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United States Coast Guard - Interim Decision, December 7, 2000

Interim Decision, December 7, 2000

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

In the Matter

- of -

Intent to Revoke Flood Control Land Use Permits of the United States Coast Guard
Auxiliary, Flotilla 2-2, Inc.
, pursuant to Environmental Conservation Law (ECL)
Article 16 and Title 6 of the Compilation of Codes, Rules and Regulations of
the State of New York, (6 NYCRR) Part 501 NYSDEC Permits CR 69-15 and 70-6

INTERIM DECISION

December 7, 2000

Interim Decision

This interim decision addresses the appeals filed pursuant to 6 NYCRR 624.8(d)(2) from the November 1, 2000 ruling on issues and party status (the "Ruling") by Administrative Law Judge ("ALJ") Kevin J. Casutto. Appeals were filed by the New York Department of Environmental Conservation Region 7 Staff ("Staff"), the City of Ithaca ("City"), and the Marina Realty of Ithaca, LLC., ("MRI"). The United States Coast Guard Auxiliary, Flotilla 2-2, Inc., ("USCGA" or "Permittee") did not file an appeal. No party filed a response to the appeals.

Background

This case involves the Staff's intent to revoke the USCGA's permit for activities on two parcels of land acquired by the Department for flood control purposes. The two parcels of land are no longer used for flood control, although USCG's permits are still effective.

USCG's permit and its terms are long standing, having been issued in 1969 and in 1970. The permits do not contain an expiration date. Permittee, a not-for-profit corporation, performs boater safety instruction for the public and from time to time, search and rescue activities. Permittee has installed seasonal floating docks that extend into the channel, has maintained an existing structure on the land, and has maintained the grounds. More background information regarding the Permittee's operation is setforth in the ALJ's Ruling. See, Ruling pp. 2-4.

The Staff seeks to revoke USCGA's permit on a number of grounds. These grounds include: Permittee's placement of its docks in the flood control channel increases the risk of flooding; the use of the two parcels by Permittee to generate income violates the terms of the permit; docks were extended by Permittee without authorization; a change in the law requires the affected permit to include an expiration date and; that retaining title to the two parcels is no longer necessary for flood control purposes. See, Ruling p. 4. See also, USCGA's rebuttal response to the Staff's grounds for revocation, Ruling p. 5.

The Ruling of the ALJ held there were adjudicable issues regarding the revocation of the permit. The ALJ also held that further proceedings were unnecessary on the permit revocation matter since the Staff is not prevented in transferring the Department's property to the City of Ithaca, thereby extinguishing the Permittee's permits as a matter of law. This last point is central to this interim decision and is more thoroughly discussed below.

Discussion

The interlocutory appeals by Staff, the City and MRI of the ALJ's ruling do not address whether the Department's intent to sell the property to the City extinguishes the permits as a matter of law. Rather, the appeals largely center on varying aspects of the Staff's grounds for revocation. However, the briefs to the ALJ prior to his Ruling address the status of the permit if the property is sold. The ALJ held that while the grounds for revocation may be adjudicated, the sale of the Department's property to the City extinguishes the permits as a matter of law. The Staff, the City and MRI presented briefs in support of this argument to the ALJ. However, the USCGA argued to the ALJ that the permits confer interests that travel with the land. The Permittee's argument was rejected by the ALJ, holding, as above, selling the land to the City extinguishes the permit as a matter of law. I concur with the ALJ's analysis and his reasoning on this point and hereby incorporate his discussion by reference into this interim decision. See, Ruling pp. 7-9.

The Department's 6 NYCRR Part 624 hearing process is the mechanism used to ensure that due process concerns are addressed. The Department's pre-adjudicatory hearing issues conference is analogous to a summary judgment proceeding. See, In the Matter of Application of Hyland Facility Associates, Interim Decision, August 20, 1992. Upon appeal, the Commissioner decides if issues exist, (In the Matter of Application of AKZO Nobel Salt, Inc., Interim Decision, January 31, 1996) and the Commissioner's powers are plenary. In the Matter of Manor Maintenance Corporation, et al, Order, February 12, 1996.

I find there is no need for a fact adjudication on any of the grounds for revocation offered by any party. All that need be addressed is whether, as a matter of law, the sale or transfer of the property to the City eliminates the need for further revocation proceedings. I find that it does.

Article 16 of the ECL provides the statutory authority to undertake activities related to flood control. The statute provides that the Commissioner may determine whether any property acquired for flood control may be "...leased, sold or exchanged on terms beneficial to the state...." ECL 16-0107(17). The ALJ concluded that the language of ECL 16-0107(17) could be found in the New York Unconsolidated Laws at § 1307(15), an earlier enacted statute. Accordingly, he rejected the USCGA argument that the statutory provisions in ECL 16-0107 did not apply retroactively. Ruling p. 9. I concur with the ALJ's analysis and reject the USCG's argument that ECL 16-0107 and 6 NYCRR Part 501 have no affect upon the permits because these provisions do not apply retroactively. See, USCGA Brief p. 1-3.

In view of the above, the Staff are directed to withdraw the notice of intent to revoke and continue with its action to sell and/or transfer the subject property to the City consistent with the statutory provisions in Article 16 of the ECL.

Conclusion

No further hearing is required. The Staff are directed to complete its duties consistent with this interim decision. This is my final decision on this matter.

For the New York State Department
of Environmental Conservation
_____________/s/_____________
By: By: John P. Cahill, Commissioner

Dated: Albany, New York
December 7, 2000

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