HomeMy WebLinkAboutNYS Dept of Environmental Conservation NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .X
In the,Matter of the Violations of the New York
State Environmental Conservation Law ("ECL")
Articles 25 and 71 and Part 661 of Title 6 of the
Official Compilation of Codes, Rules and ORDER ON CONSENT
Regulations of the State of New York ("6 NYCRR") DEC FILE Nos.:
by: R1-20070815-215
RICHARD MARTINO, R 1-20070815-216
ELISE MARTINO,
and
LA BELLA ROMA HOME IMPROVEMENT CORP.
(Suffolk County) Respondents
. . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . X
WHEREAS:
I. The Department of Environmental Conservation of the State of New York (hereinafter
"DEC"or"Department") is and has been a Department of the State of New York,
charged with jurisdiction to enforce the environmental laws of the State pursuant to §3-
0301 of the Environmental Conservation Law of the State of New York (hereinafter the
#,ECU)
2. The Department is responsible for the administration and enforcement of laws and
regulations pertaining to the regulation of tidal wetlands in the State of New York,
including Article 25 of the ECL and Part 661 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York (hereinafter"6 NYCRR").
3. ECL Article 25,Title 4, specifically§ 25-0401.1, and Part 661 of 6 NYCRR, prohibit
conducting any regulated activities in or adjacent to any tidal wetland without the
requisite permit, or in noncompliance with the requisite permit.
4. Pursuant to ECL Articles 3 and 25, the Department has promulgated Part 661 of 6
NYCRR establishing land-use regulations for tidal wetlands which also prohibits the
conduct of regulated activities in or adjacent to tidal wetlands without or in
noncompliance with the requisite permits.
5. The Department has documented that Respondents RICHARD MARTINO and ELISE
MARTINO (hereinafter"Respondents Martino") are and have been the owners of certain
real property situated at 3875 Hallock Lane Extension, Mattituck, Town of Southold,
Suffolk County, New York (hereinafter referred to as the "Site"), during all times relevant
to matters made the subject of this Order.
6. The Department has documented that Respondent LA BELLA ROMA HOME
IMPROVEMENT CORP. (hereinafter"Respondent LA BELLA ROMA ") was and still
is a domestic corporation organized and existing under and by virtue of the laws of the
State of New York.
7. The Department has further documented that Respondent LA BELLA ROMA was
engaged to construct the concrete and stone stairway down the bluff at the subject Site,
made the subject of violation.
8. Permit 1-4738-03014/00001 (hereinafter the"Pen-nit")was issued to Respondents
RICHARD MARTINO and ELISE MARTINO (hereinafter"Respondents MARTINO")
effective December 3, 2002, and expiring December 3, 2012, authorizing certain
activities including the replacement and installation of railroad tie steps with handrails
down a bluff for access to the beach.
9. Citing noncompliance with the Pennit, the Department commenced enforcement
proceedings identified as R1-20070815-215 and R1-20070815-216, via service of notices
of hearing and complaint upon the captioned respondents.
10. A ruling consolidating the enforcement proceedings against Respondents MARTINO and
Respondent LA BELLA ROMA, was issued on April 28, 2008.
11. Unless otherwise stated, reference to Respondents shall mean Respondents MARTINO
and Respondent LA BELLA ROMA.
12. A hearing limited to addressing respondents' liability with regard to the allegations
contained in the Department's complaints,was held on June 24 and 25, 2008. A hearing
to address relief, including an evaluation of any environmental damage/impacts and
assessment of penalties,was adjourned.
13. A Ruling on Liability was issued on January 6, 2009.
14. In light of the Ruling on Liability and the time provided by the adjournment of the
hearing, Respondents and the Department entered into settlement negotiations, which
have culminated in this Order.
15. The Department has documented violations of ECL Art. 25 and Part 661 of 6 NYCCR,
in that Respondents caused and/or allowed the following noncompliance with the
Pennit:
Noncompliance with Additional General Condition#10 of the Permit, by
failing to undertake all authorized activities at the Site in strict
conformance with the approved plan. The Permit authorized 8" x 8"
railroad tie steps set into grade and Respondents installed concrete and
stone stairs with footings.
Page 2 of 10
Noncompliance with Special Condition #1 of the Permit, by placing or
storing construction debris on the face of the bluff. The Pennit authorized
temporary storage of construction materials and debris to be on site as pan
of the authorized activities but construction debris remained for several
months.
Noncompliance with Special Condition#4 of the Permit, by clearing
vegetation on the bluff. The Permit authorized disturbance within a
prescribed area for installation of the 8" x 8" railroad tie steps and
Respondents caused clearing to occur beyond that which was approved
under the Pen-nit.
16. Pursuant to ECL §71-2503, any person who violates any provisions of or who fails to
perform any duty imposed by ECL Article 25 and 6 NYCRR Part 661, subjects the
violator to a civil penalty of up to TEN-THOUSAND ($1.0,000) DOLLARS for each
violation, and for each day the violation continues, as well as criminal penalties and
injunctive relief.
17. As it pertains to the subject Site, it is acknowledged that administration of ECL Art. 34 -
known as the"Coastal Erosion Hazard Areas Act", and the implementing regulations set
forth at Part 505 of 6 NYCCR, have been delegated to the Town of Southold.
18. Respondents acknowledge and accept responsibility for the violations set forth herein,
and desire to settle this matter and resolve said violations by entering into this Order with
the Department rather than to continue litigation on the issues.
19. The Department agrees to settle the within matter through this Order on Consent with
Respondents rather than to continue litigation on the issues.
20. Respondents affirmatively waives their respective rights to a public hearing in this matter
in the manner provided by law, and consent to the entering and issuing of this Order,
agree to be bound by the terms and conditions contained herein.
NOW, having considered this matter and being duly advised, IT IS ORDERED THAT:
I. Cease and Desist. Respondents shall cease and desist from further violations of any
provision of the ECL, and implementing regulations, more particularly ECL Art. 25and Part 661
of 6 NYCRR.
Page 3 of 10
II. Compliance. Respondents shall immediately comply with all tidal wetland laws, rules and
I regulations, and the attached Schedule A, Schedule of Compliance.
III. Civil Penalty. That with respect to the aforesaid violations, there is hereby imposed upon
Respondents, a penalty in the sum of SEVENTY-FIVE THOUSAND ($75,000) DOLLARS, of
which sum, FORTY THOUSAND ($40,000) DOLLARS shall be payable via Certified Check,
Bank Check or Money Order by Respondents in the following installments:
1. SEVEN THOUSAND FIVE HUNDRED ($7,500) DOLLARS via Certified
Check, Bank Check or Money Order due upon Respondents' signing of this
Order,
2. Six (6) monthly installments of FIVE THOUSAND($5,000) DOLLARS each
installment, payable via Certified Check, Bank Check or Money Order,due on
or before the 15`h calendar day of each month, commencing with November 15,
2009,
3. A final installment of TWO THOUSAND FIVE HUNDRED ($2,500)DOLLARS
due on or before the May 15, 2010;
and the remaining sum ofTHIRTY-FIVE THOUSAND ($35,000) DOLLARS shall be
suspended provided that Respondents are in full compliance with the terms and conditions of this
Order, including timely payment of all penalty installments and Schedule A - the Compliance
Schedule. The penalty payments shall be made payable to "NYS Department of Environmental
Conservation." A check that is not bank certified or a money order will be returned to
Respondents and this matter will be deemed unresolved.
Failure to pay any penalty amounts dues under this Order in a timely fashion is deemed a
violations of this Order, subjecting respondents to suspended penalties as set forth herein and
accelerates the payment of outstanding installment penalty payments making them immediately
due and payable along with the suspended penalty, without further notice or administrative
process.
1V. Reservation of Rights. The Department hereby reserves all its legal, administrative and
equitable rights arising at common law or as granted to it pursuant to statue or regulation,
includin��, but not limited to, any summary abatement powers of the Commissioner.
V. Modification. In those instances in which Respondents desires that any of the provisions,
terms or conditions of this Order be changed, it shall make written application, setting forth the
grounds for the relief sought, to the NYSDEC c/o Regional Attorney, 50 Circle Road, Stony
Brook University, Stony Brook,NY 11790-3409. No change or modification to this Order shall
become effective except as specifically set forth in writing and approved by the Commissioner or
a duly authorized representative.
Page 4 of 10
VI. Indemnification. Respondents shall indemnify and hold the Department, the State of
New York, their representatives, employees and agents, harmless for all claims, suits, actions,
damages and costs of every name and description arising out of or resulting from the fulfillment
or attempted fulfillment of the provisions presented hereof by the Respondents,their directors,
officers, employees, servants, agents, successors or assigns, except for those claims, suits, actions
and costs arising from the gross negligence or willful or intentional misconduct by the State of
New York, and/or its representatives and employees during the course of any activities conducted
pursuant to the fulfillment or attempted fulfillment of the requirements contained in this order
and annexed Schedule of Compliance.
VIL Access to Determine Compliance That for the purpose of insuring compliance with this
Order, and with applicable provisions of the ECL and regulations promulgated thereunder,
representatives of the DEC shall be permitted access to the Site without prior notice at reasonable
hours and intervals in order to inspect and determine the status of the property, as well as access
to relevant records in order to inspect and/or perform such tests as may be deemed appropriate to
determine the status of Respondents' compliance.
V111. Binding_Effect. The provisions, terms, and conditions of this Order, including the
attached Schedule A, Schedule of Compliance, shall be deemed to bind Respondents and
Respondents'officers, directors, agents, employees, successors and assigns and all persons, firms
and corporations acting under or for them, including, but not limited to those who may carry on
any or all of the operations now being conducted by Respondents, whether at the present location
or at any other in this State.
IX. Collection Costs / Fees. Respondents' failure to pay any penalty amounts due under the
terms of this Order may result in a 22% surcharge in recovery costs and a potential tax refund
offset by the Department of Taxation and Finance.
X. Effective Date. The effective date of this Order shall be the date upon which it is signed
by the Commissioner or the Commissioner's Designee on behalf of the Department.
XI. Unforeseen Events. Respondents shall not suffer any penalty under any of the
provisions, terms and conditions hereof, or be subject to any proceedings or actions for any
rernedy or relief, if Respondents cannot comply with any requirements of the provisions hereof
because of an Act of God, war, riot, or other catastrophe as to which negligence or willful
misconduct on the part of Respondents was not foreseen or a proximate cause, provided,
however, that Respondents shall immediately notify the Department in writing, when it obtains
knowledge of any such condition and shall request an appropriate extension or modification of
the provisions hereof; Respondents will adopt all reasonable measures to prevent or minimize
any delay.
XII. Resolved Violations: This Order resolves only those violations specifically articulated
and described herein and in no way limits the Department's authority to enforce any other
violations not described herein in the manner that the Department shall deem appropriate.
Page 5 of 10
XIII. Entire A7reement. This Order constitutes the entire agreement of the parties, and no
provision of the agreement shall be deemed waived or otherwise.modified without the written
consent of the parties hereto or their lawfully designated successors.
Stony Brook, New York
Dated: jo�7� '�`'1
ALEXANDER B. GRANNIS
Commissioner of Environmental Conservation
By: (-TI
PETER A. SC LY
Regional Director
cc: Eric J. Bressler, Esq.
Wickham, Bressler, Gordon & Geasa, P.C.
275 Broad Hollow Road, Suite 111
Melville, New York 11747
Attorney for Respondents
CONSENT BY RESPONDENT RICHARD MARTINO
Page 6 of 10
CONSENT BY RESPONDENT RICHARD MARTINO
Respondent acknowledges the autho ' jurisdiction of the Commissioner of Environmental
Conservation of the State of New York to i ue the foregoing Order,waives public hearing or other
proceedings in this matter, accepts the t s and conditions set fob in a rder and consents to
the issuance thereof.
SIGNAT 2G
PRINT NAME: RICHARD MARTINO
FULL HOME ADDRESS: r 1 D k �Zp �iCC
DATE:
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
On the�f day of in the year 200 ,before me, the undersigned,
personally RICHARD MARTINO,personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his individual capacity.
Notary Public, e of New York
ERIC .1nNAT'fA?4 BR7,T°—R
INOT.~R`( P York
JL-1.62- ;I.
r.
Quoliiicd in Suf'ulk County
Term Expires March 3o,
Page 7 of 10
L-_r 1 •-�VJ J'� 1U: �i 1 NUM:WICKRM BRESSLER S31 292 2565 TO:258"9-1994
CONSENT BY'RESPONDENT.CLEM MARTINO
Respondent acknowledges the authority and jurisdiction of the Commissioner of Environmental
Conservation of the State of New York to issue the.foregoing Order,waives public hearing or other
proceedings in this matter, accepts.the terms and conditions set forth in the Order and consents to
the issuance ther.(;of
AIN N
SIGNATURE k
il/
PRINT NAMES_ ELI9E-MARTI]X10
FULL HOME ADDRESS: �W
DATE: f�
A_ KN_OWLEDGMENT
STATE OF NEW YORK )
ss,:
COUNTY OF SUFFOL.K )
On the day of in the year 200 ,before me, the undersigned,
personally FLiSE MAR- (NO,personally known tome or proved tome on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that lie executed the same in hit; individual capacity.
'i 4eAt
Notary Public, State of New-Y-rnk
l
Page 8 of 10
CONSENT BY RESPONDENT LA BELLA ROMA HOME IMPROVEMENT CORP.
Respondent acknowledges the authority and jurisdiction of the Commissioner of
Environmental Conservation of the State of New York to issue the foregoing Order, waives
public hearing or other proceeding in this matter, accepts the terms and conditions set forth in the
Order and consents to the issuance thereof.
LA BELLA ROMA HOME IMPROVEMENT CORP.
Respondent
By: t�
Name:
Title:
an individual dually authorized by respondent to sign on
behalf of the business entity and whom may bind
respondent to the terms and conditions contained herein.
Date: 11
ACKNOWLEDGMENT
STATE OF NEW YORK )
}ss.:
COUNTY OF SUFFOLK L)
On the day of J in the year 200-121 before me personally
came Q2 5/ , to me known, who,being duky
om did deposed d ay that (s)resides at
, that(s)he is the of
LA BELLA ROM HOME IMPROVEMENT CORP., the business entity described herein and
which executed the above instrument; and that(s)he signed her/his name thereto with full
corporate authority so to do.
Sworn to before me this day
of , 2004 .
Notary Public t " ` vork t�0J, JC JOhAT!#AN BR�SSl.ER
€`' RY PUBLIC, Stcte of a1Ssw York
` No. 52-4522371
::. Qualified in Suffolk Coonty
errn Term expires March 30 «.
Page 9 of 10
SCHEDULE A
COMPLIANCE SCHEDULE
RICHARD MARTINO,
ELISE MARTINO,
and
LA BELLA ROMA HOME IMPROVEMENT CORP.
R1-20070815-215 & R1-20070815-216
I. GENERAL REQUIREMENTS: '
Immediately, Respondent shall cease and desist from any and all future violations of the ECL
and the rules and regulations enacted pursuant thereto.
All submittals to the Department required under this Order shall be made by Respondent
as follows:
1) One copy to: Office of General Counsel, Region One, New York State Department of
Environmental Conservation, SUNY at Stony Brook, 50 Circle Road, Stony Brook, New
York 11790-3409; and
2) One copy to: Bureau of Marine Habitat Protection, Region One, NYS Department of
Environmental Conservation, SUNY at Stony Brook, 50 Circle Road, Stony Brook,New
York l 1790-3409; and
II. REMOVAL I RESTORATION REQUIREMENTS:
No removal or restoration is required pursuant to this Order.
For that portion of the stairway in which handrails have yet to be installed,Respondents
are authorized to install handrails in conformance with the Department-approved plan
prepared by Sea Level Mapping, last revised September 27, 2002, and made part of the
Pen-nit. The aforementioned plan identifies"4" x 4" cedar posts with 1" x 6" cedar cap as
handrails along the steepest sections." Alternatives to this handrail design requires prior
approval from the Department.
Page 10 of 10
l
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
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On -before me, 6W14tW MOM P 6&
(Here insert name and title of the officer) II
mp �
personally appeared Nr�L- G�jr'/ {'I-�-�� NA W N0
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I who proved to me on the basis of satisfactory evidence to be e person( whose name( is re bscribed to I�1
the within instrument and acknowledged to me that 1 /she/t ey executE((d the sa e in l /her elr authorized °I
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ca act ie and that b /he/their si nature on the instrument the ersos or the entity upon behalf of kl
p �Y(��� Y� g P ), rip
which the person($ acted,executed the instrurAnt. ti
at I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph j
is true and correct.
I
OFFICIAL SEAL- �
R. C. KOTHARI
im NOTARY PUBLIC-CALIFORNIAm
WITNESS my hand and official seal. COMM.N0. 1711822
��iC� rV' SAN DIEGO COUNTY �I
` MY COMM.EXP.JAN.17,2011 �
(Notary Seal) t
Signature of Notary Public I
I
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