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New York Commercial Associates - Summary Hearing Report, October 10, 2000

Summary Hearing Report, October 10, 2000

50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Application of NEW YORK COMMERCIAL ASSOCIATES for a Freshwater Wetlands Permit pursuant to Article 24 of the Environmental Conservation Law and Part 663 of Title 6 of the New York Compilation of Codes, Rules, and Regulations to fill .9 acres of the Dongan Hills Freshwater Wetlands (NA-9)



Helene G. Goldberger
Administrative Law Judge
Office of Hearings and Mediation Services
Phone: 518-457-3468


In 1985, the applicant, New York Commercial Associates (NYCA), applied to the New York State Department of Environmental Conservation (DEC or Department) for a freshwater wetlands permit in order to fill part of the Dongan Hills freshwater wetland (NA-9) to construct housing. The Department required NYCA to prepare a Draft Environmental Impact Statement (DEIS) that DEC staff accepted as complete on May 30, 1997. In addition, due to revisions to the project, the applicant submitted two supplemental reports to the DEIS dated September 1997 and May 1998. While initially opposing the project due to the impact on the wetlands, staff later revised its position based upon a site visit that revealed that the project would largely be located in freshwater wetland adjacent area and because of the decrease in the size of the project. As part of this project, the applicant has also agreed to a mitigation plan that includes restoration of degraded wetland areas and the installation of a storm drain. Two legislative hearings were held on this project in February 1999 and May 2000. No petitions for party status were submitted to the Department and there has been no issues conference or adjudicatory hearing.

The DEIS and Supplemental Report dated May 1998, in addition to the application dated May 10, 2000 and the revised site plan revised August 1, 2000, are incorporated by reference into this Hearing Report. The response to the comments received prior to and at the hearings of February 2, 1999 and May 15, 2000 is contained in the transcript of the May 15, 2000 hearing at pages 7-20.


On December 17, 1985, the applicant, NYCA, applied to the DEC Region 2 office for a freshwater wetlands permit to fill approximately .9 acres of the Dongan Hills Freshwater Wetland (NA-9) located on a 2.12-acre site located between Buel and Dongan Hills Avenues and between Olympia Boulevard and Nugent Avenue on Staten Island, New York. The purpose of this activity is to construct residential housing. In 1987, DEC designated the entire 2.12-acre site as part of the Dongan Hills freshwater wetland system.(1) On June 16, 1987, DEC issued a positive declaration pursuant to ECL § 8-0109 requiring the applicant to prepare an EIS.

On May 30, 1997, staff accepted the applicant's draft EIS as adequate for public review and on July 11, 1997, staff issued its notice of complete application. In response to the notice of complete application, staff received comments from the community opposing the project. Based upon staff's determination that the application did not meet the regulatory criteria for permitting pursuant to 6 NYCRR § 663.5(e), in August of 1997, discussions were held between Region 2 staff and the applicant.

As a result of these discussions, the applicant scaled its project down from 40 to 22 units and increased the mitigation area proposed to approximately two acres. As mitigation for this filling, the applicant proposed to enhance 1.22 acres of on-site freshwater wetland and to restore .6 acres of an illegally-filled wetland portion of NA-9 at Filbert Avenue between Laconia and Mason Avenues. The applicant also submitted a supplement to its EIS in September 1997 reflecting these changes. On October 17, 1997, Region 2 staff submitted a hearings request on the application to the Office of Hearings and Mediation Services (OHMS). However, the staff maintained its opposition to the project for failing to meet the regulatory standards. In addition, staff argued that it could not consider the restoration of an illegally-filled wetland as mitigation and presented this position formally in a brief dated November 7, 1997. The OHMS noticed the application for a hearing in October 1997; however, the applicant asked that the hearing be canceled in an effort to further modify the project for staff's acceptance and I granted this request.

In May 1998, the applicant submitted to DEC another revision to the DEIS based upon its determination to scale the project back to18 units. However, based upon the staff's position that the project still did not meet the requirements of Part 663, the parties requested that the application be once again noticed for a public hearing. The notice of public hearing was published in the January 6, 1999 Environmental Notice Bulletin and in the January 8, 1999 Staten Island Advance. However, on January 29, 1999, the staff advised the applicant and me that based upon a recent site inspection, the staff determined that a portion of the project site is freshwater wetland adjacent area. Thus, the staff was preparing a draft permit to allow development in that specific area. In a conference call held on February 1, 1999, the parties discussed with me the ramifications of staff's changed stance and determined that an adjournment of the issues conference and adjudicatory hearing was necessary. The parties agreed to enter into further discussions of the application and the staff committed to finalizing the draft permit by no later than February 12, 1999. By letter dated February 12, 1999, staff submitted a draft permit to the OHMS that allowed for the construction of ten units.

During the February 1 conference call, staff also conveyed to me its change in position regarding the use of illegally-filled wetland as mitigation. While in no way agreeing to the applicant's current proposal, the staff explained that it would now consider the restoration of an illegally-filled wetland as mitigation unless it was the applicant that had caused the destruction. This position was confirmed in a letter dated February 2, 1999 from Assistant Regional Attorney Dresher to the applicant and me.

As a result of a conference call held among the parties and me on February 16, 1999, staff reiterated its position that ten units could be built in the area designated now as adjacent area. In addition, the parties decided to continue to discuss aspects of the project. Later discussions between the parties resulted in an agreement on the project. However, based upon my commitment at the February 2, 1999 public hearing to reconvene that proceeding when and if a new project was proposed, I required that a new notice of public hearing be issued. This notice was published in the April 12, 2000 edition of the ENB and the April 12, 2000 edition of the Staten Island Advance. Accordingly, a public hearing was held on May 15, 2000 at P.S. 52. Because no persons petitioned for party status, no issues conference or adjudicatory hearing were convened.

February 2, 1999 Legislative Hearing

On the evening of February 2, 1999, a public hearing was held on this application at P.S. 52 on Buel Avenue, Richmond County near the site of the proposed development. Approximately 100 people attended this legislative session and 22 people spoke including the applicant's consultant, Ralph Huddleston of Carpenter Environmental and Udo Drescher, Assistant Regional Attorney of DEC's Region 2 office. Except for Mr. Huddleston, all the speakers opposed the project. No petitions for party status were received and due to the staff's revised position regarding the project based upon a recent site visit, I canceled the issues conference and the adjudicatory hearing.

May 15, 2000 Legislative Hearing

The hearing was convened at approximately 6:20 p.m. on May 15, 2000 at P.S. 52. Approximately 15 people were in attendance including those associated with the applicant and the staff. Mr. Huddleston, the environmental consultant to the applicant described the revised project as being comprised of 10 attached and 1 detached single-family residence on .52 acres of the 2.12-acre site. Mr. Huddleston explained that .1 acre of wetland would be disturbed and that the mitigation plan would be comprised of the creation of a pond of almost one acre with a shrub community consisting of high bush blueberry, red oak, and dogwood planted around it. In addition, Mr. Huddleston described other areas the applicant will plant including a tree buffer between the wetlands and the residences. With respect to offsite mitigation, Mr. Huddleston described the proposed mitigation area in the bed of Olympia Boulevard as currently filled and which the applicant would replace with switch grass after NYCA cleared the debris out. He further explained the applicant's agreement to place a storm sewer in Dongan Hills Avenue to alleviate stormwater and flooding problems that currently occur. He also spoke about the deed restriction that will be placed on the property to prevent further development on this land.

Assistant Regional Attorney Drescher spoke about the revisions to the project and the consideration of public comment in developing the current draft permit. Based upon the decreased size of the project and the mitigation proposed, staff determined that it met the requirements in Article 24 of the ECL and 6 NYCRR Part 663.

Four additional individuals spoke from the community. Three of these speakers expressed concerns regarding the destruction of wildlife habitat and overcrowding of schools and streets. Mr. Joe Abbate of the Citizens of Ocean Breeze Civic Association, Inc. and a member of Community Board 2 spoke on behalf of Lou Caravone, Chairman of Community Board 2. He thanked the DEC Region 2 staff, particularly Udo Drescher, for their protection of the wetlands and work on this project. Mr. Abbate stated that the most important issue was water retention and asked that DEC ensure that the permit conditions be implemented.

The legislative hearing was adjourned and because no petitions for party status were filed, the issues conference was canceled and no adjudicatory hearing will be held.


Because there were no petitions filed for party status and the staff and the applicant agreed on the conditions in the staff's draft permit of May 2000, the issues conference was canceled and there was no adjudicatory hearing. The DEIS and Supplemental Report dated May 1998, the application dated May 10, 2000 and the revised site plan revised August 1, 2000 in addition to the draft permit dated May 2000 constitute the full description of this project upon which the permit should be issued. In accordance with 6 NYCRR § 624.4(c)((5), I am remanding this application back to the staff for completion of the FEIS and processing of the permit in accordance with the requirements of 6 NYCRR Parts 617 and 621.

Helene G. Goldberger
Administrative Law Judge
Albany, New York
October 10, 2000

Michael Bogin, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, New York 10022-1906

Udo Drescher, Esq.
NYSDEC - Region 2
47-40 21st Street
Long Island City, New York 11101

1 The Department had previously designated the area as freshwater wetland on the tentative wetlands map for Staten Island.

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