Norton, Catherine - Decision, October 21, 2003

Decision, October 21, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1011

In the Matter of the Application of CATHERINE NORTON for a Freshwater Wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 24 and Part 663 of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") to construct a single family residence at Tax Block 2270, Block 53, St. Andrews Road, Staten Island, Richmond County, New York in the adjacent area of freshwater wetland AR-3

DEC Project No. 2-6404-00745/00001

DECISION

OCTOBER 21, 2003

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Maria E. Villa in the matter of the application of Catherine Norton ("Applicant") for a freshwater wetlands permit for the construction of a single family residence on Staten Island, Richmond County, New York, is hereby adopted as the Decision in this matter subject to my comments below.

The New York State Legislature has declared it to be the public policy of the State to preserve, protect and conserve freshwater wetlands and the benefits derived from them. Environmental Conservation Law § 24-0103. The Department's regulations contain the standards to implement this legislative public policy. See Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), "Freshwater Wetlands Permit Requirements."

An applicant for a permit bears the burden of proof to demonstrate that a proposed project will be in compliance with the applicable laws and regulations. See 6 NYCRR 624.9(b)(1); see also 6 NYCRR 663.5(a). In this matter, Applicant proposes to construct a residence within an adjacent area to Class I freshwater wetland AR-3. As indicated in the hearing report, Applicant failed to show that the construction of the residence would comply with the applicable legal standards for issuance of a freshwater wetlands permit.

In view of the foregoing and on consideration of the entire record, the application is denied.

The record indicates, and notice is taken of, Applicant's family circumstances and the need for a new residence. The denial of this application does not preclude Applicant from submitting a new application, including but not limited to mitigation measures to minimize or eliminate impacts on freshwater wetland AR-3. In order, however, for a freshwater wetlands permit to be granted for construction of a residence at this location, the Department must determine that any such new application fully complies with the standards in 6 NYCRR Part 663.

For the New York State Department of Environmental Conservation

/s/
By: Erin M. Crotty,
Commissioner
Albany, New York
October 21, 2003

To: Catherine Norton
257 St. Andrews Road
Staten Island, New York 10306

Mary A. Whiting, Esq.
Anthony J. Pocchia, Esq.
1001 Clove Road
Staten Island, New York 10301

Udo M. Drescher, Esq.
Assistant Regional Attorney
New York State Department of Environmental Conservation
Division of Legal Affairs, Region 2
47-40 21^st Street
Long Island City, New York 11101-5401

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter of the Application of CATHERINE NORTON for a Freshwater Wetlands permit pursuant to Environmental Conservation Law ("ECL") Article 24 and Part 663 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") to construct a single family residence at Tax Block 2270, Block 53, St. Andrews Road, Staten Island, Richmond County, New York in the adjacent area of freshwater wetland AR-3

DEC Project No. 2-6404-00745/00001

HEARING REPORT

-by-

/s/
Maria E. Villa
Administrative Law Judge

PROCEEDINGS

Background

The Applicant, Catherine Norton ("Applicant"), owns real property at Tax Block 2270, Block 53, on St. Andrews Road in Staten Island, Richmond County, New York (the "Site"). On September 24, 1999, Ms. Norton applied to the New York State Department of Environmental Conservation (the "Department" or "DEC") for a freshwater wetlands permit, pursuant to Environmental Conservation Law ("ECL") Article 24, to construct a single family residence on the Site. The project is proposed in the adjacent area of a Class I freshwater wetland, designated AR-3 (Richmond Creek). Department Staff concluded that this project was a Type II action pursuant to ECL Article 8 (the State Environmental Quality Review Act), and its implementing regulations, at Section 617.5 of Title 6 of the New York Compilation of Codes, Rules and Regulations ("6 NYCRR"), and therefore would not require an environmental impact statement ("EIS").

On August 31, 2000, the Department notified the Applicant that her application was incomplete, and requested project plans showing the flagged wetland boundary line. The Applicant provided revised plans, and by letter dated April 9, 2001, the Department notified Ms. Norton that her application was complete. A Notice of Complete Application appeared in the April 11, 2001 edition of the Department's Environmental Notice Bulletin, and in the April 12, 2001 edition of the Staten Island Advance. By letter dated October 18, 2001, Department Staff denied Ms. Norton's permit application. By letter dated October 31, 2001, Ms. Norton requested a hearing on the denial. The matter was referred to the Department's Office of Hearings and Mediation Services on February 4, 2002, and assigned to Administrative Law Judge ("ALJ") Maria E. Villa. The parties attempted to resolve the matter, but were unable to do so, and requested that the hearing proceed.

A Notice of Public Hearing was published in the May 21, 2003 edition of the Environmental Notice Bulletin, and in the May 27, 2003 edition of the Staten Island Register. The hearing was held on July 10, 2003, at the Seaview Hospital Community Services Building, 460 Brielle Avenue, Staten Island, New York. The Applicant, Catherine Norton, was represented by Mary A. Whiting, Esq., and Anthony Pocchia, Esq., of the law firm of Pocchia & Whiting. Udo M. Drescher, Esq., Assistant Regional Attorney, appeared on behalf of Department Staff. No members of the public appeared to make any statements concerning the application. The parties completed a site visit after the legislative public hearing record closed, and then returned to the hearing location for the issues conference and adjudicatory hearing.

Issues Conference

Immediately following the site visit, the parties re-convened to begin the issues conference. The Applicant was represented by Mary A. Whiting, Esq., and Anthony Pocchia, Esq., of the law firm of Pocchia & Whiting. Department Staff was represented by Udo M. Drescher, Esq., Assistant Regional Attorney. No intervenors filed petitions for party status. Thus, the parties to the adjudicatory hearing were the Applicant and Department Staff.

The first issue identified for adjudication was whether the application satisfied the permit issuance criteria set forth in Part 663, and specifically, the standards set forth at 6 NYCRR Section 663.5(e), which includes the three-part compatibility test outlined at Section 663.5(e)(1), and the weighing standards listed at Section 663.5(e)(2). In addition, the Applicant argued that testimony and documentary evidence should be considered in connection with the Department's alleged failure, in processing Ms. Norton's permit application, to comply with Section 70-0109(3)(b) of the ECL, the Uniform Procedures Act ("UPA"), which provides

[i]f the department fails to mail a decision on an application for a permit within the time periods specified, the applicant may cause notice of such failure to be made to the department by means of certified mail return receipt requested addressed to the commissioner. If, within five working days after the receipt of such notice, the department fails to mail a decision, the application shall be deemed approved and a permit deemed granted subject to any standard terms or conditions applicable to such a permit.

The notice described in this provision is commonly referred to as a "five-day letter." Issues Conference Transcript at pages 17-20 (hereinafter "IC Tr. at p. ___.")

The Applicant maintained that a request for a determination pursuant to Section 70-0109(3)(b) was made during a telephone conversation with a member of the Department's Executive Staff. IC Tr. at pp. 19-21, 25. It is undisputed that the Applicant did not send by certified mail, return receipt requested, a written request for a decision as required by that provision. IC Tr. at p. 25. The Applicant moved that the permit be deemed granted by operation of law, and asserted that Ms. Norton relied to her detriment on misleading statements made by Department employees. IC Tr. at pp. 17; 57-58. Department Staff strongly objected to this characterization, contending that strict compliance with the statutory provision was required, and that a verbal request by telephone is not sufficient to trigger the statutorily mandated procedure. IC Tr. at pp. 58-59. The ALJ denied the motion to grant the permit, stating that the relief sought was outside the scope of her authority, but did allow testimony concerning the nature and circumstances of the Applicant's discussions with the Department concerning the permit application. IC Tr. at pp. 27-28.

The Applicant also sought to introduce evidence of mitigation. Specifically, the Applicant pointed out that the parcel where the project is proposed was originally a larger, forty by two hundred foot lot. In the early 1990s, the New York City Department of Environmental Protection ("DEP") acquired through a condemnation proceeding the rear portion of Ms. Norton's lot, an area approximately forty feet by one hundred feet, to be included in the "Bluebelt," an undeveloped area of land on Staten Island used for stormwater management. IC Tr. at pp. 30-33; Exhibit 4-18. This, the Applicant argued, must be taken into account in assessing whether Ms. Norton offered mitigation to offset the detriment, if any, to the wetlands to be anticipated if the project were approved. IC Tr. at pp. 32-33. Department Staff contended that its evaluation, and ultimately the denial, of the application properly did not consider the history of the parcel, and that this issue was not relevant to the decision-making process. IC Tr. at pp. 33-34. Department Staff asserted further that the approximately seven-year lapse between the acquisition of the parcel by the City and Ms. Norton's application for a freshwater wetlands permit undercut the Applicant's mitigation argument, and that considering this as mitigation would not be supported by the regulations. IC Tr. at p. 54. Department Staff stipulated to the fact that the Site had originally been part of a larger parcel, which was acquired for the Bluebelt, and this information was entered into the record. IC Tr. at p. 55.

Finally, the Applicant pointed out that the Department granted freshwater wetlands permits for similar projects in close proximity to the Applicant's property, and asserted that the decision-making process on the Norton application was merged with the Department's consideration of those other applications. IC Tr. at p. 37-38. The Applicant argued that, as a result, Department Staff could not take the position that evidence concerning the other applications was not pertinent to this project. IC Tr. at p. 40.

Department Staff objected to the introduction of such evidence, contending that it was irrelevant to whether the application in question satisfied the regulatory standards for issuance of a permit. IC Tr. at p. 38-41. Department Staff characterized the Applicant's position as an equal protection argument, and therefore outside the scope of the hearing. IC Tr. at pp. 42-43. The Applicant countered that the alleged disparate treatment of Ms. Norton's application went to the fairness of the process as a whole, and that documents obtained from the Department's files showed that Department Staff "struggled" to find a rationale for the permit denial, which the Applicant claimed was essentially a foregone conclusion. IC Tr. at pp. 49-50.

According to the Applicant, Ms. Norton was substantially prejudiced by the Department's handling of the matter, because of her personal circumstances, and proposed to offer testimony concerning a partition action instituted by Ms. Norton's former husband, which requires that the marital residence be sold, and the proceeds divided, upon Ms. Norton's middle child reaching the age of emancipation. IC Tr. at pp. 62-65.

Department Staff responded that the Applicant misinterpreted the documents in question, particularly the e-mail communications that took place, contending that those e-mails demonstrated the customary exchange among Department Staff when a permit application is under consideration. IC Tr. at p. 41-42. Department Staff asserted further that, if anything, Ms. Norton's application received more attention than the average application, and renewed its objection to the introduction of evidence concerning other permit applications as irrelevant. Id. The ALJ characterized the Applicant's issue as raising a question concerning alleged arbitrary conduct on the part of Department Staff, and allowed limited testimony concerning this point. IC Tr. at p. 55.

Adjudicatory Hearing

Following the issues conference, the adjudicatory hearing began. The Applicant offered the testimony of two consultants, Rocco DeFelippis and William J. D'Eletto, and also testified on her own behalf. In addition, the Applicant called as witnesses several employees of the Department, including John Cryan, Regional Permit Administrator, and Joseph Pane, Principal Fish and Wildlife Biologist, both from Region 2. Department Staff also called Mr. Pane to testify on its behalf.

The ALJ directed that the parties submit briefs concerning a question with respect to the zoning of the subject parcel, which was raised by Department Staff during the course of the adjudicatory hearing. The Office of Hearings and Mediation Services received those submissions on August 15, 2003. On that date, the hearing record closed.

FINDINGS OF FACT

1. The DEC Commissioner promulgated the official freshwater wetlands survey maps for Richmond County in 1987. Freshwater wetland AR-3 is identified on the Arthur Kill quadrangle as a Class I wetland.
2. The features outlined in 6 NYCRR Sections 664.5(a)(7) and (b) that are associated with Freshwater Wetland AR-3, and which form the basis for its Class I designation, are delineated in Exhibit 9. The wetland in question is part of the Richmond Creek wetland, a Class I wetland approximately 116 acres in size. The wetland has Class I status because it contains four or more Class II characteristics.
3. The classification sheet for the wetland lists a number of benefits, including flood and storm control, wildlife habitat, recreation, education and scientific research, open space aesthetic, nutrient source, and fish habitat. It is undisputed that the project would be located within the adjacent area of wetland AR-3.
4. The wetland is a deciduous swamp, dominated by mature trees that are twenty-five to thirty feet high, with a mature or sustainable understory of shrubs.
5. At certain times of the year, standing water is found at the base of the trees, and at other times, moist topography is present in the wetland. This fluctuation in the water has implications for the flora and fauna at the site, which includes vegetation that can persist during periods of inundation as well as periods where conditions are dry. Animals that can take advantage of this characteristic, such as certain birds and amphibians, would be also be found in the wetland.
6. Amphibians, such as green frogs, which are located in this wetland, use wetlands such as this one to lay eggs and reproduce. This species, which is territorial, prefers shoreline habitat with vegetative cover.
7. Birds use the insects and frogs in the wetland as a source of food, and roost in the taller trees while feeding or building nest sites. The wetland's tree canopy provides a nesting and roosting spot for birds, as well as above ground nesting for squirrels and raccoons. The trees also provide migratory habitat.
8. The Applicant's property consists of a parcel of undeveloped land, nine tenths of an acre in size, located on St. Andrews Road in Staten Island, New York, in Richmond County. The Applicant's property is situated in the adjacent area of wetland AR-3.
9. The subject parcel is located in a single-family residential area, with public water and septic. There, the Applicant proposes to construct a single family dwelling, which would be located a minimum of 15 feet from the freshwater wetland boundary at the closest point. The side yard would be within two feet of the wetland boundary at the closest point. The proposed house site would not be situated in the wetland, but is within the adjacent area.
10. The original parcel was 40 feet by 200 feet. In the early 1990s, the rear portion of the property (40 feet by 100 feet) was acquired by the New York City Department of Environmental Protection to be incorporated into the "Bluebelt," an area intended for stormwater management. Ms. Norton was compensated by the City between $13,000-$14,000 for that portion of the property.
11. The project proposed, including the construction of a residence, as well as the excavation and disturbance of the soils at the property associated with that construction, would adversely affect the wetland. The rate of erosion would be accelerated, with soil being eroded and washed into the wetland as a result of heavy rains. In addition, vegetative cover in the wetland would be altered, and the wetland would be reduced in size. With respect to vegetative change, erosion and sedimentation from the lot would bury existing wetland vegetation, and would provide a competitive advantage to invasive species, such as mugwort.
12. The use of the rear yard on the subject parcel, if a residence were built, would affect the use of the area by wildlife. Parcels of habitat would be changed, because some animals would no longer enter the property, while others may enter to take advantage of a food source. The animals associated with a wetland would not receive the same advantages from a permanently maintained upland residential area.
13. The use of fertilizer and other lawn control products, as well as watering a lawn, would affect the runoff from the subject parcel. Fertilizer adds more nutrients to the water column, and the wetland's ability to absorb those nutrients is unknown. In addition, there may be concerns with respect to pollutants accumulating in the wetland as a result of maintenance of the lawn and the residence.
14. Territorial birds on the site would be disturbed by the presence of people, including noise and lights, on a developed property, with a corresponding reduction in habitat. In addition, the construction of the house would bring light closer to the wetland, changing the natural cycle of light, which, in turn, would affect amphibians and birds, who consume insects.
15. The installation of a basement could affect groundwater flow in the vicinity of the house, in that groundwater would be blocked or diverted. The project calls for installation of a drywell, which is intended to retain water and then discharge the water to a pervious layer, to convey stormwater to groundwater. The drywell proposed for this project might not function as designed because of its close proximity to the wetland, and the shallow depth of the groundwater table.
16. The property is included within a Special Natural Area District, as indicated by the official zoning map of the area and Article X, Chapter 5 of the New York City Zoning Resolution.
17. Ms. Norton is currently paying a mortgage on the property, and expects to continue to do so for thirty years. The property was appraised approximately six months ago for $425,000.
18. Ms. Norton resides in the house adjacent to the subject parcel. Her residence is the subject of a judgment in a partition action instituted by her former husband, which requires that the residence be sold, and the proceeds divided, when Ms. Norton's child reaches the age of emancipation.

DISCUSSION

Section 663.4(a) of 6 NYCRR provides that a permit or letter of permission is required for any regulated activity⁽¹⁾ in a wetland or adjacent area. An "adjacent area" refers to "those areas of land or water that are outside a wetland and within 100 feet (approximately 30 meters), measured horizontally, of the boundary of the wetland." Section 663.2(b).

Section 663.5(c) provides that, in evaluating a permit application, the Commissioner must apply the standards for permit issuance set forth in subdivision (e) of Section 663.5, in conjunction with the freshwater wetland's classification as indicated on the official freshwater wetlands map filed by the Department. The proposed single family dwelling in this case would be located in the adjacent area of freshwater wetland AR-3, which is classified as a Class I wetland. Pursuant to 6 NYCRR Section 663.5(e)(2) ("Standards for Permit issuance"), Class I wetlands

provide the most critical of the State's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued only if it is determined that the proposed activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland.

Section 663.5(d) provides that "[a]s shown in the chart in subdivision (e) of this section, a determination of compatibility and a weighing of need against benefits lost are the criteria for decisionmaking."

The standards for freshwater wetlands permit issuance include a three-part compatibility test that provides:

[a] permit, with or without conditions, may be issued for a proposed activity on a wetland of any class or in a wetland's adjacent area, if it is determined that the activity (i) would be compatible with preservation, protection and conservation of the wetland and its benefits, and (ii) would result in no more than insubstantial degradation to, or loss of, any part of the wetland, and (iii) would be compatible with public health and welfare.

6 NYCRR Section 663.5(e)(1). This Section provides that "[t]hese three tests are to be used to determine the compatibility of all activities identified as P(C) or P(N) in section 663.4(d) of this Part, or for any actions not listed in section 663.4(d)." The chart at Section 663.4(d) includes a list of regulated activities, and assigns a level of compatibility based on the nature of the activity and whether a proposed activity would take place in either a regulated freshwater wetland or the adjacent area. For regulated activities that require a permit ("P"), the levels of compatibility are "usually compatible" ("C"), "usually incompatible" ("N"), or "incompatible" ("X").

The regulated activities that the Applicant proposes to undertake at the subject parcel are identified in the chart provided at Section 663.4(d). Item 42 is the construction of a home and related structures. In a freshwater wetland's adjacent area, this activity is considered usually incompatible, or an "N" classified activity.

The weighing standards for Class I wetlands provide that, for activities identified as P(N) (usually incompatible) to be permitted, the proposed project must (1) be compatible with the public health and welfare, (2) be the only practicable alternative that could accomplish the Applicant's objectives, and (3) have no practicable alternative on a site that is not a freshwater wetland or adjacent area. Section 663.5(e)(2). That Section requires that these weighing standards must be applied to all activities identified in 6 NYCRR Section 663.4(d) as P(N) (usually incompatible) that do not meet the three-part compatibility test discussed above. Accordingly, it is necessary to evaluate the "N" classified activity the Applicant proposes (the construction of a home) for compatibility under the three-part test, and, if the activity is determined to be incompatible, to apply the weighing standards.

The Applicant has the burden of proof to demonstrate that her proposal would meet the applicable permit issuance criteria. See 6 NYCRR Sections 624.9(b)(1) and 663.5(a). The Applicant argued that the Site was the only practicable alternative for the construction of a residence on the property, and that the project would not have any adverse effect on the environment, and only a minimal effect on the wetlands. According to the Applicant, a denial of the application would result in extreme hardship, because she and her severely disabled daughter would be forced to move from their home under the terms of a divorce decree that provides for the sale of the marital residence.

Department Staff took the position that the proposal would be incompatible with the standards for permit issuance under Section 663.5(e). Department Staff argued that the parcel provides important freshwater wetlands benefits, that impacts to the freshwater wetland had been identified, and that, as a result, the application should be denied.

At the hearing, the Applicant called Rocco DeFelippis, a licensed professional engineer, who testified that his firm filed the 1999 application for Ms. Norton's permit. Transcript at page 10 (hereinafter "Tr. at p. ___.") Mr. DeFelippis testified that during the two years that the application was under consideration, two revisions were made to the original plan. Tr. at p. 10. The first revision showed the wetlands line as located for DEP, on the east side of the property. Id.; Exhibit 3-G. The second revision resulted from a meeting with Department Staff, in which Mr. DeFelippis was asked to show the wetlands north of the property, including the forty by one hundred foot parcel, formerly owned by Ms. Norton and now part of the Bluebelt, at the rear of the parcel where the project is proposed. Id.; Exhibit 3-H. Mr. DeFelippis testified that once the DEP constructed sanitary sewers in the neighborhood, it was possible for development to take place on the remainder of the property. Tr. at pp. 14-15.

The witness went on to observe that it was customary, in negotiating with the Department in connection with permit applications, to discuss mitigation. Tr. at p. 17. Department Staff cross-examined Mr. DeFelippis as to mitigation, and the witness stated that he was asked to propose some mitigation measures, following the denial of the permit. Tr. at p. 39. Discussions took place as to whether it might be possible to make the house slightly narrower, and plant a vegetative buffer of approximately one to two feet wide. Tr. at pp. 39-40. Ultimately, no agreement was reached, and the parties proceeded to hearing.

Department Staff cross-examined the witness as to the zoning of the parcel. Tr. at pp. 26-27. The Applicant objected, stating that this was the first time that zoning had been raised, and that the City had not appeared at the hearing to raise any concerns with respect to the project. Tr. at p. 27. The witness testified that, assuming that the property was part of a Special Natural Area District under a City Zoning Resolution, City approval would be required for the project, but that such approval would be sought after a Department permit were issued, and not before. Tr. at pp. 30-31. Department Staff asked Mr. DeFelippis whether the project could go forward if the property were zoned R-1, and Mr. DeFelippis responded that the house could not be built under those circumstances. Tr. at p. 31. The Applicant objected to this line of questioning, pointing out that the Department deemed the application complete without raising any concerns as to the zoning at the Site. Tr. at p. 32.

Department Staff took the position that if the project were contrary to applicable zoning, this would be relevant to the project's compatibility with public health and welfare, pursuant to Section 663.5(e)(1). Id. The Applicant argued that this inquiry was outside the scope of the Department's review, and that the issue raised would become relevant only upon review by the City. Tr. at p. 36. Because Department Staff was unable to locate pertinent documents at that point in the hearing, the ALJ requested that Department Staff make a written submission, with an opportunity for the Applicant to respond, following the adjournment of the adjudicatory hearing.

The Applicant then called Joseph Pane, who stated that he has been employed by the Department as a Principal Fish and Wildlife Biologist since 1986. Tr. at p. 90. Mr. Pane stated that he has a bachelor's degree in biology and a master's degree in wildlife and fisheries. Tr. at p. 258. Mr. Pane testified that, among other things, he provides a technical review of proposed projects for the permit unit. Tr. at p. 91-93. This review includes a technical assessment of projects, as well as a review of the classification of the wetland in question. Tr. at p. 94. Mr. Pane stated that he first became involved in the Norton permit application in 1998, when he received a telephone call from Ms. Norton, who had some questions concerning her application. Tr. at p. 96. The witness testified that he talked to Ms. Norton on a number of occasions over the past five years, and that he was not aware of any objections to her application. Tr. at pp. 97-115; 267.

Mr. Pane testified that the wetland in question is part of the Richmond Creek wetland, a Class I wetland approximately 116 acres in size. Tr. at p. 364. The wetland has Class I status because it contains four or more Class II characteristics. Id.; Exhibit 3L. The classification sheet for the wetland lists a number of benefits, including flood and storm control, wildlife habitat, recreation, education and scientific research, open space aesthetic, nutrient source, and fish habitat. Tr. at pp. 365-66; Exhibit 9.

Mr. Pane was questioned concerning a memorandum he prepared, recommending denial of the Norton application. Tr. at p. 139; Exhibit 4-16. The memorandum discussed a number of factors, and according to the witness, all of those factors were of equal weight. Tr. at p. 286. The memorandum noted that the residence proposed would be within fifteen feet of the wetland boundary at the closest point, and that the side yard would be within two feet of the wetland boundary at the closest point. Exhibit 4-16. Mr. Pane testified that he was not aware, at the time he wrote the memorandum, of any discussions with respect to reducing the size of the residence, but that a reduction in size, without increasing the distance of the structure from the wetland, would not alleviate his objection to the proposal. Tr. at pp. 316-17.

Mr. Pane testified that he visited the site on five occasions, and had also been in the area from time to time conducting inspections of the Bluebelt area nearby. Tr. at pp. 162-63. According to Mr. Pane, the wetland is a deciduous swamp, dominated by mature trees twenty-five to thirty feet in height, with a mature or sustainable understory of shrubs. Tr. at p. 320. Mr. Pane stated that this type of wetland supports animals such as birds, raccoons, amphibians, and fish. Id. Amphibians use wetlands such as this one to lay eggs and reproduce. Tr. at p. 404. Mr. Pane stated that he had seen green frogs in the area, and that this species, which is territorial, prefers shoreline habitat with vegetative cover. Tr. at pp. 405, 483. Mr. Pane acknowledged that he had not seen any raccoons at this location, or fish, but stated that he had been informed by the City's subcontractor that fish had been observed in the Bluebelt. Tr. at pp. 322-23. According to Mr. Pane, the wetland immediately adjacent to the site would not support fish because of the wet/dry cycle nature of the wetland. Tr. at p. 404.

At certain times of the year, according to Mr. Pane, standing water is found at the base of the trees, and at other times, moist topography is present. Id.; p. 402. Department Staff introduced a series of photographs taken by Mr. Pane which showed standing water at the Site. Tr. at pp. 395, 399, Exhibits 13, 14. According to Mr. Pane, this fluctuation in the water in the wetland has implications for the flora and fauna at the site. Tr. at p. 402-03. The witness testified that vegetation that can persist during periods of inundation as well as periods where conditions are dry will be found there. Tr. at p. 403. Animals that can take advantage of this characteristic would also be found in the wetland, including mosquitoes and birds. Id. On cross-examination, the Applicant argued that providing a breeding ground for mosquitoes would not be a positive effect on public health and welfare, and pointed out that Mr. Pane was involved in a spraying project to control this insect. Tr. at pp. 480-81.

Mr. Pane testified that the project, if approved, would have a number of effects on the wetland, including flood control, wildlife, erosion, sedimentation, change from a forested deciduous to a disturbed edge habitat, and stormwater. Tr. at p. 150. With respect to a vegetative buffer, Mr. Pane stated that the one-foot buffer proposed would not be significant in terms of reducing the adverse effects on the wetland. Tr. at pp. 146-47. According to the witness, the construction of a structure in the adjacent area would result in sedimentation and increased erosion from the developed lot, which in turn would lead to siltation of a portion of the wetland adjacent to the lot. Tr. at p. 156. As a result, vegetative cover in the wetland would change, and the wetland would be reduced in size. Id. Mr. Pane said that the rate of erosion would be accelerated if the residence were constructed, but could not quantify the expected increase in the erosion rate. Tr. at p. 157. With respect to vegetative change, the witness testified that erosion and sedimentation from the lot would bury existing wetland vegetation, and would provide a competitive advantage to invasive species, such as mugwort. Tr. at p. 159.

Mr. Pane stated that birds would use the insects and frogs in the wetland as a source of food, and roost in the taller trees while feeding or building nest sites. Tr. at p. 403. Mr. Pane testified that the wetland's tree canopy provides a nesting and roosting spot for birds, as well as above ground nesting for squirrels and raccoons. Tr. at p. 410. The trees also provide migratory habitat. Tr. at 509. Mr. Pane stated that two trees in the adjacent area, a cedar and a beech, would be within the footprint of the proposed residence. Tr. at p. 438. Removal of trees, according to Mr. Pane, negatively affects bird species, as it reduces the available habitat. Tr. at pp. 410-11, 413.

Department Staff introduced a photograph taken by Mr. Pane of a grey catbird, which Mr. Pane testified was exhibiting nesting behavior at the time he observed it at the Site, although he was not able to locate the nest. Tr. at pp. 412, 475-76, 507; Exhibit 17. On cross-examination, Mr. Pane testified that he had seen other bird species, such as a mourning dove, a blue jay, a cardinal, and a robin. Tr. at pp. 484-85. Counsel for the Applicant questioned Mr. Pane as to a number of other species listed in the wetland classification, and the witness indicated that he had not observed such birds. Tr. at pp. 485-86. Mr. Pane testified further that territorial birds on the site would be disturbed by the presence of people, including noise and lights, on a developed property. Tr. at pp. 442-43. This would result in a reduction of habitat for such bird species. Tr. at p. 443. In addition, the construction of the house would bring light closer to the wetland, which would change the natural cycle of light. Id. This, in turn, would affect amphibians and birds, who consume insects. Id.

Mr. Pane testified further that the use of the rear yard on the subject parcel, once the residence was built, would affect the use of the area by wildlife. Tr. at p. 440. According to the witness, parcels of habitat would be changed, because some animals would no longer enter the property, while others may enter to take advantage of a food source. Tr. at pp. 440-41. Mr. Pane stated that the animals associated with a wetland would not receive the same advantages from a permanently maintained upland residential area. Tr. at p. 441. In addition, the use of fertilizer and other lawn control products, as well as watering a lawn, would affect the runoff from the subject parcel. Tr. at p. 444. Specifically, according to Mr. Pane, fertilizer adds more nutrients to the water column, and the wetland's ability to absorb those nutrients is unknown. Tr. at pp. 444-45. In addition, he stated that there may be concerns with respect to pollutants accumulating in the wetland as a result of maintenance of the lawn and the residence. Tr. at p. 445.

It was Mr. Pane's testimony that if the project were to go forward, there would be a reduction in the size of the wetland, as well as a reduction in the wetland's use by a variety of wildlife species. Tr. at p. 419. The project would require removal of trees, as well as the excavation of fill to erect the structure and access sanitary sewer and water main lines, and install dry wells. Tr. at p. 420. Mr. Pane testified that the installation of a basement could affect groundwater flow in the vicinity of the house, because groundwater would be blocked or diverted. Tr. at p. 421. Mr. Pane stated that the project called for installation of a drywell, which is intended to retain water and then discharge the water to a pervious layer, to convey stormwater to groundwater. Tr. at pp. 422, 426-27. According to Mr. Pane, the drywell proposed for this project might not function as designed because of its close proximity to the wetland, and the high groundwater table. Tr. at p. 430.

In summary, Mr. Pane testified credibly that the proximity of the house to the wetland boundary (15 feet), the excavation and disturbance of fill at the Site, and the resulting erosion, would all adversely affect the wetland. Mr. Pane stated that soil disturbance runs the risk of sediment being eroded and washed into the wetland as a result of heavy rains. Even after construction, it is anticipated that the presence of a dwelling on the parcel will have an adverse effect on groundwater and stormwater flow. The groundwater flow at the Site may also be diverted by both the structure and drywells, with corresponding detriment to the wetland. Wildlife and vegetation at the Site will be adversely affected.

The Applicant's expert's conclusions to the contrary are not persuasive, since, as discussed in greater detail below, the expert was not qualified to offer an opinion as to the effects of the proposal on the wetland, and also because he assumed that the project would not include a basement. In fact, the project plans show otherwise. In addition, the Applicant's expert provided scant testimony as to the effects to be anticipated on the Class I characteristics of the Site if the project were approved. Mr. Pane's testimony on these points was thus not effectively rebutted, and therefore is afforded significant weight. The evidence offered by the Applicant was not sufficiently reliable or persuasive to satisfy the Applicant's burden, in this case, to show that the activity proposed would satisfy regulatory standards. See, e.g., Matter of Rampulla Assocs. Architects, Decision, 1988 WL 158349, *12 (Nov. 8, 1988) (permit granted for residence adjacent to a Class I wetland on Staten Island, where ALJ's report reflected that the applicant "produced three well-qualified environmental scientists who were unanimous in their conclusions that the Project would cause virtually no adverse impact on the several functions and benefits of the freshwater wetlands in the vicinity of the Site.")

Consequently, based upon this record, the construction of the house and the activities associated with human habitation at the Site are not compatible with the functions and benefits of this Class I wetland. Therefore, it is necessary to evaluate the proposal using the weighing standards set forth in Section 663.5(e)(2).

The weighing standards for Class I wetlands provide that, for the proposed activities to be permitted, the project must (1) be compatible with the public health and welfare, (2) be the only practicable alternative that could accomplish the Applicant's objectives, and (3) have no practicable alternative on a site that is not a freshwater wetland or adjacent area. Section 663.5(e)(2). In the case of a Class I wetland, the proposed activity must also minimize degradation to, or loss of, any part of the wetland or its adjacent area, and must minimize any adverse impacts on the functions and benefits the wetland provides. Id. Again, the Applicant bears the burden of proof with respect to these provisions.

According to the regulations, in order to be compatible with the public health and welfare, a proposed activity must be consistent with physical health, if necessary, as judged by health professionals, and consistent with related federal, State and local laws, regulations and policies. 6 NYCRR Sections 663.5(f)(1)(i) and (ii). Inconsistency with these standards weighs against permit issuance.

Department Staff contended that the inclusion of the Site in the Special Natural Area District (the "District"), which was established by a Zoning Resolution of the City of New York, supported Department Staff's argument that the project would not be compatible with public health and welfare, noting that Section 663.5(f)(1) provides that if a proposed activity is "inconsistent with physical health, or with any related laws, regulations and government policies, that would weigh against issuing a permit under the act . . .. " As noted, the parties were asked to provide written submissions concerning the zoning question raised by Department Staff at the adjudicatory hearing. In addition, the ALJ reserved ruling on the admissibility of the exhibits proffered by Department Staff in that regard (Exhibits 19 and 20), as well as Exhibits 4-41, 4-42, and 21, all of which were offered by the Applicant, and consist of documents and photographs relating to other permit applications in the vicinity of the project.⁽²⁾

In its written submission, marked as Exhibit 22, Department Staff pointed out that Section 105-00 of Article X, Chapter 5 of the New York City Zoning Resolution ("Zoning Resolution") states that the District is "designed to promote and protect public health, safety and general welfare." The District is intended to preserve and protect natural features, including ponds, lakes, and swamps. Zoning Resolution, Section 105-94. Department Staff noted that the project Site is located within the District. Department Staff also pointed out that the official Zoning Map indicates that the parcel is zoned R1-2, and that the Applicant's engineer testified that such a designation would affect the feasibility of the project.

In response, the Applicant asserted that the Department had no jurisdiction over the zoning regulations, and pointed out that the City had not appeared or requested party status at Ms. Norton's hearing. Exhibit 23. In addition, the Applicant renewed its arguments that Ms. Norton was the victim of arbitrary treatment, because the Department issued permits for other projects, and noted that Ms. Norton could apply for a waiver from the zoning regulations. The Applicant objected to the introduction of this issue long after the denial letter was issued.

Under the circumstances, the record supports the conclusion that the proposal does not meet the first weighing standard, which is compatibility with public health and welfare. The Applicant's submission essentially repeats the arguments raised at the hearing, without addressing the fact that the subject parcel is part of an area earmarked for protection under the City Zoning Resolution. The Applicant's arguments as to jurisdiction are unpersuasive, as the Department is not claiming that it has authority under the City's zoning law. The untimely proffer by Department Staff is regrettable, but the evidence is probative and relevant, and should be considered. In any event, Section 624.4(c)(7) provides that the ALJ may require the submission of additional information, pursuant to Section 621.15(b), which allows the Department, "[a]t any time during the review of an application for a new permit," to request additional information needed to make any findings or determinations. As noted, the substance of the evidence was unrebutted by the Applicant. The fact that Ms. Norton can obtain a variance does not render the City's designation meaningless.

The next applicable weighing standard as to which evidence was offered is whether the Applicant's proposal would minimize degradation to, or the loss of, any part of the Class I wetland or its adjacent area, and whether the proposal would minimize any adverse impacts on the functions and benefits that the wetland provides. The Applicant offered the testimony of William J. D'Eletto, a registered environmental property assessor, registered environmental manager, and environmental specialist, who is employed by Verizon. Tr. at pp. 173-74, 186. Mr. D'Eletto testified that those credentials involved "anything that has to do with environmental issues from air sampling to property assessment and everything in between." Tr. at p. 174. A report prepared by Mr. D'Eletto (Exhibit 5) was offered. The report contained photographs and a narrative description of Mr. D'Eletto's visit to the subject property on July 7, 2003, three days before the hearing. Id.

Mr. D'Eletto testified that the driveway on the subject parcel was at grade, and that the property is level at high ground and slopes steeply downward. Tr. at p. 175. According to Mr. D'Eletto, stormwater runoff would enter the manholes on the street, and would not make its way into the wetland area itself. Tr. at p. 178. As a result, Mr. D'Eletto concluded that there would be no impacts to the wetland, and stated that he observed no flooding on the property despite the rainy weather that Staten Island had experienced over the past few months. Tr. at pp. 180, 183. The witness stated that if the structure proposed were built on a slab, there would be no excavation, and consequently minimal or no impacts to the wetland. Tr. at p. 199. On cross-examination, Department Staff questioned Mr. D'Eletto concerning the proposed structure, referring to Exhibit 3H. Tr. at p. 203. That exhibit contains a notation that the witness acknowledged referred to a basement elevation. Id.

Department Staff objected to Mr. D'Eletto's testimony, and conducted voir dire as to his credentials. Mr. D'Eletto stated that he had never testified as an expert witness in a freshwater wetland permit hearing, and that he did not have a biology or engineering degree. Tr. at pp. 188-89. The Applicant contended that while Mr. D'Eletto was not a wetlands expert, he was qualified as an expert in environmental property assessment. Tr. at p. 197. The ALJ determined that Department Staff's objection went to the weight to be afforded Mr. D'Eletto's testimony, and allowed further questioning of the witness as to the structure and its placement on the property. Tr. at pp. 197-98. Upon review of the record as a whole, the ALJ determined that the expert's testimony should be given little weight, because he lacked the necessary qualifications to testify as an expert on wetlands impacts. Department Staff's evidence on this point was more persuasive, particularly the testimony of Mr. Pane, which demonstrated that the wetland would be reduced in size, and that both the vegetation and animals in the wetland would be affected.

The weighing standards set forth at Section 663.5(e)(2) also require an examination of the potential adverse impacts on the wetland's functions and benefits, which are closely associated with the wetland's classification. See 6 NYCRR Section 664.5(a). Mr. Pane testified credibly that there would be several concerns with respect to erosion during construction of the proposed residence, because the soil surface would be excavated and disturbed, with backfilling to retain concrete structures. Tr. at pp. 435-36. According to Mr. Pane, when it rains, soil from these disturbed areas would be entrapped by rainwater and flow to the topographic low. Tr. at p. 436. The witness testified that the proposal provides for erosion controls during construction, but that subsequent to construction there would still be runoff from the Site. Id. Mr. Pane stated that the subject parcel is included within a sub-basin that was the subject of a hydrology study in a Final Environmental Impact Statement prepared for the Richmond Creek Bluebelt. Tr. at pp. 164-65; Exhibit 12 and 12a. Those documents indicate that wetlands within the Bluebelt are predominantly fed by stormwater flows. Exhibit 12A at p. 3-3.

The proposed project would diminish the wetland's benefits, including wildlife habitat and soil and water quality; thus, the proposal is not compatible with preservation, protection and conservation of those benefits. The burden is on the Applicant to demonstrate that the proposal would minimize any adverse impacts on the functions and benefits that the wetland provides. The Applicant's evidence in this regard is not sufficient to meet this burden, particularly since the Applicant's expert was mistaken in assuming that the house would not include a basement. Thus, the Applicant failed to show that her proposal would minimize potential impacts to the functions and benefits of the wetland.

In addition, under Section 663.5(e)(2), the Applicant must demonstrate that the project is the only practicable alternative to accomplish the Applicant's objectives, and that there is no practicable alternative on a site that is not a freshwater wetland or adjacent area. "A proposed activity is the only practicable alternative if no other is physically or economically feasible." 6 NYCRR Section 663.5(f)(2). The regulation provides further that "[t]his does not mean, however, that the most profitable or least costly alternative is the only feasible one nor that the least profitable or more costly alternative is the only feasible one." Id.

Mr. Pane was questioned by the Applicant on this point with respect to the memorandum he prepared. Exhibit 4-16. That memorandum states that Ms. Norton's residence was immediately adjacent to the subject parcel, and that she had not investigated any alternatives, such as combining the two lots, other than building the new separate structure. Tr. at p. 141; Exhibit 4-16. Counsel for the Applicant pointed out that this was not, in fact, an option for Ms. Norton, as the adjacent lot was subject to the divorce decree and partition action. Tr. at pp. 141-43. Mr. Pane stated that he was not aware of this at the time he prepared the memorandum, and stated that she did not include any alternatives in her application. Tr. at pp. 289, 315. John Cryan, the Department's Regional Permit Administrator for Region 2, was questioned concerning the alternatives available to the Applicant, and documents created by Department Staff that indicated that Ms. Norton owned the property next to the subject parcel. Tr. at pp. 70-71; Exhibit 4-3. Those documents did not mention the partition action, or Ms. Norton's need to arrange for other housing as a result of her personal circumstances.

Department Staff contended that Ms. Norton failed to explore alternatives other than building on the subject parcel. The record supports the Applicant's contention that Department Staff was mistaken in concluding that the Applicant had an alternative in expanding her current residence. Nevertheless, in a Class I wetland such as this one, the Applicant must show, in her application, that there are no other alternatives, and supply complete information to enable the Department to make an informed decision. In any event, the Applicant has not met her burden with respect to the other weighing standards. Section 663.5(e)(2) provides that a permit cannot be issued unless the Applicant demonstrates that the proposal meets each of the weighing standards applicable to a Class I wetland, which the Applicant failed to do here.

Finally, the regulations provide that Class I wetlands provide the most critical of the State's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. Therefore, a permit shall be granted only if it is determined that the proposed activity satisfies a "compelling" economic or social need that "clearly and substantially outweighs" the loss of or detriment to the benefit(s) of the Class I wetland. 6 NYCRR Section 663.5(e)(2). The term "[c]learly means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate. Substantially carries this further, in that not only must the need clearly outweigh the loss or detriment, but the margin of outweighing itself must be large or significant." 6 NYCRR Section 663.5(f)(4)(iii). In a Class I wetland a showing of need requires a demonstration of "actual necessity," and that the project is "unavoidable." Section 663.5(f)(4)(ii).

Ms. Norton testified that she had lived on the property next to the subject parcel for twenty years. Tr. at p. 209. The witness stated that she went through a contentious divorce in 1988, and that one of her children is brain injured and severely disabled as a result of a car accident. Tr. at pp. 209-210, 214; Exhibit 4. Ms. Norton testified that the house where she currently resides must be sold, pursuant to court order, and half the proceeds must be given to her former husband. Tr. at p. 215. Ms. Norton stated that she will be paying a mortgage on the property for the next thirty years, and that she cannot afford to buy another piece of property in the neighborhood. Tr. at p. 225. Ms. Norton's youngest child is eleven years old, and Ms. Norton testified that the property was to be sold "[t]echnically when my middle daughter was emancipated." Tr. at p. 240. Her two other children are twenty-two and twenty-three. Id. The property was appraised approximately six months ago for $425,000. Tr. at p. 242.

Under the circumstances, the Applicant's asserted compelling economic or social need cannot be characterized as "unavoidable," and is not sufficient to outweigh the likelihood of adverse impacts on this Class I wetland's benefits. In Matter of Janssen, Decision, 1996 WL 368831, *12 (May 14, 1996), the Commissioner denied the application for a project located within Class I wetland and adjacent area, adopting the ALJ's conclusion that "to get a freshwater wetlands permit, the Applicant must show that he must build the house, that it is unavoidable that he build the house, and that his need for the house outweighs the environmental loss it would cause in a manner which is beyond serious debate." In Janssen, the project site was not classified as wetlands when the applicant first purchased it, and he argued that he would be unable to realize any return on his investment.

Similarly, in Matter of Novack, Decision, 2001 WL 980474, *6 (July 25, 2001), the Commissioner denied a permit for construction of single family home in Class I wetland where applicant argued that lack of affordable housing was a "compelling economic or social need," and that the applicant would be forced to move out of the area if permit were denied. See also Matter of Grimaldi, 2000 WL 1207730, *8 (Decision, Aug. 8, 2000) (denying permit for construction of single family dwelling in adjacent area of Class I wetland, where applicant failed to show compelling economic need). While Ms. Norton's personal circumstances are unfortunate, they cannot overcome the lack of unrebutted evidence in the record that the loss of benefits resulting from construction of a residence at this Site will be "clearly and substantially" outweighed by the need for the project.

Mitigation

Ms. Norton testified further that she was compensated in the amount of $13,000-$14,000 for the rear lot which was acquired by the City through condemnation. Tr. at p. 217. She was questioned concerning a memorandum from Joseph Pane, which stated that the City was still interested in acquiring the remainder of the property. Tr. at p. 222; Exhibit 4-18. Ms. Norton testified that the City never contacted her to purchase the rest of her lot, and that she had taken action to convince the City not to condemn the entire lot. Tr. at pp. 222, 247.

The Applicant's argument that the loss of the rear portion of the property should be considered as mitigation fails, because, as Department Staff points out, the rear lot was acquired before this permit application was submitted, and was not offered as mitigation specifically for this proposal. In addition, Ms. Norton received compensation for the loss of the rear lot.

Other Approvals

The Applicant cannot rely on the documentation concerning the permits granted to other landowners as sufficient evidence to demonstrate that her proposal would meet the standards outlined at 6 NYCRR Section 663.5. The ALJ received these exhibits over Department Staff's objection.⁽³⁾ The Applicant argued that these approvals were for projects that were even more intrusive than that proposed by Ms. Norton. Nevertheless, the Applicant had the burden of going forward on this issue, and it is not sufficient to rely upon such evidence without more information concerning the nexus between the prior approval and the application under consideration. The burden is on the Applicant to establish this connection. Here, other than cross-examination of Mr. Pane, and the introduction of certain permit documents and photographs, the Applicant did not offer anything, such as expert testimony, to link these properties to Ms. Norton's application.

The Applicant questioned Mr. Pane with respect to an e-mail referring to two other then-pending applications (Bischoff and Ingargiola), which noted that those projects were "particularly troubling," in the context of the Norton application, because in each case the structures approved by the Department were substantial, and were either next to or even slightly in the wetland area. Tr. at pp. 131-32; Exhibit 4-15. The witness acknowledged that the Norton project would not be within the wetland itself. Tr. at p. 132.

The Applicant also called John Cryan, Regional Permit Administrator for Region 2. The Applicant questioned Mr. Cryan concerning certain e-mails, including one where Mr. Cryan inquired of Mr. Pane "Can we please issue Norton? I don't see how we can deny her after we have issued Bischoff. It will save more static." Tr. at p. 46; Exhibit 4-13. Mr. Cryan testified that the e-mail was part of an internal conversation in response to comments by elected officials and civic groups, among others, on a large number of freshwater wetland applications that were then pending. Tr. at p. 47. Mr. Cryan could not recall if he received any written comments on Ms. Norton's application, but said that he remembered some telephone calls about the project. Tr. at pp. 47-48. Mr. Cryan testified further that his e-mail was an effort to prompt Mr. Pane to act on the application and forward a recommendation. Tr. at pp. 48, 50.

Over objection, Mr. Cryan was questioned further as to letters received in connection with the Bischoff project, including correspondence in opposition. Tr. at pp. 63-66; Exhibit 4-45. Department Staff pointed out that the documents in question concerned a different project, at a different location. Tr. at p. 67. The Applicant countered that the local Community Board did not object to Ms. Norton's application, arguing that Department Staff denied Ms. Norton's application despite a lack of opposition, in contrast to other permit applications that were granted. Tr. at p. 63; Exhibit 4-11. On cross-examination, Mr. Cryan testified that he had never been at the site, and had not engaged in any substantive analysis of the proposal's impacts to the wetlands. Tr. at p. 84. Mr. Cryan testified further that Mr. Pane was the program expert with respect to freshwater wetlands. Id.

The Applicant's argument that Department Staff itself merged the consideration of these applications is not compelling, as Mr. Pane and Mr. Cryan testified credibly that the documents relied upon were capable of another interpretation. Prior determinations in other cases are not binding, and, assuming that those determinations were erroneous, adherence to them by Department Staff would, in itself, be irrational and arbitrary. Moreover, even a cursory review of the documents proffered by the Applicant reveal differences between those projects and this proposal. For example, the Bischoff permit was granted for activities in a Class II wetland (AR-16). Exhibit 4-45c. The Lufrano application provided for a fifteen foot vegetated buffer, including tree plantings. Exhibit 4-41. In this particular case, Department Staff has demonstrated a rational basis for its denial of the permit.

UPA Violation

At the conclusion of the adjudicatory hearing, the Applicant renewed her request that the permit be deemed granted due to the Department's alleged violation of the Uniform Procedures Act deadlines. The Applicant contended that Ms. Norton, who was unrepresented by counsel at the time, was misled by Department Staff in this regard, and that she was significantly prejudiced as a result.

In support of her argument concerning the five-day letter provision, the Applicant cited to Section 70-0109 (3)(a)(i), which provides that "[i]n the case of an application for a permit for which no public hearing has been held" a decision is to be mailed to the applicant on or before ninety days from notification to the applicant that the application has been deemed complete. The Applicant pointed out that more than ninety days elapsed between the time that the Applicant was notified by letter dated April 9, 2001 that the application was deemed complete, and the Department's denial by letter dated October 18, 2001.

Ms. Norton testified that she had never been asked to agree to a suspension of the UPA time deadlines, and that she telephoned a member of the executive staff in an effort to get a definite answer on her application. Tr. at p. 229. According to Ms. Norton, the individual she spoke to explained "the process of the five-day letter, and asked me if that is what I was demanding." Id. Ms. Norton testified that it was her understanding that a verbal request was being taken, and that she subsequently received a telephone call from Mary Ellen Kris, of the Region 2 office, who informed her that her permit was "possibly" being denied. Tr. at p. 230; Exhibit 4-17A. Ms. Norton stated that she could not afford an attorney, and trusted what Department Staff told her. Tr. at p. 234-35.

On cross-examination, Mr. DeFelippis, the Applicant's consultant, testified that he had submitted five-day letters to the Department in connection with other permit applications that he has handled, and that he is familiar with that process. Tr. at p. 23. Mr. Cryan testified that his function as Regional Permit Administrator was to assure that the UPA procedures are followed correctly. Tr. at p. 84-85. On redirect, Mr. Cryan acknowledged that UPA deadlines frequently are not met, but to his knowledge, the Department has taken timely action on five-day letters, and that in his view, a verbal request for action under this provision would not be sufficient to trigger the statute. Tr. at p. 86-88.

The record does not support the Applicant's contention that Department Staff violated the "five-day letter" provision of the UPA. The statute explicitly states that any request for action within the five-day statutory period must be made in writing, certified mail, return receipt requested, addressed to the commissioner. ECL Section 70-0109(3)(b). The Applicant's evidence in support of her argument that a verbal request was sufficient cannot defeat this express statutory requirement.

CONCLUSIONS

1. Pursuant to 6 NYCRR Section 663.5(a), the burden of proof rests entirely upon the Applicant to demonstrate that her proposal would be compatible with the applicable standards for permit issuance.
2. The standards for permit issuance are outlined at 6 NYCRR Section 663.5(e). Based on the foregoing discussion, and the findings of fact, the Applicant did not show how the usually incompatible activities associated with building a house in the adjacent area of a regulated freshwater wetland would, in this instance, comply with the three-part compatibility test outlined in Section 663.5(e)(1). Finally, the Applicant failed to demonstrate how her proposal would satisfy the weighing standards relevant to Class I wetlands, which are outlined in Section 663.5(e)(2).
3. Pursuant to 6 NYCRR Section 663.5(e)(2), the reduction of the benefits of a Class I wetland are acceptable only in "the most unusual circumstances." Section 663.5(f)(4)(i) provides further that "[p]ermits for the vast majority of activities that could not avoid reducing a benefit provided by a Class I wetland would not be approved. The word reduction means that this applies not just to the loss of any benefit, but to the partial loss or reduction of a benefit." On this record, the Applicant's proposal should not be permitted.

RECOMMENDATION

Because the Applicant has not met her burden of demonstrating that the project meets the requirements set forth in Part 663 for issuance of a permit to proceed with the project in a Class I freshwater wetland adjacent area, the Commissioner should deny the requested freshwater wetlands permit.

SERVICE LIST

Catherine Norton - Freshwater Wetlands Permit Application

Maria E. Villa
Administrative Law Judge
New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, First Floor
Albany, New York 12233-1550

Catherine Norton
257 St. Andrews Road
Staten Island, New York 10306

Mary A. Whiting, Esq.
Anthony J. Pocchia, Esq.
1001 Clove Road
Staten Island, New York 10301

Udo M. Drescher, Esq.
Assistant Regional Attorney
New York State Department of Environmental Conservation
Division of Legal Affairs, Region 2
47-40 21^st Street
Long Island City, New York 11101-5401

¹ The term "regulated activity" includes, in pertinent part, any excavation, dumping, or filling, and erecting any structures. Section 663.2(z). The definition of "regulated activity" goes on to provide that "[t]hese activities are subject to regulation whether or not they occur upon the wetland itself, if they impinge upon or otherwise substantially affect the wetland and are located within the adjacent area."

² Exhibits 19 and 20 were withdrawn by Department Staff, and as part of its written submission, Department Staff included the Zoning Map and Special Natural Area District chapter. Department Staff's submission has been incorporated into the record as Exhibit 22. The Applicant's submission has been incorporated into the record as Exhibit 23.

³ Exhibits 4-41, 4-42, and 21 have been admitted into evidence.

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