Zaccaro, Frank - Order, August 24, 2000

Order, August 24, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Article 24 of
the New York State Environmental Conservation Law
and Part 663 of Title 6 of the Codes, Rules and
Regulations of the State of New York, by

FRANK ZACCARO,
Respondent.

ORDER
File No. R4-2083-98-08

WHEREAS:

1. Pursuant to a ruling dated January 21, 2000, denying a motion for order without hearing that had been made by Department Staff, Administrative Law Judge ("ALJ") Edward Buhrmaster conducted an enforcement hearing in this matter on March 6, 2000, at the Department's Region 4 office in Schenectady, New York. Department Staff appeared by Ann Lapinski, an assistant regional attorney, and the Respondent appeared by Stephen Angel, a partner in Esseks, Hefter & Angel, of Riverhead, New York.
2. Upon a review of the record of this proceeding and the ALJ's attached hearing report, including its Findings of Fact, Conclusions and Recommendations, I hereby adopt the report as my own. All of the Department's charges are sustained, except the one concerning construction of a road through freshwater wetland H-12, which is dismissed.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

1. The Respondent is assessed a civil penalty of Eight Thousand Dollars ($8,000), which shall be considered apportioned among the charges as the ALJ recommended in his report.
2. Six Thousand Dollars ($6,000) of this penalty shall be suspended on the condition that the Respondent completes the remediation directed in paragraph IV of this order within the established sixty-day time frame.
3. The unsuspended portion of the penalty, Two Thousand Dollars ($2,000), shall be paid to the Department within thirty (30) days of receipt by the Respondent or his attorney of a conformed copy of this order.
4. Within sixty (60) days of his or his attorney's receipt of a conformed copy of this order, the Respondent shall complete the following remediation activities:
   1. Pushing back into the drainage ditch the soil that was removed from the ditch;
   2. Removing from the wetland and its adjacent area the fill that was used to construct the field (or clearing) along the site access road;
   3. Moving the trailer now along the railroad bed to an upland location outside the wetland's adjacent area; and
   4. Removing from the wetland's adjacent area the structure described in the record as a small barn or outhouse, and the two container boxes alleged to contain tools and seeds, unless the Respondent receives Department approval to leave them where they are, or the Department determines that they are not subject to regulation.
5. The Respondent shall notify the Department immediately upon completion of the remediation ordered in the preceding paragraph, so that the Department may conduct a site inspection for the purpose of verification.
6. Should the Respondent fail to complete the remediation specified in paragraph IV of this order within the established 60-day time frame, the suspended portion of the civil penalty shall be considered immediately due and payable to the Department.
7. All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York, 12306-2014.
8. The provisions, terms and conditions of this order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Albany, New York
August 24, 2000

TO: Frank Zaccaro
P.O. Box 2135
16 Walnut Avenue
Patchogue, New York 11772

Stephen Angel, Esq.
Esseks, Hefter & Angel
108 East Main Street
P.O. Box 279
Riverhead, New York 11901-0279

Ann Lapinski, Esq.
NYSDEC Region 4
1150 North Westcott Road
Schenectady, New York 12306

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Alleged Violations of Article 24 of the Environmental Conservation Law
and Part 663 of Title 6 of the Codes, Rules and Regulations of the
State of New York by:

FRANK ZACCARO
RESPONDENT

File No. R4-2083-98-08

HEARING REPORT

- by -

/s/
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

This enforcement matter was initiated by service of a motion for order without hearing by Region 4 Staff of the Department of Environmental Conservation ("DEC" or "the Department"). Staff's papers, dated November 19, 1999, alleged that the Respondent, Frank Zaccaro, undertook various unpermitted activities, as further described below, in a DEC-regulated freshwater wetland located on property he owns in the Town of Claverack, Columbia County, in violation of Section 24-0701(1) of the Environmental Conservation Law and Section 663.4 of Title 6 of the New York Codes, Rules and Regulations ("NYCRR").

Pursuant to a time extension agreed to by DEC Staff, the Respondent's counsel, Stephen Angel, submitted a response to Staff's motion that was received by DEC's Office of Hearings and Mediation Services ("OHMS") on January 10, 2000. In a six-page ruling dated January 21, 2000, I denied Staff's motion on all causes of action, finding that summary judgment in Staff's favor would not be appropriate because of the parties' conflicting factual assertions, which I found required adjudication.

Because the motion was denied, I ordered that the moving and responsive papers be deemed the parties' complaint and answer, respectively, and that a hearing be held on the charges. I presided over the hearing, which was held on March 6, 2000, at the Department's Region 4 office in Schenectady.

DEC Staff appeared by Ann Lapinski, an assistant regional attorney. Because of illness, the Respondent did not appear personally; he was represented at the hearing by Mr. Angel, a partner in Esseks, Hefter & Angel, of Riverhead, Long Island.

DEC Staff presented the following witnesses:

1. Howard Montague, chairman of the Claverack Town Board of Assessment;
2. Stanley Koloski, Claverack building inspector;
3. Larry Dysard, a Claverack resident who lives near the Zaccaro property;
4. Peter Brinkerhoff, a DEC Environmental Conservation Officer ("ECO"); and
5. Maynard Vance, a wildlife biologist in DEC's Division of Fish and Wildlife.

The Respondent presented the following witnesses:

1. James Monahan, the owner of a title insurance agency;
2. Sharon Klos, a friend of Mr. Zaccaro and a visitor to his Claverack property; and
3. Joseph Lauri, a relative of Mr. Zaccaro who sold the property to him in 1982.

The record includes 25 exhibits and 233 pages of transcript. The exhibits include Staff's papers for the motion for order without hearing (Exhibits No. 1 - 4), Mr. Zaccaro's response as filed by Mr. Angel (Exhibits No. 5 - 8), and my ruling denying the motion and ordering that a hearing be held (Exhibit No. 9).

At the close of the hearing, the parties agreed to provide written closings after receipt of the transcript. The transcript was received on April 19, 2000; various corrections to it have since been made by agreement of the parties, and by rulings I made in a letter dated May 16, 2000. Pursuant to a schedule they agreed to, the parties submitted their closings on June 2, 2000. The record in this matter closed on June 5, 2000, when the closings were received by my office.

POSITIONS OF THE PARTIES

- - - Position of Department Staff

Department Staff alleges that Mr. Zaccaro undertook various prohibited activities on property he owns in and around freshwater wetland H-12, on the north side of Route 23, 1.7 miles east of the Taconic State Parkway in the Town of Claverack, Columbia County. These activities, which are alleged to have occurred during 1997, consist of:

1. Deepening and widening a drainage ditch in the wetland;
2. Filling the wetland with dirt from the drainage ditch;
3. Filling the wetland to construct a field;
4. Grading in the wetland's adjacent area;
5. Constructing a road through the wetland; and
6. Placing a trailer in the wetland's adjacent area.

All these activities are alleged to constitute violations of ECL Section 24-0701(1) and 6 NYCRR 663.4, which require Department permission to conduct certain activities in officially mapped freshwater wetlands or their adjacent areas.

Department Staff requests a Commissioner's order assessing a civil penalty of Eighteen Thousand Dollars ($18,000), Three Thousand Dollars ($3,000) for each of the six alleged violations. Staff also seeks the following remedial action:

1. Pushing back into the drainage ditch the soil that was removed from the ditch;
2. Removing from the wetland and its adjacent area the fill that was used to construct the road and the field; and
3. Moving the trailer to a location at least 100 feet from the wetland's edge.

- - - Position of the Respondent

The Respondent contends that he bought the subject property on February 6, 1982, several months before the Department began the process leading up to the official mapping and designation of wetland H-12 in 1985. The Respondent claims that he was never notified of the tentative mapping or the final designation of the wetland at the times those events occurred, which he attributes to DEC's alleged failure to comply with legal notice requirements. Because of this failure, he says, the mapping should be considered void as to his property, and that any attempt by DEC to challenge activities undertaken there prior to March or April of 1998, when he was first cited by the Department, should be dismissed.

The Respondent also contends there is no probative evidence to support DEC's charges. He admits that a construction trailer was brought to the site, but says this occurred in 1986, not 1997, as Staff charges, and that it was done to replace a smaller trailer that had been at the site since 1981. He says that the road described by Staff was in place as far back as 1980. He admits to ordinary maintenance and repair of the road and the drainage ditch, but not to their substantial alteration.

FINDINGS OF FACT

1. The Respondent, Frank Zaccaro of Patchogue, New York, owns a land parcel of about 30 acres in the Town of Claverack, Columbia County. This property is located on the north side of Route 23 (the Old Columbia Turnpike Road), 1.7 miles east of the Taconic State Parkway. Bisecting the parcel from northwest to southeast is the abandoned bed of the New York and Harlem Railroad Company, from which the tracks and ties have been removed. On the part of the parcel between Route 23 and the railroad bed is a portion of state-regulated freshwater wetland H-12. On the other side of the railroad bed, in the northeast portion of the parcel, is a hill with a grassy field on top.
2. Mr. Zaccaro has owned this parcel since February 2, 1982. Between December 26, 1980, and February 2, 1982, the parcel was owned by Joseph A. Lauri of East Meadow, New York. Mr. Lauri bought the parcel from Robert O'Connor of Peekskill, New York.
3. Wetland H-12 initially was mapped from aerial photographs and follow-up ground checks by DEC Staff. Once the wetland's boundaries were tentatively established, the Department held a mapping hearing on May 19, 1982. A Columbia County tax map was used to identify affected land parcels. The county tax office then provided the Department with a list of the parcels' owners, as determined from tax assessment rolls, and the Department sent them certified letters about the mapping hearing.
4. The Department issued the final map for wetland H-12 pursuant to a Commissioner's order dated March 6, 1985. Again, a county tax map was used to identify affected land parcels, and the local tax assessment rolls were used to determine the parcels' owners, who were notified by mail of the Department's action.
5. Although he owned property constituting a portion of wetland H-12 at the time the mapping hearing was held in 1982 and at the time the mapping order was issued in 1985, Mr. Zaccaro was not notified of either action by the Department. This was because the county tax maps in use at those times were inaccurate with respect to the location of his property. This inaccuracy was not corrected until 1987, after the map of wetland H-12 was finalized. [Hearing Exhibit No. 14 is the 1987 tax map No. 143 for the Town of Claverack, Columbia County, with the Zaccaro parcel highlighted in blue ink as parcel No. 39 of block No. 1.]
6. The county's annual tax assessment rolls have accurately reflected the land parcel's changes in ownership from O'Connor to Lauri to Zaccaro. Though the 1982 tax assessment roll shows Mr. Lauri to be the owner of the parcel, Mr. Lauri, like Mr. Zaccaro, was not notified of the mapping hearing. Until November 1997, when he was confronted at the site by an Environmental Conservation Officer, Mr. Lauri was not aware that the Department considered the parcel to contain regulated wetland.
7. Mr. Lauri and Mr. Zaccaro are relatives, and though he sold the parcel to Mr. Zaccaro in 1982, Mr. Lauri continues to use the parcel for hunting and other purposes, on average about once a month. He performs site maintenance and improvements, and pays the taxes and other expenses.
8. The property is currently undeveloped except for an old construction site trailer, about 8 x 24 feet, which provides shelter to people using the property. Also described as an office trailer, it is located along the old railroad bed at its junction with a 600-foot-long access road from Route 23. The trailer is not used for overnight stays.
9. The access road enters the property near the end of a state Department of Transportation pull-off along Route 23, and runs close to the highway for a short distance before curving in the direction of the railroad bed and crossing wetland H-12. In 1980, when Mr. Lauri bought the property, the road was narrow and had a rutted dirt surface.
10. Since 1980, Mr. Lauri has maintained the road. He has raked it, repaired soft spots, shoveled dirt into ruts, and back bladed the surface to remove debris. Shortly after the ties were removed from the railroad bed in the 1980's, Mr. Lauri used some of the railroad bed materials (crushed rock and cinder) to surface the road as it passes through the wetland. A culvert has been placed under the road in the wetland area. At some point between December 15, 1998, and the end of February, 2000, some widening of the road may have occurred.
11. There is a small clearing, about one-quarter of an acre in size, in the wetland portion of the property, on the right side of the access road as one comes in from Route 23. The trees that were in this area in 1980 were subsequently removed by Mr. Lauri. At some point in 1997 or early 1998, the area was filled and graded by a bulldozer.
12. In 1981, Mr. Lauri put a small trailer (about 8 x 12 feet) at the edge of the clearing, to be used as a place to get out of the cold. In 1986, this trailer was replaced by a larger one from a former construction site in Suffolk County. The new trailer was placed along the old railroad bed at the end of the access road, in the wetland's adjacent area. It has remained in the same general area ever since, though it has been moved slightly at least once. The trailer does not rest on the ground; it has wheels and a vinyl fabric skirting.
13. About 15 to 20 feet away from the trailer, also in the wetland's adjacent area, is a structure that appears to be either a small barn or outhouse, which was placed at the site at some point after March 9, 1998. Resting on the ground in the adjacent area are two locked container boxes (about 15 feet long, 8 feet high, and 10 feet wide) that were delivered to the site in 1999. They contain various tools and seeds.
14. A drainage ditch runs through the wetland alongside the railroad bed on the Zaccaro property. This ditch has been there since before Mr. Lauri bought the property in 1980. At some point in 1997, a 600-foot length of the ditch was deepened and widened, since it had become congested with vegetation and some old railroad ties. About a quarter of an acre of wetland (on the south side of the ditch, away from the railroad bed) was filled with the excavated spoil material, mostly dirt.
15. Also in 1997, 0.12 acres of the wetland's adjacent area, on the south side of the railroad bed, were graded with bulldozed fill.
16. Mr. Lauri's intent is to use the upland portion of the property, on the north side of the railroad bed, for agricultural purposes. He wants to brush-hog the tall grass in the field atop the hill and plant apple and other fruit trees, as well as sorghum and other grains. He wants to bring a tractor onsite to help him with his projects.
17. Wetland H-12 contains spotted turtles. These turtles are recognized by the Department as a species of special concern, meaning that they are species native to New York State for which a welfare concern or risk of endangerment has been documented. Any work done in the wetland would affect the habitat of these turtles.

DISCUSSION

This matter involves six alleged violations of the freshwater wetlands law, with regard to the undertaking of certain activities in a mapped wetland without DEC permits. None of these activities was observed as it happened by DEC Staff or witnesses called on its behalf. Instead, Staff's evidence is entirely circumstantial, relying on inferences drawn from observed site conditions.

Staff's investigation was prompted by Lawrence Dysard, who has lived on the south side of Route 23, near the Zaccaro property, since 1987. Mr. Dysard testified that, in the summer of 1997, while biking along Route 23, he noticed for the first time a road entering the Zaccaro property. This observation was passed on to ECO Peter Brinkerhoff, who visited the property on November 11, 1997. While there, ECO Brinkerhoff met Mr. Lauri and saw the construction trailer, the length of the access road, the field (which might better be described as a clearing) along the road in the wetland, and the drainage ditch, which appeared to have been deepened recently. Mr. Brinkerhoff says that he discussed the permitting requirements of the wetland regulations with Mr. Lauri, and told him that he would contact Maynard Vance, a DEC biologist, about violations that might have occurred.

Mr. Vance went to the property on December 18, 1997, and March 9, 1998. Mr. Vance concluded that the violations charged in this matter occurred in 1997 because when he was there then, the work appeared to be "very fresh." For instance, he said, there was no vegetation growing on the dirt in the roadside clearing, which would suggest that the area had been filled not long before. Mr. Vance took photographs of his observations on March 9, 1998 (Exhibits 4 G - L), many of which suggest recent filling and grading.

On March 25, 1998, ECO Brinkerhoff wrote tickets for both Mr. Lauri and Mr. Zaccaro, charging them with altering a protected freshwater wetland without a permit. On June 15, 1998, the ECO returned to the site with Mr. Vance and an attorney for Mr. Lauri and Mr. Zaccaro, pointing out the particular violations Staff alleged, and discussing Staff's recommended remediation. Stanley Koloski, Calverack's building inspector, has also been to the site, having been called there on December 15, 1998, to observe the construction trailer. Mr. Koloski and Mr. Vance returned to the site a week before the hearing, and their testimony indicated that site improvements have continued since ECO Brinkerhoff issued his tickets. In particular, Mr. Koloski testified that the road had been widened, and Mr. Vance testified that two container boxes and a small building had been placed in the adjacent area.

- - Determinations Concerning Alleged Violations

Of the various violations alleged by DEC Staff, all but one (the construction of the roadway) have been demonstrated by a preponderance of the evidence, as discussed below:

(1) Deepening of the drainage ditch in the wetland, and filling the wetland with dirt from the drainage ditch.

These two violations are demonstrated by the observations of ECO Brinkerhoff and Mr. Vance. Exhibit 4 - G, one of Mr. Vance's photographs, shows a fairly wide, unobstructed drainage ditch running along the south side of the railroad bed, and, next to it in the wetland, a great deal of what is obviously fresh spoil material, with no apparent vegetative cover. As Staff points out in its closing brief, the amount of spoil material indicates that the ditch was not simply "maintained" (as Mr. Lauri says) but actually widened and deepened. Mr. Lauri admitted in his testimony that he used a machine to take rotted railroad ties and debris out of the ditch. Rather than deny the Department's charges, he said that if he did expand or deepen the ditch, "it was not intentional," acknowledging that by using a machine for the work, "I'm sure it [the ditch] would have changed a little bit." Expanding or substantially modifying a drainage ditch in a wetland, except as part of an agricultural activity, is incompatible with a wetland and its functions and benefits, as is filling of a wetland. These are separate activities that both require permits from the Department. [See 6 NYCRR 663.4(d)(19), (20).]

(2) Filling the wetland to construct a field.

Like the two violations above, this violation was demonstrated by the observations of ECO Brinkerhoff and Mr. Vance. Exhibits 4 - J and 4 - K, both photographs of Mr. Vance, show an area of fill that is devoid of vegetation, in sharp contrast to the surrounding woods. As Staff points out, the area appears to have been bulldozed, given the thoroughness of the clearing. ECO Brinkerhoff could even see the machinery tracks when he was at the site on November 11, 1997.

Mr. Lauri claimed that the area Staff describes as the "field" was a sparsely treed, grassy area when he bought the property in 1980. Sharon Klos, a friend of Mr. Zaccaro's who first went to the site in the mid-1980's, described it as a flattened-out area that has lost some trees over the last 15 years "through storms or whatever." These depictions are not consistent with the appearance of the "field" as described by Staff's witnesses and Mr. Vance's photographs. In fact, the "field" has no trees or grass; it is simply an area of fill, and whatever natural vegetation that had been there obviously has been covered or cleared away, apparently to create parking space. As noted above, filling in a wetland is considered incompatible with the wetland and its functions and benefits, and would require a permit from the Department. [See 6 NYCRR 663.4(d)(20).]

(3) Grading the wetland's adjacent area.

The grading of the adjacent area next to the railroad tracks is depicted in Exhibit 4 - H, one of Mr. Vance's photographs. The photograph clearly indicates the movement of fill by heavy machinery. Because no vegetation is established on the fill, one can infer that the activity was conducted not long before the picture was taken. Grading in the adjacent area of a wetland is considered usually incompatible with the wetland and its functions or benefits, although in some cases it may be insignificant enough to be compatible. At any rate, it requires a Department permit. [See 6 NYCRR 663.4(d)(25).]

(4) Placing a trailer in the wetland's adjacent area.

The location of the trailer along the railroad bed was observed by ECO Brinkerhoff, Mr. Vance, and Mr. Koloski. [Exhibit 4 - I is a photograph of the trailer, taken by Mr. Vance.] Though the trailer rests on wheels, it is not a vehicle. It has skirting around its bottom, and has remained in the same general location since 1986, by Mr. Lauri's admission. Trailer placement is not an activity specifically addressed by the wetland regulations; however, building construction in a wetland or its adjacent area requires a permit from the Department. The trailer is a building since it is a roofed, walled structure that has been constructed for permanent use. Within the regulations for buildings, placing the trailer may be equated to "constructing a residence or related structures or facilities" [6 NYCRR 663.4(d)(42)], since the trailer functions as a residence would in providing shelter for property users, even though no one lives in it, and it is not, as the Department charged, a camp. Constructing a residence "or related structure" in the adjacent area of a wetland is considered by law to be usually incompatible with the wetland and its functions or benefits. The trailer was placed in the adjacent area in 1986, not 1997, as Staff alleges. In any event, it was placed there after issuance of the final map for wetland H-12 in 1985.

(5) Construction of Access Roadway

Of all the charges, only the one about construction of a roadway through the wetland is not adequately demonstrated. Mr. Lauri credibly testified that, except for the last 15 or 20 feet of it that connects with the railroad bed, the road was there when he bought the property in 1980. Ms. Klos also testified believably that the road was there when she first went to the site at the end of 1985 or the beginning of 1986. In 1980, it was apparently a narrow dirt road that was not easily driven. Mr. Lauri acknowledges that, over the last 20 years, he has maintained and repaired the road, filling in ruts and surfacing the road with crushed stone and cinder from the railroad bed. A short extension now connects the road to the railroad bed, but Mr. Lauri denies making it himself, and there is no evidence to contradict him. (In fact, the extension may have been made by someone else when the ties were removed from the railroad bed.) At any rate, based on my review of the wetland map, this extension likely was made in the adjacent area, not the wetland itself.

Department Staff's case for the road's construction in 1997 is entirely circumstantial, as no witness claimed to see the road being built. Mr. Dysard, who lives on Route 23, some distance down the road from the property, claimed that the road "appeared" to him during 1997, but also admitted he did not see its construction. The evidence indicates that the road is not clearly discernable from Route 23; in fact, Mr. Koloski testified that when he first went to the site in 1998, he drove by the property at least twice before he found it. All the evidence indicates that the road does not intersect with Route 23 squarely, but instead at a very sharp angle. Mr. Dysard noticed the road for the first time while biking along Route 23; to someone in a faster-moving car, the road would not be as apparent.

To support Staff's charge, Mr. Vance referenced aerial photographs from 1974 (Exhibit No. 21) and 1994 (Exhibit No. 23) that encompass the project site. Based on his review of the photographs, Mr. Vance concluded that when they were taken, the road had not yet been constructed. This assertion is not convincing in light of Mr. Lauri's and Ms. Klos's credible testimony about traversing the road when they first encountered the property in 1980 and the mid-1980's, respectively. Also, both photographs do show a line across the wetland in the vicinity of the DOT pulloff on Route 23, where the road in question is located. Mr. Vance acknowledged that the line represented "something obviously man-made," but "what it was, I don't know." Mr. Vance could not identify the feature based on his visits to the property, but denied that it could be the road in question, based on its position in relation to particular white pine trees he said he could identify both from the photographs and site inspections. This testimony was not convincing given that the road passes through a heavily wooded area, the trees in that area are not well distinguished in the photographs, and, over the course of 24 years, any one of the trees could be expected to have grown substantially or even died, as Mr. Vance himself acknowledged.

While I find that the road goes back to at least 1980, as Mr. Lauri claims, I also find that it has been subject to various improvements over the years which have made it smoother and easier to use. Also, some broadening of the road has occurred since Mr. Zaccaro and Mr. Lauri were ticketed, if one credits Mr. Koloski's testimony of his two site visits, the first in December, 1998 (when he found the road to be narrow) and the second a week before the hearing (when he found it to be much wider).

Ordinary maintenance and repair of the road (which would encompass the work acknowledged by Mr. Lauri) would be considered exempt from DEC regulation [6 NYCRR 663.4(d)(10)]. However, widening the road (which he denies) would not, since it would involve regulated activities (such as filling and grading) in the wetland, outside the pre-existing road bed. While not specifically charged, any recent widening of the road should be a legitimate concern of the Department.

- - Validity of Wetland Mapping

The Respondent claims that the mapping of his property as freshwater wetland is void because of failure by the Department to comply with statutory and regulatory notice provisions. The parties have stipulated that Mr. Zaccaro was not notified of either the 1982 mapping hearing or the 1985 mapping order. In his testimony, Mr. Lauri made the same claim for himself, and DEC Staff did not try to refute it.

A mapping hearing is required by ECL Section 24-0301(4) to afford an opportunity for any person to propose additions to or deletions from a tentative freshwater wetland map. The law requires notice of the hearing by newspaper publication as well as mailings to the officials of each local government within the boundaries of which any such wetland or a portion thereof is located. Also, the commissioner shall mail notice of such hearing "to each owner of record as shown on the latest completed tax assessment rolls, of lands designated as such wetlands as shown on said map." [See ECL Section 24-0301(4).]

The 1982 tax assessment roll showed Mr. Lauri to be owner of the Zaccaro parcel. (Mr. Lauri sold the property to Mr. Zaccaro in February of that year.) However, Mr. Lauri was not mailed notice of the hearing because the local tax map was inaccurate. Department Staff uses tax maps to obtain parcel numbers of affected properties; these numbers are then used to obtain names and addresses of the parcel owners from the tax assessment rolls. Because, in this case, the tax map did not suggest that the Zaccaro parcel would be affected by the mapping, no notice was sent to Mr. Lauri.

The law requires notice not only of the mapping hearing, but of the mapping order as well. A copy of the order promulgating a final wetland map, along with a copy of the map itself, must be filed in the office of the clerk of each local government in which each such wetland or a portion thereof is located. Also, notice of the order must be given by mail "to each owner of lands, as shown on the latest completed tax assessment rolls, which are designated as wetlands." [See ECL Section 24-0301(5).] Finally, notice of the order must be given to the chief administrative officers of local governments within the boundaries of which a wetland or portion thereof is located, and a copy of the order must be published in at least two local newspapers having general circulation in the area where the wetlands are located. [ECL Section 24-0301(5).]

The 1985 tax assessment roll correctly showed Mr. Zaccaro's ownership of his parcel, but he was not mailed notice of the order because, once again, the local tax map inaccurately failed to suggest that his property would be affected.

Because Mr. Lauri was not notified by mail of the mapping hearing and Mr. Zaccaro was not notified by mail of the mapping order, the Respondent contends that the mapping of the Zaccaro parcel as freshwater wetland is void. I disagree. The Respondent's argument is premised on an alleged failure by the Department to follow the notice procedures prescribed in its own statutes. In fact, those procedures were followed, despite the fact that Mr. Zaccaro and Mr. Lauri were not noticed personally. The Department did use the tax assessment rolls to identify the owners of what the tax maps indicated to be the affected parcels. The problem was not with the rolls, but with the tax maps, which were prepared not by the Department, but by Columbia County.

Mr. Monahan, the Respondent's witness, pointed out that the county's tax maps have carried disclaimers about their accuracy since he began searching titles in 1981. Their wording, which may have varied over the years, now is as follows: "These maps were prepared for reference purposes only. They are not intended for use in the conveyance of land. Absolutely no accuracy or completeness guarantee is implied or intended. All the information on the maps is subject to such variations and corrections as might result from an accurate instrument survey."

Mr. Monahan paraphrased this language as "do not rely upon"; however, if the maps are unreliable, then what is the point of maintaining them? I read the disclaimer as acknowledging the maps' suitability for reference use, but urging caution since the maps do not delineate parcel boundaries precisely. The Department did not use the maps in relation to a land conveyance, but to identify parcels containing wetland areas, to assist in one of several methods it uses for giving notice of its actions. The tax maps provide a bridge between the Department's own maps delineating wetlands and the tax assessment rolls which identify parcel owners, since the tax rolls, by themselves, do not indicate which landowners should receive Department mailings.

As Mr. Vance explained, use of local tax maps is not peculiar to this case, but a regular practice in the Department's wetland mapping. This use is not inconsistent with, or in violation of, any statute or regulation governing the mapping process. The Respondent points out that a 1978 tax map allegedly used by DEC to locate affected parcels (Exhibit No. 11) incorrectly shows the property to be a landlocked parcel, outside wetland H-12, while the deed from Mr. Zaccaro to Mr. Lauri (Exhibit No. 10-A) correctly describes the property as bordering on Route 23, placing it within the wetland area. However, as Staff points out, no law required it to do a deed search, either to locate affected parcels or to establish parcel ownership. In fact, on the issue of parcel ownership, the statute allows the Department to rely on tax assessment rolls rather than a deed search which would likely provide more up-to-date information, but also be more burdensome.

In its closing brief, the Respondent relies on Kuhn v. Town of Johnstown, 248 A.D.2d 828, 669 N.Y.S.2d 757 (3^rd Dept. 1998), and Cipperley v. Town of East Greenbush, 213 A.D.2d 933, 623 N.Y.S.2d 967 (3^rd Dept. 1995). Both cases involve challenges to local zoning changes, and stand for the proposition that, in making such changes, municipalities are required to follow legal notice requirements, or risk having their actions deemed void. In Kuhn, Johnstown failed to comply with its own ordinance's requirement that property owners be informed in writing of a hearing addressing the proposed rezoning of their land. Similarly, in Cipperley, East Greenbush failed to comply with a legal requirement that notice of a zoning hearing be given to nearby municipalities.

These cases cited by the Respondent are not on point - - and their precedents do not apply - - because they arise in the context of local zoning, and the state's regulation of freshwater wetlands is not a zoning matter. Also, in Kuhn and Cipperley, it appears that the towns failed even to attempt fulfilling the cited notice requirements, whereas here, an attempt was made, though the intended result was not achieved. In other words, the Department complied with the directions for giving notice to the extent they are outlined in the freshwater wetlands law, but Mr. Lauri and Mr. Zaccaro, as affected landowners, were not mailed notices due to tax mapping that inaccurately delineated their parcel. In its closing brief, the Respondent correctly points out that the law demands notice to landowners of record not as shown on the tax maps, but as shown on the latest completed tax assessment rolls. However, the Department did not use the tax maps to determine ownership; in fact, the maps do not contain ownership information.

The Respondent also points to language in 6 NYCRR 664.7(a)(2)(i) that no activity which has already been initiated at the time of announcement of a proposed amendment to a freshwater wetland map, within an area proposed to be added to the map, will be subject to regulation under ECL Article 24. The Department's 1992 freshwater wetlands enforcement guidance memorandum (at page 19) provides that, in counties where final inventory maps have been filed, upon discovery of a regulated activity occurring without a permit in an unmapped jurisdictional wetland, Department Staff should immediately notify the landowner by certified mail and then commence a map amendment process under 6 NYCRR 664.7.

The Respondent argues from these provisions that because no such notice has been sent to him, all improvements made to his property up to the present time are not subject to regulation. I disagree. Contrary to the Respondent's assertion, the wetland on his property has been subject to regulation as a portion of mapped wetland H-12 since 1985. The Department is not attempting to change the map, and there is no need for it to do so.

Even if the Department's mapping were deemed void, one must also note that wetlands are subject to regulation whether or not the Department has mapped them, as noted in Philip Weinberg's Practice Commentaries for ECL Section 24-0703, which refer to Tri Cities Industrial Park v. Commissioner of Dept. of Environmental Conservation, 76 A.D.2d 232, 430 N.Y.S.2d 411 (3d Dept. 1980), appeal denied 51 N.Y.2d 706, 433 N.Y.S.2d 1026, so holding since ECL Section 24-0703(5) prohibits alteration of a wetland "[p]rior to the promulgation of the final freshwater wetland map in a particular area . . ." It does not make sense that a wetland meeting the criteria for protection would lose the benefit afforded by the statute due to some failure of the Department to meet a notice requirement of the mapping process. Instead, if the failure nullified some or all of the map, it would appear that the wetland would remain regulated under ECL Section 24-0703(5) until re-mapping was completed.

- - Penalty Considerations

Department Staff seeks a Commissioner's order assessing a civil penalty of Eighteen Thousand Dollars ($18,000): Three Thousand Dollars ($3,000) for each of the six alleged violations. ECL Section 71-2703 provides that any person who violates, disobeys or disregards any provision of Article 24 or any rule or regulation issued pursuant thereto, shall be liable for a civil penalty of up to Three Thousand Dollars ($3,000) for "every such violation." According to the freshwater wetlands enforcement guidance memorandum (at page 14), each distinct illegally conducted regulated activity that would independently require a permit constitutes a separate violation for penalty calculation purposes. [This position was established in a prior administrative proceeding, In the Matter of Linda Wilton and Costello Marine, Inc., Decision of the Commissioner, February 1, 1991.]

In its closing brief, Department Staff maintains that the maximum penalty for each of its six alleged violations is appropriate because:

1. Actual harm was done by filling, grading and construction activities in the wetland and its adjacent area;
2. The violations are serious, given that four of the six activities charged are deemed to be incompatible with a wetland and its functions and benefits, and the other two are deemed to be usually incompatible;
3. The wetland contains spotted turtles, a species of special concern, whose habitat could be affected by the wetland's disturbance; and
4. The violations are extremely important to the Department's regulatory scheme, since conducting regulated activities in a wetland without first obtaining a permit deprives the Department of the opportunity to review and control the activities.

I find that while a significant penalty should be assessed in this case, the one recommended by DEC Staff is not warranted for several reasons. First, I conclude that the charge concerning the road's construction through the wetland is not supported by a preponderance of the evidence; therefore, no penalty should be assessed for it. Second, I think the penalty should recognize a distinction between those remaining charges that involve activities in the wetland, which are the most serious, and those that involve activities in the adjacent area, which are less serious. This distinction is made by the regulations themselves, which deem the activities that occurred in the wetland to be always incompatible with the wetland, and the activities that occurred in the adjacent area to be usually incompatible with the wetland, recognizing that in some instances such activities may be insignificant enough to be compatible. Here, Staff did not demonstrate any particular harm from the grading of 0.12 acres of the wetland's adjacent area and the placement of the trailer in the adjacent area, along the railroad track. In the absence of additional evidence, I find these two violations to be relatively insignificant, in terms of their impact on wetland values.

With regard to culpability, two issues that arise prominently in this case are what the Respondent knew or should have known both about the regulation of the wetland and the activities that occurred on his property. Because of illness, Mr. Zaccaro did not appear at the hearing, and the record does not contain his account of what happened. However, the parties stipulate that, despite his ownership of the property, he was not mailed notices of either the mapping hearing or the final promulgation of the wetland map. Because they do not live in the area, it is unlikely that Mr. Zaccaro or Mr. Lauri would have seen notices in the local paper announcing the 1982 mapping hearing or the filing of the final wetland order. Also, the Department's wetland designation has never been reflected in the property type classifications that appear on Mr. Zaccaro's tax bills; up until 1994, the bills showed a classification for "abandoned agricultural land," and more recently, classifications for residential vacant land, even though there exists a separate classification for "wetlands subject to specific restrictions as to use." Of course, only part of the Zaccaro property is regulated wetland, which may explain why the wetland classification is not used. At any rate, in the absence of contrary evidence, one must presume that neither Mr. Zaccaro nor Mr. Lauri had actual notice of the Department's wetland mapping until 1997 or 1998, as argued in the Respondent's closing brief.

Even so, one must also consider whether they had constructive knowledge that the property might contain regulated wetlands. Certainly the testimony and the photographs that are part of the record indicate a broad, low-lying swampy area between Route 23 and the old railroad bed, the same area depicted as wetland on the Department's map. The appearance of this portion of the land parcel, by itself, should have prompted Mr. Zaccaro to find out whether it was mapped before he (or Mr. Lauri, on his behalf) began to work in it. Such an inquiry would not have been difficult to make; it could have been made to the Department or to the locality, both of which have copies of the wetland maps for public inspection. Mr. Zaccaro may not have actually known about the mapping of wetland H-12, but he should not also be able to claim ignorance of the law governing wetland regulation.

Overall, Mr. Zaccaro should be considered less culpable than someone who alters a wetland with actual knowledge that it is regulated by the Department. However, consistent with the Department's civil penalty policy, lack of actual notice should not exonerate him, since the violations charged are strict liability offenses, and hence the violator's mental state is irrelevant to the determination of liability. Instead, Mr. Zaccaro's diminished culpability should indicate that no addition to the penalty that would be otherwise warranted is appropriate. [See DEC civil penalty policy, 6/20/90, page 9 of 15.]

As to what Mr. Zaccaro knew about the activities on his property, one must draw conclusions from the testimony of Mr. Lauri, since Mr. Zaccaro did not testify himself. Mr.Lauri is a relative of Mr. Zaccaro, from whom Mr. Zaccaro acquired the property in 1982. Mr. Lauri has done the site improvements and maintenance for the entire period Mr. Zaccaro has owned the property, and pays the taxes for him as well. It is unclear how often Mr. Zaccaro goes to the property; however, based on the family relationship and the duties Mr. Lauri performs on Mr. Zaccaro's behalf, one can presume that the activities Mr. Lauri performed which are the subject of this proceeding were done with Mr. Zaccaro's knowledge. If Mr. Zaccaro was not aware of these activities, I expect his counsel would have said so, and he did not.

In assessing civil penalties, the Department's policy is to calculate and recover the economic benefit of noncompliance, as noted in the Department's freshwater wetlands enforcement guidance memorandum [2/14/92, page 14 of 20]. Here, Staff made no attempt to establish such benefit, and therefore I find it to be negligible. There is no evidence that the Respondent's violations have increased his property value substantially, or that the violations have produced some profit that the Respondent would not have otherwise realized.

Addressing the penalty factors actually cited by the Department, I find that actual harm to the wetland is apparent from some, but not all, of the violations. The deepening and widening of the drainage ditch would be expected to change the water distribution in the wetland, and the filling of the wetland with dirt from the drainage ditch, and the filling to construct a field along the access road, are obviously damaging. On the other hand, the grading of a small area of the adjacent area and the placement of a trailer along the railroad bed, also in the adjacent area, were not linked by the Department to actual harm to the wetland, and, as noted above, these activities are not considered by regulation to be necessarily incompatible with wetland functions and benefits.

With regard to the wetland as spotted turtle habitat, one must note that while the turtle is a species of special concern, it has not been deemed to be endangered or threatened, in which case activities affecting it would likely be seen as more serious by the Department. Also, the actual concern the Department has with regard to the turtle was not articulated in this hearing, so it is unclear how that concern is related to the activities undertaken by or on behalf of the Respondent.

Finally, I do agree with DEC Staff that the alleged violations (i.e., undertaking regulated activities without a permit) are important to the Department's regulatory scheme. The Department's penalty policy confirms that undertaking any action which requires a DEC permit, without first obtaining the permit, "is always a serious matter, not a mere "technical" or "paper work" violation, even if the activity is otherwise in compliance. Failure to first obtain required permits deprives DEC of the opportunity to satisfy its obligation of review and control of regulated activities. Failure to assess significant penalties for such violations would be unfair to those who voluntarily comply with the law by satisfying the requirements of the permit process." [DEC Civil Penalty Policy, 6/20/90, page 8 of 15.]

- - Specific Penalty Recommendations

I recommend assessment of a total penalty of Eight Thousand Dollars ($8,000).

I recommend a Two Thousand Dollar ($2,000) penalty for each of the three following activities: the deepening and widening of the drainage ditch, the filling of the wetland with dirt from the drainage ditch, and the filling that created the field. Lesser penalties of One Thousand Dollars ($1,000) each should be imposed for the activities that occurred in the adjacent area: the grading between the wetland and the railroad bed, and the placement of the trailer along the bed.

Significant penalties are warranted since all the activities described in the preceding paragraph required Department permits. However, maximum penalties are not warranted for any of the violations because of the unusual circumstances of this case, in which Mr. Zaccaro apparently received no actual notice of the wetland mapping by the Department.

- - Remediation

In addition to an assessed civil penalty, the Department requests certain remedial action. I agree that the soil removed from the drainage ditch should be returned to it, so as to help restore the wetland to its prior condition. Also, the fill used to construct the field (or clearing) along the access road should be removed, and the trailer should be moved to an upland location outside the wetland's adjacent area. Finally, the Respondent should remove from the adjacent area the structure described in the record as a small barn or outhouse, and the two container boxes, unless he receives Department approval to leave them where they are, or convinces the Department they are not subject to regulation.

I find that the access road itself predates the mapping of the wetland, and activities occurring along it through 1998 constitute permissible maintenance and repair. However, as noted above, there is some indication from Mr. Koloski's testimony that the road has recently been widened. While this possible widening was not charged by the Department, it deserves further investigation.

- - Suspended Penalty

To help ensure that the remediation recommended in this report is performed, I propose suspending payment of Six Thousand Dollars ($6,000) of my recommended civil penalty provided that the remediation is completed by the Respondent within 60 days of receipt of the Commissioner's final order in this matter.

CONCLUSIONS

The Respondent, Mr.Zaccaro, violated ECL Section 24-0701(1) and 6 NYCRR 663.4 by undertaking the following activities in wetland H-12 without Department permission:

1. Deepening and widening a drainage ditch;
2. Filling the wetland with dirt from the drainage ditch; and
3. Filling the wetland to construct a field or clearing.

The Respondent also violated ECL Section 24-0701(1) and 6 NYCRR 663.4 by grading and placing a trailer in the regulated adjacent area of wetland H-12, again without Department permission.

The Department's charge that the Respondent constructed a road through the mapped wetland is not supported by a preponderance of the evidence.

RECOMMENDATIONS

For the violations that were demonstrated in this proceeding, the Respondent should be assessed a total civil penalty in the amount of Eight Thousand Dollars ($8,000), apportioned among the charges as noted in the discussion section of this report.

Two Thousand Dollars ($2,000) of this penalty should be paid to the Department within 30 days of receipt of the Commissioner's final order by the Respondent or his attorney.

On the condition that the remediation I have recommended occurs within 60 days of receipt of the Commissioner's final order, payment of the remaining Six Thousand Dollars ($6,000) should be permanently suspended.

The charge that the Respondent constructed the road through the wetland should be dismissed.

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