent with the intent and wording of the applicable regulation"The minimum setback of all principal buildings and all other structures that are in excess of 100 square feet (other than boardwalks, shoreline promenades, docks, bulkheads, piers or wharves) shall be 75 feet landward from the most landward edge of any tidal wetland * * * . Further provided, where numerous and substantially all structures which are (i) of the type proposed by the applicant, (ii) lawfully existing on August 20, 1977, and (iii) within 500 feet of the subject boundary, are located closer to the subject tidal wetland than the minimum setback required by this paragraph, placement of a structure as close as the average setback of these existing structures from the subject tidal wetland shall fulfill the requirements of this paragraph." (6 NYCRR 661.6(a)(1); underline added).. In their setting, the thirty-four houses appear "numerous," and 30 out of the 34 appear to be "substantially all" of them. The relevancy of Staff's calculation (Finding 9) isn't understood. "Lots" aren't mentioned in the regulation, and their relationship to what constitutes "numerous" structures does not readily come to mind. The Gazza decisions and ALJ Report publicly available Application of Gazza, Interim Decision 5/3/91, Decision 1/6/92 and attached Hearing Report. do not prescribe the calculation used by Staff. Under the circumstances, Applicant would not know to make such a calculation, particularly when his application for the variance was found to be complete without it.

To qualify for a variance from the setback requirement for the house, Applicant bears the burden of showing the "practical difficulty" in the way of carrying out the requirement, that the spirit and intent of the requirement will be observed, and that granting the variance will not cause undue adverse impact on present or potential wetland values, among other things. (See 661.11)"(a) Where there are practical difficulties in the way of carrying out any of the provisions of section 661.6 of this Part or where in the department's judgment the strict application of the provisions of section 661.6 of this Part would be contrary to the purposes of this Part, the department shall have authority in connection with its review of an application for a permit under this Part to vary or modify the application of any provisions in such a manner that the spirit and intent of the pertinent provisions shall be observed, that public safety and welfare are secured and substantial justice done and that action pursuant to the variance will not have an undue adverse impact on the present or potential value of any tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation. * * * The burden of showing that a variance to such provisions should be granted shall rest entirely on the applicant." (661.11, Variances)

The small size of the project site's buildable area prohibits locating the proposed house where it could comply with either a 75' or 40.4' setback. It's not possible to locate even a "downsized" version of the house further than 2 to 4 feet from the wetland.

Any "practical difficulty" caused by the limited building area is self-imposed. Since the setback requirement became effective in 1977, Applicant either knew or should have known the buildable area was too small to accommodate his proposed house and maintain an adequate setback when he purchased the site in 1987. Also, observation of the houses in the neighborhood would have revealed that his proposed house would have to be built closer to the water than almost all of those that pre-dated the regulation, even if he had assumed he would be allowed to build a bulkhead and relocate the shoreline seaward to its historic location. This should have alerted him to the probability that the site might not accommodate his house now that tidal wetlands are protected. While not determinative by itself, such self-imposed hardship is a factor to be considered in deciding whether or not a variance should be given (Application of Gazza, Interim Decision 5/3/91; compare Matter of DeSena v Board of Zoning Appeals, 45 NY2d 105, 108 (1978)).

It hasn't been shown that the spirit and intent of the setback requirement would be observed, or that no undue adverse impact would result, if the variance is granted for the house. The house would be built in an "adjacent area," the most important function of which is to serve as a buffer to protect the character, quality and values of the adjoining wetland. (661.2(j)). The setback required by 661.6(a)(1) ensures a degree of buffering by maintaining dwellings and other principal buildings a distance from the wetland. Granting the variance here, whether from a 75' or a 40.4' setback, would reduce this buffer distance to as little as 2 feet. In either case, the amount of variance (73' or 38.4') would be extreme, practically doing away with the buffer distance.

Rather than focus on the number of feet of variance requested, it is more germane to consider whether the buffer to be left after giving a variance would fulfill the purpose of a buffer. This wetland has value as wildlife habitat, particularly for waterfowl, that is enhanced by the adjacent area's vegetation. The regulations contemplate that bringing human activity close to a wetland would adversely affect a wetland's use by wildlife. The Applicant hasn't shown how this wetland's value as wildlife habitat can be maintained while placing human habitation only 2 feet away. Thus, enforcing the setback would protect this wetland benefit.

Applicant's failure to establish that the house would not have an undue adverse impact on the wetland's value as wildlife habitat, and the self-imposed nature of the hardship, lead to the conclusion that Applicant does not qualify for the requested variance. It should be noted that the house's impact is considered here as if the house could be constructed without the bulkhead and filling. If the house requires these other project elements to be built, the adverse impacts associated with the bulkhead and filling would also require denial of the variance.

Compatibility with the Wetland:

Although wetland benefits provided by the project site are already adversely impacted by the development and activities of the neighborhood nearby, the wetlands at the project site still have value for wildlife habitat, marine food production, and cleansing ecosystems. Certain waterfowl have been observed in the area which could use the site's slope, Phragmites-sheltered areas and shallow waters for nesting, resting and feeding. Songbirds, and mammals such as raccoons and muskrats could also potentially use these areas. The site's shallow waters and exposed bog provide a place for fish and other sea life to spawn and grow, sheltered from larger fish that might prey upon them. The site's sediments provide a place for clams, mussels, worms and other fauna to live. Algae associated with the sediments provides food for marine organisms. The site's decaying Phragmites contributes to algal growth. The algae and various marine organisms all are part of the food chain. The site's sediments also have some capacity to absorb chemicals from the water, thereby cleaning it.

Of the things proposed, the most serious impacts would come from the proposed bulkhead and filling, since they would eliminate or cover over: the slope from upland to the water, the Spartina alterniflora intertidal marsh vegetation and Phragmites, and the shallow water areas with underlying sediments. These features, most of which are in short supply in the largely bulkheaded and developed neighborhood, provide the wetland values mentioned above. Unlike the neighboring "Brehl project," there will be no net gain in wetlands. The loss of these scarce resources makes clear the project's incompatibility with the policy to preserve and protect tidal wetlands (see 661.9(b)(1)(i)).

Conclusions

  1. The issue of applicable setback is moot because Applicant's proposed house does not qualify for a variance of either the standard 75' setback or the average 40.4' setback.
  2. Applicant's proposed house does not qualify for a variance of the setback requirement because Applicant failed to establish that the house would not have an undue adverse impact on the wetland's value for wildlife habitat, and because Applicant's hardship was self-imposed.
  3. The proposed activities do not meet the 661.9 standards for permit issuance because the project would have an undue adverse impact on (and be incompatible with) the wetland's values for wildlife habitat, marine food production, and cleansing ecosystems; and the house does not comply with the setback restriction.

Recommendation

Because the regulatory standards will not be met, the requested variance and permits should be denied.

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