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Sloane, David - Decision, February 16, 2000

Decision, February 16, 2000

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

In the Matter

- of -

the Application of DAVID SLOANE for
a Tidal Wetlands permit pursuant to
Environmental Conservation Law (ECL)
Article 25 and Title 6 of the Official
Compilation of Codes, Rules and
Regulations of the State of New York
(NYCRR), Part 661.
Permit Application No. 1-4722-02835/00001

DECISION

February 16, 2000

DECISION OF THE COMMISSIONER

The attached Hearing Report (the "Report") of Administrative Law Judge ("ALJ") John Owen, including Findings of Fact, Conclusions of Law and a Recommendation in the matter of the application of David Sloane (the "Applicant") for a Tidal Wetlands Permit pursuant to Environmental Conservation Law ("ECL") Article 25 for the construction of a single family dwelling, decking, sanitary system and access walk (the "Project") to be located at 5 Dune Walk, Ocean Ridge, Davis Park, Fire Island, Town of Brookhaven, Suffolk County, is hereby adopted as my Decision in this matter subject to my comments below.

The applicant did not offer any conflicting evidence to rebut the expert opinions offered by Department Staff and therefore the evidence overwhelming supports denial of the Project as recommended by the Staff and the ALJ. The proposed Project fails to meet the setback requirements of the Tidal Wetland Land Use Regulations applicable to the proposed single family dwelling and sanitary system, and will be contrary to the policy and intent of the Tidal Wetlands Act. The Project will cause undue adverse impacts to the public health and welfare, and will have an undue adverse impact on the present or potential tidal wetland values for marine food production, wildlife habitat, hurricane and storm control, open space and aesthetic appreciation. Accordingly, the requested Tidal Wetland Permit is hereby denied.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, New York
February 16, 2000

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

In the Matter

- of -

the Application of DAVID SLOANE for
a Tidal Wetlands permit pursuant to
Environmental Conservation Law (ECL)
Article 25 and Title 6 of the Official
Compilation of Codes, Rules and
Regulations of the State of New York
(NYCRR), Part 661.

Permit Application No. 1-4722-02835/00001

HEARING REPORT

- by -

/s/
John H. Owen
Administrative Law Judge

PROCEEDINGS

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

The Notice of Public Hearing was published in the Brookhaven Review on October 14, 1999 and in the Department's Environmental Notice Bulletin on October 20, 1999.

Throughout, the Department Staff and the Applicant have been represented by the same attorneys, respectively: Craig Elgut, Esq., Assistant Regional Attorney, Region 1 for the Department and Mars, Sloane and Conlon (Glenn B. Gruder, Esq., of Counsel) of Hauppauge, New York for the Applicant.

A legislative (public) hearing was held on November 9, 1999 at the Patchogue Village Hall, 14 Baker Street, Patchogue, New York, and an issues conference was held the same day at the same location and an adjudicatory hearing was begun the same day at the same location and continued on November 10, 1999 at the same location.

There were no requests to speak at the legislative hearing and no written statements were submitted.

The stenographic transcript was received on November 22, 1999 and the record closed on that date.

THE PROJECT DESCRIPTION

The Applicant proposes to construct a single family dwelling, decking, sanitary system and access walk to replace the previous dwelling lost in a storm event. The proposed dwelling is located seaward of a man-made dune, approximately 42 feet from the tidal wetlands boundary (AHW).

The project is to be located at 5 Dune Walk, Ocean Ridge, Davis Park, Fire Island, Town of Brookhaven, Suffolk County, New York.

THE PARTIES' POSITION

The Applicant seeks to replace a one family dwelling, deck, sanitary system and access walk that were destroyed in a storm event in the Fall of 1995. The former dwelling and other structures were located landward of a natural dune but they can now only be located seaward of a man-made dune.

The man-made dune is the result of a permit issued by the Department authorizing dune scraping and restoration in the area of the Applicant's former and proposed dwelling.

The Applicant, although he signed a general consent to the dune work, claims that he never authorized a man-made dune to be constructed on his lot such that there is no room left to place a dwelling or other structures landward of that dune.

It is the Applicant's position that his property has been taken without due process of law.

The Applicant's counsel called only the Applicant as a witness and offered no documents in evidence. The Applicant's counsel, while conceding that the Applicant cannot meet the setback restrictions, did contest the Department's jurisdiction and claimed that the standards for permit issuance were met.

The Department Staff relies upon the Applicant's consent to the dune work and maintains that the Applicant cannot meet any of the standards for permit issuance nor can he meet the setback requirements for the house and sanitary system, so that the permit must be denied.

THE WITNESSES

Staff called as witnesses Matthew Sclafani who was then Peconic Estuary Program Coordinator, Region 1 and just prior to that was with the Bureau of Marine Habitat Protection, Tidal Wetlands Unit, Region 1. Mr. Sclafani testified basically about the standards for permit issuance and the setback restrictions.

The staff also called as a witness George Stadnik, Marine Resource Specialist, Bureau of Marine Habitat Protection, Region 1. Mr. Stadnik testified concerning the dune scraping and restoration project.

Staff's last witness was Eric Star, Environmental Program Specialist, Division of Water, Bureau of Flood Protection, Region 1. Mr. Star testified concerning the adverse conditions at the site making it likely that the house would be destroyed in a storm and cause various forms of environmental, property and personal damage.

THE DEPARTMENT'S JURISDICTION OVER THE PROJECT SITE

The Applicant claims that the Department does not have jurisdiction over the site because the most seaward line of the proposed dwelling is over 10 feet elevation, citing 6 NYCRR §661.4(b)(iii) and Exhibit 4, a survey of the site.

Applicant's point is that the dwelling (as well as the deck and sanitary system) are beyond the adjacent area, where the Department has no right to regulate.

Yet, the elevation is the result of the man-made dune construction as part of the dune scraping and restoration project.

This man-made dune is a "substantial man-made structure described in subparagraph (ii) of this subdivision after August 20, 1977" and "shall not be deemed to limit the extent of an adjacent area." 6 NYCRR §661.4(b)(4).

The dwelling, deck and sanitary system are therefore in the adjacent area and the Applicant's argument must fail.

DISCUSSION

Apart from the jurisdictional claim there are the standards for permit issuance and the setback requirements.

As claimed by the Department Staff, these standards are set out at 6 NYCRR §661.9(c)(1) - public health and welfare; (2) development restrictions; and (3) undue adverse impact upon various values and potential values of the tidal wetlands. The development restrictions are also set out at 6 NYCRR §661.6(a)(1) and (2). Each will be addressed separately below.

Public Health And Welfare

The proposed project must be compatible with the public health and welfare.

The proposed dwelling on a staking diagram submitted by the Applicant (Exhibit 7) shows the stakes for the dwelling and deck to be seaward of the man-made dune. The sanitary system stakes are at the landward side of the man-made dune indicating that it is to be located in the far side of the dune.

The dwelling and decking would be protruding out on the beach impeding four-wheel drive vehicles, recreational activities of beach goers, and public utility and emergency vehicles. In a storm, with the water coming up to the other beach houses, the proposed house would totally block all vehicles attempting to pass on the beach or even in low water.

A dwelling so situated is likely to be destroyed in a storm. In this event, debris from the structure would endanger persons and other property. Chemical and nutrient runoff from the house into the surface water would have an adverse impact on flora and fauna and a rich diversity of organisms such as shore birds, plant communities, invertebrate communities within the littoral zone.

Debris in the water creates turbulence which can destabilize the dune.

Excavating for the sanitary system would destroy the vegetation on the dune as well as destabilize the dune itself.

During a storm event the sanitary system would likely be exposed and breached, releasing pathogens (viruses and bacteria) which endanger the surface water, swimmers, other persons and wildlife.

Development Restrictions

The development restrictions here involved are setbacks: for the house, 75 feet from the most landward edge of the tidal wetland; for the sanitary system 100 feet from the same boundary.

Measurements showed that the house was 42 feet from the boundary and the sanitary system 75.5 feet.

As noted, the Applicant's counsel conceded these measurements but argued that the Apparent High Water line is subject to substantial movement so it depends on when the measurements are made whether the setback restrictions are met or not.

Under the Land Use Guidelines at 6 NYCRR §661.5, #45 (installation of a sanitary system) is generally compatible permit required in the adjacent area and #46 (construction of a dwelling) has the same status.

Undue Adverse Impact on the Various Values and Potential Values of the Tidal Wetland

a. Marine Food Production

Many and diverse organisms, such as plant communities and invertebrate communities within the littoral zone are an important food source for fin-fish and other organisms which traverse the area.

These organisms would not survive the construction of the house and would not do well at all in the shadow of the house and deck.

When you see shore birds foraging then you know there is a food source present such as invertebrates, worms, arthropods and other microscopic creatures.

b. Wildlife Habitat

Runoff from the house impacts wildlife close to the littoral zone in which shore birds flourish. A buffer zone is needed between them and humans so they can forage, rest and use the habitat.

A lot of bird activity was noted in the area of the proposed house, including piping plovers, seagulls and terns. Diverse plant communities were also noted.

c. Flood, Hurricane and Storm Control

With a house on top of a dune or seaward of the dune, the shade on the vegetation deters the continued growth of the vegetation and thus destabilizes the dune and increases the possibility of coastal erosion.

Dune stability is important because dunes protect the areaslandward of them from washing out.

The house, instead of aiding with flood, hurricane or storm control, would be about the first victim of these forces.

d. Open Space and Aesthetic Appreciation

The house protruding out on the beach would interrupt the view of miles and miles of open beach in either direction.

FINDINGS OF FACT

  1. David Sloane, the Applicant, applied for tidal wetland permit to rebuild a house lost in a storm event in Fall of 1995.
  2. In the Fall of 1992 the Department issued a permit for beach scraping and dune restoration in Ocean Ridge, Fire Island and this permit has been continually extended now to July 28, 2001.
  3. On October 9, 1992 the Applicant signed a consent to the work to be performed pursuant to the permit.
  4. Whatever natural dune or man-made dune existed seaward of the Applicant's house lost in the storm in the Fall of 1995 was substantially lost in that same storm.
  5. The dune appearing in the current photographs (for instance Exhibit 6) is the man-made dune.
  6. The Applicant never consented to construction of a dune in its current location because it is not possible to locate the dwelling landward of that dune.
  7. The Applicant proposes to construct a dwelling seaward of the man-made dune and to locate the sanitary system in the landward side of the dune.
  8. The seaward line of the house is 42 feet from the tidal wetland boundary and the sanitary system is 75.5 feet from the boundary.
  9. Based upon the potential difficulties set out in the Discussion section above, the proposed project is not compatible with the public health and welfare.
  10. The proposed project fails to meet the set back restrictions for the house (75 feet) and the sanitary system (100 feet), each by a wide margin, i.e. 33 feet as to the house and 24.5 feet as to the sanitary system.
  11. Based upon the potential difficulties set out in the Discussion section above, the proposed project will have an undue adverse impact upon marine food production, wildlife habitat, flood, hurricane and storm control and open space and aesthetic appreciation.

CONCLUSIONS OF LAW

  1. For the reason stated above, the Department has jurisdiction over the site as the proposed project is entirely in the adjacent area. ECL §25-0201 and 25-0302 and 6 NYCRR §661.4(b).
  2. The proposed project violates 6 NYCRR §661.9(c)(1), the permit standard concerning the public health and welfare.
  3. The proposed project violates 6 NYCRR §661.9(c)(2) and 661.6(a)(1) and (2) the development (setback) restrictions for the house and sanitary system.
  4. The proposed project violates 6 NYCRR §661.9(c)(3) the permit standards concerning marine food production, wildlife habitat, flood, hurricane and storm control, and open space and aesthetic appreciation.

RECOMMENDATION

Permit application number 1-4722-02835/0001 should be denied to David Sloane.

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