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Watts, David and Edith - Ruling, December 24, 2003

Ruling, December 24, 2003


In the Matter of the Application of
David and Edith Watts for a Freshwater Wetlands
Permit and a Tidal Wetlands Permit pursuant to
Environmental Conservation Law Articles 24
and 25

DEC Application No. 1-4728-03015/00006


December 24, 2003


At the issues conference concerning the above application, a question arose about whether one of the issues identified for adjudication should be referred to the Department's General Counsel for a declaratory ruling instead of being adjudicated in the hearing. The issue concerns whether the proposed project is exempt from the requirement for a freshwater wetlands permit based upon prior approval or approvals by the Village of Saltaire. As discussed below, the issue is not being referred for a declaratory ruling and will be adjudicated in the hearing.


David and Edith Watts ("Applicants") applied for a freshwater wetlands permit under Environmental Conservation Law ("ECL") article 24 and parts 663 and 664 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), and a tidal wetlands permit under ECL article 25 and 6 NYCRR part 661. The project consists of constructing a 310 square foot two-story addition to an existing single family dwelling on pilings, removing an existing shed and shower and replacing those with approximately 280 square feet of decking and a shower. The site of the project is located within freshwater wetland BE-19 and is in the adjacent area of a tidal wetland. The site is in the Village of Saltaire, Town of Islip, Suffolk County, and is on Fire Island. On January 13, 2003, the Department of Environmental Conservation Staff ("DEC Staff") denied the permit. The Applicants requested a hearing on the permit denial.

The hearing is being held under the DEC's permit hearing procedures, 6 NYCRR part 624. The hearing began on October 28, 2003 with a legislative hearing for public comments on the application, followed by an issues conference. The Applicants are represented in this hearing by Lark J. Shlimbaum, Esq., of Shlimbaum and Shlimbaum, Islip, New York. DEC Staff is represented by Craig Elgut, Esq., DEC Region 1, Stony Brook, New York. No other persons, agencies or organizations requested party status.

At the close of the issues conference, I made a ruling on the record, identifying the issues to be adjudicated and the parties to the hearing. The parties to the hearing are the Applicants and DEC Staff. Both parties asked that the deadline for appealing the issues ruling be left open as long as the hearing record is open. I did not set a deadline for appeals, and neither party has appealed the issues ruling as of the date of the present ruling.

The three issues identified for adjudication are:

  1. Whether the project is exempt from the requirement for a freshwater wetlands permit, pursuant to ECL 24-1305;
  2. Which activities under 6 NYCRR 663.4 apply to the project, and consequently, what levels of compatibility with freshwater wetlands apply when considering the standards for issuance of a freshwater wetlands permit; and
  3. Whether the project complies with the applicable standards for issuance of a freshwater wetlands permit (6 NYCRR 663.5(e)(1) and (2)).

DEC Staff stated at the issues conference that the project would meet the requirements for issuance of a tidal wetlands permit with standard conditions.

DEC Staff objected to considering the exemption issue in an individual permit hearing since the Village of Saltaire had already requested and received a declaratory ruling under 6 NYCRR part 619 on whether projects in the Village were exempt from ECL article 24 under ECL 24-1305 (DEC Declaratory Ruling 24-16 (Village of Saltaire) [July 27, 1995]). DEC Staff stated that the declaratory ruling found that wetland BE-19 within the Village is regulated, and that the declaratory ruling had been upheld in court (Village of Saltaire v Zagata, 280 AD2d 547, 720 NYS2d 200 [2nd Dept 2001], lv denied, 97 NY2d 610, 740 NYS2d 694 [2002]). The Applicants argued that the Appellate Division had ruled on the basis of untimeliness of the article 78 proceeding and had not addressed the merits. The Applicants also argued that the declaratory ruling had not considered evidence (specifically, a map from 1918) that the Applicants wished to present in the hearing and that the request for a declaratory ruling was on behalf of the Village, not individual residents. DEC Staff responded that the Village had also requested the declaratory ruling on behalf of the residents (Tr. 13 - 21).

In identifying for adjudication the issue listed as issue (1) above, I stated that the Applicants propose to show that their project is exempt from the Freshwater Wetland Act based on evidence they contend was not considered by the General Counsel in Declaratory Ruling 24-16. Under 6 NYCRR 619.2(b), declaratory rulings are made based upon the facts alleged in the petition for the ruling. I noted that, based on correspondence from the Applicants that was included with the hearing request form, the past history of development on the site may also be relevant to this issue. I noted that 6 NYCRR 624.8(b)(1)(ix) states that an Administrative Law Judge ("ALJ") may refer certain kinds of questions to the General Counsel for a declaratory ruling, and I reserved on whether I would later exercise discretion to do this (Tr. 29 - 31).

Specifically, 6 NYCRR 624.8(b)(1)(ix) states that the ALJ has power to:

"hear and determine arguments on fact or law, except that a purely legal issue involving no factual dispute and which is a matter of first impression or is precedential in nature may be referred to the General Counsel for a determination in accordance with Part 619 of this Title (declaratory ruling) upon motion by any party or upon the ALJ's own initiative"

Mr. Elgut argued that the Applicants are contesting the applicability of ECL article 24 to the Village of Saltaire, since the outcome of this issue in the present hearing could be extrapolated to the whole Village, and that such an attack on the declaratory ruling should be presented to the General Counsel. He stated that this issue created a difficult situation for DEC Staff since it was unclear whether he could consult with the General Counsel on appealing identification of this issue if the issue might be referred to the General Counsel for a declaratory ruling (Tr. 52 - 55, 91 - 95).

I stated I would consider making a ruling, in writing and after the October 28 and 29, 2003 hearing sessions, concerning whether or not to refer the issue to the General Counsel. Although the Applicants did not complete the presentation of their direct case on October 28 and 29, the outline of their case as presented in their opening statement plus the testimony, exhibits and argument in the record at present provide enough information about the nature of this issue that this ruling can be made.


The relationship between the DEC's procedures for permit hearings and for declaratory rulings has been discussed in several decisions of the Commissioner and rulings by ALJs, some of which were made under an earlier version of the DEC permit hearing procedures. The prior DEC permit hearing procedures, 6 NYCRR part 624 as filed on July 31, 1981, provided that, "The ALJ shall have power to ... hear and determine arguments on fact or law except the applicability to any person, property or state of facts of any regulation or statute which the Department enforces, which shall be determined in accordance with 6 NYCRR Part 619 (Declaratory ruling) upon motion made by any party to the proceedings" (former section 624.7(b)). The present provision on this subject, 6 NYCRR 624.8(b)(1)(ix), is quoted above and became effective on January 9, 1994.

A declaratory ruling was involved in the hearing on the proposed Prattsville Pumped Storage Hydroelectric Project (Matter of the Power Authority of the State of New York, Decision of the Commissioner [April 9, 1982]) and in a series of court decisions related to the hearing and the declaratory ruling (summarized in Power Authority of the State of New York v Williams, 101 AD2d 659, 475 NYS2d 901 [3d Dept 1984]). One aspect of that case is cited later in this ruling.

In the hearing on the application of Norlite Corporation for a waste transporter permit, the only issue was a legal issue regarding whether the waste was hazardous waste. The parties stipulated that the ALJ did not have the power to decide this, and the ALJ referred the question to the General Counsel for a declaratory ruling. The question before the Commissioner, on an appeal of the ALJ's ruling, was whether cancellation of the hearing eliminated the 60 day deadline for the DEC's decision on the application. The Commissioner, in affirming the ALJ's ruling, stated that:

"I have not, as the Applicant claims, through this procedure been deprived of jurisdiction over this permit application. Rather, I have merely delegated my authority to determine a legal issue, which happens to be dispositive of this application, to my legal advisor, the Office of General Counsel. As Commissioner, I retain ultimate jurisdiction over the disposition of all permit applications before the Department, whether or not they are accompanied by a formal written Decision of the Commissioner" (Matter of Norlite Corporation, Decision of the Commissioner [Jan. 3, 1986]).

Later in 1986, a ruling by an ALJ in another case involving a waste transporter denied DEC Staff's motion for leave to request a declaratory ruling under Part 619 and distinguished that case from the situation in Norlite (Matter of Jack Gray Transport, Ruling on motion [Mar. 27, 1986]). The ALJ stated that the issue in the Jack Gray Transport case was a mixed question of law and fact, there were issues in dispute among the parties, the parties had not agreed to refer the question for a declaratory ruling, and the legal provision in question allowed for discretion by the Commissioner. The records of the Office of Hearings and Mediation Services indicate that this ruling was not appealed to the Commissioner.

In a hearing on permit applications for a residential development, the General Counsel declined to issue a declaratory ruling requested by an intervenor regarding whether a freshwater wetlands permit was required for the project in addition to the other DEC permits. The hearing report stated that nothing in the hearing record indicated that the applicant in that case should have been required to apply for a freshwater wetlands permit (Matter of Quail Ridge Associates, Decision of the Commissioner [May 26, 1988], p. 5-6 of hearing report).

In 1993, an issues ruling in a tidal wetland permit case took note of the then-proposed amendment of part 624 (Matter of Raymond Naftali, Issues Ruling [July 7, 1993]). The applicant in that case had contested the applicability of the Tidal Wetlands Act to his project. The ALJ stated that, although the then-current version of part 624 required jurisdictional issues to be determined under part 619, an ALJ has implicit authority to rule on such questions and thereby to refer them to the Commissioner for final determination.

Subsequent to the 1994 amendment of part 624, an intervenor in a mining permit case moved that a question involving review under the State Environmental Quality Review Act be referred to the General Counsel for a declaratory ruling. The ALJ declined to do so, stating that the need for a declaratory ruling had not been shown, for reasons including a recent change in one of the applicable regulations and dissimilarities between the hearing and another case relied on by the intervenor (Matter of William E. Dailey, Inc., Issues Ruling [April 5, 1995]).

In two pending cases concerning natural gas fields, the hearings have been postponed to allow time for certain questions to be decided in a declaratory ruling, where these questions were both posed in a petition for a declaratory ruling and proposed as adjudicable issues in the hearings (Matter of Terry Hill South Field, Rulings of the ALJ [June 5, 2003 and Sept. 19, 2003]; Matter of County Line Field, Rulings of the ALJ [June 23, 2003 and Sept. 19, 2003]).

Under part 624 as it reads at present, certain kinds of issues may be referred to the General Counsel for a declaratory ruling, and the decision whether to do so is within the discretion of the ALJ. The kinds of issues that may be referred are ones that are purely legal issues involving no factual dispute, and that are matters of first impression or are precedential in nature. In the present case, the issue of whether the project is exempt under ECL 24-1305 is a mixed question of fact and law. The Applicants have asserted that an additional map should be taken into account in considering this question and have also argued that the past history of development on the site supports finding an exemption. The existence of Declaratory Ruling 24-16 does not preclude further consideration of whether a site within Saltaire may be exempt under ECL 24-1305. "Because there is no requirement that the agency determine the accuracy of the facts as stated in the petition, it follows that an agency may in the exercise of its discretion issue a declaratory ruling based upon an assumed state of facts [citation omitted]. As with any factually based ruling, however, the binding effect of the ruling will be limited by its assumed fact predicate" (Power Auth. of the State of N. Y. v N. Y. State Dept. of Environmental Conservation, 58 NY2d 427, 434, 461 NYS2d 769, 772 [1983]).

The issue also is not one of first impression since Declaratory Ruling 24-16 provides the starting point for further analysis of this question that will occur with regard to the Applicants' project. This is so whether or not the Applicants prove facts that would change the outcome of the declaratory ruling as it relates to sites in Saltaire and in BE-19 generally. Declaratory Ruling 24-16, while finding that lots within the Village are not "grandfathered" (i.e., exempt) solely by virtue of certain maps filed by the Village together with the Village zoning ordinance, still allows for further consideration of whether particular land uses, improvements or developments are exempt based upon approval of building permits prior to the effective date of the freshwater wetlands act (September 1, 1975).

The outcome of the exemption issue may be precedential if the effect of considering the 1918 map has implications for other sites in the Village or in wetland BE-19 generally. This decision, however, is within the authority of the Commissioner. In view of the close relation between the facts and arguments relevant to this question and those relevant to building permits which may have been granted for land uses, improvements or developments on the Applicants' site, it would be inefficient to split this issue and consider part of it in the hearing while referring the other part for a declaratory ruling. Adjudication of this issue will also develop the factual record relevant to the issue.

Ruling: The issue of whether the proposed project is exempt from the requirement for a freshwater wetlands permit, pursuant to ECL 24-1305, will be adjudicated in the hearing rather than being referred to the General Counsel for a declaratory ruling.

Susan J. DuBois
Administrative Law Judge

Albany, New York
December 24, 2003

To: Lark J. Shlimbaum, Esq.
Craig L. Elgut, Esq.

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