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Cassese, Annette - Ruling, May 17, 1994

Ruling, May 17, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
------------------------------------------------------------
In the Matter of the Application of

Annette Cassese

for Tidal Wetlands and Protection of Waters Permits; a variance
from the tidal wetlands setback requirement; and a water quality
certification pursuant to Environmental Conservation Law
Articles 25 and 15, and Title 6 of the Official Compilation of
Codes Rules and Regulations of the State of New York
Parts 661 and 608

Ruling on
Motion for
Adjournment

File No. 1-2820-01106/00001-0
------------------------------------------------------------

PROCEEDINGS

This matter was assigned to me on September 30, 1993. Following agreement on a hearing date, the hearing notice was issued November 1, 1993. The Notice was withdrawn November 3, 1993 at Applicant's request. Following a change in Applicant's representation, rescheduling of the hearing was held in abeyance until the parties decided how they wanted to proceed.

By letter dated April 12, 1994, Applicant requested that the hearing be immediately scheduled. In a conference call on April 19, 1994, the parties advised that they could not agree on the location of the tidal wetland boundary at the proposed project site, and that proceedings to amend the official tidal wetlands map were incomplete. Staff took the position that this hearing must be adjourned until the remapping is completed. Applicant opposed such an adjournment, noting that the application has been pending for six years. Neither party wanted to commence the hearing without knowing whether or not it would be adjourned due to the pending remapping. The parties agreed to postpone scheduling the hearing until after it is determined whether or not the pending remapping required an adjournment, and agreed upon a schedule to exchange arguments in this regard.

On May 2, 1994 Staff moved for the scheduling of the permit hearing to be adjourned until such time as the amendment of the official tidal wetlands map is completed, and on May 10, 1994 Applicant filed its response in opposition.

Conference calls were placed to the parties on May 11 and 12, 1994 to ascertain the length of further delay required to complete map amendments, the Applicant's tolerance for further delay given construction scheduling and the possible timing of a decision on the permit herein, the parties' amenability to presenting their cases in the alternative (i.e., if the disputed wetlands are ultimately mapped or not mapped), and to confirm that there was no dispute between the parties on what was or was not tidal wetlands at the site except for an area that had been marked as disputed on a site plan.

This question is now ready for determination.

SUMMARY POSITION OF STAFF

This application was deemed complete on or about January 22, 1992. Staff's investigations of the site indicates that official tidal wetlands map no. 618-498 inaccurately depicts current tidal wetland areas and conditions. New tidal wetland areas in the form of shoals and mudflats, high marsh, and intertidal marsh have developed at the site since the photograph for the official map was taken in 1974. Staff contends that if the project is completed as proposed, the newly developed tidal wetland areas will be destroyed.

On November 11, 1993, a request for a tidal wetlands map change for the site was submitted to the Division of Marine Resources. This change has not been completed, nor has a hearing on it been scheduled. It is currently unknown how much longer it will take to complete the map revision process.

Based on prior rulings and decisions of the Department and applicable case law, it is unambiguous that regardless of how long the permit application has been subject to review, the Department has the clear and unequivocal authority to amend, at any time, the applicable tidal wetlands map in order to depict true, correct and current conditions at the site. In consideration of this, Staff requests an adjournment of this matter until after the pending amendment to the official map is completed.

Staff and Applicant agree on the site's tidal wetlands except for an approximately 100 square foot area. If no adjournment is granted, Staff would be able to present its case under both alternatives (i.e., if the disputed area is mapped or not mapped).

SUMMARY POSITION OF APPLICANT

Applicant is anxious to commence construction on what she intends to be her residence. Applicant would be able to commence construction as late in the current construction season as January (when the ground freezes). Applicant does not want her long-pending application (filed April 25, 1988) to be further adjourned. Applicant argues that a proposed map amendment should not automatically result in an indefinite delay of a permit application, and that a map amendment may be unnecessary in this case if it proceeds to hearing and resolution. Applicant contends that formal map amendment is not necessary under 6 NYCRR 661.15.

Applicant argues that there is no known caselaw dealing with the precise issue of whether an ALJ must indefinitely adjourn a permit proceeding so that an inventory map amendment can be processed. The area in question here is only approximately 23 by 6 feet. Applicant points out that the Commissioner has stated that questions as to the precise boundaries of tidal wetlands inventory maps could be determined within a permit proceeding. Applicant notes that under 6 NYCRR 661.15(b)(2) the Commissioner does not have to hold a public map amendment hearing in certain cases, including amendments to correct "minor errors" and "natural changes as have occurred since the effective date of the inventory map." Applicant submits that this provision contemplates that minor inventory map adjustments should be made in the context of a permit proceeding. Applicant requests that DEC's motion to adjourn scheduling of the hearing be denied.

Like Staff, Applicant would be able to present its case under both alternatives.

DISCUSSION and RULING

The cases cited by Staff clearly establish that the Department may amend an official tidal wetlands map at any time to reflect changes in tidal wetlands boundaries, even if the request for amendment is made subsequent to the filing of a permit application, and even if a permit hearing has already commenced.1 It also appears that the precise question of whether the pendency of a map amendment, per se, requires an adjournment has not previously been addressed.

Applicant is interested in not having the decision on her permit application indefinitely postponed. The Department's interest is in protecting the tidal wetlands -- its statutory mandate. Where a map amendment is in the offing, it has not been unusual for Staff and applicants to try to agree on the location of the tidal wetland boundary for the particular site in question.2 An agreement enables the Department to protect the wetland while allowing the permit proceeding to progress to resolution, thereby preserving the interests of both parties.

Here, the parties have agreed on what tidal wetlands exist on the site, except for an approximately 100 square foot area (which would be only a small portion of the total wetland area). Since the parties indicated it would not be a problem for them to address their cases to both alternatives under which the disputed area is mapped or not mapped, there does not appear to be any practical impediment to going forward with a hearing now. The hearing will develop the record on the project's impacts to the site's wetland values under both alternatives, enabling the Commissioner to make a decision that will protect the wetland. The matter will also proceed toward closure, enabling Applicant to go about making plans on what to do with the site.

In light of the above, Staff's request for an indefinite adjournment is denied.

I will be contacting the parties to schedule the hearing date.

May 17, 1994
Albany, New York

/s/
Frank Montecalvo,
Administrative Law Judge

To:
VIA MAIL AND FAX 516 444-0373
Kathleen Shea, Esq., Assistant Regional Attorney
NYSDEC Region 1 Offices
Building 40, SUNY Campus
Stony Brook, NY 11790-2356

VIA MAIL AND FAX 516 369-2065
Stephen R. Angel, Esq.
Esseks, Hefter & Angel
108 East Main Street
P.O. Box 279
Riverhead, NY 11901

1 DEC Declaratory Ruling 25-02; Thomas Thompson v Dept. of Environmental Conservation, 130 Misc.2d 123 (Sup. Ct. Suffolk, Cty, 1985), aff'd. 132 AD2d 665 (2nd Dept. 1987). See also F.L.D. Construction, Decision 8/28/84; Dwyer, Decision 2/4/88; Gazza, 10/3/90 on-record remarks.

2 See eg. Matters of Gazza (Decision 1/16/92 and Report), Brotherton (Decision 5/23/90 and Report), Johnson (Rulings/Order of Disposition 10/25/93), and Seewald (Pending).

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