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Tasker, Susan - Decision, December 29, 1994

Decision, December 29, 1994

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

Susan Tasker

for a Tidal Wetlands Permit and variances from tidal wetlands setback requirements, pursuant to Environmental Conservation Law Article 25 and 6 NYCRR Part 661
DEC Project No. 1-4378-00583/00001-0

DECISION

December 29, 1994

Decision of the Commissioner

The attached Hearing Report (the "Report") of Administrative Law Judge ("ALJ") Frank Montecalvo, including its Findings, Conclusions and Recommendation, in the matter of the application submitted by Susan Tasker (the "Applicant"), 202 Sixth Street, Greenport, N.Y. 11944, for a Tidal Wetlands Permit and variances from certain tidal wetlands setback requirements is hereby adopted as my Decision in this matter.

The Applicant proposes to construct a single family dwelling, deck, driveway, septic system, stone revetment and place fill on a site bordering Long Island Sound and located at Middle Road, Greenport, Town of Southold, Suffolk County, N.Y. The dwelling and deck require variances from the tidal wetlands setback restriction for principal buildings and other structures. The dwelling and deck are proposed within 38' and 32' of apparent high water (AHW). The septic system is proposed within 47' of AHW, which requires a variance from the setback required for septic systems.

The Applicant must demonstrate that the proposed project meets the standards for permit issuance in a tidal wetland adjacent area [6 NYCRR 661.9(c)] and, with respect to the house, deck and septic system components, she must show entitlement to a variance from the setback requirements contained in 6 NYCRR 661.6(a)(1) and (2).

The principal issue with respect to both the permit standards and the variance requirements relates to whether the project would have any undue adverse impact on the present or potential values of the adjacent tidal wetland. As explained in the Report, the project is not expected to cause any adverse impacts to the principal values supported by the adjacent wetland: recreation, wildlife habitat and marine food production.

Approval of the variances also requires a demonstration by the Applicant that there are practical difficulties associated with meeting the aforementioned setback requirements [6 NYCRR 661.11(a)]. The Applicant has successfully made this showing by referencing the site's configuration together with the requirements of local authorities.

In view of the foregoing, the subject application of Susan Tasker for a Tidal Wetlands Permit and variance from certain tidal wetlands setback requirements is hereby approved subject to the standard conditions for tidal wetland permits. The Department Staff shall promptly issue to the Applicant the permit and variances described above.

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 29TH day of December, 1994.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
LANGDON MARSH, COMMISSIONER
/s/

TO: Susan Tasker
202 Sixth Street
Greenport, NY 11944

SERVICE LIST (ATTACHED)

OFFICIAL SERVICE LIST - March 26, 1997

NAME OF HEARING: Susan Tasker; Application No. 1-4378-00583/00001-0

Tidal Wetlands Permit; variance from tidal wetlands setback requirements

STAFF: DEC Region 1
c/o Gail M. Hintz, Esq., Assistant Regional Attorney
NYSDEC Region 1 Offices
Building 40, SUNY Campus
Stony Brook, NY 11790-2356
FAX 516 444-0373; PHONE: 516 444-0260

APPLICANT: Susan Tasker
c/o Esseks, Hefter & Angel
108 East Main Street
P.O. Box 279
Riverhead, NY 11901

attn: Stephen R. Angel, Esq.
FAX 516 369-2065; PHONE: 516 369-1700

ALJ:

Frank Montecalvo
Department of Environmental Conservation
Office of Hearings
50 Wolf Road, Room 409
Albany, NY 12233-1550

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In the Matter of the Application of
Susan Tasker for a Tidal Wetlands Permit and variances from tidal wetlands setback requirements,
pursuant to Environmental Conservation Law Article 25 and 6 NYCRR Part 661

DEC Project No. 1-4378-00583/00001-0

HEARING REPORT

-by-

/s/
__________________________________
Frank Montecalvo
Administrative Law Judge

THE PROPOSED PROJECT and PERMITS SOUGHT

Susan Tasker, 202 Sixth Street, Greenport, N.Y. 11944 (the "Applicant") seeks a Tidal Wetlands Permit and variances from tidal wetlands setback requirements from the Department of Environmental Conservation (the "Department" or "DEC"). 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); and Article 8 (Environmental Quality Review). Also, 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); NYCRR Part 661 (Tidal Wetlands); and Part 617 (SEQR).

Applicant's proposed project consists of a single family dwelling, deck, driveway, septic system, and a stone revetment with backfill, to be located adjacent to Long Island Sound on Middle Road, Greenport, Town of Southold, Suffolk County, N.Y. The dwelling and deck require variances from the 75 foot tidal wetlands setback restriction. The dwelling and deck are proposed within 38' and 32' of apparent high water (AHW). The septic system is proposed within 47' of AHW, which requires a variance from the 100 foot setback applicable to septic systems.

PROCEEDINGS

Application papers were initially filed during August, 1992. Following the submission of other documents, DEC Region 1 Staff ("Staff") issued a Notice of Complete Application that was published on June 23, 1994 in the Southold Traveler-Watchman and June 22, 1994 in the Environmental Notice Bulletin (ENB).

On August 26, 1994 the DEC Office of Hearings received Staff's request to schedule a public hearing. On August 29, 1994, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

The Notice of Public Hearing (the "Notice") was issued September 7, 1994, and was published September 14, 1994 in the ENB, and September 15, 1994 in the Traveler-Watchman. Notice was also directly mailed September 12, 1994 to the clerk or chief executive officer of the Town of Southold and Suffolk County. The Notice indicated Staff's tentative determination that the proposed project would not meet permit issuance standards of Part 661.9. The Notice required that petitions to intervene in these proceedings be filed by October 10, 1994, and that written public comments on the proposed project be received by October 17, 1994.

The ALJ received no written comments on the proposed project and no petitions to intervene.

As advertised in the Notice, the ALJ opened the public hearing at 11:00 AM on October 17, 1994, at the Southold Town Hall, 53095 Main Road, Southold, N.Y. DEC Staff was represented by Gail M. Hintz, Esq., Assistant Regional Attorney. The Applicant was represented by Esseks, Hefter & Angel; Stephen R. Angel, Esq., of counsel.

No one made a statement at the public statement session.

The Issues Conference was convened immediately following the public statement session. Potential issues were discussed, narrowed and set forth. None were appealed. These are identified below ("Issues").

The adjudicatory hearing commenced immediately following the Issues Conference, and concluded the next day. Applicant called as her witness Roy L. Haje, President, En-Consultants, Inc. Staff called as its witnesses Louis Chiarella, Regional Manager, DEC Bureau of Marine Habitat Protection; and Dawn McReynolds, Acting DEC Marine Resource Specialist. Oral closing arguments were taken. The record closed November 7, 1994 on receipt of the stenographic transcript.

ISSUES

  1. Does the proposed house in the "adjacent area" qualify under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures (which would enable compliance with 661.9(c)(2))?
  2. Does the proposed deck in the "adjacent area" qualify under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures (which would enable compliance with 661.9(c)(2))?

    Sub-issue: Is the setback required by 661.6(a)(1) 75 feet or the "average" setback as calculated by Applicant?

  3. Does the proposed septic system in the "adjacent area" qualify under 661.11 for a variance of the 100 feet setback required by 661.6(a)(2) for same (which would enable compliance with 661.9(c)(2))?
  4. Does the proposed septic system meet the permit issuance standards for "adjacent areas" specified in 661.9(c)(1)?
  5. Do the (a) house, (b) deck, and (c) septic system meet the permit issuance standards for "adjacent areas" specified in 661.9(c)(3)? Of concern here is the potential for undue adverse impacts to wetland values for wildlife habitat, erosion control, recreation (here, beach width), cleansing ecosystems, storm control, marine food production, and open space/aesthetic appreciation. Not of concern are values for education, research, and silt absorption.
  6. Does the revetment meet permit issuance standards under 661.9(c)? Of concern here is the potential for undue adverse impacts to wetland values for wildlife habitat, erosion control, recreation (here, beach width), cleansing ecosystems, storm control, marine food production, and open space/aesthetic appreciation. Not of concern are values for education, research, and silt absorption.

STAFF'S POSITION

Staff objects to the proposed project, contending that it will cause undue harm to tidal wetland values, and, thus, not meet the requirements of 661.9(c)(3).

Staff argues that the lot is too small to develop, with so little room behind the bluff that Applicant's consultant had to configure the proposed house half-way into the "adjacent area."

In spite of its size, Staff contends that the property fosters a large quantity of tidal wetland values. It's a vital area for wildlife that can be used for feeding, and for birds to nest and rest. It is important for marine food production providing part of the food chain for Long Island Sound. The site is important to recreation, having a beach and providing water vehicle access to the water. It provides open space and offers a beautiful view to passers-by. Staff contends that these wetland values will suffer negative adverse impacts, meaning that 661.9(c)(3) (which requires absence of undue adverse impacts) will not be met.

Staff also argues that the setbacks under 661.6(a)(1) [75 feet for the house and deck] and (a)(2) [100 feet for the septic system] will not be met, and that the deck does not qualify for the average setback because of non-compliance with the "numerous and substantially all" portion of the regulation (i.e., 5 structures with decks is less than 50% of 12 structures structures on the water). Although Staff recognizes Applicant's difficulty in complying with the setbacks, Staff argues that the project will not qualify for variances because it must be shown that the spirit and intent of the regulations be observed, that public health and safety must be protected, and that there will be no undue adverse impact on present or potential tidal wetland values. Regarding public safety, Staff has concerns over the migration of septic material and the cumulative impact on Long Island Sound. Staff contends there has been an insufficient showing of why the house cannot be moved back further; and that Applicant did not mention other mitigation possibilities such as placing sand over the revetment to make a dune.

APPLICANT'S POSITION

Applicant contends that the only economic use of her property is for a single family residence with associated septic system. Applicant argues that this project will have very little actual deleterious effect on the environment or even the potential effects identified in the Tidal Wetlands Act and regulations. The site is a 50 foot wide lot sandwiched between two existing houses (both of which are close to the property line) located on a highly traveled county route. Applicant points out that all construction would be either in the adjacent area or beyond DEC jurisdiction. No intrusion into the wetland itself is involved, and all the proposed structures are classified as "generally compatible" with tidal wetland adjacent areas. Applicant notes that there have been no acknowledged problems with Sound water quality in the vicinity of the site and that the active portion of the proposed septic system (the leaching pools) are admittedly outside of DEC jurisdiction. Only a few feet of the solid holding tank are inside the adjacent area. Staff's concerns for the beach and possible scouring are belied by the testimony and evidence that indicates no beach movement over the years and no identifiable scouring. Applicant notes that the Suffolk County Department of Health Services has approved of the septic system, that Southhold has issued a coastal erosion hazard permit, and that the Southold Zoning Board of Appeals has issued a variance approving of the house's setback from the Sound. Applicant also argues that practical difficulty has been established because at most the house's location could be moved only 6 inches.

FINDINGS OF FACT

Project Site and Setting:

  1. The project site consists of an approximately 50' wide by 100' deep parcel of land at Arshamomoque near Greenport, Town of Southold, Suffolk County, N.Y., designated on the Suffolk County Tax Map as District 1000, Section 044.00, Block 02.00, Lot 011.000. Applicant acquired the site by Executor's deed dated April 14, 1992 from Margaret T. Deale, Administrator c.t.a. for the estate of Ruth W. Tasker, in consideration of a specific bequest to Robert W. Tasker, deceased. Ruth W. Tasker (mother-in-law of the Applicant) acquired the site from another person in 1953.
  2. The project site is a 4050 square foot parcel of land bounded on the north by the high water mark of Long Island Sound and on the south by County Route 48 (also called Middle Road). Official Tidal Wetlands Map No. 718-552 classifies the waters of Long Island Sound here as "LZ," littoral zone.
  3. The project site is bounded on both the east and west by parcels improved with single family dwellings, decks, and shore stabilization structures. The parcel immediately to the west is protected by a vertical timber bulkhead. The parcel immediately to the east is protected by a stone (or gabion) retaining wall with "rip-rap" (large stones) at its toe. The distance between these two stabilization structures (i.e., the width of the project site) is approximately 50 feet. The distance between the two houses is approximately 60 to 70 feet. The deck on the parcel to the east encroaches on the site itself.
  4. The site is physically constituted by a lawn area extending from the southerly property line to an eroded bankline, and an unvegetated sand and stone beach extending from the bankline to the water. Access from the lawn to the beach is via a stairway. There are no apparent changes in the trend of the shoreline in front of the neighboring stabilization structures with that on the site. There is no apparent "toe scour" or erosion at the foot of these structures. The only vegetation on the site is lawn grass with upland weeds mixed in.
  5. The beach contains a line of wrack, i.e., a line of debris found around the spring high tide line. The wrack line stretches across the site, and continues in front of the neighboring shore stabilization structures which abut both sides of the site. The wrack contains (among other things) chondrus, reeds, sticks, crab carapids, slipper shells, and horseshoe crabs. The wrack line is most prevalent on the adjacent parcel to the west, where the beach is wider. The wrack line becomes discontinuous on the adjacent parcel to the east, where it is broken up by the rock rip-rap.
  6. The neighborhood's character within 500 feet of the site on the north side of County Route 48 is primarily waterfront one-family residences. Exhibit A-16 indicates that of the 13 waterfront parcels of varying size in this area (including the site), 8 contain houses (6 of which existed prior to 1977), one contains a restaurant (also pre-1977), 3 are vacant and 1 is unknown. Five decks existed in this area prior to 1977: three attached to dwellings and two attached to the restaurant. The average setback of these decks from the water is 36 feet. The site plan (see Attachment) indicates an additional (post-1977) deck on the parcel immediately west of the site.
  7. A public beach is located on County Route 48 approximately 1/4 mile west of the site.
  8. The single family residences within the general vicinity of the site have domestic septic systems to get rid of their sanitary waste.

Wetland areas and benefits:

  1. Mapped littoral zone (see Finding 2) and unmapped shoals and mudflats (here, the beach area between mean low and mean high water) are immediately adjacent to the project site on Long Island Sound. Littoral zones have value as open water for marine food production, wildlife habitat, recreation, education, and scientific research. In particular, seagulls have been observed feeding and loafing on nearby rocks below the mean high water line at the site.
  2. The project site itself is comprised of tidal wetland "adjacent area" (about half of the site, extending from the high water line landward to the top of the eroded bankline or bluff at an elevation of approximately 11 feet), and land further upland. The top of the bluff is 51 feet from the high water line, more or less depending on the particular portion of the site. There are no vegetated tidal wetlands at or adjacent to the site.
  3. The site's beach is used for recreation. People use the site for beach access, lounging, and for launching and retrieving jet skis.
  4. The beach's wrack line is an area where organic material decays. It is habitat for organisms such as sand fleas and arthropods. It is also the prime feeding habitat for many wading and shore birds, such as the least tern, piping plover and the roseate tern. The components of wrack lines in general are an important food source for birds and other species in the food chain (e.g., raccoons).

The Proposed Project, Design Constraints and Expected Impacts:

  1. The proposed project consists of the following elements, as shown on the Attachment to this Report:
    1. a two story 22 feet by 25 feet one-family dwelling on pilings;
    2. a septic system consisting of a solid septic tank approximately 4 feet by 8 feet, two 8 feet diameter leaching rings 6 feet deep, and an area for a future ring of similar size if needed;
    3. a stone revetment that will extend between the corners of the adjacent shore stabilization structures, consisting of one and a half to two ton capstones over 100 to 300 pound core stones on filter cloth, with top elevation of 11.5 feet above mean sea level, and with a slope of approximately 1 on 1;
    4. backfill consisting of approximately 265 cubic yards of clean fill which will be trucked in to raise the site's grade landward of the revetment to equal the existing upland (i.e., the site would be raised to elevations between 11.5 (at the revetment) and 13 feet (under the house));
    5. an irregular shaped open-wood deck extending across the north side of the house and extending to the south side of the revetment (5 feet deep on the east and 10 feet deep on the west); and
    6. a bluestone or similar pervious driveway.
  2. None of the project elements would be located in the tidal wetland itself. Due to the bank on the site, all project elements would be located in the tidal wetland "adjacent area" and/or further upland. Specifically, the revetment, the deck, the northern half of the house, the northern third of the septic tank (i.e., not the leaching rings), and the fill would be in the "adjacent area;" with the remainder of the project further upland.
  3. The sanitary system has been situated as far from the water as possible while being in accordance with regulations of the Suffolk County Department of Health Services ("SCDHS," the primary agency responsible for regulating septic systems in the area). The solid septic tank would be located approximately 47 feet from the line of mean high water, and the nearest leaching pool would be approximately 64 feet from the water. The septic tank encroaches approximately 4 feet into the "adjacent area." Five foot setbacks of the sanitary system from a retaining wall on the south, from the east property line, and from the proposed house, are the minimum acceptable to the SCDHS. SCDHS has already approved of the proposed sanitary system. Effluent from the sanitary system will travel vertically downward from the leaching rings (which are located upland of the "adjacent area") through clean sand and gravel and will be largely absorbed onto these particles within two feet of the bottom of the rings. Nutrients and certain pathogens are not absorbed, however, and will travel freely to groundwater.
  4. The house would be located approximately 38 feet from the line of mean high water, and approximately 20 feet from the southerly property line. The house encroaches approximately 13 feet into the adjacent area. The seaward face of the proposed house would be approximately in line with the seaward face of the houses on the adjoining parcels. The location of the septic system between the proposed house and property line inhibits relocating the house any significant distance southward.
  5. The deck would be located approximately 32 feet from the line of mean high water and, thus, encroach approximately 19 feet into the adjacent area. The seaward edge of the deck would be set back from the water a greater distance than the seaward edges of the decks on the adjacent parcels immediately to the east and west. The distance separating the proposed deck from the deck on the east would be no more than 15 feet. Due to fill behind the revetment, it will be at an elevation of at least 11.5 feet.
  6. The revetment would be located above the high water line in line with a line connecting the ends of the neighboring stabilization structures. The area behind the revetment would be filled, covering the natural bluff. The revetment and filling is expected to prevent flooding and further erosion of the site. The Town of Southold has issued Applicant a Coastal Erosion Management Permit and a variance for the proposed project. Given the apparent lack of effect of the neighboring stabilization structures on the shoreline and wrack line (see Findings 4 and 5, particularly the timber bulkhead which would be more likely than the proposed revetment to cause toe scour owing to its vertical face), the proposed revetment is not expected to cause any significant beach change or loss of the wrack line.

DISCUSSION

A tidal wetlands permit and compliance with development restrictions are required to lawfully conduct regulated activities on a tidal wetland or on an "adjacent area" (see 6 NYCRR 661.8 and 661.6). Here, all project elements would be located either in the tidal wetland's "adjacent area" or further landward. None are proposed in the wetland itself (Finding 14).

Its undisputed that the "adjacent area" here is confined to the area lying between high water and the top of the bluff, approximately 51 feet away. (See Finding 10 and 661.4(b)(1)(iii)). Of all the project elements, only the revetment, the deck, the northern half of the house, the northern third of the septic tank (not leaching rings) and the fill would be subject to the tidal wetland permitting requirements and development restrictions, with the remainder being beyond DEC's jurisdiction because they are further upland. (See Finding 14).

Of the 661.6 development restrictions, only 661.6(a)(1) and (a)(2) are in issue on this application. Section 661.6(a)(1) imposes a 75 foot setback on principal buildings and all other structures in excess of 100 square feet, with provision for applying an average setback under certain circumstances. Section 661.6(a)(2) imposes a 100 foot setback on septic systems. However, because the adjacent area here extends no further landward than the top of the bluff, the Department may apply the setback provisions only from the water up to the top of the bluff, in effect limiting the setback requirements to approximately 51 feet on the project site. These setback requirements, therefore, will affect only the deck and northern portion of the house [661.6(a)(1)], and the northern portion of the septic tank [661.6(a)(2)]. To be lawfully built excluding, for the moment, the possibility that the deck may qualify for application of an average setback, these structures must either be moved landward of the top of the bluff to take them out of the adjacent area (4 feet for the septic tank, 13 feet for the house, and 19 feet for the deck), or they must be otherwise permittable and receive variances allowing such encroachments into the adjacent area. (See Findings 15, 16, 17; 661.11)

Section 661.11 authorizes the Department to vary strict application of the setback requirements where there are practical difficulties in complying with them, provided that the spirit and intent of the provisions is observed, public safety and welfare are secured, substantial justice done, and action pursuant to the variance will not have an undue adverse impact on the values of the protected tidal wetland. "(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)

Here, practical difficulties in complying with the setbacks have been shown: the portion of the lot behind the top of the bluff is simply not large enough to accommodate the structures given the constraints already placed by the local health department on the location of the septic system (Findings 15, 16). Also, this difficulty was not self imposed, because the site had been owned by the Applicant's family for many years (Finding 1). Furthermore, the Applicant is not asking for anything more than what her neighbors already have (see Findings 6, 8, 13, 16, 17). The basic inquiry regarding the other requirements for variance is whether strict application of the setbacks will serve a valid public purpose which outweighs the injury to the property owner. See Matter DeSena v Board of Zoning Appeals, 45 NY2d 105, 108 (1978).

From the testimony presented, Staff's primary concerns for this project center around preservation of the beach and wrack line, and septic system impacts.

In spite of being classified as generally compatible with wetland preservation when built in an adjacent area (661.5 (a)(2) and (b)(29)), Staff opposes the revetment, fearing that toe scour will cause the beach and wrack line to diminish, adversely impacting the wetland benefits (recreation, wildlife habitat, marine food production) that they provide. Staff's fears are not borne out by the evidence, however, which indicates that adjoining structures have not caused such problems, resolving Issue 6 (Findings 4 and 18).

Staff objects to the entire septic system (including portions beyond the adjacent area) over concern that material from the septic system will migrate to Long Island Sound and adversely affect water quality and public health. It's noted that the system's effluent will be largely absorbed within the first 2 feet of travel from the leaching rings. Regardless, the effluent would be released landward of the adjacent area and outside DEC jurisdiction. Although certain nutrients and pathogens may still travel and reach ground water, this is not considered a health threat because the local authority (the SCDHS) which has the jurisdiction and responsibility to protect public health has already approved Applicant's proposed system. (See Findings 14, 15.)

Only a portion of the septic tank (a part which is not intended to release effluent to the environment) is within DEC jurisdiction. Even so, such use of the adjacent area is classified as generally compatible with tidal wetland preservation (661.5 (b)(45) and (a)(2)). Staff's concern over the tank possibly becoming exposed and rupturing or becoming flooded, particularly during storms, is addressed by the proposed revetment and filling, which can be expected to prevent this from happening (see Finding 18). The septic system thus is compatible with public health and welfare (resolving Issue 4), and will not have an undue adverse impact on wetland values (resolving part of Issue 5). Given Applicant's practical difficulty in siting the tank and apparent lack of public purpose The words "public purpose" are used here to mean advancing the spirit and intent of the setback provision, securing the public safety and welfare, and protecting wetland values from undue adverse impacts. that would be served by enforcing an additional 4 feet of separation between the tank and the wetland, substantial justice would be done by granting a variance for the septic tank (resolving Issue 3).

A house in an adjacent area is generally compatible with preservation of wetland benefits (661.5 (a)(2) and (b)(46)). Given the fact that the houses on the adjacent parcels are only 60 to 70 feet apart (Finding 3), that the seaward face of the proposed house will be approximately in line with the adjoining houses, yet still 38 feet from high water (Finding 16), and that the house will be at an elevation of 13 feet which provides a vertical separation from the wetland The elevation is considered significant here because it is greater than the 10 feet elevation used to define "adjacent area" under natural conditions (661.4(b)(1)(iii)). (see Finding 13), it does not appear that a house at the proposed location will have any impact on the wetland's value as wildlife habitat that has not already been caused by the adjacent homes close by. Although Staff wishes to preserve public beach access and the view of the water from the road, such purposes are not served by enforcing an additional 13 feet of setback for the house (i.e., the house would still block the view and access across the site even if it were possible to move it 13 feet further from the wetland). The house will not change the open space character of the wetland itself, nor will it inhibit access to the wetland from public areas such as the area below the high water line. The public has access to the wetland from a public beach 1/4 mile away (Finding 7). The house thus will not have an undue adverse impact on wetland values (resolving part of Issue 5). Given Applicant's practical difficulty in siting the house and apparent lack of public purpose that would be served by enforcing an additional 13 feet of separation from the wetland, substantial justice would be done by granting a variance for the house (resolving Issue 1).

If the deck qualifies for application of an average setback (i.e., 36 feet per Finding 6) it will need a variance of 4 feet, otherwise it will need 19 feet (Finding 17). The sub-issue of average setback is moot, however, because the deck will qualify for either. It is not clear that an average setback would apply to the deck, because 5 decks is not obviously "numerous." Compare with the discussion in the Hearing Report accompanying the Commissioner's 8/9/94 Decision on the Seewald application. A deck is generally compatible with preserving tidal wetlands when constructed in an adjacent area (661.5 (a)(2), (b)(49)). The proposed deck will be vertically separated from the wetland due to the backfill (see Finding 17 and footnote 5 above). The deck adds no apparent impact to what is already there from the decks on the adjoining parcels only a short distance away (especially since the proposed deck is set even further back from the wetland than the neighboring decks), nor to what would be caused by filling the area (not subject to a setback). (See Findings 3, 17, 18; resolving the remaining part of Issue 5). It would not be reasonable to require Applicant to relocate or do away with the deck unless some environmental purpose would be served. Given the apparent lack of public purpose that would be served by enforcing an additional 4 or 19 feet of separation from the wetland, substantial justice would be done by granting a variance for the deck (resolving Issue 2).

Based on the above rationale, the following Conclusions of Law are reached.

CONCLUSIONS OF LAW

  1. The proposed house in the "adjacent area" qualifies under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures, enabling compliance with 661.9(c)(2).
  2. The proposed deck in the "adjacent area" qualifies under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures, enabling compliance with 661.9(c)(2). Whether or not the setback required by 661.6(a)(1) is 75' or an "average" setback as calculated by Applicant is moot.
  3. The proposed septic system in the "adjacent area" qualifies under 661.11 for a variance of the 100' setback required by 661.6(a)(2), enabling compliance with 661.9(c)(2).
  4. The proposed septic system meets the permit issuance standards for "adjacent areas" specified in 661.9(c)(1).
  5. The (a) house, (b) deck, and (c) septic system meet the permit issuance standards for "adjacent areas" specified in 661.9(c)(3).
  6. The revetment meets permit issuance standards under 661.9(c).

RECOMMENDATIONS

The Department should grant the requested permit and variances.

Attachment: Plan of proposed project
FAX 518 485-7714; PHONE: 518 457-3468

---------------------------------
Other persons requesting a copy of the decision:

David S. Corwin
639 Main Street
Greenport, NY 11944

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    Albany, New York 12233-1550
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