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Tubridy, John and Virginia - Decision, April 19, 2001

Decision, April 19, 2001

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1010

In the Matter

- of the -

application for a permit pursuant to Article 15 and 25
of the New York State Environmental Conservation Law
and Parts 608 and 661 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York by

JOHN TUBRIDY JR. AND VIRGINIA TUBRIDY

DEC Case No. 2-6308-00162/00001

DECISION

April 19, 2001

Decision of the Commissioner

The Recommended Decision by Administrative Law Judge Francis W. Serbent in the Matter of the application of John Tubridy, Jr. and Virginia Tubridy is not adopted for the reasons stated below.

FACTUAL BACKGROUND

  1. Pursuant to a Notice of Permit Denial issued by the New York State Department of Environmental Conservation ("DEC" or "Department") a hearing was held before Francis W. Serbent, Administrative Law Judge ("ALJ Serbent"), on May 9, 2000 at the Department's Region 2 Office located in Long Island City, New York. The Department's Region 2 Staff appeared by Udo Drescher, Esq., Assistant Regional Attorney. John and Virginia Tubridy ("Applicants" and/or "Respondents") appeared personally and by their attorney James E. Mulvaney, Esq.
  2. This matter involves the Applicants' 1999 application to construct a bulkhead and place fill in regulated wetlands and adjacent areas. The Applicants had been issued a permit by the DEC in 1993 to re-build a house that had been destroyed in a 1992 storm. The permit issued did not authorize the construction of a bulkhead. However, the Applicants constructed or had constructed a bulkhead and placed fill in regulated wetlands and adjacent areas during the construction of the house. DEC Staff inspected the site and discovered the bulkhead and fill in 1997 and commenced an enforcement proceeding.
  3. Prior to the May 9, 2000 permit denial hearing DEC Commissioner John P. Cahill ("Commissioner") issued an Order with regards to the enforcement proceeding. By Order dated December 31, 1998, Commissioner Cahill found the following, in part,:
    1. The record in this matter establishes that the Respondents constructed or caused construction of a bulkhead and fill in and adjacent to a regulated tidal wetland without having a tidal wetlands permit from the Department for these activities. A portion of the bulkhead and fill were also placed below the mean high water level in navigable waters of the state without a permit having been issued by the Department pursuant to ECL Article 15. This construction has adversely affected the function of the wetland at the site.
    2. In view of the unusual water supply and sewage disposal situation at the site of the violations, an opportunity should be allowed for review of a permit application for construction at the site, which would include an evaluation of ways to ensure that the water and sewer lines at the Respondents' house are functional while causing the minimum disruption to the protected wetland and its functions.
  4. The Applicants did file an application in April 1999 for the appropriate permits for the bulkhead and fill as per the Commissioner's Order.
  5. Notices were sent by the DEC to the Applicants in May 1999 and August 1999 advising them that the permit application was incomplete and that further information was needed by Staff to evaluate the project. The August 1999 notice advised Applicants that if the requested information to complete the application was not submitted in a timely manner, the application would be denied. No response was received from the Applicants. On January 5, 2000, the Department denied the permit application.
  6. A permit denial hearing was held at the request of the Applicants. After the completion of the permit denial hearing, held on May 9, 2000, in a letter dated August 29, 2000, Assistant Commissioner James H. Ferreira advised Applicants that the processing of the permit application "...must be suspended" until the Applicants complied with the December 31, 1998 Order.(1) On or about December 12, 2000 the Applicants paid the outstanding fine. This brought the Applicants into compliance with the enforcement action Order.
  7. Upon payment of the fine, the permit application process was resumed and ALJ Serbent issued a Hearing Report on or about January 26, 2001. The Commissioner directed that the Hearing Report be considered a recommended decision.(2) Both Applicants and Department Staff were provided with an opportunity to respond to the recommended decision. Department Staff submitted comments to the Hearing Report on February 23, 2001. No comments nor reply to Staff's comments was received from the Applicants. Applicants' attorney made a request for additional time to submit a reply to Staff's comments on March 12, 2001. That request was denied by Chief Administrative Law Judge Daniel E. Louis on March 12, 2001.
  8. Chief Judge Louis was within his authority to deny the request for additional time to reply. Any submissions made would have been restricted to legal argument and recitation of facts already before the Court. However, the Applicants submitted a letter to ALJ Louis dated March 17, 2001 and in my discretion, I have reviewed and considered the comments contained therein. I find these recent arguments unpersuasive and, in part, contrary to the record.
  9. Based upon my review of the record herein and the Department's comments, I do not accept the recommended decision of ALJ Serbent for the reasons stated herein.

DISCUSSION

  1. This is a unique permit application situation. The Applicants were given the opportunity to apply for a tidal wetlands and protection of waters permit after an enforcement proceeding had determined that a bulkhead had been constructed and fill placed in tidal wetlands and adjacent areas in violation of the Environmental Conservation Law of the State of New York ("ECL") and the Navigation Law of the State of New York.
  2. At the enforcement hearing held on September 3, 1998 before ALJ Susan J. DuBois ("ALJ DuBois"), the Respondents alleged that the bulkhead was necessary to bury water and sewer lines that would otherwise be open to the elements and subject to freezing.(3) ALJ DuBois noted in her Hearing Report (that was adopted by the Commissioner's December 31, 1998 Order) that the pipes could not be protected by the other available technology due to the conditions existing at this site. This situation prompted ALJ DuBois to recommend, and the Commissioner to grant, an opportunity for Respondents to apply for the permits.(4)
  3. The December 31, 1998 Order directed Applicants to file an application for a tidal wetlands permit and a protection of waters permit within 90 days of the Order and directed that if the application was not filed within said 90 days, then the bulkhead and fill were to be removed by Applicants within 120 days. An application was timely filed.
  4. The application was denied by DEC Staff for three reasons: (1) failure to submit a complete application(5); (2) failure to comply with the Order of Commissioner dated December 31, 1998(6); and, (3) noncompliance with the ECL.(7)
  5. ALJ Serbent, in his recommended decision, reached three conclusions of law: (1) the Applicants' site can no longer be treated as a tidal wetland; (2) the bulkhead and fill were permitted by the DEC in 1993; (3) the application was completed "...as displayed on the record at the hearing." I disagree with these conclusions of law.

DEC STAFF'S DENIAL

1) Application Completeness

  1. One of the three bases for Staff's denial of the application was that the application was incomplete. ALJ Serbent wrongly concluded that the incompleteness alleged by Staff in its denial letter was based on failure to comply with the Commissioner's December 31, 1998 Order. A review of the record shows that DEC Staff's incompleteness of the application determination referred to information that Staff required to process the application.(8) In its comments submitted in response to the recommended decision, DEC Staff cites the Interim Decision In the Matter of Bath Petroleum Storage Facility.(9) That Interim Decision addresses the authority of an ALJ to review a completeness determination made by Staff. The Interim Decision was issued in November 2000, after the hearing held herein. However, one can look at the same issues examined in Bath to review ALJ Serbent's authority to review the completeness issue here. Not only did ALJ Serbent incorrectly identify what the "incompleteness" involved, he also made a review of that determination without having the authority to do so.

    6 NYCRR 621.15(b) addresses Staff's duties and authority with regard to an incomplete application. That section provides for Staff to request "... any additional information which is reasonably necessary to make any findings or determinations required by law." Staff must make the request in writing, make the request explicit and give a reasonable amount of time to respond. With regards to the Applicants' application, Staff notified them in writing of the additional information necessary to complete the application and provided more than a reasonable period of time for the response.(10) The Applicants made no claim that 621.15(b) was not followed. Although ALJ Serbent did not address the request for information and Staff's claim of incompleteness due to missing information, except to convene the hearing regardless, I find that ALJ Serbent erred by not adjourning the hearing pending receipt of the requested information from Applicants. Staff has the authority to deny an application if the requirements of 621.15(b) are not met. ALJ Serbent incorrectly determined the issue of incompleteness was resolved at the time of the hearing. I do not accept his finding.

2) Order Compliance

  1. DEC Staff also denied the application due to the Applicants' failure to comply with the December 31, 1998 Order of Commissioner Cahill. As stated, a fine balance of $4,400.00 was due at the time of the hearing. This is not disputed by the Applicants. The basis for denial of the applications on a failure to comply with an existing order was correct. This was not addressed by ALJ Serbent and it should have been. 6 NYCRR 621.9(f) and 621.14(a)(5) grant Staff the authority to deny an application due to noncompliance with orders of the commissioner or the ECL. As is noted above, Applicants did pay the outstanding penalty causing the review of the permit application to continue. See, paragraph 5 above.

3) Noncompliance with the ECL

  1. DEC Staff also denied the permit application due to Applicants' construction of a fence on the bulkhead without the appropriate permits. This matter was not addressed by ALJ Serbent in his Hearing Report. The Applicants have not disputed their actions were in violation of the ECL.(11)
  2. DEC Staff met its burden at the hearing in demonstrating that the denial was properly issued.

ALJ CONCLUSIONS

1) Application Completed

  1. As stated herein, ALJ Serbent ruled that the application was completed at the hearing. For the reasons stated above, ALJ Serbent was incorrect in concluding that the application was completed at the time of the hearing.

2) Permits Were Issued in 1993

  1. ALJ Serbent's Hearing Report incorrectly finds that the Department had granted a permit for the bulkhead in 1993. This finding is unsupported by the record. ALJ Serbent made that finding based on the testimony of the Applicants' engineer who testified that the bulkhead and fill were in the plans presented to Staff in 1993. The Applicants did not argue that the permits were issued in 1993. This was a conclusion reached by the ALJ without the issue having been raised at the hearing and it is completely unsupported by the record. Also, this issue was examined in the prior enforcement hearing and will not be re-litigated now. The Commissioner in adopting ALJ DuBois's Report dated December 31, 1998, had already determined that the permits issued by the DEC in 1993 in no way authorized the construction of a bulkhead nor the placement of fill. (DuBois's Hearing Report, page 3)

3) The Site as a Tidal Wetland

  1. ALJ Serbent also concluded that the site involved "...can no longer being (sic) treated as tidal wetlands under 6 NYCRR part 661."(12) The Commissioner and ALJ DuBois examined the biology of this site in the enforcement matter in 1998 and found the following:

    "The area where the fill was placed is habitat for a variety of plants and animals including softshell clams, ribbed mussels, polychaete worms, horseshoe crabs, mud crabs, snails, gulls, cormorants and macro algae, and potentially for low marsh cordgrass (Spartina alterniflora). These plants and animals are part of the food chain of Jamaica Bay. Jamaica Bay is a very large tidal wetland area which has been designated as a significant coastal fish and wildlife area by the New York State Department of State and as a critical environmental area. The environmental importance of Jamaica Bay has also been recognized by the U.S. Fish and Wildlife Service and by the City of New York. Filling at the site eliminated the value of the filled area for habitat and for marine food production. The wetland and adjacent area on the site as they existed prior to construction of the bulkhead and placement of the fill also allowed for more dissipation of wave action than occurs now that these structures are in place; the structures have reduced the value of the wetland for flood control."(13)

    It has already been determined by the December 1998 Order that this bulkhead and fill are adversely affecting the function of the wetland at this site, interfering with an area that supports animal and plant life and that the bulkhead and fill are reducing the value of the wetland for flood control. Despite the efforts of the Applicants to revisit this issue in the context of the permit denial hearing, this issue has been resolved. The Applicants did not attempt to challenge the December 31, 1998 Order of the Commissioner when it was issued and they can not do so now. ALJ Serbent stated that the enforcement findings were a "... generalized statement that can be said of almost any littoral zone, coastal shoals or flats." I again disagree and find ALJ Serbent erred by allowing a collateral attack on the prior Order. Assuming that a rational basis existed to revisit previously found facts, that matter is addressed next.

  2. I find the expert witness testimony produced by the Applicants as to the viability of the wetland was not reliable. The witness relied on the observations of a third party (who was not available at the hearing) in forming his own opinion testimony. This third party was described as a retired marine science teacher of the New York Board of Education and someone who leads environmental tours. This person allegedly visited the site without the expert witness being present, took samples (of which the specifics are unknown), and allegedly tested these samples through unknown methods. A report was prepared by this person and that report was the basis for the expert's testimony. The third party's report was not offered into evidence nor was any extensive detail provided as to the report's findings. The expert witness did report though that he used the observations of this third party as contained in the report in preparing his own testimony. Such testimony is not acceptable expert testimony. Standards have been set by the courts in this State as to what is reliable expert testimony. Staff cites Freitag v. New York Times, 687 N.Y.S. 2d 809 in support of their position that the expert testimony offered was not proper. Freitag held,

    "[O]pinion evidence must be based on facts in the record or personally known to the witness" (Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348). The opinion may be based on assumed facts which "are fairly inferable from the evidence" (Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 414, 322 N.Y.S.2d 665, 271 N.E.2d 515), but an expert "cannot reach his conclusion by assuming material facts not supported by evidence" (Cassano v. Hagstrom, supra, at 646, 187 N.Y.S.2d 1, 159 N.E.2d 348). There are two exceptions to this rule: where the expert relies on material which is of a kind accepted in the profession as reliable or where the material comes from a witness subject to full cross-examination (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195, 469 N.E.2d 516).

  3. The rules of evidence are not strictly applied in administrative proceedings, and hearsay is admissible. However, the weight given to a witness' testimony is based, in part, on the reliability of that evidence. The expert testified that he relied on the third party's report in forming his own opinion testimony. However, neither the complete findings nor the complete conclusions (if any) of the report are in the record. That missing information affects the reliability of the witness, especially since it is so contrary to the evidence submitted by DEC Staff.

    Putting aside the issue of the expert's reliability, ALJ Serbent completely discredited the DEC Staff's testimony without a rational explanation. The proof submitted by the DEC at the permit denial hearing has already been considered and accepted by the Commissioner in his December 1998 Order. Because it has already been accepted as reliable, ALJ Serbent had to articulate why he was not accepting the testimony, but instead was relying on the questionable proof offered by the Applicants. I find that ALJ Serbent's assessment of the facts was not supported by the weight of the evidence.

  4. Both ALJ DuBois(14) and the Commissioner(15) acknowledged during the enforcement proceeding that the Respondents had a potential problem with the sewer and water lines if the bulkhead and fill were removed. Respondents argued at the enforcement hearing that the bulkhead and fill were necessary to protect those lines from freezing. Staff, in the comments submitted in response to the recommended decision, argues that the Applicants were then limited to presenting that argument only (protect the lines) to support the permit application. The Applicants and their attorney stated at the permit hearing that the bulkhead and fill were not necessary for pipe protection and agreed to amend the permit application to delete that reference.(16) Once that issue was removed by the Applicants at the hearing, the permit could not be granted. I agree with Staff's position that the scope of the permit application process was limited by the terms of the enforcement Order. Applicants had stated during the enforcement proceeding that they also intended to use the bulkhead area for a parking area. That issue was addressed during the enforcement proceeding and was dismissed by ALJ DuBois and the Commissioner.
  5. The Applicants have the burden of overcoming the presumption that the requested use is incompatible and the burden of demonstrating that the use is reasonable and necessary. The Applicants have failed on both points. By removing the argument that the bulkhead and fill are necessary to protect the sewer and water lines, the "reasonable and necessary" argument is defeated. As to incompatibility, the Commissioner has already found that the bulkhead and fill are incompatible.(17)

CONCLUSION

In view of Commissioner Cahill's previous Order, and in consideration of the facts presented in the permit hearing, it is clear that the bulkhead must now be removed. Accordingly, I conclude the permit application for the bulkhead is hereby denied.

For the New York State Department
of Environmental Conservation

/s/
By: Erin M. Crotty, Commissioner

Albany, New York
Dated: April 19, 2001

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road Albany NY 12233-1550

In the Matter

of

Application Number 2-6308-00162/00001

pursuant to the Environmental Conservation Law
Article 15 Title 5 Protection of Water and Article 25
Tidal Wetlands to permit a bulkhead with stone fill by

JOHN F. TUBRIDY

and a tidal wetlands variance request by

VIRGINIA and JOHN TUBRIDY

HEARING REPORT

by

/s/
Francis W. Serbent
Administrative Law Judge

PROCEEDINGS

On December 31, 1998, the Commissioner of the New York State Department of Environmental Conservation (the "Department"), issued an Order resolving enforcement case R-2-02533-97-11. The Order found that John and Virginia Tubridy constructed or caused the construction of a bulkhead and fill in and adjacent to a regulated tidal wetland without Department permits and were assessed a penalty of ten thousand dollars, among other things. That Order also provided:

"In view of the unusual water supply and sewage disposal situation at the site of the violation, an opportunity should be allowed for review of a permit application for construction at the site, which would include an evaluation of ways to ensure that the water and sewer lines at the Respondents' house are functional while causing the minimum disruption to the protected wetland and its functions."

Consequently John F. Tubridy (the "Applicant") filed an application dated April 5, 1999, and the subject of the instant proceedings, to the Department for permits [Application Number 2-6308-00162/00001] for a bulkhead with stone fill in a tidal wetland. At the same time, Virginia and John Tubridy (the Applicants") requested a tidal wetlands variance for the work.

The Department processed the applications and these proceedings were conducted pursuant to ECL Article 1 (General Provisions), Article 3 (General Functions), Article 8 (Environmental Quality Review), Article 15 Title 5 (Protection of Water), Article 25 (Tidal Wetlands), Article 70 (Uniform Procedures) and also Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 608 (Use and Protection of Waters), Part 617 (State Environmental Quality Review, "SEQR"), Part 621 (Uniform Procedures), Part 624 (Permit Hearing Procedures) and Part 661 et seq. (Tidal Wetlands-Land Use Regulations).

Staff informed the Applicant that the application was incomplete, among other things, by letters dated May 6, 1999 and August 18, 1999 and consequently denied the application in a Notice of Permit Denial dated January 5, 2000. Subsequently, John Tubridy requested a hearing by letter dated January 31, 2000 and Staff relayed the hearings request to this office on February 14, 2000. The case was assigned the next day to Administrative Law Judge ("ALJ") Francis W. Serbent, PE. The Applicant was contacted on February 17, 2000 to begin the arrangements for a hearing and for the preparation of a hearing notice by the ALJ. The notice of public hearing ("notice") was published in the Rockaway Beach WAVE on April 15, 2000 with proof of publication filed and published in the Department's Environmental Notice Bulletin on March 29, 2000. The notice was mailed to the Queens Borough President, the Queens County Clerk and others known or deemed to have an interest.

The Department held a legislative hearing as noticed on May 9, 2000 at 9:30 AM in the VFW Hall on Shad Creek Road in the Hamlet of Broad Channel, Queens County before ALJ Serbent. No one filed a statement or responded to the call for statements. A prehearing issues conference was called to order immediately following the legislative hearing at the same location and again there were no filings of proposed issues, no filings seeking party status and no responses to the calls for prospective parties or proposed issues. The pre-hearing issues conference was adjourned for a technical conference by the Parties and excluding the ALJ. The technical conference ended without any issue resolved. The issues conference resumed and the issue for adjudication was determined. Thereafter, an adjudicatory hearing was held and completed on that day at the same location. The Parties and the ALJ then visited the site.

The ALJ received the transcript on July 10, 2000, received the written closing statements on July 27, 2000 and then closed the record. The record includes the application, the hearings request and attachments, 263 pages of hearing transcript and thirty one exhibits in evidence.

In correspondence to the Applicant dated August 29, 2000, the Assistant Commissioner for Hearings and Mediation Services, James H. Ferreira advised that the processing of the application would be suspended pending complete satisfaction of the Order after the enforcement hearing on case no. R2-0245097-11. Staff's counsel Udo Drescher informed this office that the penalty was paid on January 10, 2001 and the processing of the application resumed.

Synopsis

John and Virginia Tubridy, 102-00 Shore Front Parkway, Apt. 5-0, Rockaway Beach Queens, 11694 initially were issued the permits on November 12, 1993 pursuant to ECL Article 12 Title 5 (Protection of Waters) and Article 25 (Tidal Wetlands) to replace a storm damaged house located off shore on piles in Jamaica Bay. The construction began and continued until 1998. In 1998, the Applicants were charged with constructing the bulkhead and fill without permits and the Department cause the work to stop for the pendency of the enforcement matter. Pursuant to Notices of Hearing and Complaints by the Department dated March 17, 1998 and July 2, 1998, an administrative enforcement hearing was held by the Department on September 3, 1998 to consider the construction of the bulkhead and fill. The bulkhead and fill would be used for an off-street parking place to satisfy the City's requirement as a prerequisite for a building permit. The Tubridy's represented themselves and the Commissioner resolved the case as noted above. The house is estimated to be sixty percent complete with exposed rafters, beams, floors, staircases and openings for windows.

In the course of this current proceeding to investigate alternatives, the Applicant had the bulkhead evaluated. The Applicant's architect, a licensed professional engineer, testified that the bulkhead and fill were constructed in accordance with the plans for the house, bulkhead and fill as he submitted them to the Department in 1993 for approval. He evaluated the design and plans for adequacy and found they would ensure that the water and sewer lines would be functional as required, among other things, by the Commissioner's Order. Also, for this current proceeding, the Applicant hired an environmental consultant who investigated the site and concluded that the site is not a really productive wetlands area and there would be no environmental benefit from removing the bulkhead and fill and there would be no significant adverse environmental impact by keeping the completed work.

Official Notice

  1. Notice is taken of the site.
  2. Notice is taken of the Commissioner's Decision on DEC case # R2-0253-97-11 dated December 31, 1998 and includes the Hearing Report of the enforcement proceeding by ALJ Susan J. DuBois.

Parties

The Applicant and the Department Staff are parties by regulation. There were no filings for party status or filings proposing issues for adjudication.

The Applicant was represented by James E. Mulvaney, Attorney at Law, 10710 Shorefront Parkway, Rockaway, NY 11694. Appearing for the Applicant was Donal Butterfield, architect and engineer of Donal Butterfield and Associates, Architecture, Engineering Planning, 232 East 89th Street, New York 10028 and Rick Raymond of Coastal Consultants.

The Department Staff was represented by Frank Bifera, Esq., General Counsel 50 Wolf Road, Albany (Udo M. Drescher, Esq., Region 2 Tidal Wetlands Attorney, of counsel). Judi MacDonald, biologist one (marine trainee two), appeared for Staff.

Issues

The Staff identified four reasons for the denial of the instant application and were considered at the issues conference. The first three are identified in their notice of denial. The fourth was voiced at the issues conference and is based on the absence of proposals for alternative ways to protect the utility pipes for the house that are in the disputed fill behind the bulkhead. The ALJ ruled that the alternative issue was basically a component of the first issue, that is, an incomplete application and that was adjudicated. The ALJ ruled that the second reason for the denial, the collection of penalties ordered for satisfaction of the enforcement hearing, was not a matter for adjudication in this proceeding but this proceeding may be suspended pending final satisfaction of the enforcement matter. The ALJ ruled that the third reason for denial, the fence constructed atop the bulkhead, is an enforcement matter and would not be adjudicated in this proceeding. The Parties were notified of their right to appeal these rulings and none were made.

Applicant's position

The Applicant seeks to return to the use of his property and his replacement residence. Originally, his agent, an architect/engineer, shepherded the plans and specifications for the replacement house and appurtenances through all the various regulatory agencies. The Applicant and his agent believed all the necessary information was provided and that all the assents required by law were given to allow the construction of the replacement house and appurtenances. Until he received the Notice of hearing and the Complaint, the Applicant was not aware or made aware that a separate permit would be required for the bulkhead and fill. Now the Applicant wants to complete the construction of his house by some means that would be in the best way for everyone concerned and with complete understanding of the environmental consequences. The Applicant proposes to leave the bulkhead and fill as the method causing the minimum disruption to the shoreline and because, as designed, it would insure that the water and sewer services would be functional. Regardless, the Applicant needs a bulkhead in the transition from the underground sewer below water in Van Brunt Road to the above grade sewer over water going to the house.

Exceptions

  1. The Staff attorney took exception to the ALJ's ruling overruling an objection by Staff. The objection was to the acceptance of the field work done by an employee of the Consultant under his supervision and as he verbally instructed the employee beforehand. The employee is a marine biologist and a retired teacher after approximately 20 years teaching at Beach Channel High School. The employee also leads environmental tours locally, in the Galapagos Islands and Kenya. The ALJ recognizes as common responsible practice in the professions that the responsible professional can adopt the work product of a supervised or retained or otherwise acknowledged person used for that purpose. For one example, even the Commissioner has adopted ALJ's hearing reports as his own and states so in his decisions.
  2. The Staff attorney took exception to the ALJ's ruling sustaining an objection by the Applicant. Staff offered its letter to a different permittee modifying a tidal wetlands permit with special permit conditions as an example of a different way to sewer a house over water. I sustained the objection since each application is reviewed on an individual basis.

FINDINGS OF FACT

General

1. The Applicant has a pie shaped lot that is under the high tide waters of Jamaica Bay that serves as the Applicants' home site. There is a rectangular extension of the lot from the point of the pie to the shore and on to Van Brunt Road. The rectangular extension fronts on eight and six one hundredths (8.06) feet of Van Brunt Road and the extension is thirty two and seventy two one hundredths (32.72) feet long between Van Brunt Road and the point of the pie shaped lot. The lot is identified as #35 Van Brunt Road, in the Broad Channel island neighborhood of Queens County.

2. Virginia Tubridy and John F. Tubridy, Jr., were issued the Department's Protection of Waters and Tidal Wetlands joint permit # 2-6308-00162/000011-0 effective November 12, 1993 with the description of authorized activity as: " In kind replacement of a residential structure (approximately 1850 square feet) on existing piles, over tidal wetlands and tidal wetland adjacent area." at 35 Van Brunt Road.

  1. For this proceeding, the Applicant caused the reconsideration of the bulkhead and fill plans. The Applicant relied on the testimony of Donal Butterfield, a registered architect, a New York State licensed professional engineer and the person who prepared the original construction documents that he submitted to the Department's Region 2 Staff for their approval in 1993. The plans show a direct connection from the house to the municipal sewer as required by the Department Staff.
  2. Among other things, the mean high water elevation of 0.7 ft on the local Queens datum was found to be closer to shore now (April 4, 2000) than determined for use in developing the original plans. The survey was performed by, and the mean high water level was determined by a licensed surveyor (Albert A. Bianco, license No. 31721).
  3. The sewer line is designed with a constant slope from the house trap at elevation 9.7 to the City sewer in the Van Brunt Road at invert elevation (-)1.559. At the face of the bulkhead, the sewer would be 2.9 feet above mean high water level of 0.7 feet. The water and sewer lines exposed to the atmosphere from the point of emergence from the bulkhead to the house under the catwalk would be wrapped in plastic containing electrically powered heating coils to prevent freezing. The electrical coil wraps are not used for subaqueous applications.
  4. The house is estimated to be sixty percent complete with exposed rafters, beams, floors, staircases and openings for windows that are currently covered with plywood. The entire house is protected by an extra external covering of plywood.
  5. At the site visit, in the vicinity of the bulkhead and fill we saw a portion of pipe under water, supposedly a public water supply pipe, located essentially parallel to the shore and at an oblique angle to it. It was spewing some of its contents in a visible plume.

Wetlands Biology

  1. The Applicant's environmental consultant has graduate degrees in natural resources and oceanographic fisheries and 38 years experience in tidal wetlands natural resources work. He caused the analysis on May 4, 2000 of three patches of tidal wetlands for biota and particle size gradations. Each patch was one meter square and to a depth of three centimeters. One patch site, "A", was below the mean high water line at the end of the bulkhead and the start of the catwalk to the house. The second patch site, "B", was approximately seven meters northerly of "A" and below mean low water and the third site, "C", was at the Bayswater Point State Park in a remote location representing undisturbed intertidal wetlands.
  2. A mud crab at patch "A" was the only living organism found at patches "A" and "B".
  3. There is an abundance of demolition debris at the Applicant's site. At patch "A" 32 items were larger than four centimeters, at patch "B" 33 items were larger than four centimeters and at patch "C" 4 items larger than four centimeters were found. Screened materials between four centimeters and two and a half centimeters were counted with 108 pieces found at patch "A", 73 pieces found at patch "B" and 10 were found at patch "C". Sand and gravel less than two and a half centimeters was measured by volume with 1.3 liters at patch "A", 1.5 liters at patch "B" and 2.4 liters at patch "C".
  4. At patch C, three mud snails, numerous half buried adult ribbed mussels and an estimated sixteen thousand immature ribbed mussels, along with polychaete red threadworms too numerous to count were found. Patch C also showed eleven empty mussel and crab shells, fragments of sea lettuce and other seaweeds and a dense cover of salt marsh cordgrass, Spartina alternaflora.
  5. The Applicant's environmental consultant concluded that the Tubridy site is a disturbed, relatively unproductive tidal wetlands area with the bulkhead contributing nothing to the degradation of the wetlands.
  6. The Applicant would no longer pave the fill with concrete and would provide a porous surface so that the run off would pass through the fill and the existing filter cloth before draining into Jamaica Bay.
  7. The Staff investigated the site in August 1998 in preparation for the enforcement hearing and dug an unspecified volume, area and depth in the vicinity of the bulkhead to find out what lived there. The hearing report for the enforcement case found that the area where the fill was placed is habitat for a variety of plants and animals.
  8. The Staff witness is a biologist one (marine trainee two) assigned as a project manager for Jamaica Bay Damages Account for tidal wetlands restoration and she testified at this proceeding. In 1998 she was at the scene as one of the Staff crew of the 1998 dig at the Applicant's bulkhead and fill site. In 1998 the Staff crew found horseshoe crab eggs, mud crabs, mud snails, a soft shell clam, ribbed mussels and some polychaete worms.

DISCUSSION

Permit

One of the pertinent standards for permit issuance is the proposal's compatibility with the policy to preserve and protect tidal wetlands and to prevent their despoliation and destruction. We must also consider, among other things, whether the bulkhead and fill would have an undue adverse impact on the present or potential value of this tidal wetland. The productivity of this site is the key wetland function and wetland value for consideration. The qualifications of, and the investigations and evaluations of the wetlands and its functions as preformed by the Applicant's environmental expert witness on this record appears far superior to Staff's witness and evidence. The population densities, or sparseness of population, of different species present at select locations representative of wetland characteristics on the Applicant's disturbed site and compared to an apparent undisturbed remote site give a believable perspective of the difference between a productive wetland and the Applicant's site. Further, the Applicant's environmental expert's testimony is the only evidence in the record that speaks to productivity, i.e.: 1. The site of the bulkhead and fill is a relatively unproductive wetland, 2. There would be no environmental benefit from the removal of the bulkhead and fill and 3.The bulkhead and fill would contribute nothing to the degradation of the wetland.

We know that Staff dug to some unknown extent, near the bulkhead in 1998 until they found something. In this proceeding, Staff relied on the enforcement hearing finding that "The area where the fill was placed is habitat for a variety of plants and animals including. ..."(emphasis added). The enforcement finding reads as a general statement that the area investigated is "habitat" meaning a place where plant or animal naturally or normally lives and grows. It does not specify finding any. The enforcement hearing finding is a generalized statement that can be said of almost any littoral zone, coastal shoals or flats. However Staff's witness in this proceeding listed the organisms that lived adjacent to the bulkhead based on the dig crews' observations from the 1998 digs.

The substance at this beach, the flora, the fauna and the material composition, its size and nature, the man made disturbances such as shore front construction on and adjacent to the site including the leaking water pipeline, all lead to question the viability of this beach as a wetland. The latest investigation of biota in the vicinity of the bulkhead and fill revealing one sand crab at two one meter square patches of shore versus the biota from 1998 and shows diminishing wetland functions. 6 NYCRR § 661.2(f) recognizes:

"Some areas possess the physical characteristics of littoral zones or coastal shoals, bars or flats but do not function biologically as tidal wetlands. Such areas have generally been heavily impacted by pollution, sedimentation or other artificial disturbance, exhibit little primary productivity, and are populated by few benthic organisms. Such areas require identification on a case-by-case basis and when so identified should no longer be treated as tidal wetlands under this Part."

Except for the unknown pollution aspect, the Applicants site fits the above description and accordingly, the Applicant's site should not be considered as tidal wetlands

Regardless of whether the site is or is not a regulated wetland, other matters are addressed here. The completeness of the application may be a matter of interpretation and use of the criteria for a complete application. ECL §25-0402.1 requires, among other things, that: "Such application shall include a detailed description of the proposed work and a map showing the area of tidal wetland directly affected, with the location of the proposed work thereon ..." Further, according to ECL §15-0503.5, permit, in pertinent part regarding permits: "The design, preparation of plans, estimates and specifications and the supervision of the erection, construction, reconstruction and repair of all structures ... shall be done by a licensed professional engineer ..." By operation of law as noted above, in order to secure a permit for the bulkhead, the Applicant would have to present plans and specifications by a licensed professional engineer. He did.

The completeness of the application is based on compliance with the Commissioner's order resolving the enforcement matter as noted previously. This the Applicant did at the hearing.

In evaluating the constructed bulkhead and fill at this proceeding, the Applicant's engineer testified that the bulkhead and fill were in the plans he presented to Staff in 1993 for their approval and the Applicant's Attorney called on Staff to produce all filed plans and permit applications. Staff objected on the grounds of relevance and relied on the papers it brought to this hearing. However, Staff referenced the special permit condition, #19, in its cross examination concerning the approved plan and so the Applicant could ask for the complete referenced documents. What Staff produced at this proceeding did not comply with ECL §15-0503.5 as noted above as the plan was not over the seal and signature of a professional engineer. The testimony of the Applicant's engineer is believable and that his actions in 1993 were in accordance with the laws noted above, meaning that the permit issued in 1993 would include the plans for the bulkhead and fill and, by operation of law, Staff would not have permitted the work without those plans by a licensed professional engineer. The ALJ is compelled to believe that on the face of it, Staff acted appropriately in 1993 and so a separate permit now for the bulkhead and fill would be redundant.

Be that as it may and otherwise, Staff's May 6, 1999 Notice of incomplete application (only one page of this correspondence is in the record) lists the following two items as deficient.

Item #1 "Correct plans which indicate the actual Tidal Wetland Boundary (Mean High Water Line) as it is found presently."

Item #2 "Alternative analysis for the placement of sewer lines. Other placement options exist, for example, the possibility of attaching the line to a catwalk, trenching the sewer underground, etc. Engineering reasons why the sewer lines should remain where they are. All of these options must be discussed."

Regarding Item #1, for the purposes of this joint application "mean high water" is defined at 6 NYCRR 608.1(i) as the approximate average high water level for a given body at a given location as determined by, among other things, available hydrologic data, calculations and other relevant data. A land surveyor licensed to practice in the State made that determination for use at this site and indicates its location for each survey as the beach ground surface builds and recedes. Any quarrel or question with the surveying practice is a matter for the surveyor's licensing agency and not a matter for adjudication in this proceeding. Although Staff seemed anxious at this hearing to visit the bulkhead and fill site when the tide was up and then to establish through testimony that tides may be higher than the average high tide, Staff presented no reason to challenge or the significance of the licensed land surveyor's determination.

Item #2 appears to be the link to the Commissioner's Order that fathered this proceeding. The Applicant argues that the protection of the sewer pipeline is not an issue as it can be protected. At the instant hearing, the plans for the house and sewer, including the bulkhead and fill, were examined to ascertain the all season functioning of the water and sewer pipelines to the house. Those plans showed a constant slope gravity sewer pipeline from the house trap to the municipal sewer in Van Brunt Road. The sewer was shown attached to the catwalk and the reasons why the lines should remain as designed were examined under oath. Unlike a water line under pressure, gravity pipelines for sewer service receive used water and must be built with certain slopes to function properly and thus limit the possibilities for numerous reasonable alternatives.

The reconstruction of facilities to convey the utilities from Van Brunt Road to the Tubridy house would cause two unnecessary disturbances to the shoreline, one with removal of the bulkhead and fill and again with any currently unknown replacement. The Parties during this proceeding considered the bulkhead, fill and sewer under the catwalk as approved in 1993. The evidence in this record is the basis for the determination that: 1. The site of the bulkhead and fill is a relatively unproductive wetland, 2. There would be no environmental benefit from the removal of the bulkhead and fill and 3. The bulkhead and fill would contribute nothing to the degradation of the wetland. Under these circumstances, any replacement as an alternative would cause at least a physical disturbance as the existing bulkhead and fill are removed and another disturbance as the replacement is constructed from the City's sewer to the off-shore house. Removal of the existing bulkhead and fill to be replaced by some other scheme with no different consequences to the area is not reasonable nor practical and would generate another obstacle delaying the Applicants return to pre-storm life. Having investigated the existing site conditions with the determinations as noted above, the Applicant did not speculate further on other alternates.

Variance

6 NYCRR 661.11, Variances, includes: "Any person wishing to make application for a variance shall do so in writing ... and shall specify the proposed variance, which elements of section 661-6, Development Restrictions, relief is sought from, the minimum relief necessary, the practical difficulties claimed, a discussion of alternate site possibilities, a discussion of change of project objective possibilities, and a discussion of environmental impact reduction or mitigation measures to be employed." The request submitted by Virginia and John Tubridy are in accordance with the requirements of 6 NYCRR §661.11 Variances.

§661.11 states, in pertinent part, that:

"Where there are practical difficulties in the way of carrying out any of the provisions of section 661.6 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 provision in such a manner that the spirit and intent of the pertinent provisions shall be observed, that the 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 and potential value of any tidal wetland ..."

The discussion above under Item #2 also essentially serves as the rationale supporting the granting of a variance for on site off street parking on the fill behind the bulkhead. Removal of the existing bulkhead and fill to be replaced by some other scheme with no different consequences to the area is not reasonable nor practical and the variance from §661.6(a)(7) should be granted if a variance is necessary.

CONCLUSIONS

  1. The Applicant's site, the shore at 35 Van Brunt Road, is disturbed, composed primarily of demolition debris, sand and gravel making for a relatively unproductive wetland that appears to be progressively less productive with fewer habitants. The Applicant's site can no longer being treated as tidal wetlands under 6 NYCRR part 661.
  2. The bulkhead and fill were permitted in 1993 by operation of ECL §15-0503.5 and §25-0402.1.
  3. The application was completed as displayed on the record at the hearing. The replacement of the bulkhead and fill and the construction of an alternative method of carrying the sewer line and utilities from Van Brunt Road to the Tubridy house would create two additional disturbances with no predictions of environmental benefits for the existing shore while the use of the existing bulkhead and fill would not contribute to the degradation of the intertidal area. Because of this, the existing bulkhead and fill can be permitted again, if necessary and the variance from the setback criteria of 6 NYCRR §661.1(a)(7) can be granted.

1 The December 31, 1998 Order resolved the enforcement proceeding brought against the Applicants/Respondents. The proceeding was brought as a result of the construction of the bulkhead and fill placement without permits. The Order assessed a civil penalty of $10,000 against the Respondents. One half of that penalty was suspended contingent on the Respondents complying with the remaining portions of the Order. $4,400.00 of the fine remained unpaid at the time of the permit application denial hearing.

2 6 NYCRR 622.18(a)(2)(ii).

3 Hearing Report of ALJ DuBois, page 3.

4 The standards for issuance of tidal wetlands permits for regulated activities in wetlands include evaluating whether the activity is reasonable and necessary, taking into account such factors as reasonable alternatives to the proposed regulated activity. For activities that the tidal wetlands regulations list as "Presumptively incompatible use - - permit required," the applicant has the burden of overcoming the presumption of incompatibility (6 NYCRR Section 661.9(b)). This is not a total prohibition of these activities and, based on the unusual water and sewer situation at the site, there is a possibility that the Respondents might be able to overcome this presumption even though Ms. McReynolds testified that she did not expect that the Department would have issued a permit for the bulkhead and the fill. This hearing report recommends that the Respondents be allowed a specified length of time within which to apply for a permit for the bulkhead and the fill. (DuBois Hearing Report page 5) The standards for issuance of an Article 15 protection waters permit involve similar consideration of whether the project is reasonable and necessary and of the impacts of the project on public health, safety and welfare and on the environment (see 6 NYCRR Section 608.8). (DuBois Hearing Report page 5)

5 DEC Staff advised Applicants that submission of correct plans indicating existing mean high water, description of potential alternatives for placement of sewer lines and a discussion of an approach that could minimize tidal wetlands impacts or mitigation proposal would complete the application.

6 See footnote 1.

7 A routine inspection of the site by DEC Staff on August 12, 1999 revealed that the Applicants had constructed a fence on the bulkhead without seeking the necessary permits.

8 See Footnote 4.

9 Deputy Commissioner Carl Johnson's Interim Decision dated November 6, 2000.

10 Staff notified Applicants in two letters dated May and August, 1999 that the application was incomplete and did not deny the application until January, 2000.

11 6 NYCRR 621.9(f) and 621.14(a)(5).

12 Serbent Hearing Report page 11.

13 DuBois Hearing Report, page 3.

14 "... based on the unusual water and sewer situation at the site, there is a possibility that the Respondents might be able to overcome this presumption. This hearing report recommends that the Respondents be allowed a specified length of time within which to apply for a permit for the bulkhead and the fill." (DuBois Report page 5).

15 In view of the unusual water supply and sewage disposal situation at the site of the violations, an opportunity should be allowed for review of a permit application for construction at the site, which would include an evaluation of ways to ensure that the water and sewer lines at the Respondents' house are functional while causing the minimum disruption to the protected wetland and its functions. (December 31, 1998 Order).

16 Permit Denial Hearing Transcript page 220, 230-231.

17 The Commissioner ruled that the bulkhead and fill adversely affected the function of the wetland at the site.

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