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Haley, William - Decision, February 22, 2010

Decision, February 22, 2010

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 BROADWAY
ALBANY, NEW YORK 12233-1010

In the Matter

- of -

the Application for a Freshwater Wetlands Permit Pursuant to Article 24 (Freshwater Wetlands) of the Environmental Conservation Law and Part 663 (Freshwater Wetlands Permit Requirements) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,

and a Tidal Wetlands Permit pursuant to Article 25 (Tidal Wetlands) of the Environmental Conservation Law

and Part 661 (Tidal Wetlands - Land Use Regulations) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

WILLIAM HALEY,

Applicant.

DEC #1-4736-06627/00001

DECISION OF THE COMMISSIONER

February 22, 2010

Decision of the Commissioner

William Haley ("applicant") filed an application for a freshwater wetlands permit and a tidal wetlands permit with the New York State Department of Environmental Conservation ("Department") for the construction of a two--story, single-family dwelling and on-site septic system (the "project"). The project would be located on property applicant owns at 12 Magnus Lane, East Quogue, in the Town of Southampton, Suffolk County, New York (the "site"). Construction would occur within the adjacent area of freshwater wetland Q-10.

Department staff denied the permit application and applicant requested a hearing. Following referral to the Office of Hearings and Mediation Services, the matter was initially assigned to Administrative Law Judge ("ALJ") Kevin J. Casutto. In an interim decision dated June 22, 2009 ("Interim Decision"), I held that the project's compliance with tidal wetland permitting standards would not be an issue for adjudication or a basis for project denial and that a February 2007 mitigation plan (the "mitigation plan") that applicant prepared would be considered as a modification of the original project for purposes of the adjudicatory hearing. Accordingly, the only issue for adjudication was whether applicant's project, as modified by the mitigation plan, complied with the permitting standards for a freshwater wetlands permit (see Interim Decision, at 8).

Subsequent to the issues conference, ALJ Casutto left the Department and, following his departure, the matter was reassigned to ALJ Edward Buhrmaster. ALJ Buhrmaster, in his hearing report, a copy of which is attached, recommends that Mr. Haley's application for a freshwater wetlands permit be denied. I hereby adopt the ALJ's hearing report as my decision in this matter, subject to the following comments.

In proceedings conducted pursuant to the Department's permit hearing procedures, the applicant bears the burden of proof to demonstrate that its proposal will be in compliance with all applicable laws and regulations administered by the Department (see section 624.9[b][1] of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ["6 NYCRR"]). Whenever factual matters are involved, the party bearing the burden of proof must sustain that burden by a preponderance of the evidence (see 6 NYCRR 624.9[c]). To receive a freshwater wetlands permit from the Department, an applicant is required to demonstrate that a proposed project is compatible with the policy of the Freshwater Wetlands Act to preserve, protect and conserve freshwater wetlands and prevent their despoliation and destruction (see Environmental Conservation Law 24-0103).

Freshwater wetland Q-10 is classified by the Department as a "Class II" wetland. "Class II" wetlands provide important wetland benefits, "the loss of which is acceptable only in very limited circumstances" (see 6 NYCRR 663.5[e][2]). According to the regulations, a permit shall be issued "only if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s) of the Class II wetland" (see id.).

The activities proposed for this project include several that are designated in the regulations as "P(N)," which means that they are usually incompatible with a wetland and its functions and benefits. The P(N)-designated activities here involve filling, clear-cutting vegetation other than trees, grading, and constructing a residence or related structures or facilities (see 6 NYCRR 663.4[d]). The proposed use of a septic system for the residence, as discussed in the hearing report, is designated as "P(X)," incompatible with a wetland and its functions and benefits. Based upon my review of the record, the ALJ correctly concluded that the proposed project would not satisfy the standards for permit issuance set forth in 6 NYCRR part 663.

I also concur with the ALJ's determination that applicant has not demonstrated a pressing economic or social need to build a house in the wetland adjacent area of his property. Any need for the house is outweighed by the impacts that the project would have on this Class II wetland (see Hearing Report, at 18; see, e.g., Hearing Transcript at 325-26 [clearing of vegetation], 327 [increased impermeable surfaces], 332-34 [importance of adjacent area to the wetland], 338-39, 347-48 [health risks and excessive nutrients associated with sanitary effluent from septic system entering wetlands]).

In reaching my decision, I have given consideration to the mitigation plan that applicant has proposed. I recognize and appreciate the effort that applicant has made to consider mitigation measures that would reduce degradation to the wetland and its adjacent area, and would thereby reduce the impacts of the project (see Hearing Report, at 19-20). Applicant has, as part of the mitigation, repositioned the proposed residence and reduced its footprint.(1) Nevertheless, even with this mitigation, the remaining impacts of the proposed construction (including but not limited to the proposed septic system) to the wetland and its adjacent area are significant, and the regulatory weighing standards are not satisfied.

During the course of the hearing, applicant offered three exhibits (nos. 13-A, 13-B and 14) which related to permits issued for construction of a residential dwelling on an adjoining parcel. Specifically, those included:

13-A. DEC permit (No. 1-4736-01022/00001-0) issued to John Moran for construction of a single family dwelling (4/20/93) on a parcel adjacent to applicant's property;

13-B. Survey map associated with the Moran permit; and

14. DEC permit (No. 1-4736-04875/00001) issued to Robert H. Glinski, Jr. for construction of a single family dwelling (9/8/00), including a survey map associated with the Glinski permit, on a parcel adjacent to applicant's property.

The ALJ excluded the three offered exhibits from the record (see Hearing Report, at 23; Hearing Transcript, at 218-19). Applicant, in his post-adjudicatory hearing brief dated December 11, 2009, appealed from the ALJ's ruling (see Summation and Appeal dated December 11, 2009 ["Appeal"], at 10-13; see also 6 NYCRR 624.8[d][1] ["(a)ny ALJ ruling may be appealed to the commissioner after the completion of all testimony as part of a party's final brief"]). For the reasons discussed below, I conclude that the three exhibits should be received into the record.

Even though freshwater permit applications are determined on a case-by-case basis, this does not render evidence of comparable projects with different outcomes inadmissible in Department permit hearing proceedings. Agencies must treat factually similar cases consistently or offer an explanation for reaching a different result (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 518-520 [1985]; see also Borchers and Markell, New York State Administrative Procedure and Practice, § 3.15 [1998]; 2 Pierce, Administrative Law Treatise § 11.5 [5th ed 2010]).

An applicant who has been denied a permit may seek to develop a record that, on substantially similar facts, the Department has granted, rather than denied, a permit. To the extent that an applicant offers evidence that the Department has issued permits for substantially similar projects, such evidence is admissible, and record development should be allowed (see, e.g., Matter of Zazulka, Hearing Report, at 19, adopted by Decision of the Commissioner, Dec. 27, 2004; Matter of Jaral Props., Inc., Decision of the Assistant Commissioner, Dec. 31, 2009, at 2 [examining proposed comparable properties and permits]).

Although an agency, when confronted with substantially similar cases, is required to either adhere to established precedent or explain its departure therefrom, it is not required to distinguish every arguably similar case it has previously decided (see Matter of Blount [Whalen's Moving & Stor. Co.--Sweeney], 217 AD2d 879, 880 [3d Dept 1995]; Matter of Carlos [Newsday, Inc.--Sweeney], 234 AD2d 849 [3d Dept 1996]). Thus, an applicant need only be allowed the opportunity to develop a limited record of comparable projects and permits. The ALJ retains the discretion to exclude evidence of projects and permits that are insufficiently comparable, and to exclude evidence of comparable projects that is unduly repetitious (see 6 NYCRR 624.8[b][1][x]). Nor should an applicant's opportunity to make a record concerning agency precedent be allowed to devolve into relitigation of prior cases in a pending proceeding.

In this case, the exhibits offered by applicant related to two wetland permits granted by the Department for the construction of a single family residence and a septic system on a property directly adjacent to the subject site. The property for which the permits was issued included wetland Q-10 and its adjacent area.

I have reviewed the ALJ's ruling, and the arguments of the parties in that regard. I agree with the ALJ that decision making with respect to a freshwater wetlands permit application is influenced by a number of factors, which change from site to site, and from project to project. I also concur with the ALJ that the evaluation of a freshwater wetlands permit application involves consideration of the specific activities proposed for the site in light of the applicable legal standards. Impacts will vary from one site to another, and even where such sites may be in the same vicinity and the proposed projects may be of a similar nature (e.g., construction of a single family residence), the impacts will not necessarily be identical.

However, based upon my review, I conclude that the property, which adjoins applicant's parcel, and the permits proffered are sufficiently comparable to the subject property and application to be admissible and to require an explanation for the differing result in this case. The exhibits are hereby admitted into the record of this proceeding. In this regard, I note that Department staff also testified as to other freshwater wetland permit applications in addressing the proposed distances from the septic system to the wetland boundary (see, e.g., Hearing Transcript, at 475). Furthermore, to the extent, as here, Department staff argues that the issuance of a permit may have adverse precedential effect in future permit application proceedings (see Appeal, at 12; see also Hearing Transcript, at 331-32), an applicant should be allowed to develop a record in rebuttal, including introduction of comparable permits.

Although applicant in its appeal requests that the ALJ be required "to consider same in his ultimate determination in this matter" (see Appeal, at 12), I do not see the need to remand the matter to the ALJ but shall consider the three exhibits in the context of my decision.

In considering the three exhibits, I note that applicant concedes that its proposed project is different in size, shape and distance from the wetland in comparison to the activity permitted on the adjoining parcel (see Appeal, at 11-12). A critical issue is that applicant's proposed septic system (which is identified as "P(X)" [an activity that is incompatible with a wetland and its functions and benefits]) is located much closer to the wetland boundary (i.e., 51 feet; see Hearing Transcript at 303) than the septic system that was approved on the adjoining parcel (i.e., approximately 80 feet; see Hearing Transcript, at 209 [statement of Department attorney]; Exhs 13-B & 14).

The impacts arising from the use of a septic system were addressed in the Hearing Report and, as stated at the hearing, sanitary effluent could certainly reach wetland Q-10 from a septic system located 51 feet from the wetland boundary (see Hearing Transcript, at 338). The separation distance from the septic systems to the wetland boundaries is a significant distinguishing factor, and demonstrates that the proposed activity, and its environmental impacts, are not comparable to the activity that was permitted on the adjoining parcel.

Based on the record before me, applicant failed to carry his burden of establishing that the proposed project would comply with all applicable laws and regulations administered by the Department. Accordingly, the application of William Haley for a freshwater wetlands permit for the proposed project is denied.

For the New York State Department Environmental of Conservation

/s/
By: Alexander B. Grannis,
Commissioner

Albany, New York
February 22, 2010

1 To compensate for impacts that cannot be mitigated adequately through on-site measures, applicant has offered to restore and revegetate portions of a parcel owned by the Town of Southampton to the north and to donate money to a town fund for the preservation and cleanup of other wetlands in the Weesuck Creek watershed (see Hearing Report, at 20). However, there is no indication in this record that the Town of Southampton is interested in pursuing these proposals (see id.).

Exhibit List

William Haley
Freshwater Wetlands Permit Hearing
Application No. 1-4736-06627/00001

1. Notice of Complete Application and Public Hearing (5/1/08)

2. Issues Ruling of Administrative Law Judge ("ALJ") Kevin

Casutto, Matter of Haley (9/18/08)

3. Interim Decision of the Commissioner, Matter of Haley (6/22/09)

4. Resume of Aram Terchunian, Applicant's consultant (9/21/09)

5. Aerial view of project site and vicinity, prepared by Aram Terchunian from Southampton Town Geographic Information System (9/29/09)

6-A. Haley permit application (as submitted 9/7/04), with attached Environmental Assessment Form, area map showing site location, and property photographs

6-B. Survey map submitted with application

7. Survey map, with DEC wetland boundary highlighted in red ink

8. DEC Staff Notice of Permit Denial (2/3/06)

9. Applicant's proposed mitigation plan (2/9/07), including revised site plan (1/18/07)

10. DEC Staff response to proposed mitigation plan (11/28/07)

11. Itemization of freshwater wetland functions and/or benefits, as printed from DEC's website (9/28/09)

12. Standards for issuance of freshwater wetland permits, as printed from DEC's website (9/28/09)

13-A.DEC permit (No. 1-4736-01022/00001-0) issued to John Moran for construction of a single family dwelling at property adjacent to Haley lot (4/20/93)

13-B.Survey map associated with Moran permit

14. DEC permit (No. 1-4736-04875/00001) issued to Robert H. Glinski, Jr. for construction of a single family dwelling at property adjacent to Haley lot (9/8/00), including survey map associated with permit

15. Resume of Robert Marsh, DEC's Region 1 Manager of the Bureau of Habitat

16. Map 31 of 39 of DEC's Freshwater Wetlands Maps for Suffolk County

17. Aerial view of project site and vicinity, prepared by DEC Staff to display Suffolk County tax map lines and freshwater wetland boundaries

18. Issues Ruling of ALJ Daniel O'Connell, Matter of Kelly (7/20/06)

NOTE: All exhibits were received in evidence except Nos. 13-B and 14, which were marked for identification only. Also, Exhibit No. 13-A was received for the limited purpose of illustrating a permit condition employed by DEC to require the inclusion of particular covenants in recorded property deeds, and not for the purpose proposed by the applicant, which was to establish a precedent for development of his property with a single-family house.

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