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MTF Wantagh Development Corporation - Decision, September 1, 1993

Decision, September 1, 1993

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of

MTF WANTAGH DEVELOPMENT CORPORATION
99 Tulip Avenue
Floral Park, New York 11001

DEC Project No. 1-2820-01176/00001-0

DECISION

September 1, 1993

Decision

The attached Hearing Report of Administrative Law Judge Andrew S. Pearlstein, including its Findings of Fact, Conclusions and Recommendation, on the application of the MTF Wantagh Development Corporation (the "Applicant") is hereby adopted as my Decision in this matter, subject to my comments below. The application is for a freshwater wetlands permit needed for the construction of a 35-unit office condominium building with a parking lot for 133 cars (the "Project") on a 2.7-acre lot located off Wantagh Avenue in Wantagh, Nassau County, New York. The Applicant proposes to implement a Mitigation Plan which involves replacement and enhancement of the existing wetland vegetation in a drainage swale owned by Nassau County adjacent to the Project site.

The sole issue in this case concerns whether the Project with the Mitigation Plan will result in a net gain or loss of wetlands values and benefits on the site and in its immediate vicinity. Under 6 NYCRR 663.5(g) the mitigation must totally compensate for the lost benefits caused by the Project in order for the permit to be approved without being examined in accord with the weighing standards in 6 NYCRR 663.5. The Applicant has not offered to prove that the Project could satisfy the weighing standards.

I concur with the ALJ's conclusion that the Project, even with the Mitigation Plan, will result in a net loss of wetlands values and benefits on the site and in its vicinity. The Mitigation Plan only enhances the biological diversity of an existing wetland swale adjacent to the Project Site itself. The gain in benefits in this area does not compensate for the substantial loss of wetlands values and benefits on the main site. While the site is in a somewhat disturbed condition and does not provide high quality wetland benefits, the Project will eliminate most of the benefits the site now provides. These include an observable wildlife habitat, flood flow retention, flood storage, pollutant attenuation, erosion prevention, and open space.

Although most of the wetland areas on the site will be preserved, their value will be greatly reduced by the virtual complete elimination of all adjacent area by the construction of the building and large parking lot. My review of the record indicates that the net loss of wetland benefits is not of a large magnitude. Therefore, an alternative development project that preserves or enhances more of the wetlands and adjacent area on the site itself or provides greater enhancements off-site might satisfy the regulatory criteria.

Having considered the Final Environmental Impact Statement and the attached Hearing Report, I find that the requirements of 6 NYCRR Part 617 have not been met. Consistent with the social, economic and other essential considerations, the proposed action fails to adequately minimize or avoid adverse environmental effects to the maximum extent practicable. Therefore, the application of

MTF Wantagh Development Corporation for this Project is denied. In light of this decision it is not necessary for me to address the issue of the Applicant's suitability or record of compliance that was raised at the hearing. This Decision will also constitute the Department's statement, as an involved agency under SEQRA, that the Project does not satisfy the findings requirements set forth in 6 NYCRR 617.9(3) and (4).

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, New York this 1st day of September, 1993.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER
/s/

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of
MTF WANTAGH DEVELOPMENT CORPORATION
99 Tulip Avenue
Floral Park, New York 11001

for a Freshwater Wetlands Permit to construct a Project known as Wantagh Commons Office Condominiums
on a site off Wantagh Avenue in Wantagh, Town of Hempstead, Nassau County, New York.

DEC Project No. 1-2820-01176/00001-0

HEARING REPORT

/s/
Andrew S. Pearlstein
Administrative Law Judge

PROCEEDINGS

Project Description and Background

On July 3, 1990 the Region 1 Staff of the New York State Department of Environmental Conservation (the "Department Staff") determined complete the application of MTF Wantagh Development Corporation, Floral Park, New York (the "Applicant") for a freshwater wetlands permit. The Applicant needs a freshwater wetlands permit for the construction of an office condominium development known as the Wantagh Commons Office Condominiums (the "Project") on a 2.7-acre site located on Wantagh Avenue in the Town of Hempstead, Nassau County, New York. The Project is described in detail in the Findings of Fact section of this Report.

The application for a freshwater wetlands permit was filed and processed pursuant to the Environmental Conservation Law ("ECL") Article 24 (Freshwater Wetlands) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 663 (Freshwater Wetlands Permit Requirements). The Department Staff processed this permit application pursuant to ECL Article 70 and 6 NYCRR Part 621 (Uniform Procedures). The permit hearing procedures governing this proceeding are found in 6 NYCRR Part 624.

In addition to requiring a freshwater wetlands permit from this Department, the Project also requires approvals from Nassau County and the Town of Hempstead. Pursuant to the State Environmental Quality Review Act (ECL Article 8 or "SEQRA" and its regulations, 6 NYCRR Part 617), the Nassau County Planning Commission ("NCPC") was designated lead agency and rendered a positive declaration requiring the Applicant to prepare a Draft Environmental Impact Statement ("DEIS"). The lead agency received the DEIS in March 1988 and held a hearing on it in April 1988.

The NCPC then required the Applicant to prepare a supplemental DEIS ("SDEIS") to address freshwater wetlands impacts. The Applicant submitted the SDEIS to the lead agency in May 1990, and a hearing was held on the SDEIS in June 1990. The SDEIS incorporated changes in the Project, including a reduction in its size to reduce wetlands encroachment, and a Supplemental Wetlands Revegetation and Mitigation Plan ("Mitigation Plan"), described in the Findings of Fact section of this report. The NCPC issued notice of completion of a Final Environmental Impact Statement for this Project on September 13, 1990. On November 15, 1990 the NCPC issued a positive findings statement, approving the Project subject to certain mitigative measures, including requiring the Applicant to implement the proposed Mitigation Plan.

Department Proceedings

After the application for this Project was declared complete, the Department Staff received public comment opposing the Project. Staff therefore referred it to the Department's Office of Hearings on November 30, 1990 to hold an administrative permit hearing, where the file was assigned to Administrative Law Judge ("ALJ") Andrew S. Pearlstein. The ALJ consulted with the Applicant's representatives before preparing the Notice of Hearing. The Notice of Hearing was then published in the Wantagh-Seaford Citizen on January 24, 1991, and in the Department's Environmental Notice Bulletin on January 23, 1991. Copies were also sent to local municipalities and to all persons who had previously commented on the proposed Project.

Legislative Hearing

Pursuant to the Notice of Hearing, a legislative or public statement hearing was held before ALJ Pearlstein in the Wantagh High School on the evening of February 20, 1991. Sixteen persons spoke at the legislative hearing. Most speakers were local residents who opposed the Project. The issues they raised will be addressed in the subsequent sections of this Report.

Issues Conference, Appeals, and Interim Decision

The issues conference convened before ALJ Pearlstein in the offices of the Town of Hempstead Department of Conservation and Waterways in Point Lookout, New York, the next morning, February 21, 1991. In addition to the Applicant and Department Staff, one intervening party appeared, an organization known by the acronym "CAUSE," which stands for Civic Associations United to Save the Environment. It is an umbrella organization in which a number of local civic groups are members.

The Applicant was represented at the issues conference and throughout the hearing by Christopher Carpentieri, Esq., currently with the law firm of Stults, Balber, Horton & Slotnik, P.C., New York City. At the time of the issues conference, Mr. Carpentieri was associated with the firm of Graham & James, also of New York City.

The Department Staff was represented at the time of the issues conference by Lori J. Riley, Esq., Regional Attorney, Region 1, Stony Brook, New York. For the first two days of the adjudicatory hearing, the Department Staff was represented by Marianna Rubino, Esq., Assistant Regional Attorney, Region 1. For the last day of hearing and in the post-hearing submissions, Staff was represented by Jeanne A. Compitello, Esq., Assistant Regional Attorney in Region 1.

At the issues conference CAUSE was represented by Daniel Karpen, P.E., P.C., an environmental consultant who was assisted by Betty Jane Blake, President of the Wantagh Woods Neighborhood Association. In subsequent proceedings, CAUSE was represented by Joel R. Kupferman, Esq., Huntington, New York, also assisted by Ms. Blake throughout the proceedings.

The proceedings at the issues conference and its subsequent submissions are detailed in the ruling of the ALJ dated June 21, 1991. In summary, the intervenors sought to raise issues for adjudication relating to the wetlands boundary on the site and the wetland benefits that would be lost as a result of the Project. The Applicant and Staff contended that the Project with the Mitigation Plan would result in a net gain in wetland benefits on the site and its immediate vicinity, and that the intervenors had not presented a sufficient offer of proof to raise any issues for adjudication. Hence they contended the permit should be granted.

Since the Draft Permit was not available at the time of the issues conference, the ALJ allowed an additional period for that to be submitted, along with written responses and supplements to the positions of the parties stated at the issues conference. All those submissions were received by June 5, 1991. The ALJ's ruling of June 21, 1991 held that the intervenors had still not made a sufficient offer of proof to raise an issue for adjudication.

With its appeal of the ALJ's ruling, CAUSE submitted new material in the form of an affidavit with attachments from its consultant, Karen Blumer. The other parties objected to the receipt of this new material in an appeal to the ALJ's ruling. The Assistant Commissioner for Hearings, Robert H. Feller, in a memorandum dated September 9, 1991, stated that the Commissioner had determined to consider the new material submitted by CAUSE and provided an opportunity for the Applicant and Staff to reply.

In an Interim Decision dated December 5, 1991, the Commissioner determined that CAUSE had raised an issue for adjudication in its new offer of proof. The issue is whether the Project with the Mitigation Plan provides substantially the same or more wetlands benefits than would be lost by the proposed activity, as required by 6 NYCRR 663.5(g)(1)(iii) and 663.5(g)(3). Under those provisions, if the mitigation totally compensates for any lost wetlands benefits, the Project is not subject to the weighing standards in 6 NYCRR 663.5.

Adjudicatory Hearing

The adjudicatory hearing convened on the scheduled dates of July 2 and 3, 1992 in the office of the Town of Hempstead Department of Conservation and Waterways, Point Lookout, New York.

Each party presented one witness during those two days of hearing. The Applicant's witness was Michael P. Bontje, President of B. Laing Associates, Northport, New York, an environmental consulting firm. The Department Staff's witness was Steven J. Sanford, Regional Manager, Region 1 Bureau of Environmental Protection. CAUSE presented Karen Blumer, a botanist and wetlands consultant.

At the conclusion of the hearing session on July 3, 1993, CAUSE indicated it wished to reconvene to call several additional witnesses whom it had listed as intended witnesses during pre-hearing discovery. CAUSE later submitted a written motion to that effect. In a ruling dated August 5, 1992, the ALJ allowed CAUSE to submit the prefiled testimony of one of its proposed witnesses -- David A. Stern, Executive Director of the New York State Legislative Commission on Water Resources Needs of Long Island. The ALJ then suspended the proceedings for a time until the Applicant paid the stenographic reporter for the transcript of the earlier proceedings, as required by 6 NYCRR 624.14. The hearing then reconvened for the cross-examination of Mr. Stern on January 12, 1993, at the same location.

At the conclusion of the January 12, 1993 hearing session, CAUSE asked leave to submit a motion concerning the Applicant's suitability to obtain a permit from the Department, based on a felony indictment alleging fraud by two of the Applicant's officers in connection with an unrelated project. CAUSE submitted such a motion and the other parties addressed it in their post-hearing briefs.

The record of the hearing closed upon the receipt of the stenographic transcript and post-hearing briefs from all parties on May 10, 1993.

Summary Positions of the Parties

The Applicant contends that any loss of wetlands values and benefits on the site and its immediate vicinity will be fully mitigated by the Project with the Mitigation Plan, and that the permit should therefore be granted. The Applicant further contends that, with the resignation from the Applicant corporation of the officers under indictment, no issue is presented with regard to the suitability or record of compliance of the Applicant.

The Department Staff agrees with the Applicant that the Project with the Mitigation Plan will compensate for any lost wetlands benefits on the site and vicinity, and that the permit should be granted. Staff, however, remains concerned about the suitability of the Applicant and suggests suspending this proceeding until resolution of the charges against the Applicant's former officers. Alternatively, Staff recommends imposing additional conditions on the Applicant's permit that would require additional bonding to assure performance, payments for monitoring, and completion of the Mitigation Plan revegetation before construction of the buildings.

The intervenor CAUSE contends that the construction of the Project with the Mitigation Plan will result in a net loss of wetlands benefits on the site and vicinity, and that the permit should therefore be denied. CAUSE also contends that the indictment of the Applicant's two officers, combined with other actions of the Applicant in connection with this application and proceeding, indicate that the Applicant is not sufficiently trustworthy or financially secure to be granted the permit for this Project.

FINDINGS OF FACT

Project and Site Description and Background

  1. The Applicant, MTF Wantagh Development Corporation, of Floral Park, New York, has applied to the New York State Department of Environmental Conservation for a freshwater wetlands permit necessary for construction of a Project known as Wantagh Commons Office Condominiums. The plans call for 35 office condominium units to be constructed in a two-story building on the northern portion of the site. Each unit will consist of 750 square feet, providing a total floor space of approximately 26,000 square feet and a building footprint of 13,000 square feet. Parking will be provided for 132 cars. A copy of the site plan is attached to this Report as Appendix A.
  2. The Project site consists of 2.72 acres located west of Wantagh Avenue in the neighborhood known as Wantagh in the Town of Hempstead, Nassau County, New York. A location map is attached as Appendix B. The site is accessible from Wantagh Avenue over a right-of-way acquired by the Applicant which crosses a drainage swale owned by the County of Nassau and maintained by the County's Department of Public Works. The Project will include a bridge over that swale to the parking areas for the proposed office condominiums. The County drainage swale borders the Project site on the east. Adjoining the swale on the east are a supermarket and bowling alley. Wantagh Junior and Senior High School border the site on the southwest and west, and residential areas are adjacent on the north.
  3. The Project site contains a portion of Freshwater Wetland #F-3, as officially designated on the Freeport quadrangle of the Department's Nassau County Freshwater Wetlands Map pursuant to 6 NYCRR Part 664. The entire F-3 wetland consists of approximately 166 acres, distributed in a linear shape along the Bellmore Creek corridor. The drainage swale mentioned above is a channelized portion of Bellmore Creek, which drains into the Great South Bay about two miles south of the site. Freshwater Wetland F-3 is a Class I wetland as classified by the Department pursuant to 6 NYCRR Part 664. Wetland F-3 also appears on the map attached to this Report as Appendix B.
  4. In July 1988 the Department Staff delineated the exact boundaries of the freshwater wetlands on the Project site. As can be seen on Appendix A, wetlands occur in three main areas of roughly equal size on the site: Area A in the western portion, Area B in the southern end, and Area C in the northeast corner. These three areas, plus one much smaller area in the northern portion of the site, combine to comprise approximately 0.66 acres (27,000 square feet) of freshwater wetland within the 2.7 acre site. Virtually the entire remainder of the site is within 100 feet of the delineated boundaries of the wetland areas, and is therefore freshwater wetlands "adjacent area" as that term is defined at 6 NYCRR 664.2(b).
  5. The Project as currently proposed will entail the loss of approximately 5000 square feet of wetland area, or 0.12 acres. As can be seen on Appendix A, most of that loss will be caused by the encroachment of the building into wetland Area C in the northeast part of the site. Most of wetland Areas B and C will be preserved. As originally designed, the Project consisted of a larger building and parking area that would have destroyed the entire wetland area. The Project was redesigned in response to the Department Staff's concerns about loss of wetlands. The parking area will occupy virtually the entire freshwater wetlands adjacent area in the center of the site.
  6. The total area of the Project's building and parking areas, or its total impervious area, will be about 66,000 square feet, or 1.5 acres. Leaching rings or drywells will be installed to reduce stormwater runoff from the impermeable area. The leaching rings will be designed to capture up to one inch of rainfall for recharge into the ground.
  7. The redesigned Project now also includes a Supplemental Wetlands Revegetation and Mitigation Plan (the "Mitigation Plan") which would be implemented as a condition incorporated into the Applicant's permit. The Applicant's consultant, B. Laing Associates of Northport, New York, designed the Mitigation Plan and would be retained by the Applicant for its implementation.
  8. The Mitigation Plan is directed towards the drainage swale owned by Nassau County that borders the site along its eastern boundary. The swale is included as part of freshwater wetland F-3 on the official Freshwater Wetlands Map for Nassau County. The portion of the swale contiguous to the Project site that is the object of the Mitigation Plan is about 70 feet wide, 470 feet long, and comprises about 0.7 acres. The County currently mows the swale regularly. The top of the swale banks are about 3 feet above the bottom. At the bottom of the swale is a central channel about 6 inches to one foot deep. The groundwater table is near the elevation of the bottom of the swale; hence the channel often contains some water even if there has been no recent precipitation.
  9. The Mitigation Plan entails stripping the swale of the existing vegetation, which consists mainly of crab grasses and other low-lying herbaceous species. The swale will then be replanted with native wetlands species in three layers: native grasses and rushes in the bottom, and a combination of bushes, vines and trees along the upper slopes. The species to be planted include soft rush, sedges, sweetgum, red maple, pepperbush, highbush blueberry, and catbrier. A cross-section of the Mitigation Plan's plantings design is attached to this Report as Appendix C.
  10. The Applicant will also excavate the slope near the top of the drainage swale channel to remove an additional one foot of material. This will provide approximately an additional 0.5 acre feet of flood storage capacity in the swale. The site itself will be graded to level it for the buildings and parking lots, by filling in the lower areas.
  11. The County has agreed to limit its mowing to the bottom, grassy part of the swale, and to mow only twice during each growing season. B. Laing Associates would inspect the Mitigation Plan site during and after the initial April plantings, and continue monitoring, and replanting if necessary, for three years.

Existing Freshwater Wetlands Values on the Site

  1. The wetlands on the Project site are of the type known as a deciduous swamp, characterized by wetland trees in the overstory. The main tree species in the wetland areas on the site are red maple, tupelo and blackgum in the overstory. The most numerous wetland shrubs are arrowwood, sweet pepperbush and common elderberry. The ground, or herbaceous layer in the wetland areas contains soft rush, meadow beauty, and ferns.
  2. The site also contains typical upland species at the fringes and even within the wetland areas, including oaks, black cherry, black locust, pokeweed, and multiflora rose. This indicates that the wetland areas are in transition toward a plant community more characteristic of uplands. The center portion of the site is dominated by a grassy meadow that is not mapped or delineated as a freshwater wetland.
  3. The swale wetland area bordering the site which will be the subject of the Mitigation Plan, is covered mostly with soft rush, along with other sedges and grasses.
  4. The wildlife using the site consists of birds and small mammals that are common in both wetland and upland areas. The following bird species have been observed on the site: robin, red-winged blackbird, cardinal, crow, mourning dove, mockingbird, white-eyed vireo, yellow warbler, gray catbird, blue jay, flicker, hermit thrush, woodcock, and downy woodpecker. Squirrels and frogs are common on the site as well.
  5. The site is in the Bellmore Creek watershed, which extends northward from the site. Bellmore Creek has flooded in the past. Flow in Bellmore Creek is confined to the Nassau County drainage swale adjacent to the site. That flow is constricted by culverts below Jerusalem and Beltagh Avenues north and south of the site, respectively. Any surface runoff from the site originates from precipitation falling on the site itself and its immmediate vicinity.
  6. The wetlands and adjacent area on the site are on average about 1.2 feet lower than the bank of the adjacent swale and surrounding lands. The area of the site that would be regraded by the Project is about 78,000 square feet. The site thus provides some 90,000 cubic feet of potential flood storage capacity, or approximately 2 acre-feet, in the event of a flood overtopping the bank of the swale.
  7. The soil on the site is a combination of Atsion soils, a poorly drained loamy sand, typical of wetlands and floodplains; and urban complex soils, filled areas with a wet substratum.
  8. The site presently contains 2 acres of undeveloped freshwater wetlands and wetlands adjacent area covered with vegetation. The site currently provides some benefits of pollutant filtering and erosion prevention in the Bellmore Creek watershed commensurate with its size.
  9. The site is the only undeveloped parcel in the area bounded by Wantagh Avenue on the west, the Wantagh Parkway on the east, Jerusalem Avenue on the north, and Beltagh Avenue on the south. It is frequently traversed by students from the adjacent Wantagh High School, heading towards the supermarket and other businesses on Wantagh Avenue. The vegetation in the central part of the site is trampled and disturbed by this foot traffic. There is a considerable amount of trash scattered about the site, including mattresses, car parts, plastic bags, and other assorted rubbish.

Effect of Project on Wetlands Benefits

  1. The Project with Mitigation Plan will entail the direct loss of approximately 0.12 acres of freshwater wetland plus 1.4 acres of wetland adjacent area, while enhancing an already existing wetland area of 0.7 acres in the County drainage swale. The remaining three areas of preserved freshwater wetland on the site itself will be isolated and without any significant adjacent area buffering the space between the wetlands and the buildings or parking lots.
  2. The Mitigation Plan will increase the diversity and quality of wetland vegetation in the drainage swale. This will increase the swale's attractiveness to wildlife, and improve its visual and esthetic qualities. Grading of the edge of the swale banks will increase its flood storage capacity slightly.
  3. There will be some temporary and longer term adverse effects during the construction of the Project that will extend to the wetlands and adjacent areas some distance from the actual filled or developed areas. Erosion will increase during construction activities on the site and during the intial stripping of vegetation from the swale. Excavation and stockpiling of materials in a perimeter about 10 feet from the buildings will destroy vegetation on the site.
  4. The Project's impermeable surfaces will increase surface runoff from the site by over 300%. This rapid increased runoff will substantially reduce the site's ability to filter pollutants, retard erosion, and retain flood flows. The grading of the site will also reduce the site's flood storage capacity. The development of the site and its use for parking cars will add to the loading of pollutants into the swale and Bellmore Creek.
  5. The Project will decrease substantially the available habitat for wildlife on the site. The number of upland and wetland individual birds, amphibians and small mammals using the site will decrease. Human activity and traffic will deter use of the site by wildlife and birds.
  6. The open space and esthetic values of the site will be decreased substantially by the Project. The site will be transformed from an undeveloped vegetation-covered (albeit disturbed) parcel, to a fully developed site dominated by buildings and parking lots.

Suitability of the Applicant

  1. On November 6, 1992, the Attorney General filed an indictment against Wesley C. Ford and Barbara Ford (and two others) charging them with 23 counts including fraud, real estate fraud, grand larceny, filing a false instrument, and perjury. Those pending charges arose from another real estate transaction in Nassau County unrelated to the present application.
  2. At the time of the indictment, Wesley C. Ford was President and Chairman of the Board of the Applicant, MTF Wantagh Development Corporation, and Barbara Ford was Secretary and a director. They both resigned their positions with the Applicant in letters dated April 2, 1993.

DISCUSSION

Wetlands Values and Benefits

The chief issue in this case is whether the Project with the Mitigation Plan will "provide substantially the same or more benefits that will be lost through the proposed activity" as required by 6 NYCRR 663.5(g)(1)(iii). As provided in paragraph (1) of that subdivision, "[i]f mitigation proposed does not totally compensate for lost values or benefits that would be lost by the proposed activity, then the net loss of benefits must be assessed" and "must then be weighed according to standards contained in section 663.5 of this Part." The Applicant has taken the position that the Project with the Mitigation Plan will provide a net gain in wetland benefits on the site and in its immediate vicinity. The Applicant has not attempted to show that, if there would be a net loss of benefits, the Project could meet the weighing standards. Hence the outcome of this application depends only on resolution of the issue of whether the Project will result in a net gain or loss of wetland benefits.

In assessing the net effect of the Project on wetland values and benefits, the Project site itself combined with the adjacent drainage swale must be considered together -- first in assessing the total wetland benefits currently existing and then comparing them to those that will remain or result upon completion of the Project with its Mitigation Plan. The actual acreage of wetland directly destroyed or affected is not alone meaningful to this inquiry. Similarly, the value of the wetland adjacent area on the site must also be taken into account as it affects the overall balance of wetland values before and after the Project. The construction of a commercial building is listed as presumptively incompatible with wetland functions and benefits in both the wetland itself and its adjacent area (6 NYCRR 663.4[d][43]).

The Applicant's witness, Michael Bontje of B. Laing Associates, a wetlands consultant, presented results he obtained by modelling the relative wetland benefits with and without the Project using a computer model known as the Wetland Evaluation Technique or "WET." Mr. Bontje's results showing a gain in wetland benefits with the Project and Mitigation Plan are, however, seriously flawed. In his evaluation of existing benefits, Mr. Bontje excluded those benefits currently provided by the drainage swale in its existing state. His modelling of the wetlands benefits with the Project focused only on the swale with the enhanced planting. Hence his WET modelling compared two different things. The Applicant failed to compare the main Project site plus the swale before and after the Project with Mitigation Plan. Since the swale in its current state does provide some wetland benefits, this had the effect of greatly exaggerating the increase in benefits from the Mitigation Plan.

The intervenors also took issue with many of the input ratings Mr. Bontje selected in running the WET model. While most of his ratings are justifiable, some are questionable and many are at least arguable one way or the other. This illustrates that the WET model is highly dependent on the input values, many of which are subjective and dependent on the interpretation of the question and the wetland by the modeller. As stated in the WET manual itself, WET is designed to provide a broad brush or screening approach to the value of wetland mitigation. It is subject to significant limitations concerning the accuracy of the ratings and predictions, and inability to predict cumulative impacts over time. For these reasons, the WET analysis presented by the Applicant was not accorded any significant weight in determining the issues in this proceeding.

In the absence of the illusory objectivity of a computer model such as the WET analysis, we must weigh the relatively subjective opinions of the expert witnesses presented by the parties. The Applicant's witness, Mr. Bontje, and the Department Staff's witness, Steven Sanford, consistently minimized the existing wetland values and benefits provided by the site, while emphasizing the gain in benefits in the swale that would result from the Mitigation Plan. CAUSE's witnesses, Karen Blumer and David Stern, placed a much higher value on the existing wetland benefits provided by the site, while minimizing any gain in the swale from the Mitigation Plan. The preponderance of the evidence supports the CAUSE position that the Project with the Mitigation Plan will result in a net loss of wetlands values and benefits on the site and in its immediate vicinity.

All four witnesses were well qualified to render opinions on various aspects of wetlands benefits and values. While cross-examination revealed some relative lack of expertise in certain areas, each witness was credible with regard to the main thrust of his or her testimony. For example, Ms. Blumer's testimony was primarily concerned with the vegetation and wildlife benefits of the site, while Mr. Stern's was focused on the hydrological aspects. In the final analysis, my determination does not turn on credibility of the witnesses, but rather on an assessment of the overall effect of the Project on the site and swale considered as a whole. The basic physical facts concerning the Project's effects were not significantly in dispute. Rather, the dispute revolves around the interpretation of those facts in terms of the relative values of wetlands benefits existing, lost and gained. In this interpretation, the record better supports the view of the intervenors that the Project will result in a net loss of such benefits.

The Project site, despite its small size and disturbed condition, does provide some recognizable level of wetland benefits. The wetlands and adjacent area on the site provide wildlife habitat, flood storage capacity, flood flow retention, pollutant filtering, erosion control, and open space. These benefits are also currently provided by the Nassau County drainage swale in its existing condition. While the magnitude of these currently provided wetland benefits may not be great, that is not relevant to the determination of whether there will be a net gain or loss of benefits as a result of the Project. The fact remains that the site's existing benefits, whatever their magnitude, will be significantly reduced by the Project.

This reduction will not be counterbalanced by the slight increase in wetland values that would result from the Mitigation Plan's revegetation of the swale. The revegetation of the swale would only add somewhat to the biological diversity of an already existing wetland area. No new wetlands will be created or damaged wetlands restored. An existing wetland area will be improved, but neither Mr. Bontje nor Mr. Sanford could explain how this could compensate for the loss of benefits on the main site that would be caused by the Project.

The Applicant's and Staff's witnesses undervalued the existing benefits and overvalued the gain in benefits that would accrue from the Mitigation Plan. The testimony and evidence supplied by the intervenors on the relative wetland values is better supported by the record and the facts as stated above in the Findings of Fact. While the Project was redesigned to reduce the actual destruction of the wetland areas on the site, it would still eliminate virtually all the adjacent areas that buffer those wetlands. As testified by CAUSE's witnesses, the adjacent areas are inseparable from the wetlands themselves with respect to the provision of many of the wetlands benefits. This is recognized by the regulations which state that this type of development is presumptively incompatible not only in the wetlands themselves, but also in the adjacent area (6 NYCRR 663.4[d][43]).

Therefore, the Project will result in a net loss of wetland benefits not fully compensated by the proposed Project with its Mitigation Plan. The net loss of benefits is not, however, of a large magnitude. There could well be alternative projects for this site that do not require such large parking or impermeable areas that could further minimize the loss of wetlands benefits and, with the Mitigation Plan or additional mitigation, meet the regulatory standard. No such alternative plans were considered on the record of this hearing, however.

The Applicant has not proposed to weigh the net loss of values according to the standards in 6 NYCRR 663.5. Since there would be a net loss of wetlands values and benefits resulting from the Project, the Project does not satisfy the requirements for a Project with a mitigation plan in 663.5(g). This application for a freshwater wetlands permit should therefore be denied.

Suitability of the Applicant

At the conclusion of the hearing, CAUSE and the Department Staff also raised the issue of the Applicant's suitability or fitness to receive a permit from the Department in light of the Commissioner's Record of Compiance Enforcement Guidance Memorandum (dated August 8, 1991; revised March 5, 1993). During the course of the hearing, in November 1992, two officers and directors of the Applicant, Wesley Ford and Barbara Ford, were indicted on multiple counts of fraud in connection with an unrelated real estate transaction in Nassau County. Those two individuals resigned their positions with the Applicant in April 1993, during the briefing period.

The Department Staff and CAUSE have requested either that no decision be issued until the charges against the Fords have been resolved, or that additional bonding requirements and other restrictions be placed on any permits. The Applicant contends that since the Fords have now resigned their positions with the Applicant, no restrictions are necessary. Although this Hearing Report recommends denial of the permit on environmental grounds, I will address this issue for the Commissioner who is not, of course, bound by the ALJ's recommendation.

There is no question that if the Fords were still officers and directors of the Applicant this Department could suspend this proceeding and withold issuance of any permit until resolution of the indictment alleging fraudulent conduct by high managerial agents of an applicant, under the Commissioner's Record of Compliance policy. Alternatively, the underlying facts concerning the indictment and the Applicant's fitness could be adjudicated in the hearing. The mere fact that the Fords have recently resigned their positions with the Applicant does not remove all concerns about this Applicant's suitability to receive a permit. We have no additional information on the current corporate structure of the Applicant or concerning the Fords' remaining roles, if any, with the Applicant.

However, concerns about the Applicant's fitness are sufficiently addressed by the Department Staff's proposed conditions. Incorporation of those conditions would provide enough safeguards to eliminate this issue from adjudication and to render it unnecessary to suspend the proceeding. In the absence of additional facts on the Applicant's fitness, imposition of the additional bonding requirements and operational restrictions proposed by the Department Staff would be appropriate if a permit is issued for this Project. Those conditions direct that construction of the office condominiums not begin until after completion of the Mitigation Plan; submission of financial surety in the amount of $100,000 for one year after completion of construction; and funding for an environmental monitor for the site. These conditions would ensure that the Applicant properly executes the Project and Mitigation Plan.

CONCLUSION

The Project with the Mitigation Plan does not totally compensate for the loss of wetlands benefits that would be caused by the Project. Therefore, in the absence of any offer to weigh the net loss of benefits according to the standards in 6 NYCRR 663.5, the Project fails to satisfy the requirements of 663.5(g).

RECOMMENDATION

The application of the MTF Wantagh Development Corporation for a freshwater wetlands permit for this Project should be denied.

If the permit is granted, however, the Applicant should be required to comply with all conditions in the Draft Permit as well as the additional requirements set forth in the Department Staff's Reply Affirmation dated March 8, 1993.

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