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HomeMy WebLinkAboutBetsch, John .-'l LJ1 .JJ LJ1 U.S. Postal Service"" CERTIFIED MAILM RECEIPT (Domed1ric Mail Only; No Insurance Coverage Provided) ~ T{l)sFeF 1rGaJ .JJ u- D D D Postmarl< o He~ D .-'l D .-'l rn o SentTa nn ro y, ommlS510ner i2 s;;;.i,""pi.1Vo:;nnm-N.~-s.D.~n__---m----------m-.-------------------- o,PO Box No. 50 Wolf Road CitY.-s;ai.;ZiP;4------Aib~-;.;y-:n--N-y---n12i33n------n..-n------- PS Form 3800 June 2002 See Reverse for InstructIOns SENDER: COMPLETE THIS SECTION . . Complete items 1, 2, and 3. Also complete ~ern 4 ~ Restri~ Delivery Is desired. . Print your name and address on the reverse so that we can return the card to you. . . Attach this card to the back of the rnailpleos, or on the front ~ space psrm~. 1. Article Addressed to:, Erin Crotty Commissioner NYSDEC 50 Wolf Road Albany, NY 12233 (Trustees a eal) 2. ~Ie Number (rransfer from _label) PS Fonn 3811 , August 2001 . . . . . A. SIgnature X B. Received by D.lsdellvelyodd.....d_from_11 DYes "YES, entel" delivery address below: D No 3. ServlceType III CertIfIed Mall D Express Mall' EI Registered D Return Roce1pt fOr Morohandise D Insured Mall D C.O.D. 4. _ DelIvely1 (ExtRl Fee) D Yes 7003 1010 0000 9662 5651 102595-02-M-1540 00mestIc Return Receipt r ~ ~ ...D U1 r1J ...D ...D rr U.S. Postal Service,. CERTIFIED MAIL. RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) l:r;urt~ ~pt>J>'1a~.;~ Po_ $ D D D o Return Reclept Fee (Endorsement Required) o Restricted Delivery Fee M (Endorsement Required) D M Certified Fee 2.30 1. 75 Pas,"arl< H.", Total Postage & Fees $ fTl o SentTe r rlS Op er e ey ~ .nn.nnIWome-Y~..-Latham.,...Shean.&.--KeUe)l..n... 51",.,. Ap'. 'No:, PO B 9398 or PO Box No. ox ci,y;s;ai.:ziP.;4....-Ri-~~-~-h~-;;d.:._.-Ny-----l-i-9o-i..-".n....m. PS Form 3800 June 2002 See Reverse for Instructions . Complete Rems 1, 2, and 3. Also complete . Rem 4 W Restricted Delivery is desired.' . Print your name and address on the I'9V8rse so that we can return the card to you. . Attach this card to the back of the mailplece, or on the front W spsce permRs. 1. Article AdcIressed to: Mr Christo?her Kelley Attorney at Law TWomey, Latham, Shea & Kell PO Box 93!J8 Riverhead, NY 11901 D. Isdellvelyaddrass_ 1 U YES, enter deIIveIy add.... below: (Trustees A eal) 2. Article Number (T1llJl_from_1abeI) PS Fonn 3811, AuguSt 2001 3. Service lYpe [JCertifIed Mail CI Elcprass Mall . IllI Registered CI Return Receipt for Metchandlse Cllnsured Mall CI C.O.D. 4. _ad DeIIvery'1 (Extra Fee) CI Yes 7003 1010 0000 9662 5644 Domestic Return ReceIpt 102595-02-M-1540 ru ~ .-'l- IT" U.S. Postal SelOilicem CERTIFIED MAILM RECEIPT (Domestic Mall Only; No Insurance Coverage Provided) I'- ''''',. <,.... ..m.., '" ...~"0 ~ T ru steef A15pi!.j[; '" Postage $ .-'I o Certified Fee D o Return Reelep! Fee (Endorsement Required) D Restricted Delivery Fee r1 (Endorsement Required) .-'I fT1 2.30 1. 75 Postmark Here Total Postage & Fees $ fT1 o SentTo D ~ Mr John Betsch sfie-ei,-Apfiiio:;---u----.-u------umnu..--nn-n-nn-n-n-nn-n-------------- or PO Box No. 3 Wlncester Lane Ciij,-SiSie:zIP+}f;J-riiTri!:ji,(;;;-;mNynml-j-j-43mnnmnmnm PS Form 3800, June 2002 See Reverse for InstructIOns , , SENDER- COMPLETE THIS OECTJON . . . . , . Complete items 1, 2, and 3, Also complete item 4 ~ Restricted Delivery). desired. X . Print your name and address on the reverse so that we can return the qard to you. . Attach this card to the back of the mailplece, or on the front ~ space permits. 1, ArtIcle Addressed to: Mr John Betsch 3 Wincester Lane Huntington, NY 11743 (Trustees Appeal) 2. ArtIcle Number (T1llJl_fromS8l\'/oeIab&/) PS Form 3811, August 2001 3. Service Type ~CertIfled Mall [J Express Mall' III Registered [J Retum ReceIpt for Marchandise [J Insured Mall [J C.O.D. 4. Restricted DalIveoy7 (Extra Faa) [J Yes 7003 3110 0001 8547 9182 pomastic> Return ReceIpt 102595-0241540 ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD September 24, 2004 Erin Crotty, Commissioner State of New York Department of Environmental Conservation 50 Wolf Road Albany, New York 12233 Dear Commissioner Crotty: Transmitted herewith is a copy of the "Appeal of Denial of Coastal Erosion Management Permit ofJohn Betsch, 2235 North Sea Drive, Southold, New York SC1M#1000-54-04- 24. It is being sent for your information in accordance with Southold Town Code Chapter 37, Section 35B. This matter has been assigned to our Assistant Town Attorney Kiernan Corcoran. You may contact him at 631 765-1939 for further information. Very truly yours, e~o~ Elizabeth A. Neville Southold Town Clerk cc: Town Board Town Attorney Town Trustees New York State Department of Environmental Conservation Division of Water Bureau of Program Resources & Flood Protection, 4t" Floor 625 Broadway, Albany, New York 12233-3507 Phone: (518) 402-8151 · FAX: (518) 402-9029 Website.' www.dec.stete.ny.us Denise M. Sheehan Acting Commissioner March 30, 2005 RECEIVED APR ] 2005 Mr. Kieran Comoran, Esq. Town of Southold 54375 Route 25, PO Box 1179 Southold, NY 11971-0959 < outhol Town Oer Dear Mr. Corcoran: Thank you and Trustee, Albert Krupski, Jr. for responding to my inquiry of December 8, 2004 by forwarding a copy of Resolution No. 820 of 2004 and the minutes for the November 4, 2004 public hearing held to hear the John Betsch variance appeal. The intbrmation you sent to me on December 22, 2004 highlighted a discrepancy between the size of the footprint that was allowable under the variance granted and the size of the proposed footprint established on the plans that were presented to the Town. Specifically, on November 16, 2004, by adoption of resolution 820 of 2004, the Town' Board granted a variance to John Betsch, %.. from the requirements or the Toxvn or Southold Coastal Erosion Hazard Areas Law, to the extent that his project conforms to the application considered herein." Under the findings of the determination the following was ~vritten: "The variance requested is the minimum necessary to overcome the practical difficulty or hardship. The proposed reconstruction will be comprised of approximately 1,800 square feet of residential footprint and living space, plus approximately 600 square feet of garage. This proposal is an increase of approximately 33% above the current seasonal use structure, which covers a footprint of approximately 1,800 square feet." However, after continuing to work with tile Town in answering CEHA administration questions, it has become apparent that the original plans for the Betsch property are still being used. The original plans provided with the survey of the property, prepared by John C. Ehlers Land Surveyor, shows 3,000 square feet of ground coverage (residential structure) and an additional disturbance of approximately 2,000 square feet from tile construction ora new proposed driveway, all within CEHA jurisdiction. These plans currently being reviewed show an unacceptable increase in ground coverage and disturbance to the Natural Protective Feature Area that is not the minimum necessary to overcome the practical difficulty or hardship demonstrated. The plans that have been referred to contradict the size of the variance that was granted. Additionally, it was noted that the Trustees were required to review the project for conformance with wetland regulations after the issuance of the previously mentioned variance. This is unusual in that it is common to review variances with consideration for all relevant site limitations and restrictions such as necessary setbacks from tidal and freshwater wetland areas and required property line and road setbacks. It is my understanding that wetland setbacks were only considered after the granting of the variance from CEHA restrictions to build a structure ora specific size. It is good practice to determine all of the limitations oa a building envelope before determining ifa variance can be granted and especially before determining the size of the structure to be varied. Please provide information that resolves the discrepancy between the footprint of the site design presented to the Town Board and the footprint allowed by the variance that was issued. I look forward to any clarity to this issue that you may be able to provide. If you have any questions about this matter or Coastal Erosion Management, please contact me at (518) 402- 8151. Sincerely, Environmental Program Specialist Coastal Erosion Management Unit CCi Town Board, Southold Albert Krupski, President, Board of Trustees, Southold Eric Star, Environmental Program Specialist, NYSDEC Region 1 Albert J. Krupski, President James King, Vice-President Artie Foster Ken Po]iwoda Peggy A. Dickerson Town Hall 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-1366 TO: FROM: DATE: RE: BOARD OF TOWN TRUSTEES TOWN OF $OUTHOLD Southold Town Board Board of Trustees January 11,2005 John Betsch 2325 North Sea Dr., Southold SCTM#54-4-24 RECEIVED JAN 12 2005 Southold Town Clerk Recently, our Board of Trustees has discovered that some of the information on which the Southold Town Board based its variance decision on the Betsch application was erroneous. The scale of the survey, which was used in the review by the Town Board, is inaccu rate. Since percentage of Addition and house size as verified by a survey is the issue of the related variance under Chapter 37, this discrepancy between what the Board reviewed and what was real and accurate could be significant. Currently, our Board of Trustees has been requested by the applicant to begin a review of their Coastal Erosion Hazard and Wetlands applications for the other standards of Chapter 37 and all of Chapter 97, respectively. A complete review cannot be made on any application with inaccurate information. Since this is still under Town review, and since NYS DEC Coastal Erosion group in Albany and Stony Brook has taken a specific interest in this property and your procedures in issuance of a variance, it would seem advisable for you to review your variance decision using an accurate survey. A copy of the revised survey, recently submitted by Mr. Betsch, is attached for your perusal. Please advise soon as our next Public Hearing is on January 19, 2005. Attachment Copy to Kieran Corcoran--Assistant Town Attorney SUR'VI?K OF PROPERTY' 51TUATE.' 50UTHOLD TOINN-. 50UTHO~ D .SUR=OLK ~'I'¢, N'r' ! ! ! /; N ~ 21-OD EL-~.2~ 0.0' 4 · ~ONUI'~ENT FOUNO ®RAPHIC 5GALE I"= 20' STREET N.Y.S. LIC. NO. 50202 RIVERHEAD, N.Y. 11901 369-8288 Fax 369-8287 REF.\~Hp serve~d~PROS\02-294B .pro ELIZABETH A. NEVILLE TOWN CLERK REGISTHAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hail, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF $OUTHOLD THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 820 OF 2004 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON NOVEMBER 16, 2004: WHEREAS, the Board of Trustees on August 18, 2004, denied the application of John Betsch (the "Applicant") for a permit under the Coastal Erosion Hazard Areas Law (the "Law") of the Town of Southold; and WHEREAS, on September 20, 2004, Mr. Betsch submitted an application to the Town Board of the Town of Southold, as the governing Coastal Erosion Hazard Board of Review, seeking to appeal the determination of the Board of Trustees, or in the alternative, seeking a variance from the requirements of the Law; and WHEREAS, the Town Board did transmit a copy of the instant appeal to the New York Department of Environmental Conservation; and WHEREAS, on November 4, 2004, the Town Board conducted a duly noticed public heating on the instant appeal with opportunity for all interested parties to be heard; and WHEREAS, on November 8, 2004, the Town Board received a copy of a letter from the Coastal Erosion Management Unit of the Department of Environmental Conservation; it is hereby RESOLVED, that the Town Board of the Town of Southold does hereby make the following findings: The determination by the Board of Trustees that the proposed activity is to be conducted in a primary dune area and constitutes a prohibited activity under §37-16 of the Coastal Erosion Hazard Areas Law, in the absence of a variance from this Board, is upheld. The criteria for a variance as set forth in §37-30 of the Coastal Erosion Hazard Areas Law have been satisfied, as follows: (a) Strict application of the standards and restrictions of the Coastal Erosion Hazard Areas Law will subject the Applicant to practical difficulty and unnecessary hardship, inasmuch as the entirety of the Applicant's property is situated in the designated natural protective feature area. As such, the relatively modest reconstruction of the Applicant's seasonal home to a year-round home as proposed, on pilings in an ecologically sound manner as compared to the present structure, would be prohibited by the Law. Moreover, the Applicant is unable to move the proposed reconstruction to any area of the property without running afoul of the Law. (h) Applicant owns no other site in Town on which to construct a year-round home, and the proposed project may not be located on any other portion of the property without the need for a variance. (c) Applicant has incorporated all responsible means and measures to mitigate adverse impacts on natural systems and their functions and values have been incorporated into the activity's design at the property owner's expense. The Applicant's proposal includes measures to protect the natural protective area, by constructing a home on pilings, in compliance with all FEMA regulations, and incorporating an upgraded septic system. (d) For the reasons stated above, the development will be reasonably safe from flood and erosion damage. In addition, evidence has been submitted that this property has been accreting, rather than eroding, in recent years. Given the proposed transition from a foundation to pilings, the reconstruction will be safer from potential flood and erosion damage than the existing structure. (e) The variance requested is the minimum necessary to overcome the practical difficulty or hardship. The proposed reconstruction will be comprised of approximately 1,800 square feet of residential footprint and living space, plus approximately 600 square feet of garage. This proposal is an increase of approximately 33% above the current seasonal use structure, which covers a footprint of approximately 1,800 square feet. Moreover, the proposed structure, flanked on one side by a municipal beach parking lot and in the immediate neighborhood of larger residential homes, is in keeping with the character of the neighborhood and immediate neighbors have expressed approval of the project. (f) No public funds are to be utilized in this Project. (g) Upon consideration of the foregoing, it is hereby further RESOLVED that the Town Board of the Town of Southold hereby grants John Betsch a variance from the requirements of the Town of Southold Coastal Erosion Hazard Areas Law, to the extent his project conforms to the application considered herein; and BE IT FURTHER RESOLVED, that this determination by the Town Board of the Town of Southold is classified as a Type II action under SEQRA with no further review required; and BE IT FURTHER RESOLVED, that this determination shall not affect or deprive any other agency of its properly asserted jurisdiction, separate and apart from the proceedings under the Coastal Erosion Hazard Areas Law considered herein. Elizabeth A. Neville Southold Town Clerk PATRICIA A. FINNEGA~ TOWN ATTORNEY patricia.finnegan@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran@town.southold.ny.us LOKI HULSE MONTEFUSCO ASSISTANT TOWN ATTORNEY lori.montefusco@town.southold.ny.us JOSHUA Y. HORT01~ Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD To: From: Date: Subject: MEMORANDUM Members of the Town Board Kieran M. Comoran, Assistant Town Attorney November 8, 2004 Appeal of John Betsch Enclosed is the response from the DEC with respect to I~lr. Betsch's appeal. As you will see, aside from making various corrections'to the assertions made by the applicant, the DEC takes the position that the proposed reconstruction will occur in a primary dune area. As stated in my prior Memorandum, if the Board accepts this conclusion, which was also the conclusion of the Trustees, Mr. Betsch would need a variance from the Town Board in order to proceed with his project. Accordingly, in that case, Mr. Betsch would be required to meet the variance criteria that were outlined in my Memorandum and at the November 4 hearing. KMC/Ik Enclosure cc: Patricia A, Finnegan, Esq., Town Attorney Elizabeth Neville, Town Clerk~ New York State Depa nt of Environmental Division of Water Bureau of Program Resources & Flood Protection, 4t~ Floor 625 Broadway, Albany, New York 12233-3507 Phone: (518) 402-8151 · FAX: (518) 402-9029 Website: www.dec.state.ny.us Conse~ation Edn M. Crotty Commissioner November 4, 2004 Mr. Albert J. Krupski, Jr., President Board of Trustees Town of Southold 53095 Main Road., PO Box 1179 Southold, New York 11971 Dear Mr. Krapski: NOV - 8 2004 On September 30, 2004, an appeal to the denial of a Coastal Erosion Hazard Area (CEHA) pemfit for an application requesting permission to demolish an existing house and reconstruct a substantially larger structure in the Natural Protective Feature Area (NPFA) was forwarded to the Commissioner of this Department by the Southold Town Clerk. Thank you for providing this information as directed by Southold's local law, Chapter 37, Section 35B. After reviewing the appeal prepared by Christopher Kelley of Twomey, Latham, Shea & Kelley on behalf of John Betsch, it is necessary to correct some misinformation that has been asserted in this document in regard to Coastal Erosion Hazard Area regulations and information that the Department has provided to both the applicant, John Betsch and the Town of Southold. The following items are responses to clarify specific sections of the appeal which paraphrase information that was provided and to clarify interpretations of the coastal regulations which are incorrect: 1) Page 3, second paragraph states, "Mr. McDonough indicated that the proposed project was 'generally approvable by the State standards.'" .The above statement needs to be pJaced in the proper context. A minor addition to an existing structure (less than 25% increase in ground coverage of the structure) is generally approvable providing it meets permit issuance standards. However, demolishing an existing structure and replacing it with a new structure is not allowed under coastal regulations and is therefore, prohibited. Increasing the ground area coverage of existing structure by 25% or more is also prohibited. If an activity is prohibited, it cannot be issued a CEHA permit without first being granted a variance. Furthermore, although major additions or reconstructions are considered regulated activities, being a regulated activity does not lead to the conclusion that it is an activity for which a Coastal Erosion Management Permit could be issued as asserted on page 4, third paragraph. The fact that they are regulated means that the activities fall under purview of CEHA regulations as compared to an unregulated or exempted activity for which coastal regulations do not apply. As listed above, major additions and reconstructions are regulated activities and are prohibited in primary dune areas as well as other Natural Protective Feature Areas (NPFA) such as beaches, bluffs, and nearshore areas. Again, prohibited activities can only be permitted by issuing a variance. 2) On page 8, the last paragraph reads in part, 'Tqo justification has been offered by the DEC or the Trustees for the arbitrary placement of the Coastal Erosion Hazard Line along North Sea Drive." The CEHA line has not been arbitrarily placed as stated in the referenced document but, rather was placed following the guidelines and procedures set forth in Article 34 of Environmentgl Conservation Law. The CEHA line is not arbitrarily mapped but in fact, was located after reviewing aerial photography supplemented by information obtained by field inspections. A preliminary CEHA map public hearing was held on July 19, 1984 and the maps were made available to the public for inspection and comment during these preliminary identification mapping efforts. Final maps were then prepared based on comments and information received by the Department during the public hearing and comment period. The final identification of CEHA maps, including amendments made fi.om information provided at the public hearing, were filed on September 14, 1988 with the Town of Southold. Any additional changes to the CEHA maps are made by only the Department through periodic map revisions and fi.om successful CEHA line designation appeals. All map changes are filed with the Town of Southold, with Suffolk County, affected property owners, and the Department of State. The portion of the property for which John Betsch has proposed construction on is located within a NPFA. The Natural Protective Feature (NPF) that has been identified is a primary dune. ~[tached you will find a diagram illustrating the general profile of a dune. The landwerd hmlt of CEHA jurisdiction is 25 feet from the landward toe of the dune which place3 it on the edge of North Sea Drive. There have been no Structural Hazard Areas identified in the Town of Southold. A Structural Hazard Area consists of shorelands located landward of natural protective features that have shorelines receding at a long-term average annual recession rate of one foot or more per year. A long-term annual recession rate of one foot or greater has not yet been established in any portion of the Town of Southold. 3) On page 8, the last paragraph reads in part, "...Mr. Betsch should not be required, as suggested by the DEC, to finance their reevaluation and reconsideration of the erroneous placement of the line along North Sea Drive before he is permitted to rebuild his home." In reply to this inaccurate statement, the Department has never requested an applicant to finance a CEHA designation appeal. The only relevant requirement for an applicant to appeal a CEHA designation is that the applicant owns real property within the designated erosion hazard area and that the sole acceptable basis for an erosion hazard area designation appeal is technical information indicating that: (1) the long-term ayerage annual rate of shoreline recession was incorrectly established; or (2) the subject area was erroneously identified as a natural protective feature area (6NYCRR 505.10). Since there is no Structural Hazard Areas identified in the Town of Southold, the only basis for appeal is on the proper identification of the NPFA. An applicant would also have to fill out a Coastal Erosion Hazard Area Appeal Designation form (enclosed) and submit it to the Department. As of yet, John Betsch has not submitted a request to appeal the NPFA designation. The document you forwarded to the Department contains a number of incorrect statements. This letter is intended to correct the misinformation presented in the document specific to what information was provided by the Department to the applicant or Town, the role of the Department in the initial identification of NPFA's, and to assist the Town in its management of its local CEHA program by clarifying how the regulations apply to the types of development activities suggested in the appeal document. I hope this helps clarify any questions that have arisen from the appeal document forwarded to the Town of Southold and subsequently to the Department. If you have any questions about this matter or Coastal Erosion Management, please contact me at (518) 402-8151. Enclosure C2 Sincerely, Environmental Program Specialist Coastal Erosion Managemg/it Unit Kieran Corcoran, Assistant Town Attorney, Southold ~ Heather Tetrault, Environmental Technician, Southold Eric Star, Environmental Program Specialist, NYSDEC Region I PA'~RICIA A. FINNEGAN TOWN ATTORNEY patricia, finnegan~,town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoren@town.southold.ny.us LORI HULSE MONTEFUSCO ASSISTANT TOWN ATTORNEY lori.montefusco~town.southold.ny.us JOSHUA Y. HORTOIq Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD MEMORANDUM To: Members of the Town Board From: Kieran M. Corcoran, Assistant Town Attorney Date: November 1,2004 Subject: Appeal of John Betsch/Coastal Erosion Hazard Law Mr. Betsch has appealed the Trustees' denial of his application for a coastal erosion management permit for the reconstruction of a larger home in place of their existing cottage on North Sea drive in Southold (immediately west of the McCabe's beach parking lot). The Trustees' decision concluded that Mr. Betsch's property was in a "dune area" under the Town's Coastal Erosion Hazard Law, and that he sought to pursue a "major addition". In primary and secondary dune areas, only "nonmajor additions" are allowed pursuant to the grant of a permit (subject to permit requirements). Mr. Betsch's papers spend a lot of time distinguishing his project as a "reconstruction" as opposed to a "major addition". However, if one accepts the Trustees' conclusion that the property is in a "dune area" (dune is defined as a ridge or hill consisting of loose sand), it is immaterial whether the project is a major addition or a reconstruction; both are prohibited without a variance from the Town Board. In determining whether to grant a variance, the Board must consider whether the applicant will suffer "practical difficulty" or "unnecessary hardship" and has satisfied the following criteria: A. No reasonable, prudent, alternative site is available. All responsible means and measures to mitigate adverse impacts on natural systems and their functions and values have been incorporated into the activity's design at the property owner's expense. The development will be reasonably safe from flood and erosion damage. The variance requested is the minimum necessary to overcome the practical difficulty or hardship which was the basis for the requested variance. Where public funds are utilized, the public benefits must clearly outweigh the long-term adverse effects. The applicant contends that the house is immediately adjacent to a Town parking lot, that other properties in the area have been similarly improved, and that the property is accreting, rather than eroding. The stated hardship is the alleged mis-placement of the Coastal Erosion Hazard Line in the middle of North Sea Drive, such that the entirety of applicant's property is behind the line, without any demonstrable erosion; and that petitioning the State to move the line would be unduly expensive and time-consuming. If the Board is inclined to grant such a variance, it should do so with direction that the matter be referred to the Trustees for compliance with SEQRA. The Trustees informed L~Sthat the DEC would be submitting a position paper on this matter; despite ~forts to contact them, they have not done so as of the writing of this Memorandum. KMC/Ik cc: Patricia A. Finnegan, Esq., Town Attorney Elizabeth Neville, Town Clerkv'"" SOUTHOLD TOWN BOARD PUBLIC HEARING November 4, 2004 9:00 A.M. HEARING ON JOItN BETSCIt APPEAL OF TRUSTEE I)ECISION~ SCTM #1000-54-4-24 Present: Supervisor Joshua Y. Horton Justice Louisa P. Evans Councilman John M. Romanelli Councilman Thomas H. Wickham Councilman Daniel C. Ross Councilman William P. Edwards Town Clerk Elizabeth A. Neville Assistant Town Attomey Kieran Corcoran SUPERVISOR HORTON: NOTICE IS HEREBY GIVEN that the Town Board of the Town of Southold hereby sets November 4, 2004 at 9:00 a.m., Southold Town Hall, 53095 Main road, Southold, New York as the time and place for a public hearing on the question of appealing the determination of the Southold Town Trustees dated August 18, 2004, which decision denied the application of John Betsch to construct a two-story, single-family dwelling, in place of his existing dwelling. The property in question is identified by SCTM# 1000-54-4-24. The application was denied under Chapter 37 (Coastal Erosion Hazard Areas) of the Town Code. A more detailed description of the above mentioned application is on file in the Southold Town Clerk's Office, 53095 Main Road, Southold, New York, and may be examined by any interested person during business hours. SUPERVISOR HORTON: That the hearing has been properly noticed in the official paper of Southold Town Board, the Suffolk Times, for the year 2004. Also posted on the bulletin board in relation to a request for a variance from the decision of the Southold Town Trustees in relation to Chapter 37, the Coastal Erosion Hazard Areas code. Moved by Supervisor Horton, seconded by Councilman Romanelli, it was RESOLVED that this hearing on the Appeal of John Betsch regarding the Trustees decision in relation to Chapter 37 of the Southold Town Code be declared open. Vote of the Town Board: Aye: Councilman Edwards, Councilman Ross, Councilman Wickham, Councilman Romanelli, Justice Evans, Supervisor Horton. This resolution was duly ADOPTED. November 4, 2004 2 Public Hearing--Betsch Appeal SUPERVISOR HORTON: We have commenced public hearing and I open the floor to the gentleman · standing at the podium. CHRISTOPHER KELLY: Christopher Kelly of Twomey, Latham, Shea and Kelly for the applicant, John Betsch. I understand that this is a sort of a rare type of application for this Board to consider and I just want to make it clear what you are considering here. There was an application made to the Trustees in their role as administrators of the Coastal Erosion Hazard Act provisions to the Town Code, Chapter 37. We submitted to that Board that there should be a permit issued for this application we will discuss today, as-of-right. That permit was denied (inaudible). The first step, the reasons that I will go into were alternatively to grant the variance (inaudible), so there is two ways that the applicant can receive relief here from this Board. One is through a variance and the other is simply through a reversal of the Town Trustees. I would like to go over a little bit about the facts of the application. I have some visuals I want to show you so you get a sense of the neighborhood. You have all received a packet and the packet that you have got is a cover letter with essentially the record from the Town Trustees proceeding. The property consists of 26,812 square feet, located on North Sea Drive in Southold. Take Horton's Lane up, essentially north of here, you will run into North Sea Drive. It is right around the comer there. The property fronts on the Long Island Sound and is zoned R-40. It is improved with a one-story house built on a concrete block foundation. The ground coverage is 1,782 square feet. You will notice that located east of this property is a public beach with parking lot called McCabe's Beach. To the west of Mr. Betsch was expanded pursuant to a Trustees Coastal Erosion Hazard Act permit. The owners of that residence I believe are here today. The Pearlstein's have told us they have no objection to the application we are making. The applicant proposes to demolish the existing house and construct a new house of two-stories. The square footage of the, the footprint would expand to 2,800 square feet for the house and deck, 1,000 of that in decking and a 600 square foot garage, the second story would be 1,000 square feet. The habitable space of the house would increase to 2,800 square feet. So that is what we are talking about in terms of a house. We are not talking about a McMansion here. It is a very reasonably sized house. The new construction would increase the footprint on the property by 53 percent. All construction is at least 118 feet from the edge of, from the mean high water. Now, why this permit is required here, the reason we came before the Trustees and why we are now here before you is because of an unusual jog in the Coastal Erosion Hazard line. That line parallels the coast of the Sound but it takes a jog just west of our property, the applicant's property, going north and running down the middle of North Sea Drive. As a consequence, we have no ability, our applicant has no ability to move behind the line for his construction. Neighbors to the west of us have either gotten approval to reconstruct or expand their homes, see where the line, or have had the ability because of the location of the line vis-h-vis their property, to move behind the line. And I will show you how that line looks in a second. Three aspects of my presentation today and I will keep it as brief as possible, I know you have a big agenda, first of all, I want to just talk to you about the practical side, the equity argument that the applicant has here. I also want to talk to you about why we believe we were entitled to a permit as-of-fight by the Trustees and why that determination denying that permit should be overturned and lastly, if you should reject the argument that we are entitled to a permit as-of-right, I would submit to you that we have established a criteria entitling us to a variance. Let's deal with the practical side first, that would be pretty much on these visuals. First, this gives you an idea of the coast here, the Sound, and the various property owners who have recently constructed, expanded; re-built their houses. Starting from the west here, you can see the Paskoff residence, and this by the way, this black line here, is the Coastal Erosion Hazard line. Now, it bifurcates many of these lines but then jogs to the south so that it is up November 4, 2004 3 Public Hearing--Betsch Appeal against the road so that these properties along here have no ability to build behind that line. The whole of their property is in front of that line, on the water-side of it. This is the Betsch property, the applicant's property fight here. This is the neighbor, who has recently expanded, the Pearlstein's. They are here today. Their expansion was by our calculations, 67 percent of the building, of the additional envelope size. This is Vail right here, see this building was raised, a rather substantial structure. VonZuben, farther down from us, is one of the more recently constructed or re-constructed or enlarged. And they had the same issues. I am not certain whether these were granted variances or whether they got permits as-of-right. But we are in the position, our permit request, we are on the sea- ward side of the line. That is the same thing as a tax map, you can see where our lot it, you can see the size of the lots; this is the beach parking lot. You can see what these houses look like. So our first practical consideration is that the construction that we are talking about is consistent with the rest of the neighborhood and the permits that have been granted or the constructions that have been allowed to proceed in the neighborhood to the west. Another practical consideration here is that the Pearlstein's have indicated they have no objection to the application, they are immediately adjacent to the west. The two neighbors in the rear, Vazquez, I have an e-mail. COUNCILMAN ROSS: We have a letter from Vazquez. MR. KELLY: And I think a letter from Chihlas, as well? So, those are the two property owners immediately to the south, across the street and they have no objection to the application. Now, one of the issues here, one of the policies behind the Coastal Erosion Hazard act is to prevent erosion and to prevent the destruction of natural features that may protect against erosion. What we were able to show the Trustees, through an affidavit of our surveyors, is that contrary to what you might think, this property is not eroded but it is actually but it is actually accreting over a time, expanding the width of the lot by 24 feet. So there has actually been the opposite of erosion on this lot. We mentioned the parking lot is next door. The new construction we are proposing will actually make the current residence less non-conforming because on the old Zoning Code requirements, with respect to setbacks. But also, most importantly, meet all the construction requirements of FEMA. This house will be put on pilings, as new construction has to be, to prevent erosion and flood damage. The DEC has indicated they have no jurisdiction over this application; that was so indicated to the Trustees. Now, when we below, this word below with the Trustees~ we argued that we had the right to a permit without the need for any variances. That was based on two things. First of all, nobody can tell us what the natural feature or what our lot was classified as. It wasn't a beach, it wasn't clearly a dune, it wasn't clearly a bluff but they assumed it was something. At the end of the day, they issued a decision without any evidence to the record, they determined that it was a primary dune. In fact, we take exception to that. They also said that this was a major addition, when it is not a major addition; it is brand-new construction. There is no building that is going to be remaining that we are going to add onto. It is totally new construction. It is, however, regulated activity but it is a permitted activity. And the Trustees seem to get lost in what this was and what type of feature we were impacting. They never got to the three criteria, which we submitted they were required to and that is 1.) Whether the construction was reasonable and necessary, considering the reasonable alternatives. Whether it was likely to cause a measurable increase in erosion or whether the construction prevents or minimizes the adverse effects on natural protective features and other natural resources. And we submitted evidence as to why we satisfied each of those criteria here. The Trustees got lost in the issue of whether it was a major addition, whether it was a dune, whether it was a bluff and erroneously held that this was a major addition on a primary dune and therefore they did not have the power to grant the relief we were November 4, 2004 Public Hearing--Betsch Appeal 4 seeking, which is why we are here today. We are here, A.) for asking you to determine that they were incorrect in that ruling but B.) if they were, giving us a variance, since you are the only Board that is off sitting as the Board of Review for their decisions under the Coastal Erosion Hazard Act. We are asking for you to grant a variance. Now we submitted to them that there were no reasonable alternatives to this, we don't have the ability to move the house back, as we have said, because the line is in the road. There is a trend in this neighborhood and my clients are part of that trend, to winterize the formally summer houses to make them year-round houses and to retire out here. This house they currently have has no heat, it has not been winterized, it is not suitable for habitation in non-summer months. The application, because of the compliance with FEMA regulations will be more protective of natural features and less likely to cause erosion from flood damage. So for those reasons, we thought that we should have gotten the issuance of a permit as-of-right. Now, and another reason too, in terms of character of the neighborhood and simple equity, what has been approved and allowed to be constructed in the vicinity, the house proposed will actually be smaller than some of these other houses that were constructed immediately to the west, under the same conditions. JUSTICE EVANS: On these other properties, where is the Coastal Hazard....as far as the other .... MR. KEELY: That is one of the interesting things .... JUSTICE EVANS: Is the Betsch house the only one that is sort of on the other side? MR. KELLY: Pearlstein had a similar issue but they were partially behind the line. Oh, no, wait a second. No, according to this, they were completely in front of the line as well. Some of the houses over here, you can see had area behind the line, that they could move back. JUSTICE EVANS: But there have been other ones that have been completely in front of the line, too? MR. KELLY: Yes, yeah. According to this map, Pearlstein was completely in front of the line. You can see the houses. Now, what I would like to do is give you a sense of what this house would look like. SUPERVISOR HORTON: So that means, in regard to the, and I appreciate that but in regard to our decision, I am not so sure the aesthetics of the home is, feel free, but I don't think our decision will, can or should be grounded in... MR. KELLY: Just to give you a sense, this is what the house looks like, so that you get a sense, too, of the mass. It is an unusual shape. If you look at the survey, too. Have you ever seen a stealth fighter, it kind of looks like a wedge? This is what the house, the footprint of the house would look like, on the property. It is unusual. So, although this is the front elevation, it gives us, it looks more massive in two dimensions than it does in three because this is what you are actually looking at. This is the blueprint. Now, if you should decide that we were entitled to a permit as-of-right, the Trustees .... SUPERVISOR HORTON: You could just build a stealth house and we would never know. MR. KELLY: Right. November 4, 2004 5 Public Hearing--Betsch Appeal JUSTICE EVANS: Can I just ask a question? You are saying the Trustees determined it was a primary dune? MR. KELLY: Yeah. JUSTICE EVANS: And what are you contending that it is? I mean, are you contending that it is something so the Coastal Erosion Act doesn't even apply? Or are you saying that... MR. KELLY: You could argue, if you look at the topography of the lot, you could argue that the bluff exists way out in front of where the construction is. Because you can see where the elevation is. You could call that a bluff and a primary dune and call us, you know, 75 feet behind it. But the talked to the DEC and they looked at it themselves; there was no evidence in the record as to what exactly it was. We would submit that we are behind, essentially a bluffor primary dune. SUPERVISOR HORTON: And for the information of the Board, we are still waiting on correspondence from the DEC to this Board. We were hoping it would have arrived yesterday but it hasn't. MR. KELLY: You could argue, I would argue that that is... COUNCILMAN ROSS: A primary dune? MR. KELLY: That is a primary dune. SUPERVISOR HORTON: But we are waiting for that. MR. KELLY: Now, with respect m appeal, you have the power to grant, excuse me, with respect to the variance, you have the power under section 37-30 of the Code to grant a variance. Them is specific criteria in the Code, very similar to the area variance criteria, if any of you are familiar. (Inaudible) served on the Zoning Board of Appeals, similar to those type of criteria, relative to an area variance. The first one is that there is no reasonably, reasonable prudent alternative site available. There is no reasonable, prudent site available. They own no other property in Town, there is no property that they have that is behind the line; landward of the Coastal Erosion Hazard line, that could be constructed on. Next criteria is, whether all reasonable means and measures to mitigate adverse impacts on the natural systems and their functions have been incorporated. We have done so by making this house totally compliant with FEMA and having it built on pilings. And you will recall the policy behind FEMA pilings rules is so that if you have a 100 year flood, it comes across the land, washes under the house, and it is not bottling up the energy that comes ashore with wave action; that would flow under the house, in case of that drastic type of storm. Next criteria you need to consider is whether the development will be reasonably safe from flood erosion damage. Again, we will be incorporating all the things we need to, all the latest technology and building code in terms of preventing floods, erosion damage, which are not incorporated in the existing structure, which is just built on a concrete block foundation. Next criteria is whether the variance requested is the minimum necessary to overcome the practical difficulty or hardship and the variance we are asking for is to be able to build, if you are calling this a primary dune or if you are calling it some effect feature where construction is otherwise prohibited, yes, there is no other place for us to put this. This is the minimum necessary, in that we November 4, 2004 6 Public Hearing--Betsch Appeal can't put it anyplace else. We have tried to keep the house as modest as possible. Again, I remind you it is a 2,800 square foot of living space. The last criteria is whether public funds are utilized. That is not really applicable to this application. So, in summary, I suggest to you we are not proposing a McMansion; the neighbors have supported this application; there is no evidence that this proposal will increase the likelihood of erosion, flood damage. We have done everything that we could. We have been before the Trustees now for over eight months. We went through four public hearings. The neighborhood is clearly developed. As you can see, that these types of houses, that we will be consistent with that, in fact, smaller than several of these houses. And as a matter of fact, we submit that the development should be allowed to proceed (inaudible.) So what we are asking from you is a resolution either overturning the Trustees decision or granting a variance. JUSTICE EVANS: And do the Trustees not have the ability to look at the variance issue? MR. KELLY: Correct. JUSTICE EVANS: They just purely turned down your permit on grounds that it is not... MR. KELLY: Their determination was that it didn't comply with the as-of-rights provisions of Chapter 37. JUSTICE EVANS: And we are the only Board that can grant a variance? SUPERVISOR HORTON: Yes, that is correct. MR. KELLY: You are the appeal Board. SUPERVISOR HORTON: The Town Board wrote the law. MR. KELLY: And it is modeled after what the DEC form law was when you take from the DEC the right to administer the law. And most of the municipalities have done that, you have to have a safety outlet, an appeals court. SUPERVISOR HORTON: Is there anything else you would like to share with the Board? MR. KELLY: I would be happy to answer any questions, my client is here, Mr. Betsch; if you would like to ask him any questions. SUPERVISOR HORTON: Maybe what I will do is, I will open the, before we get into questions the Board may have, I will again offer the floor to anybody else from the public that may want to address the Board on this matter? Yes? BRUCE ANDERSON: Bruce Anderson. I have just one, I thought I heard him say .... SUPERVISOR HORTON: For the record, could we have your name and the place of residence? November 4, 2004 7 Public Hearing--Betsch Appeal MR. ANDERSON: Bruce Anderson, Southold, New York. I thought I heard the statement made that you were waiting for some sort of(inaudible) from DEC. Did I hear that? SUPERVISOR HORTON: We are waiting on, yeah, a piece of correspondence from the DEC, that is correct. We had hoped that it would come in today, I mean yesterday, but it hadn't arrived. MR. ANDERSON: Is it the practice of this Board that you would take this and then defer to the DEC? SUPERVISOR HORTON: No, but it is the practice of the Board to entertain all pertinent correspondence. MR. ANDERSON: Okay. SUPERVISOR HORTON: Coordinated review. MR. ANDERSON: So they will be responding in some fashion? SUPERVISOR HORTON: That is correct. KIERAN CORCORAN, ASSISTANT TOWN ATTORNEY: It is a requirement of our law to forward the application to the DEC when it is submitted, which the Board did do. The DEC has stated that it would be submitting a letter, not absolutely necessarily taking a position on the application but giving its view on the importance of the law. We haven't received that yet. SUPERVISOR HORTON: Right, thank you. MR. KELLY: The DEC has no jurisdiction and that they also indicated that this is an approvable plan, which needed to be submitted to the DEC. SUPERVISOR HORTON: Right. Would anybody else care to address the Board on this matter? JOHN BETSCH: I am John Betsch. Just one point you didn't mention, Josh, I think xve are waiting for some information from the DEC. At one point in time, the Trustee's said that they wanted to meet with the DEC, I think that was in May. They had to postpone the meeting. They had a meeting in June with the DEC, they came down and talked about it and looked at it and did not come up with the protective features, they said they could not determine at the time. And they had also in June, promised some information to the Trustee's about regulations, which nothing ever came. Just for your information. SUPERVISOR HORTON: Just to make it so that we all tmderstand. We are not looking for the DEC to tell us what om' decision is. As a matter of practice and we have just received this, and as soon as we got it we set the hearing. And a determination will be issued by this Board in a timely fashion, you won't have to, you know, you won't go through eight months of hearings and correspondence. But as a matter of practice, we do provide opportunity for other agencies to comment and it has proven effective for us in the past and so we will be receiving a piece of correspondence from the DEC. November 4, 2004 8 Public Hearing--Betsch Appeal MR. BETSCH: The DEC in Albany or Stony Brook? SUPERVISOR HORTON: Chances are that it will come out of the Regional Directors office. Alright, thank you very much, Mr. Betsch. Would anyone else care to address the Town Board? Alright. Does the Board have any questions? COUNCILMAN ROSS: Just a couple of questions. You indicated that the neighbors have been in support of it. Was there any opposition at any of the Trustee meetings? MR. KELLY: No, I don't believe so. COUNCILMAN ROSS: And .... MR. KELLY: Which can be verified by the Trustee's Office. COUNCILMAN ROSS: Whether this is a major or not didn't seem to be contested before the Trustees. The Trustees said it would apply as a major. Is that an issue? MR. KELLY: It is an issue if you are looking at the as-of-right argument. If it is as, our argument was that it is not a major addition because we are not adding on to a house, we are building a total new construction. Therefore and it is a definitional quirk but it is new construction, not a major addition. We argued throughout that it wasn't a major addition therefore we have as-of-right. We could apply as-of-right. COUNCILMAN ROSS: So if it is not a major, if it is a major you need a variance? MR. KELLY: Correct. COUNCILMAN ROSS: If it is not a major, you do not need a variance? MR. KELLY: Correct. COUNCILMAN ROSS: And the Trustee's indication that whether it was a major or not was not at issue, is incorrect .... JUSTICE EVANS: (Inaudible) new construction .... SUPERVISOR HORTON: Could we just have one at a time? COUNCILMAN ROSS: It is an issue as to whether it is a major or not? And the applicant says it is not a major? MR. KELLY: Yes, and our argument is they were incorrect in determining it was a major. SUPERVISOR HORTON: Louisa, do you want to make your point? November 4, 2004 Public Hearing--Betsch Appeal COUNCILMAN ROSS: I am not finished yet. JUSTICE EVANS: I an~ going to ask Kieran this, what does the law say it is supposed to, from additions versus new construction? ASSISTANT TOWN ATTORNEY CORCORAN: If the Trustee's determine that this wasn't a dune area or primary dune, okay, in primary dunes only non-major additions are allowed without a variance. JUSTICE EVANS: So with that being .... ASSISTANT TOWN ATTORNEY CORCORAN: Non-major additions, okay? COUNCILMAN WICKHAM: i.e. small additions? JUSTICE EVANS: Well, it doesn't address that, that is the problem. ASSISTANT TOWN ATTORNEY CORCORAN: There is no i.e., it is just not a major. COUNCILMAN ROSS: Whatever a major addition is. ASSISTANT TOWN ATTORNEY CORCORAN: Well a major addition is 25 percent or less as defined in the code. So, if it is anything but, if you accept that it is a dune area, and that is what you do accept or reject but if it is a dune area and it is not a non-major addition, it needs a variance and then you go to the variance criteria. SUPERVISOR HORTON: Okay, so we have a, our job is fairly well laid out before us, I think what we should ask of the Town Clerk, to expedite the minutes of this hearing? We can review them over the weekend. I will call Director Scully's Office today to let him know we need their correspondence by tomorrow. We can review it all over the ~veekend and we have another meeting on Tuesday and if we can discuss it with legal counsel and issue a determination at that point. COUNCILMAN ROSS: Is the DEC going to respond as to what this is? Is that what we are waiting for from the DEC? ASSISTANT TOWN ATTORNEY CORCORAN: I understand that the DEC's position is that it is a primary dune. That the construction is to be located in the primary dune. But that will reveal itself. SUPERVISOR HORTON: I know why, in review of the minutes of this meeting, I am sure some questions will be generated by me and what we will have to do is wade through: are we looking at this as a variance or are we looking this as overturning the Trustee's position? And I think that is an important legal decision for us to make and we should do so under the counsel of .... JUSTICE EVANS: And if we are looking at it as a variance, I know that is our decision to make but can we look to the Trustee's for their information, as far as how they feel about it? Because they are much more well-versed as far as the environmental stuff?. November 4, 2004 10 Public Hearing--Betsch Appeal SUPERVISOR HORTON: I think what we should do is ensure that each Board member has the file on this, from the Trustee's. We should have all of the Trustee's information that they either requested or generated. MR. KELLY: With all due respect to that question, I would suggest that that is an inappropriate way to review... COUNCILMAN ROMANELLI: I agree. MR. KELLY: If you are sitting as the Appellate Court, if you will, for the lower court, you don't have discussions with the Judge to see whether you should deny or approve. SUPERVISOR HORTON: Well, I think .... JUSTICE EVANS: Well, they didn't have any discussions on variances. They were only granting or not granting a permit. SUPERVISOR HORTON: To facilitate this process, excuse me, this is the way it is going to roll out. To facilitate this process, we are going to have the minutes generated of this hearing. We will have whatever correspondence necessary from the DEC and we will, each Board member will be supplied with the information that was given to or generated by the Tmstee's. I think that is, you know, a completely fair assessment and we should take it up at our work session on Tuesday. It gives eyeD'body four or five days to review this. JUSTICE EVANS: Well, do we have an opinion somewhere in here, that is done by a consultant? An environmental consultant? That the new structure is more environmentally sound than the old structure? MR. KELLY: I can tell you, we don't have an experts opinion, I can tell you, plus we now are totally FEMA compliant in the new construction. You will have the benefit of all the current codes. COUNCILMAN EDWARDS: So that of the existing structure, everything is being removed? MR. KELLY: Correct. COUNCILMAN EDWARDS: Including the foundation? MR. KELLY: Yes. Because you couldn't build on that foundation now, it would be... COUNCILMAN EDWARDS: When you complete demolition, before you begin construction again, there will just be sand as it were? MR. KELLY: Correct. November 4, 2004 Public Hearing--Betsch Appeal 11 SUPERVISOR HORTON: I don't understand, as far as, I mean, I am not weighing in on judgment here but from a shoreline hardening perspective if that, you know, if a foundation, a foundation closer to the shoreline is much more detrimental to, or conducive to coastal erosion; then pilings where water and energy can flow through. COUNCILMAN EDWARDS: Exactly. SUPERVISOR HORTON: That is a scientific fact. COUNCILMAN ROSS: And there is nothing in the record to indicate, those other houses that were built, those other houses that were built, that were changed; whether that was by permit or variance? SUPERVISOR HORTON: We have not .... MR. KELLY: You have never had a variance for those. That is what I don't understand, I don't quite understand how all that construction got approved, to tell you the truth. I believe that the Pearlstein's got a as-of-right permit, without a variance, from the Trustee's. I don't know, this one I think I was told that Vali maybe preceded the Chapter 37 of the code but these others are recent. This one was under construction as of the fall. So .... SUPERVISOR HORTON: This Board has not seen, at least on my tenure on the Board, we have not seen this type of hearing in regard to Chapter 37 since I have been here. MR. KELLY: So, I can only speculate that either they got permits or they didn't get permits. But they are under construction. SUPERVISOR HORTON: Well, this is about this property, not that property. MR. BETSCH: Can I just make two points that haven't come up? This is John Betsch. Both the Southold Town Code and the DEC allow a 20 percent coverage or footprint. So by code, I would be allowed to have almost 5,400 square foot house. The fact that I am starting with something small, penalizes me. I could build, you know, I don't want to build a 5,500 square foot house. That is ridiculous. That is one point, which has never come into play in discussion, I tried to present that to the Trustee's. The second point about exceeding FEMA, I am going to do several things, just for my own benefit. There is a FEMA code on height, I am going to exceed that height by a certain percentage because it helps my insurance rates and I will, of course .... JUSTICE EVANS: Wood pilings .... MR. BETSCH: .... a certain requirement, I do not have to be, they call it, I think it is 10 foot. But it is very hard to understand, 10 foot is not 10 foot this way because it is based on the coastal (inaudible). I am going to exceed that and I am going to exceed the insurance codes for both, you know, the coastal, we call it the Miami-Dade codes, with the windows and everything. Just for my own practicability. Alright? So there are several things that I am going to exceed and should help, you know, the erosion and everything else, the pilings. November 4, 2004 12 Public Hearing--Betsch Appeal SUPERVISOR HORTON: We have got a lot of information available to us and I think we should reserve decision till Tuesday, so we can review all of the information. MR. KELLY: Of course. SUPERVISOR HORTON: Did you have something else to add? MR. KELLY: No that is fine. SUPERVISOR HORTON: Okay, thank you. Then we will close this hearing. Thank you for your time. Moved by Supervisor Horton, seconded by Councilman Ross, it was RESOLVED that this hearing be and hereby is declared closed, reserving decision, at 9:40 A.M. Vote of the Town Board: Aye: Councilman Edwards, Councilman Ross, Councilman Wickham, Councilman Romanelli, Justice Evans, Supervisor Horton. This resolution was duly ADOPTED. Southold Town Clerk Town Board Town of Southold 53095 Main Road P.O. Box 1179 Southold, NY 11971 October 28, 2004 John and Dolores Betsch have been our good neighbors in Southold for about five years. As good neighbors, my wife and I will not protest, if the Town Board approves a variance on their proposed expansion. Should you have any questions, please feel fi~e to call us at (63 I) 765-4937. Sincerely, Helen and Jo as RECEIVED NOV 3:.~'-',, SoutholdTown Clerk AOL.COM [ Message View Subj: Application of John Betsch, Nor~ea Drive, Southold Date: 11/2/2004 6:11:02 AM Eastern Standard Time From: JVazq46405 To: tkarscNa?suffolklaw.com Page 1 of I Att: Tracy Karash Palumbo We will be out of town for the November 4th 2004 town Board hearing regarding subject appplication. We would like to express our feelings. We are long time property owners here. We recently moved to Southold across the street from the Betsch's property. We do not have any objection to their building a home on that site. Mr and Mrs Donald J. Vazquez 2360 North Sea Drive Southold, NY 11971 RECEIVED NOV 21 20O4 Southold Tow-, Clerk http://webmail.aol.com/fmsgview.adp?folder=T 1VUQk9Y&uid=9378434 1 l/2/2004 Town Hall 530915 Route 25 P.O. Box 1179 Southold, New York 11971-09~9 Telephone (631) 765-1892 Fax (631) 765-1366 August18,2004 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Mr. John F. Betsch 3 Wincester Lane, Huntington, N.Y. 11743 Via Certified Mail Re: JOHN BETSCH 2325 NORTH SEA DRIVE, SOUTHOLD SCTM# 54-04-24 Dear Mr. Betsch: The Board of Trustees took the following action dudng its regular meeting held on Wednesday, Au.gust 18, 2004 regarding the above matter: WHEREAS, JOHN BET$CH applied to the Southold Town Trustees for a permit under the provfsions of the Wetland Ordinance under Chapter 97 of the Town Wetland Code and Chapter 37 of the Town Code of the Town of Southold, application dated October 17, 2003, and WHEREAS, said application was referred to the Southold Town Conservation Advisory Council for their findings and recommendations, and, WHEREAS, at the November 19, 2003 meeting the Trustees advised the applicant that 25% ~xpansion to an existing home is not allowed under Chapter 37 in a DUNE area, under 37-16, and, that Chapter 37 would not allow a permit to be granted for this project, and, WHEREAS the permit was the subject of several hearings, and, WHEREAS, a Public Hearing was held by the Town Trustees with respect to said application on August 18, 2004, at which time ali interested persons were given an opportunity to be heard, and, WHEREAS, the Board members have personally viewed and are familiar with the premises in question and the surrounding area, and, WHEREAS, this application is for a MAJOR ADDITION in the Coastal Erosion Hazard Area, as defined in Chapter 37, and, WHEREAS, under Chapter 37 MAJOR ADDITIONS are not permitted in certain areas of the Coastal Erosion Hazard Areas, and, WHEREAS, the Applicant and his attorney have stated the permit is for a "MAJOR ADDITION" as defined by Chapter 37-6, Definitions, and, WHEREAS, the Trustees find the application is for, among other things, a "MAJOR ADDITION", after review of the submitted detailed plan, and, WHEREAS, the proposed activity is to occur in the DUNE AREA adjacent to Long Island Sound, and, WHEREAS, under Chapter 37-16:C "All ether activities and developments in dune areas are prohibited unless specifically provided for by this Chapter" and, WHEREAS, a MAJOR ADDITION in a DUNE AREA is not specifically provided for under Chapter 37, and, WHEREAS, the Board has considered all the testimony and documentation submitted concerning this~application, and, NOW THEREFORE BE IT RESOLVED, that the Board of Trustees DENY WITHOUT PREJUDICE the application of JOHN BET$CH to construct a two-story single-family dwelling with a two-car garage in place of the existing one-story, two-car garage and dwelling, and to be built on wood pilings because of the above reasons and determinations, BE IT FURTHER RESOLVED that this determination should not be considered a determination made for any other Department or Agency, which may also have an application pending for the same or similar project. Very truly yours, AIbert J. Krupski, Jr. President, Board of Trustees AJK: hct Cc: Kieran Corcoran, Assistant Town Attorney, and Town of Southold E. Brownell Johnston, Assistant Town Attorney · · · Albert 0'~ Krupski, President (,James fling, Vice-President ~rtie Foster BOARD OF TOWN T~USTEES TOTM OF SOUTHOLD Town Hall 63095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-1366 Office Use Only  Coastal Erosion Perm/t Application etland Permit Application Major . Minor Waivcr/Amenclrn~n~go~ ' Rece-'~vcd Applica~o~.'~ --Received Fee:$ '-~ * · ¢omp etea ^pplicsUonIi' lO __Incomplete ~ __SEQRA Classification: Type I .Type H Unlisted Coordination:(date sent).t~,.,_.L,._~- __CAC Referral Sent: [~) I {'1. l {L,O Date of Inspection: !-t !(~1/~ 0~ Receipt of CAC Report: Lead Agency Determination: Technical Review: ~ Z?ublicHeamgHeld: II llrq !~ ' Resolution: Name of Applicant Address ,~) Phone Number:( Suffolk County Tax Map Number: 1000- ,SL Property Location: (provide LILCO Pole #, distance to cross streets, and location) AGENT: ~-~.%Zdr: ,h (If applicable) Address: t.!5~I0~ Phone: Board of Trustees Application Land Area (in square feet): GENERAL DATA Area Zoning:. Previous use of property: Intended use of property: Prior permits/approvals for site improvements: Agency Date X No prior permits/approvals for site improvements. Has any permit/approval ever been revoked or suspended by a governmental agency? ~ No__ Yes If yes, provide explanation.~ Project Description (use attachments if necessary): ~O~sV~c~o ~ ~-~z ~0 1 Board of Trustees Application COASTAL EROSION APPLICATION DATA Purposes of proposed activity: Are wetlands present within 100 feet of the proposed activity? No X' Yes Does the project involve excavation or filling? No X Yes If Yes, how much material will be excavated? (cubic yards) How much material will be filled? ,'¢/~/?f ~,~/~'5~ . (cubic yards) Manner in which material will be removed or deposited:T~ / Describe the nature and extent of the environmental impacts reasonably anticipated resulting from implementation of the project as proposed. (Use attachments if necessary) Board of Trustees Application WETLAND/TRUSTEE LANDS APPLICATION DATA Purpose ofthe proposed operations: ~k3C~l~ g~MIC-q. ~ %'x-N IC~ 0~. Area of wetlands on lot: ~/'~'~-'0. square feet Percent coverage of lot: ] ~ % Closest distance between nearest existing structure aad upland edge of wetlands: ~ ~ feet Closest distance between nearest proposed structure and upland edge of wetlands: feet Does the project involve excavation or filling? No × Yes If yes, how much material will be excavated? How much material will be filled? ~,~ cubic yards cubic yards Depth of which material will be removed or deposited: c~-O~ ' feet Proposed slope throughout the area of operations: I~/J.O Manner in which material will be removed or deposited: 'D~h"~4 Statement of the effect, if any, on the wetlands and tidal waters of the town that may result by reason of such proposed operations (use attachments if appropriate): NOTICE TO ADJACENT PROPERTY OWNER BOARD OF TRUSTEESt TOWN OF SOUTHOLD In the matter of applicant: YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to request a Permit from the Board of Trustees to: 00ko%v~r f~ kg~tO gt-$~M ~-C/%-~ 2. That the property which is the subject of Environmental Review--is located adjacent to your property and is described as follows: 3. That the project which is subject to Environmental Review under Chapters 32, 37, or 97 of the Town Code is open to public comment on: ~OU, lq,~O~_You may contact the Trustees Office at 765-1892 or in ~ri%ing. The above referenced proposal is under review of the Board of Trustees of the Town of Southold and does not reference any other agency that might have to review same proposal. OWNERS NAME: MAILING ADDRESS: M~Ot31-i Ic.T_~vO~ PHONE #: 6~%-~qg-%%~q Enc.: Copy of sketch or plan showing proposal for your convenience. JOHN COSTELLO: I will re-stake it. Then you can review it. Have it congenient upon a new set of plans. I will give you a new set of plans. I will draw it with the rock. On the last twenty feet. I will also angle that retum so it does not have a dght angle abutment. That could scour. TRUSTEE KRUPSKh Okay. JOHN COSTELLO: I will submit those plans. TRUSTEE KRUPSKh Any other comment I will make a Motion to close the headng. TRUSTEE DICKERSON: Seconded. TRUSTEE KRUPSKI.' All in favor. ALL AYES I will make a Motion to Approve the application for Peter Bogovic for a 124 foot retaining wall with the last 20 feet armored with stone and approved subject to a new set of plans. All the debris be removed from the location. Four foot extension landward of the catwalk that is existing. Do I have a seconded. TRUSTEE DICKERSON: Seconded. TRUSTEE KRUSKt: All in favor. ALL AYES. 10. Agnieszka Drozdowska on behalf of JOHN BETSCH requests a Wetland Permit and Coastal Erosion to construct a new two story three bedroom - 2 car garage (in place of the existing one story - two car garage) the new structure will be built on wood pilings in compliance with FEMA. Located: 2325 North Sea Drive, Southold, NY SCTM#54-04-24 TRUSTEE KRUPSKh Is there anyone who would like to speak in favor of this application: JOHN BETSCH: I am John Betsch the owner of the property. I am here to let you know if you have any specific questions that I can answer them. My architect Frank Notaro is here if you have any technical questions about the specific construction. It really is the replacement of a summer house and making it a permanent structure and then I can move out to Southold. TRUSTEE KRUPSKh Are there any other comments? It shows on here that the Coastal Erosion Hazard Line running down the read on the survey. The Coastal Erosion Law is pretty clear and I took another look at the house today. That non-major additions are prohibited in the dune area of the structural hazard area. So this would really exceed that as a non- major additions is defined as twenty five percent of the existing. So this really exceeds that under the Coastal Erosion Hazard Line. JOHN BETSCH: I do not understand your question. The fact that the house is 100 some feet from the water and in place of existing structure. TRUSTEE KRUPSKI: Under Coastal Erosion I think that they would consider it to be on the dune. I would consider it to be a primary dune. Under Chapter 37 Coastal Erosion· It is seaward of the Coastal Erosion 16 Hazard Line. Certainly. it would be considered a major addition. Under the definitions it is a major addition. In addition to a structure resulting in a twenty five percent increase greater than the ground cover of the structure. That would certainly fall in this guide of Chapter 37. JOHN BETSCH: At the moment there are two houses which are being completed on the same side of my street. A third house which has just been demolished to be rebuilt. Which I assume was approved by the same trustee board. II would think that the Coastal Erosion Line would not change drastically as it goes down the road. TRUSTEE KRUPSKI: Honestly, I do not know in those locations where the line would be. JOHN BETSCH: As well as directly across the street. There is a house being built. TRUISTEE KRUPSKh But that is behind the Coastal Erosion. JOHN BETSCH: Facing a Pond. TRUSTEE KRUPSKI: That is Lily Pond. JOHN BETSCH. So I am a little confused so that I cannot touch this because of Coastal Erosion? TRUSTEE KRUPSKh It is a Town Code Chapter 37. You can come in and get a copy. It would not be considered anything greater than twenty five percent addition of the ground .area. I do not know what percentage this is? Assuming by looking at it that it is greater than twenty five percent. JOHN BETSCH: The existing house is so tiny. You are saying that I cannot change any of the existin, g house. TRUSTEE KRUPSKh The~ way that I read the Code. I could be wrong. We__.brought this up on our'~d inspection. I Iookea at-the Code in the office. I do not know if the Boaro nas looked at the Code. The way that I inter"~mpt tl~e Code ii that you would be allowed a twenty five percent expansion of the land area there only. JOHN BETSCH: The expansion on a house that is only 750 feet dght now. TRUSTEE KRUPSKI: Whatever it is. TRUSTEE KING: About two hundred feet. JOHN BETSCH: What are the alternatives? TRUSTEE KRUPSKh You can take a look at the Code. Your agent can take a look at the Code. For whatever reason you do not consider that to be a dune area or Coastal Hazard area. I believe it to be. But we can take a look at this again and consider what it can be. But it is definitely seaward of the Coastal Erosion line. Normally that Coastal Erosion Line is further seaward. This is in the road. JOHN BETSCH: The first thing that I would do is verifying that. It is strange that the Coastal Erosion Line is in the middle of the road. TRUSTEE KRUPSKh We thought that was first. We did not think it was on there. Because we have never seen that on the road. 17 TRUSTEE KING: When we got them we thought that they might be close to the line. We may have to move it back. Never realized that it is the middle of the road. I would never have thought of such a thing. Until you see Jt in black and white. FRANK NOTARO: Excuse me, I am Frank Notaro, the architect. We have been in discussion with the Building Department in terms of how to best address this. This issue never came up prior nor did it come up with our surveyor either. I am a little perplexed? Only because them is a parking lot which pretty much exceeds towards the water, John's property. It just does not make sense. Here is John's dune. Then there is this entire · ,parking lot next door. Was them no affect of the Coastal Erosion line at that parking lot at all. Obviously them is no remenents of what was them. TRUSTEE KRUPSKI: Probably was put in long before. This is a State Code that the Town adopted in 1991. It is very recent. FRANK NOTARO: Basically what we have done is to make every attempt to,, TRUSTEE KRUPSKI: So we would be happy to review this with you. Just to have the State verify with you. What they think is or is not a Coastal Hazard area. Before you change the house plans. FRANK NOTARO: It just does not make sense in terms how changed the adjacent area to the house is. TRUSTEE KRUPSKI: It is something that we saw. It is routine with us any sound property where is the Coastal Erosion Line. FRANK NOTARO: We did not see that line either TRUSTEE KRUPSKh It is parallel with the road. It drifts through the .property. MR. JOHNSTON: Did you challenge the surveyor if that is where it was? FRANK NOTARO: We~lJd..and they~id ~i~ai. ii. w~l~ verified [here. We saw it on the survey and we called John Ehlem and he said that it was on the survey and he pointed it out. TRUSTEE KRUPSKI: How do you want to pursue this? TRUSTEE KING: I would suggest tabling it. MR. JOHNSTON: Tabling it and submit further information. TRUSTEE KRUPSKI: Try to get another opinion on this. I would call the "State. FRANK NOTARO: The Betsch's house is wedged in between Mc Cann Road. All you need it on the other side and how can you have any dune 4eft. TRUSTEE KRUPSKh We will take a look at it. Contact the State. You 'can call Charlotte. FRANK NOTARO: Maybe we can get them down there. To take a walk through. Basically where the house is right now. It relates more not to the actually wetland area per say. The type of vegetation that is there. Definitely a dune line is maybe fifty or seventy five feet towards the water. Which I assumed was where the action was. We have a parking lot right next door to us. 18 · · · · · · TRUSTEE KRUPSKh I was reading through the Code. If it is a secondary dune. FRANK NOTARO: You can see where it contours. There is substantial contour change by the water. It kind of levels out. TRUSTEE KRUUSKh We will take a look at it and consult with the State and see what happens. FRANK NOTARO: We will give them a call.. JOHN BETSCH: You are saying that you will call. FRANK NOTARO: We are saying that we will both will call. TRUSTEE KRUPSKh I will make a Motion to Table the application. TRUSTEE KING: Seconded. TRUSTEE KRUPSKh All in favor. ALL AYES 11. Suffolk Environmental Consulting, Inc. on behalf of AMELIA MENDOZA requests a Wetland and Coastal Erosion Permit to re- vegetate 4,900 sq. feet of disturbed area within the seaward edge of limit of clearing and disturbance and the landward edge of top of bluff, with Rosa rugosa (2 gallon pots). Located: 38015 Main Road, Orient, NY SCTM#15-2-15,1 TRUSTEE KING: Anyone want to comment on this application? MATT IVES: Yes, Matt Ives,. Suffolk Environmental Consulting. I have brought you the affidavits. TRUSTEE KING: Any other comments on this application? I will make a Motion to Close the hearing. TRUSTEE DICKERSON: Seconded. TRUSTEE KING: All in favor. ALL AYES I will make a Motion to Approve the clearing plan as submitted. TRUSTEE DICKERSON: Seconded. TRUSTEE KING: All in favor. ALL AYES MATT IVES: Thank you. Samuels & Steelman Architects on behalf of SETH & BARBARA EICHLER request a Wetland Permit to add second floor to existing single story frame house, to construct new two car garage, and new in ground pool also to include repair of existing wood steps on bluff and deck. Located: 17915 Soundview Avenue, Southold, NY SCTM#51-01-06 TRUSTEE DICKERSON: Is there anyone here who would like to speak to this application? 19 utilizing vinyl sheathing, to reconstruct in-place, two 50' timber groins utilizing vinyl sheathing, to reconstruct in-place, two timber jetties (60' and 50') utilizing vinyl sheathing, and to dredge an existing 55'X 115' boat basin to -4 ALW. The resultant spoil, 300 cy. of sand, shall be utilized as backfill for the reconstructed bulkheading as needed, and to reconstruct in-kind/in-place, 4,000 sq.ft, existing timber walks. Located: 5900-6000 Vanston Rd., Cutchogue. SCTM#118-1~2 TRUSTEE DICKERSON: Is there anyone who would like to speak on behalf of this application? TRUSTEE KRUPSKr: For the record, I'm recusing myself on this. GLENN JUST: I'm here for Christopher Pla and I also have Eugene Burger from · Burger Construction who is Mr. Pia's general contractor on the remodeling of the house here if there are any questions. I think when we met there last week, Mr. King and Mr. Poliwoda had asked that the one section of bulkhead behind the greenhouse that we proposed to reconstruct inkind/inplace, perhaps use rock instead and Mr. Pla and Mr. Burger are fine with that. TRUSTEE KING: How would that change the footage on the timber bulkhead? GLENN JUST: 164' is the distance down there. TRUSTEE KING: So it would be 937 minus the 164. GLENN JUST: Exactly, TRUSTEE POLIWODA: When we took a walk to the entrance of the channel, to the north side, that piece... GLENN JUST: Oh, there was a 25' return that angled back and it had been in disrepair and inter-tidal marsh had grown behind it and Ken had asked when we walked out there that day if we could replace it with rock, but on the landward side, the inter-tidal marsh, there would be no problem with that either. The one thing I did not include in the plans is that when we were at the site, along the side of the boat basin, there was some old bulkhead that was totally non-functional, it's just tie rods and deadmen, and they don't want to reconstruct that but they want permission to remove that debds from the marsh there. TRUSTEE POLIWODA: Have you depicted the rock on the new survey?. GLENN JUST: It will be with you tomorrow. It's at the printer now. TRUSTEE KING: And the old remnants of the old bulkhead, whatever is there, will be removed? GLENN JUST: Yes. TRUSTEE KING: It will just be a single few of stone along the toe? GLENN JUST: Yes. And there also had been an application for a duck blind on the property, which I had spoke to Ken when we walked out on the spit out there. Would pitch pines work Ken? It wouldn't even be a permanent blind. It's on private property. TRUSTEE POLIWODA: It's a structure so it should be included. TRUSTEE DICKERSON: And you wanted to do the roof of the boathouse? EUGENE BURGER: It just needs to be re-shingled. TRUSTEE DICKERSON: Does that need to be on here also? GLENN JUST: I think that was the questions we had in the field. I don't know if that's something that would come under the Trustee's jurisdiction or not. If needed, I can include it in a modified project description tomorrow. JOHN BETSCH: The resolution is dated June 25, 1997. TRUSTEE KRUPSKI: I'll make a motion to Table the application. JOHN BETSCH: Before you close it, I'm not sure...what would you like me to do? TRUSTEE KRUPSKt: You have to consider all you're options. We'll take another look at this in the field in January just to familiarize ourselves again with the dunes or the bluff, or whatnot, but we'll also look into the Peadstein file as well. In the meantime, I suggest you look into your options. Take a look at the fax we just got, that I read tonight, you can get a copy of that from the office, and get a copy of the Code and take a look through that. You can see your options as far as appealing to the Town Board. JOHN BETSCH: Not to be facetious but he just reiterated the Code back into the letter. That wasn't exactly our conversation the way he explained it to me about the words we had vs. what he read back, but I appreciate it. TRUSTEE KRUPSKh Thank you. Do I have a motion to Table? TRUSTEE KING: So moved. TRUSTEE DICKERSON: Seconded. ALL AYES 8. J.M.O. Environmental Consulting Services on behalf of GEORGE KAYTIS requests a Wetland Permit to resheathe, on the landward side, 125' of timber bulkhead, to reconstruct a 2'X 15' stairway, a 4'X 8'6" stairway, an 8'× 14'6" deck and shed, and to construct a 10'X 15' deck landward of the bulkhead. Located: 3740 Paradise Point Rd., Southold. SCTM#81-3-28 TRUSTEE POLIWODA: Is there anyone here who would like to comment on this application? If not, I'll comment because I visited the site this past week. I couldn't see any reason to deny, other than the shed, it actually sticks out seaward of the bulkhead. It's uncharacteristic compared to the neighboring property. I would appreciate seeing the shed pulled back behind the bulkhead. GLENN JUST: I was going to bring that up tonight. I actually got a phone call from Chris Arfsten of the DEC and he said the same thing, if the shed and the deck could be relocated landward of the bulkhead. Actually they had suggested that a 4'X 4' landing seaward of the bulkhead for the stairs down the beach, if we pulled everything back. I was agreeable to that but I wanted to speak to you guys tonight. TRUSTEE POLIWODA: That's fine. We'll stipulate that. If there are no other comments, I'll make a motion to close the public hearing. TRUSTEE DICKRSON: Seconded. ALL AYES TRUSTEE POLIWODA: I'll make a motion to Approve the application to resheathe on the landward side, 125' of timber bulkhead, to reconstruct a 2'X 15' stairway, and a 4'X 8'6" stairway, an 8'X 14' deck and the shed, as well as deck will be constructed behind the bulkhead, with a 4'X 4' platform with stairs leading to the beach for access, and all on a new set of plans. TRUSTEE FOSTER: Seconded. ALL AYES 9. J.M.O. Environmental Consulting Services on behalf of CHRISTOPHER PlA requests a Wetland Permit to reconstruct in-place, 937' of timber bulkhead 2O JOHN BETSCH: 1800 sq.ft. The square footage that I'm in now, you've seen the house, I have to change it and put it on pilings, so it would have to be tom down to do that. The house was explained, to leave a little bit and it becomes an alteration vs. a new house...that's playing games. The house is not worth it to start with. To build the garage in the front, I think that hurts the neighborhood aesthetics. If you look at the. pictures of Mr. V~)nZuben's house, there have been many, many comments ~:romthe neighbors about what he is going to do with :that. It appears very close to the read. He must have gotten a ZBA approval for that. Irs just not aesthetically proper. Maybe it meets the rules and the intent of · the regulations but it is a very large...Mr. VonZuben did go very high end on everything in his house, rll definitely say that. TRUSTEE KRUPSKI: Okay, what's the Board's feeling on this? JOHN BETSCH: Just two other points I would like to make. The letter from the DEC talked about the scale being wrong. What had happened, just to clarify it, the survey was created and then a second survey was created by John Ahters adding the septic system plan and he reduced the drawing without reducing the scale markings on it. That was just an oversight. I have both drawings with drywells and such. There was one other question. I did talk to the permit advisor to understand the differences between non-jurisdiction and a permit to see if there were pros or cons either way and it's really just an administrative technique in which way to go with you. We had contours put on and I don't think the contours have changed. The only thing that's changed on my beach with this latest winter storm, there has been some reduced sand that's all blown up onto my property. I did go down today and the way here just to measure out of curiosity and my vegetation still is 76' from the edge of my deck, soit still has not changed at all. It's really just cut into the beach area. With the change of seasons, it really just comes and goes. TRUSTEE KING: My comment is I'm very sympathetic to him because I look at this area and the size of the houses that are here. JOHN BETSCH: This is a picture of another house on my block. (inaudible) TRUSTEE KRUPSKI: We wouldn't have jurisdiction in 1991. Mr. Betsch, I don't see where we can deviate really from the 25% and whether we classify this as a dune or whether we classify it as a beach...before we go any further with new plans or whatever, there is an appeals process on our decision for coastal erosion, which is the Town Board, so if you wanted to appeal that decision, but I want to be straight-forward with you and I don't want to get you into a run around where you find out about the appeals process in three or four months. So, you should have all your options in front of you. JOHN BETSCH: Could I ask you to potentially research the house next door to me, which was a more than 25% increase too? TRUSTEE KRUPSKI: Peadstein, yes. JOHN BETSCH: I did not find in the Trustees information that I copied, notes that talked about special things. It was just an approval. TRUSTEE KRUPSKI: What year was that? JOHN BETSCH: 1997. TRUSTEE KRUPSKI: Yes, we will look into that. t9 where things ended but he did not come back to me with an answer. He said he had to respond to the Town. We also had discussed about whether or not the Coastal Erosion Hazard line is proper. He said I could appeal to have it moved, but to have a Coastal Erosion Hazard line moved, I would have to have all of North Sea Dr. moved because there is no way it's going to go like this and go back in. The likelihood of them saying or changing something is...I think that's moot. If there are any other additional questions...there are several houses, and I showed some pictures, some have been...and I tried to understand how the rational so what was done to have them approved or not, particularly the one next door to me, Mr. Peadstein, which is very close to me, dght next door, what was approved vs. mine to see if I could follow his logic to get the Board's approval. TRUSTEE KRUPSKI: I don't remember Mr. Peadstein for some reason, but I did review three others along the stretch there on North Sea Dr. and one I don't think, VonZuben maybe, seemed to be a substantial house to start with. I don't think there was substantial change in footprint. JOHN BETSCH: Mr. VonZuben's house did primarily stay with the same footprint, if you will. He cantilevered so much it was a little bit off on each side, however he did build a garage, which was proposed as a 300 sq. ft. garage, and wound up being a 588 sq. ft. garage from his site plans, which is within the Coastal Erosion zone, on the wrong side, so I didn't know...I was trying to understand how that...the plans say one thing...the numedcs on the plan say 300 sq. ft. but when you look at their footage they have down there, it's really 588 sq.ft. That was another one. He also presented to me that maybe I could move the garage to make it easier to bring my footprint down smaller to put it in front of the house but aesthetically for the neighborhood, I don't think it's a proper thing to do. I cannot put it under the house to reduce the square footage because the height of my area is such that the Code says I should be so far up on pilings. As it goes to Kenny's Rd., I guess it goes down and that those houses are up 15' up, if you will, and can put a garage underneath. So that's the rational of how we came up with it. TRUSTEE KRUPSKI: The other ones I reviewed in the office. The Coastal Erosion line, they were substantially behind the Coastal Erosion line and it cut through the houses. JOHN BETSCH: They moved. The three houses, from the time, next to Kenny's Beach, from the time the aerial photograph was taken, before I was a resident there, they were moved. But, those properties are considerably longer than mine. TRUSTEE KRUPSKI: Now I did have a discussion with Mr. McDonough and one of his suggestions was that, and I never had any discussion with the Board yet because it was right after lunch, but what is the square footage of your current house? JOHN BETSCH: The present square footage is 1152 sq.ft. TRUSTEE KRUPSKI: And then if you put a second story addition on that and added 25% it would still represent a substantial increase in size and would that not be adequate for you? TRUSTEE FOSTER: What's the size of the proposed addition? · · · · · larger house on this site end wanted to know more about the specit';c natural protective feature that exists on his property and how the associated regulations might affect his development plans for the property. I discussed some aspect of the CEHA regulations with him, including how the CEHA line was mapped and a reconstruction or an increase of 25% or greater in ground coverage is prohibited and would require a variance; I explained to him thet any addition to the pre- existing structure, including a minor addition less than 25% would have to meet the standards of issuance for a CEHA permit, which would likely locate the addition away from the seaward side of the house, in the least damaging location, in terms of protecting the natural pro~ective feature. A reconstruction or major addition would require a variance and would have to meet ali the variance tests including.for hardship. A variance could be issued for reconstruction of a structure provided that the following criteria are met: 1) no reasonable, prudent, aitemative site is available, 2) all responsible means and measures to mitigate adverse impacts on natural systems and the functions and protective values have been incorporated i~o the project design and will be implemented at the developers expense, 3) the development will be reasonably safe from t~ood and eroding damage, 4) the variance requested is the minimum necessary to overcome the practical dift';culty or hardship, which is the basis for requesting it, and 5) when public funds are utilized, public benefits clearly out weigh the iong term adverse affects of any proposed acti~ies and developments. Upon requesting a variance the applicant will need to provide to the Town, information relevant to meeting the variance criteria. The department looks forward to the · opportunity to continuing to work with and assist the Town of Southold in administering the Coastal Erosion Hazard Area regulations and protecting the Towns coastal resources. If you have any additional questions about this or any other coastal management, p/ease contact me. Now, 1 had a conversation with Mr. McDonough also and he was under the impression, as he said in the letter, that it was either a Iow dune or the beach, but in either case it would result in the same sort of restriction on rebuilding. Either or, whichever the State and the Board decided to classify it as, it wouldn't matter. JOHN BETSCH: Except that, in trying to understand the definitions of primary dune and secondary dune, it talks about the landward toe. In trying to understand what toe meant, and he said the landward toe is where it begins to go down on the landward side. TRUSTEE KRUPSKI: Yes, at the end of where it goes down. JOHN BETSCH: Implying that it comes from the beach, it goes up to a dune, and starts to go down again. TRUSTEE KRUPSKI: Which would be about the road. JOHN BETSCH: Except my property, on the survey I supplied, it comes up from the beach and goes straight across. In our discussion, he said it's probably a bluff. TRUSTEE KRUPSKI: I think it's either a dune or a beach, but it's kind of a subtle difference. JOHN BETSCH: I had taxed him my site survey to show the topographical marking on it to see if he could tell from those markings where things began and permanent. Therefore, if your client wishes to further pursue a non-jurisdiction determination, winter elevations must be added to the project plan. Be advised that a non-ju~sdiction letter may not be approved even after the submission, however the department finds the proposed project to be generally approvable should your client chose to pursue a permit. In order to pursue a permit, the fo/lowing information must be submitted. Please provide the percent adjacent area coverage for the existing and proposed structures and paved areas. As you are aware, pursuant to the development restrictions of 6NYCRR Part 661.6A4, Tidal Wetland Regulations, not more than 20% of a lot may be covered existing and new structures. Therefore this information is requested to ensure that the new structure will not exceed the maximum allowable coverage. You must show the coastal erosion hazard line on the plan. Regardless of the option, your client chooses the scale is incorrect and the plan is 1 ~ to 20'. The scale must be corrected. Additionally, the apparent high water line as shown on the survey is inaccurate. The department staff found that the apparent high waterline is located 98' from the existing deck. Please correct the plans and resubmit five copies. That's from the DEC. The fax I received today from Robert McDonough I will now read. Ms. Cha#otte Cunningham representing the Town of Southold contacted this office requesting information regarding the designation of the natural protective in the coastal erosion hazard area within the Town. She indicated that you were interested in finding out which coastal feature existed as the basis for the natural protective feature area designation for the stretch of land along North Sea Dr., located just west of the Town Beach parking area. The properties found along this stretch of coastline are bounded by the Long Island Sound and the Coastal Erosion Hazard line, which runs along the edge of North Sea Dr. I have reviewed ares photography and files for the Town of Southold in an attempt to identify distinguishing characteristics of a certain area. i found it difficult to ascertain which natural protective feature exists. After looking at aerial photography from 1983 to 2001, it appea~.t_h_a_t__the area is ei~her.a.be~ch or a prim~DL~d_u_n_~e. .In the case that it was determined to be a prfmary dune, the Coastal Erosion Hazard Area line wouldYe been established 25' from the landward toe of the dune. If the feature is considered a beach, the Coastal Erosion Hazard Area line wouldVe been established 100' landward from the place where there is marked change in material of physiographic form, from the line of permanent vegetation, which is more seaward. Idenfification of the natural protective feature can be determined in such time that an appeal is made by an effected property owner challenging that the subject area was erroneously identified as a natural protective feature area, as written in 6NYCRR Part 505.10, Coastal Erosion Management Regulations. If an appeal is fited, the department wi//arrange a site visit in order to determine the natural protective feature that exists and whether or not the line has been propedy p/aced, otherwise I will provide you with an answer after the next occasion the department staff is in the vicinity to distinguish which natural protective feature is found is that location. Mr. Betsch, the owner of the property adjacent to the beach parking area has also contacted the department for additional information about the CEHA designation. Mr. Betsch indicated that he was interested in reconstructing a an option or a consideration I can consider. Of these 20 houses I spoke of, I am aware of five that have been built, re-built, or considerably altered in recent history as late as being worked on today down the road. I enclosed in that booklet some pictures of these houses as well as the Southold Town tax records to document the increase in percentages of those rebuilding. I discussed the definitions of the coastal management regulations provided by the DEC, and they gave me this blue book, which I believe the Southold Town Code is based upon, with Rob McDonough of the DEC in Albany. There are several definitions that are pertinent to my request but in discussion with Mr. McDonough, he said it appeared that the area that my house is in, is more of a bluff area, rather than...and we had discussed at the last meeting, calling it a dune, more of a bluff ~area rather than a dune, even though there is no precipitous or steep bluff like Horton's Point Lighthouse drop. I would like to read just the definitions from that Code. Bluff means any bank or cliff with precipitous or steeply faced slope facing the adjoining beach or property. McDonough said that does not necessarily have to be. The limit of{he bluff is the landward limit of the seaward protective feature. Where there are no beaches present, the seaward limit of the bluff is to mean Iow water. So, to make it easier to define, t am going to say there is no beach in front of my house, just to make it easier to understand. Therefore, the landward limit is 25' landward of the bluff's receding edge, or in cases where there is no line of erosion to identify the receding edge 25' landward to the point of inflection at the top of the bluff, and they define the point of inflection along the top of the bluff, where the trend of land slope changes the dissent to the beach. So the bluff begins where my vegetation ends, where my sea-grass ends. Based on this definition, and discussing it with Mr. McDonough, it appears that my house is not within a bluff. In addition, yesterday I received a letter from the NYSDEC Division of Environmental Permit Region 1 and I won't bother reading the entire letter except for one sentence, which is pertinent tonight. It says that the Department finds the proposed project to be generally approvable should your client chose to pursue a permit. The letter goes on to explain that not more than 20% of a lot may be covered and in this case that would mean 20% would be 5400 sq.ft. because I have a 26,000 sq. ft. lot and explains the next steps to be taken. I have one more set of pictures, which unfortunately I was not able to make copies, which shows the vegetation in the front and side of my house as well as the McCabes Beach parking lot, which is next to me and extends much further down towards the beach than my area. If I can address any questions you might have I would be more than happy to. TRUSTEE KRUPSKI: Thank you. Could I get a copy of that DEC letter?. Thank you. E. BROWNELL JOHNSTON: If you don't have an extra copy I can make one. TRUSTEE KRUPSKI: Thank you. I have a fax I received today from Robert McDonough and I have not read that yet. The DEC has reviewed your client's request for a tidal wet/ands non-jurisdiction determination for the above- referenced property and we have the fo/lowing comments. The department staff has inspected the site and has determined that due to the dynamic nature of this changing shore#ne, it cannot be determined if the 10' elevation contour line is ANN CLEMENTS: What about setback and stuff? TRUSTEE FOSTER: That's the Zoning Board of Appeals and Building Dept. TRUSTEE KRUPSKh I'm going to ask the applicant to provide us with drywells and guttere to contain the roof run-off. You can just put them on the plans later. I don't know of you want hay bales here. JONATHAN FOSTER: The DEC suggested hay bales or something during construction. TRUSTEE KRUPSKh If there is no other comment, do I have a motion to close the hearing? TRUSTEE KING: So moved. TRUSTEE POLIWODA: Seconded. ALL AYES TRUSTEE KRUPSKh I'll make a motion to Approve the application with the condition that drywells be installed to contain the roof run-off and that the line of hay bales be placed at the top of the bluff during construction. TRUSTEE POLIWODA: Seconded. ALL AYES Agnieszka Drozkowska on behalf of JOHN F. BETSCH requests a Wetland Permit and Coastal Erosion Permit to construct a two-story single-family dwelling with a two-car garege in place of the existing one-story, two-car garege and dwelling, and to be built on wood pilings. Located: 2325 North Sea Dr., Southold. SCTM#54-4-24 TRUSTEE KRUPSKI: Would anyone like to speak in favor of the application? JOHN BETSCH: I'm John Betsch. At the November 17th meeting, I had presented my request to rebuild and replace my 55 year-old summer bungalow with my new pdmary residence and that meeting you had Tabled it for additional information. You had suggested I.contact the DEC, which I contacted the DEC both on Albany and in Stony Brook and they provided me with an aerial map showing the location of the Coastal Erosion line. I annotated with the present ownere and I made copies to make it easier for you to see. You can see that the Coastal Erosion line on that very first page is basically the road, North Sea Dr., and only as it approaches Kenny's Beach at the other end of my property, and I'm close to McCabes Beach, that it begins to gradually cross into some of the property lots as North Sea Dr. becomes in a more southerly direction. As shown on that aerial map, there are 21 houses and four undeveloped lots on what I would call the north side of North Sea Dr. Of these 21 houses, 20 are on the seaward side of that coastal erosion line on that map. Since that map was photogrephed, I believe three houses closest to Kenny's Beach have been moved. Unfortunately it is not possible for me from where the location of the coastal erosion line is on my aerial. In my present spot though, since my house was built 55 years ago, my summer has faced numerous hurricanes and storms. I remember Donna in 1960 and the good old perfect storm in 1991. There has been no appreciable damage to my house or property to speak of and while it has not been pertinent to the Board, 1 would like to note that just due to the age and proper maintenance, this 55 year-old bungalow is in need of significant repair due to proper maintenance from it's original owner, and is also built on a cement block foundation, which makes the option of building on this structure not Albert J. Krupski, President James King, Vice4President Artie Foster Ken Po]iwoda Peggy A. Dickerson Town Hall · ~.' 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-1366 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD MINUTES Wednesday, April 21, 2004 7:00 PM Present were: Albert J. Krupski, Jr., President James King, Vice-President Artie Foster, Trustee Kenneth Poliwoda, Trustee Peggy Dickerson, Trustee E. Brownell Johnston, Esq. Assistant Town Attorney for Trustees Lauren Standish, Secretarial Assistant CALL MEETING TO ORDER PLEDGE OF ALLEGIANCE NEXT FIELD INSPECTION: Wednesday, May 12, 2004 at 8:00 a.m. TRUSTEE KING moved to Approve, TRUSTEE POLIWODA seconded. ALL AYES. NEXT TRUSTEE MEETING: Wednesday, May 26, 2004 at 7:00 p.m. WORKSESSION: 6:00 p.m. TRUSTEE DICKERSON moved to Approve, TRUSTEE POLIWODA seconded APPROVE MINUTES: Approve Minutes of January 21,2004, February 25, 2004 and March 24, 2004. TRUSTEE KING: I have a couple minor corrections on March. On Page 25, last paragraph, I think it's a quote by Al. "1 recommend no application denied until the application's amended. I think what you meant to say was I recommend no action be'taken. So change application to action. And on Page 54, first paragraph almost down at the bottom, change the word "nose" to no." No ability. I'll make a motion to approve Board of Trustees 43 April 21, 2004 TRUSTEE FOSTER: No, it's cut and dried actually. TRUSTEE KRUPSKI: Move on.. MR. JUST: It's been reduced in size at the request of the ZBA just recently as well. TRUSTEE FOSTER: That's been reflected here? · MR. JUST: Yes. TRUSTEE FOSTER: Any further comments? Okay, there being no further comments, I'll make a motion to close the hearing. TRUSTEE DICKERSON: Second. TRUSTEE FOSTER: All in favor? ALL AYES. TRUSTEE FOSTER: I'll make a motion to approve the request for W.L. Lyons Brown, III for a Wetland Permit, to construct sunroom 14' by 14', screened room 13' by 14', open deck 10' by 16', onto existing family dwelling on Hedge Street Fishers Island. Second? TRUSTEE KRUPSKI: Second. TRUSTEE FOSTER: All in favor? ALL AYES. TRUSTEE FOSTER: So carded. 13. Twomey, Latham, Shea and Kelley on behalf of JOHN F. BETSCH requests a Wetland Permit and Coastal Erosion Permit to construct a two-story single-family dwelling with a two-car garage in place of the existing one-story, two-car garage and dwelling, and to be built on wood pilings. Located: 2325 North Sea Drive, Southold. SCTM #54-4°24 TRUSTEE KRUPSKI: Is there anyone who would like to speak in favor of the application? MR. FINNIGAN: Good evening, my name is Martin Finnigan, Mr. Krupski, Members of the Board, I'm here on behalf of John Betsch, who is seeking a Coastal Erosion Management Permit pursuant to Sections 37-11 and 12 of Southold Town Code to reconstruct a single-family dwelling on his property, as you know, located at 2325 North Sea Drive. The existing structure is a single-family home with ground coverage of approximately 1,782 square feet. The property lies along the Long Island Sound and is flanked to the east by a beach parking lot and to the west by a home. At the outset, I'd note that the proposed construction is to take place in excess of 100 feet from any freshwater wetland and as such a wetlands permit is not required. I think as the Board is aware, at the last hearing a letter of non-jurisdiction was submitted for the record here dated March 4, 2004 -- actually, it wasn't at the last hearing. I think we submitted that in writing to the Board. I'd also just like to note that the proposed Board of Trustees 44 April 21, 2004 construction is entirely compliant with the dimensional provisions in the Southold Town Zoning Code, it also meets all FEMA requirements. Basically we're here because the applicants would like to build, reconstruct what is now a fairly basic home into a home that is, quite frankly, more in keeping with all the other homes that neighbor their property. The proposed construction is nothing extraordinary. There's yet another three bedroom, two bathroom home with a garage and a deck. The square footage will increase to approximately 2,900 square feet. The proposed construction is entirely keeping with the character of the homes that are currently either built or being built along North Sea Drive, and I have photographs which I can share with the Board. I believe some of them have already been presented to you in the record, but I would show them to you as we proceed here. Basically we're here because of the existence of a coastal erosion hazard line on North Sea Drive. I think the Board is aware that the line actually goes right down in sort of a diagonal fashion, but it goes right along the road. The Betches' property being dght here to the east right next to the beach parking lot. At the last hearing, there was a discussion, and I think Mr. Krupski actually read into the record a letter from a Robert McDonough from the DEC which purported to respond to Mr. Krupski's inquiry about why this line was where it was, and what is exactly the natural protective feature which the line was drawn to protect. You may recall that Mr. McDonough's response was somewhat inconclusive and he wasn't really able to identify exactly why the line is where it currently is placed, but seemed to indicate that if there was eventually an appeal some day of your decision, that maybe they could come out and look at it and try to figure out why it is where it is. I bdng this up just to suggest that it doesn'~ seem equitable that the Betches should be required to litigate the location of this line when there doesn't seem to be any reason why it is where it is. It's obviously a couple hundred feet from the water and by aerial view there's no conclusive explanation as to its location. I'd also like to address some of the comments that Mr. McDonough made in his letter with regard to your discretion here tonight and your jurisdiction to consider this application. Mr. McDonough suggests that there's an absolute prohibition to your issuance of a permit because '0 · · '} Board of Trustees 45 April 21, 2004 the proposed construction is greater than 25 percent of the existing structure, and I submit to you that there is no such mandate in the Town Code in Chapter 37, which mandates that this Board must deny an application for a permit to construct a home that is greater than 25 percent of the existing structure. Section 37-11 empowers the Board to issue permits for regulated activity, which includes the construction of a major addition, a major addition is defined as the construction or reconstruction that results in a 25 pement or greater increase in ground coverage. So I submit to you that there is jurisdiction, you do have the authority to administer this code, and if we can meet the criteria of Section 37-12, I think that you have the ability to issue a permit, notwithstanding what Mr. McDonough has stated in his letter. Particularly in light of the fact that there's been no natural protective feature identified by Mr. McDonough. I would like to briefly address those 37-12 criteria for you and establish to you why I believe that the issuance of a Coastal Erosion Permit is warranted here. I'm sure you're familiar with them, but obviously the first criteria is that the proposed construction is reasonable and necessary. Obviously, reasonableness, I would suggest to you is defined by the surrounding area and what are we comparing this to, what are we trying to do. We have a parking lot on one side; the other side of this property is the house that in 1997 a permit was issued by this Board to reconstruct a house that increased ground coverage we approximate by approximately 55 to 57 percent. The Betches are not looking to construct a monstrous house here. They're looking to construct a house that is entirely in keeping with the character of numerous homes along the road, and if I could I'd like to hand up some photographs of some of the other homes that are along the road, some being constructed some are already constructed. TRUSTEE KRUPSKI: I'm sorry, could you clarify what you just said earlier, the Board approved an application on this site for this house? MR. FINNIGAN: No, the next door neighbor, the Peadstein property which is directly next door. The home itself, the proposed construction is, as I said, compliant with FEMA requirements and therefore, it will be constructed on pilings, and as I again stated earlier, it is in compliance with all other dimensional requirements in the Town Code. So in essence, were you to Board of Trustees 46 April 2 l. 2004 · issue a permit, the Betches could go tomorrow and get a building permit for this property. There's no other impediment other than the placement of this line along North Sea Drive. So I would suggest to you that if we look at all those factors together that the proposed construction is, in fact, reasonable and completely in character with what's going on in the neighborhood there, and, in fact, it is an aesthetically pleasing design that will be not unlike the other homes that you're looking at in those photographs. I do have some schematic drawings if the Board is interested in reviewing them. The next criteria is whether or not the regulated activity is likely to cause a measurable increase in erosion at the proposed sites. There's absolutely no indication that the construction of this home, which is essentially in the exact area where the existing home is, which is well over 100 feet from the wetland line, could in any way contribute to additional erosion. We've been unable to determine how that could occur. Furthermore, the third factor being, will it minimize effects on natural protective features. Again, not knowing exactly what the protective feature is here, I can certainly assure you there will be no impact on a bluff, a dune, whatever it may be. It is construction confined to an area where there is existing construction. The house is going to be raised, actually, put on pilings and will, in fact, decrease the intrusion to the ground cover that currently exists. Essentially, I'd suggest to you that reviewing the criteria of 37-12 and reviewing what is proposed here, I believe that the Betches' application meets that criteria. I believe that you are empowered by the code to issue this permit based on those criteria. Particularly, when you look at the big picture here and consider that there's no legitimate reason for why the line is here. To litigate that, to have it reevaluated or moved is a monumental undertaking and the next door neighbors were able to construct their house, several other homes along here, even though the line goes diagonally, and they may be in a different standing that the Betches are with regard to this line, this construction has gone forward, so I believe it's in conformity with what's going on and we would respectfully request that you issue the permit pursuant to Section 37-12. TRUSTEE KRUPSKI: Thank you. Before the Board comments, are there any other comments on this? Does the Board any have · · · · · · Board of Trustees 47 April 2l, 2004 any comments? TRUSTEE DICKERSON: I have a comment. You had mentioned that the proposed building does not take over anymore of the site, you're saying it's pretty much within the footprint? MR. FINNIGAN: It will increase the footprint, that's why I'm saying it's a major addition. It is greater than 25 percent. The approximate increase is approximately 50, probably about 55 to 57 percent. TRUSTEE DICKERSON: More. MR. FINNIGAN: More. It's an increase in square footage from the existing ground coverage of a little over 1,000 square feet, 1,100 feet. MR. JOHNSTON: Al, are the other houses on the seaward side of the coastal erosion line that you approved? TRUSTEE FOSTER: Lot of them are. MR. JOHNSTON: The one he makes reference to? TRUSTEE KRUPSKI: Could we see that aerial map that has the coastal erosion on it? MR. FINNIGAN: This one is the one I referred to in '97. There was some different circumstances with these applications because of, obviously, the placement of the line and what structures. TRUSTEE DICKERSON: This is Peadstein, the one that's right next door that's also seaward? MR. FINNIGAN: Seaward of the line, yes. TRUSTEE KRUPSKI: I think that what's at issue here and the letter we got from Robert McDonough that's been referenced, who is the environmental program specialist of the Coastal Erosion Management Unit, and this comes out of the code, a vadance could be issued for reconstruction provided that the following criteria are met. And we have to decide is it reasonable and prudent, or is there an alternative site. MR. FINNIGAN: Can I comment on that? That's the criteria for a variance. TRUSTEE KRUPSKI: Correct. MR. FINNIGAN: We're seeking a permit. That cdteda is the criteria that you would have to establish to the Town Board if we did not get - TRUSTEE KRUPSKh But the Town Board -- TRUSTEE FOSTER: Don't you need a variance for relief from the coastal erosion line? TRUSTEE KRUPSKh The Town Board is the Appeals Board. MR. FINNIGAN: Forthe variance. TRUSTEE KRUPSKI: Not for the variance, they're Appeals Board. MR. FINNIGAN: From the denial of the permit. If you deny Board of Trustees · ~ 48 a permit based on the criteria, I would have to appeal to the Town Board, and that's the variance criteria I would have to establish for the Town Board. TRUSTEE FOSTER: What would be the reason that we would want to deny it, just the coastal erosion line? "'TRUSTEE KRUPSKh Because of the coastal erosion as stated in the letter or we could find it in the code says the reconstruction or an increase of 25 percent or greater in ground coverage is prohibited and would require a variance. So it's up to us to say is the issuance of a permit, one, is it reasonable and necessary. MR. JOHNSTON: Both, reasonable and necessary. TRUSTEE KRUPSKI: So that's how we have to look at this, and I'm inclined to have it staked and look at it again, instead of just trying to either make a determination tonight or kick it into the Town Board. What's the square footage of the house next door? MR. FINNtGAN: The exact square footage, are you struggling with the issue of necessary?. Necessary, obviously, is a relative term. This is what they've decided, they're moving out here to live permanent. It's a summer home now. TRUSTEE KRUPSKI: I don't think we want to lawyer it up. I'd rather see it staked in the field and we can take a look at it in our May inspection. TRUSTEE FOSTER: Wasn't it staked out? MR. FINNIGAN: Do you have a copy of the survey? TRUSTEE KRUPSKI: No. We want it staked in the field so we can see it staked in the field, May 12th. We'll be happy to meet either you or the applicant or both on-site and you could also give us the square footage of the Pearlstein house. MR. FINNIGAN: I don't have that with me this evening, but we'll try to determine that. TRUSTEE KRUPSKI: If there's no other comments, I make a motion to table the application. TRUSTEE DICKERSON: Second. TRUSTEE KRUPSKh All in favor? ALL AYES. MR. FINNIGAN: Thank you very much. TRUSTEE KRUPSKh Thank you. 14 has been postponed. Ken, I think this is one of yours, 157 April 2 l, 2O04 15. John Bertani Builder, inc. on behalf of W. BRUCE BOLLMAN requests a Wetland Permit to demolish the existing dwelling and construct new two-story dwelling on the same footprint, and construct a first floor and second-story · · · · · · · T%VOMEY, LATHASI, SI-lEA & KELLEY ~v~: [ e-rnaiI: t 'karsch@s~ffolkIa w.com Fax No.: (631) 727-2385 Ext. 216 Via Facsimile and Hand Delivery_ Mr. Albert J. Krupski, Jr., President Board of Trustees Town of Southold P.O. Box 1179 53095 Main Road Southold, New York 11971 RE: Application of ich, 2325 North Sea Drive, Southold, NY ~~' ,~' , r,c,':- . Dear Mr. Krupski & Members of the Board: This letter is submitted in further support of the oab~ve-referen~d/ application wherein Mr. Betsch is seeking a Coastal Erosion Management Perrn~c pursuant to § 37-I1 and § 37-12 of the Southold Town Code, to renovate a sLngle- family dwelling on the above-referenced property. The existLng structure has ground coverage of approximately 1,782 square feet. It is a summer cortege wit.h a garage, deck and patio. Mr. Betsch proposes to renovate his home for vear- rmmd use by constructing a 3-bedroom house with a garage and a deck totaling approximately 2,800 square feet which includes a 2-car garage. The proposea new construction will increase the existing footprint by approximately 53~;. At the outset, it is noteworthy that the proposed structure ts entirely tn keeping with the character of the homes along North Sea Drive, many of w'_~idn have been renovated or reconstructed in the recent past. The proposed construction is also ent/rely compliant with the dimensional provisions set forte in the Southold Town Zoning Code and meets and in fact exceeds the requirements as it will be built on pilings thereby significantly decreasing the actual amount of groux~d coverage from the existing foundahon. In addit/on, as the Board is aware, tee DEC issued a letter of non-jurisdiction on March 4, 2004 · · · · · · · · · May 25, 2004 Page 2 since the proposed construction is to take place in excess of 100 feet from any fres~t water wetland. As the Board is aware, although Mr. Betsch would be otherwise able to proceed with the proposed construction as of right, the inexplicable placement of the coastal erosion hazard line along North Sea Drive in the vicird~- of the Borsch property implicates this Board's jurisdiction, as AdminSstrator of Chapter 37 of the Southold Town Code, to review the present application. It is respectbally submitted that notwithstanding the comments of Robert McDonough of the Coastal Erosion Management Unit in his letter directed to Mr. Krupsk2 on December 17, 2003, a reconstruction or an increase of 25% or greater in ==round coverage is not prohibited and does not require a variance under the Tos~'n Code. To the contrary, for the reasons set forth below, we respectfully submit that ti-ds Board has the absolute discretion and juxisdiction to issue the requested permit by application of the express criteria set forth in § 37-12 of the To~,'n Code to the circumstances presented here. §37-11 of the Town Code, entitled "Permit Required for Regulated Activities" states in pertinent part as follows: "No person may engage in any regulated activin' in an erosion hazard area as depicted on the coastal erosion hazard area map of the Town of Southold, as amended, without first obtaining a coasta! erosion permit.' §37-6 of the Totem Code define "Regulated Activi .ty' as: The construction, modification, restoration or placement of a structure, or major addition to a structure... A "Major Addition" is defined in the same section of the To~cn Code as: Art addition to a structure resulting in a 25,% or greater increase in the ground area coverage of the structure other than an erosion protection structure or pier, dock or wharf .... A review of § 37-11 in conjunction with the aforesaid definitions confirms that the proposed construction by Mr. Borsch of an addition wlqch will increase the ground area coverage by greater than 25%, is a regulated a~vits.' for wkach a pern~it may be issued by this Board pursuant to §37-12. The issuance o£ a Coastal Erosion Management Permit is governed by § 37-12 of the Town Code wh/ch states in pertinent part as follows: · · · · · · · · · Ma), 25, 2004 Page 3 A coastal erosion management permit will be issued only with a finding by the administrator that the proposed regulated activity: A) Is reasonable and necessary considering reasonable alternatives to the proposed activin, and the extent to which the proposed activity requires a shoreline Iocafion; B) Is not likely to cause a measurable increase of erosion at the proposed site and in other locations; and C) Prevents, if possible, or minimizes the effects on natural protective features and their functions and protective values, existing erosion protection structures and natural resources. It is respectfully submitted that the proposed project complies with all of the above criteria. The proposed construction is reasonable as it is entirely in keeping with the character of the surrounding homes on North Sea Drive and, as stated previously, is entirely comp!iant with the Town Zoning Code and FEMA requirements. That is, the Betsch s home will be built on pilings which will actually decrease the actual amount of ground coverage. As to whether the proposed construction is necessau', it is obvious that a determination of necessity is largely subjective. While that determination may depend on the varying experiences and preferences of the individual trustees, it is respectfully submitted that the determination of necessity m this context should be evaluated objectively, in the absence of any guidance to the contrary hn the Town Code. The proper inquiry, therefore, is whether the proposed construction is necessary for the intended use of the properS., by the applicant. The existing structure is a summer cottage. The Betschs' seek this Board's approval in order to construct a year-round residence of average proportions in an aesthetically pleasing design comparable to and in keeping with the chara~er of the homes in the community'. As for the second criteria of § 37-12, the applicant submits that there is no indication in the record of this application that the proposed construction %Td m any way increase erosion in any measurable fashion. Likewise, with regard to the third criteria, although the DEC has not offered any guidance as to why the CEHA line is placed along the edge of North Sea Drive, or which natural protective feature exists on the Betsch property, it is respectfully submitted that the proposed construction will have no adverse effect on a~y natural protective feature, their functions or protective values. To the contra-D,', the applicant submits that the site's natural protective features will, in fact, be enhanced by tkis proje~. As the Board will recall from its recent site inspection on May 12, 2004, the Betsch property is flanked to the east by a beach par'king lot and to the west by fl~e Pearlstein residence for which a Coastal Erosion Management Permit · · · · · · · · · May 25, 2004 Page 4 was issued in 1997 for an addition which increased the ground coverage m excess of 50% of the then existing footprint. Based on the foregoing, the applicant respectfully requests that the Board of Trustees, as Adnfin/strator, issue a Coastal Erosion Management Permit to Betsch for the proposed regulated activity pursuant to § 37-12 of the Southold Town Code. We remain available, as does Mr. Betsch, to address any remaining questions, concerns, comments or suggestions the Board may have relevant to this application. Thank you for ),our consideration. Very truly yours~ Tra~,~(arsch Palumbo TKP:yq cc: Brownell Johnston, Esq. Mr. John Betsch · · · · · · · · · T%¥OMEY, LATHAM, SI-lEA & KELLEY. LLP June 9, 2004 Brownell Johnston. Esq., Office of the Town Attorney, Town of Southold PO Box / 179 53095 Main Road Southo[d, NY t 1971 Re: A~pplication of John Betsch~North Sea Drivg, Southold Dear Mr. Johnston: Enclosed please find six copies of our memorandum submitted on behalf of the applicant m ?reparation for our meeting today at your law office located at 4001 Wells Road. Pecomc. York. The memorandum addresses the questions raised by the Board of Trustees in accordance with my May 25'" letter concerning the above application. Thank you. TKP/yq Cc: John Betsch VeU tr,u, ly yours. · · · · · · · · MEMORANDUM IN SUPPORT OF THE APPLICATION OF JOHN BETSCH FOR A COASTAL EROSION PERMIT CONCERNING THE PROPERTY LOCATED AT 2325 NORTH SEA DRIVE, SOUTHOLD, NEW YORK At the request of the Board, we have undertaken to review Section 37-13 (B,~ o£ the Code of the Town of Southold (hereinafter "the Code") in conjunction with Section 37-12 of the Code and the within application of Mr. Betsch for a Coastal Erosion Management Permit to renovate a single-family dwelling on the above-referenced properly. It is our position that Section 37-13 (B) of the Code does not have an>- beasing on this application for the following reasons. ./ Section 37-13 of the reads as follows: "37-13. Structural hazard area. The following restrictions apply to regulated activities within structural hazard areas: ... B. The construction of nonmovable structures or placement of major nonmovable additions to an existing structure is prohibited." A Structural Hazard Area is defined in the Code ag.: Those shorelands localed landward of natural protective features and having shorelines receding at a long term average recession rate of one (1) foot or more pet year· The inland boundary of a "structural hazard area" is calculated by starting at the landward limit of the fronting natural protective feature and measuring along a line perpendicular to the shoreline a horizontal distance . landward which is forty (40) times the long-term avera_oe annual recession rate. Emphasis added. , .. .'- To date, no natural protective feature has been identified on the applicant's proper'O. ~----~] either by the Town of Southold or by the DEC. As such, it would be improper to appl.x this section concerning Structural Hazard Areas, as the propert.5, in question~has not been identified as a Structural Hazard Area. Furthermore, even if a cognizable protectix e feature could be precisely located, the application of Se formula to calculate where the inland boundar3 lies requires an analysis by a qualified expert of the long term average recession rate of ~e shoreline on the Be~ch property. To our ~nowledg~. th~ record is devoid of any such analysis by the Board and ~herefore, the designation of the Bemch pro~n~ asa Stmc~ral n,zard Ar~a is spec.t~tive, ~ ~C-~ C Based on the above, it is our position that Section 3%i3 (B) of the Code is not applicable to the Board's deciding ~is app[ica~on as it has not been determined that the prope~- is located in a Structural Hazard Area. Fuflhermore. as previously submiUed to the Board. the proposed application will have absolutely no adverse impact on the en,'ironment and is entirely compliant with the Town Zoning Code and FEMA requirements as the structure will be built on pilings which will actualty decrease the amount of ground coverage on the property. There is simply nothing in the record which sugges~ that the proposed consm~ction witl in an~ way increase the rate of erosion on · e pro~. · · · · · · · THOMAS A, TWOIv~EY, JR. Brownell Johnston, Esq. Office of the Town Attorney Town of Southold P.O. Box 1179 53095 bfain Road Southold, New York 11971 TWOMEY, LATItAM, SItEA & KELLEY, www.suffolklaw.com Email address: tkarsch@suffolklaw.com Direct fax: (631) 727-2385 Ext. 216 June 23, 2004 RE: Application of John Betsch, North Sea Drive, Southold Dear Mr. Jotmston: I write in response to the Board's comments on my letter of June 9, 2004 and Memorandum in Support of the above-referenced application. Enclosed you will find copies of two surveys, one by Kulhanek & Plan Land Surveyors, P.C. dated 8/23/99 which was prepared in connection with the applicants' purchase of the subject property and the most recent survey prepared by John C. Eh/ers Land Surveyor in cormecblon with the instant application, dated 2/2/04. A comparison of the two surveys shows the southwest boundary line of the Betsch property (bordering on the Pearlstein property) measuring 202.00 feet in 1999 and measuring 226.18 feet in 2004. Likewise, the northeast boundary line of the applicant's property which borders on the beach parking lot measured 204.00 feet in 1999 and in 2004 measured 233.70 feet. Based upon this comparison, the beach on the applicant's property was increased by more than 24 feet over the last 5 years. Therefore, we submit that the subject property is not located in a structural hazard area as defined in § 37-13 of the Town Code as the shoreline is not receding at a rate of "one foot or more per year." Based on the above, the applicant requests that the Board take notice of the attached surveys, the discrepancy in the distances between the road and the shoreline in the surveys, and that from 1999 to 2004 the beach on the property depicted on the surveys has increased by more than 24 feet. Furthermore, that there has been no · · · · · · June 23, 2004 Page 2 erosion on the subject property over the last five years rather, the beach has increased in size. I trust this information will be helpful and welcome any questions and comments. Thank you for your courtesy and cooperation. TKP:yq Very truly yours, Trac) Karsch/Palumbo · · · · · · · · ! ! ! ! ,/. ! STATE (.')1; Nt'~\V C'(.)UNTY OF SLIFI::OL J(.fiN~.E I .~11~0~. I ~bmil l'hi~ ~1'1' I]l'0Siuli Permit. 13OARD OF 'I"~.)W N '1'1.~ I !~,'1't-!1(~ TOWN OF $OUTI..I(')I..I In Ihe illilll~l' u]' Ibc' ~lpp] ,;'uliL~n o1': ,IOHN I~F.~I'~¢:I I ) tss.: , h~vil in ~uppurl ul' lhe upplicalio~ uf ]~lm B~sch for ~ l]xhihil "A," ~1 lhc~ r~gucsl of .Iohn Betsch, ir~ com~ccti~2~ ~vilh :~.h'. I':k~l.scll. { rcviewt, d ;~,d e~)tnparcd Ih¢ ~urvey { '2;~, I~)~) i]ml alt{~chcd htreta :t~ I'~xhibit 'B, L / []OIIIl/~l'¥ 0[' IJIc J)I'IIJ]L'I'I)~. :IS IT]L~:tSLII'g~ J'rillll the edge of' J]}l'iVi' I(~ [11~ high tide i11,q ['k, illCl't'llhL'l] I'l'Ollt 2i)].O0 t~Cl · · · · · · · thc pr.perly bt)rtlering Norlh Sea [)rive to tiJ¢ higl) ride rsch Palumbo State o! New York [PA6087274 Suffolk Cous~Y )Ires February 111, 2007 -0 ~ 3~'.~4' OO" L,J 12.~;. ~,9' NOI~TH SEA : .~.~ C:Tt 01~ BI~OCK OUARANTEED TO THOMAS A. TWOMEY, JR STEPHEN B. LATHAM JOHN F SH~EA. III CHRISTOPHER D KELLEY fVIAUREEN 'r. LiCC[ONE DAVID M. DUBIN ~ P. EDWARD REALE Albert I. Krupski, Jr., President Board of Trustees Town of Southold P.O. Box 1179 53095 Main Road Southold, New York 11971 TWOMEY, LATHAM, SHEA & KELLEY, ATTORNEYS AT LAW 33 WEST SECOND STREET Mailing Address: P. O. BOX 9398 RIVERHEAD, NEW YORK 11901 TELEPHONE: (691) 727-2190 FACSIMILE: (631) 727-1767 www.su~folklaw, com Email address: tkarsch@suffolklaw.com Direct fax: (631) 727-2385 Ext. 216 July 21,2004 105 MAIN STREET F~ORT JEFFERSON STA., N.Y. 11776 (631) 928-4400 RE: Application of John Betsch, 2325 North Sea Drive, Southold, NY Dear Ixlr. Krupski & IX(embers of the Board: [ write to memorialize my telephone conversation with Assistant Town Attorney Brownell Johnston on Juiy 14, 2004 regarding the Board's discussions with Robert McDonough and Eric Starr of the New York State Department of Environmental Conservation (hereinafter "DEC") pertaining to the above referenced application for a Coastal Erosion Management Permit. During that conversation, Mr. Johnston informed me that the Board's suggestion that the Betsch property may have been situated in the "structural hazard area" was incorrect based upon the DEC's confirmation that there is no erosion on the subject property. Notwithstanding that fact, Mr. Johnston advised that the Board would most likely deny a coastal erosion permit to the Mr. Betsch based solely upon the reco~'nmendation of the DEC. I respectfully submit that a denial of this application under these circumstances is arbitrary, capricious and in violation of the statutory mandate set forth in Chapter 37 of the Southold Town Code. Pursuant Section 37- 4 of the Town Code, the Board of Trustees is designated as the Administrator of the Coastal Erosion Hazard Area Law within the Town of Southold. As such, the DEC has relinquished jurisdiction over coastal erosion hazard areas in the Town of Southold to the Board of Trustees, which has the sole discretion to issue permits for regulated activities within coastal erosion hazard areas. · · · · · · · · July 21, 2004 Page 2 As the Board is aware, Mr. Betsch seeks a permit to demolish the existing structures on his property and replace them with a new three bedroom home xvith an attached garage. Although we maintain that the placement of the coastal erosion hazard line on the applicant's property is unjustified, it is conceded that a costal erosion management permit is required, pursuant to Section 37-11 of the Town Code, since the proposed construction is by definition a regulated activity under the Town Code. The issuance of a permit by the Administrator is, therefore governed~ction 37-12 of the Town Code which provides that: "a coastal erosion management permit may be issued by the Administrator for any "regulated activity" which satisfies the following criteria: It is reasonable and necessary considering reasonable alternatives to the proposed activity and extent to which the proposed activity requires a shoreline location; It is not likely to call the measurable increase of erosion of the proposed site and in other locations; and Prevent, if possible, or minimizes the effects on natural protective procedures and their functions and protective values, existing erosion protection structures and natural resources. As set forth in our May 25, 2004 letter to the board, it is respectfulIy submitted that the proposed project complies with all of the above criteria. It is reasonable in that i_t is~enti~ly in keeping with~haracter ~ the sur~Lroundin~g~.homes on North Sea Drive and, as stated previouslv, it is entirely compliant with the Town ~ning Code and F'--EMA requir-~ments. ~fte construction ~7-h%cess-~--~ry t--~-cre~ate a suitable year roundel residence for the applicant. The new home ~11 be built o~ pilings which will actually d..ecroa~o2&te,~c!E~amount of ground ~ site's natural protective features will be enhanced by thd~p~. ~-oreover, b~sed on )~t'aiseussions ~-'E~j i-C-l~iSarent tt~-aUtliere is no measurable erosion on the subject property and, as such, there is logically little if any justification for denying the applicant a coastal erosion management permit. It is noteworthy that the Board's consideration of the percentage increase of square footage resulting from the proposed construction, i.e., greater than 25%, is misplaced here. Although it ~vas suggested during the hearings of this application that the proposed construction was a "major addition", defined in the Town Code as "an addition to a structure resulting in a 25% or greater increase in the ground area coverage...", it is clear that the application ._proposes a reconstruction which is ~ a regulated activity requiring a permit. As such, while the size of the proposed structure may be relevant to tl~e Administrator's analysis of the reasonableness of the activity, there is no provision in Chapter 37 that mandates the denial of a permit where the proposed construction will result in a footprint that is more than 25% greater than the size of the existing structures. · · · · · · · · July 21, 2004 Page 3 In conclusion, we reiterate that the proposed construction satisfies the criteria set forth in Section 37-12 of the Town Code for the issuance of a coastal erosion management permit and there is nothing of record to the contrary. We therefore urge the Board to reconsider its deference to the DEC, which is without jurisdiction to review or grant applications for coastal erosion management permits in the Town of Southold, and to adhere to its responsibilities as the sole Administrator of the Coastal Erosion Hazard Area Law under the Town Code. Thank you for you courtesy and cooperation. TKP:yq cc: Brownell Johnston, Esq. Office of the Town Attorney Very truly yours, ~racy Kar, gch Palumbo THOMAS A. TWOMEY. JR. STEPHEN B. LATHAM JOHN F. SHEA, III TWOMEY, LATHAM, SHEA & KELLEY, WWW.suffolkl~w.oom August 10, 2004 Brownell Johnston, Esq., Office of the Town Attorney, Town of Southold PO Box 1179 53095 Main Road Southold, NY 11971 EAST HAMPTON OFFICE 20 MAIN STREET EAST HAMPTON, N.Y. 11937 105 MAiN STR~[ET PORT JEFFERSON STA., N Y. 11776 (631) 928-4400 Re: Application of John Betsch. North Sea Drive, Southold Dear Mr. Johnston: Enclosed please find two more DEC Commissioner's decisions and an excerpt from the DEC Regulations concerning Coastal Erosion Management, available on the DEC's official website. After extensive research, I was unable to uncover any published "DEC Regs" defining "reasonable and necessary" in considering a Coastal Erosion Permit application. Furthermore, there are no reported Appellate Division, Court of Appeals or lower Court decisions defining "reasonable and necessary" in connection with permit applications. Although the enclosed decisions concern wetland permits, they both consider whether the projects were "reasonable and necessary." Please also note that the Susan Tasker application required various variances, was located on the Sound, and the applicant had been granted a Coastal Erosion Management Permit by the Board. I trust these will be helpful to the Board in considering the above application, and I remain available for any comments or questions that may arise in reviewing the enclosed in preparation for the Hearing scheduled for next week. Thank you. TKP/yq CCi John Betsch Very ~t,y. yours, -. i .... ~ Nev~ York Statl~epartment of Envir0nmental C0nse ati0n Services ~. Programs ~Sub~e(:t. . h~G':'< ~ Search ~ klighl~g~~: contact Commissioner's Decision for Susan Tasker More information from this division: office of Hearings and Mediation Decisions - Updated regularly. STATE OF NEW YORK DEPARTMENT OF ENVtRONMENTAL CONSERVAT]ON Office of Hearings 50 Wolf Road Albany, New York 12233-1550 in the Matter of the Application of Susan Tasker for a Tidal Wetlands Permit and variances from tidal wetlands setback requirements, pursuant to Environmental Conservation Law Article 25 and 6 NYCRR Part 661 DEC Project No. 1-4378-00583/00001-0 DECISTON December 29, 1994 Decision of the Commissioner The attached Hearing Report (the "Report") of Administrative Law Judge ("AU") Frank Montecalvo, including its Findings, Conclusions and Recommendation, in the matter of the application submitted by Susan Tasker (the "Applicant"), 202 Sixth Street, Greenport, N.Y. 11944, for a Tidal Wetlands Permit and variances from certain tidal wetlands setback requirements is hereby adopted as my Decision in this matter. The Applicant proposes to construct a single family dwelling, deck, driveway, septic system, stone revetment and place fill on a site bordering Long Sound and located at Road, Greenport, Town of Southold, Suffolk County, N.Y. The dwelling and deck require variances from the tidal wetlands setback restriction for principal buildings and other structures. The dwelling and deck are proposed within 38' and 32' of apparent high water (AHW). The septic system is proposed within 47' of AHW, which requires a variance from the setback required for septic systems. ~ The Applicant must demonstrate that the proposed project meets the standards for permit issuance in a tidal wetland adjacent area [6 NYCRR 661.9(c)] and, with respect to the house, deck and septic system components, she must show entitlement to a variance from the setback requirements contained in 6 NYCRR 66:1.6(a)(:I) and (2). The principal issue with respect to both the permit standards and the variance requirements relates to whether the project would have any undue adverse impact on the present or potential values of the adjacent tidal wetland. As explained in the Report, the proiect is not e_~pected to cause any adverse impacts to the pEin~iPal values '~ supported by the adjacent wetland: recreation, wildlife habitat and hnanne food production. ~ A--pproval of the variances also requires a demonstration by the Applican~t that there are practical difficulties associated with meeting the aforementioned setback requirements [6 NYCRR 661.11(a)]. The Applicant has successfully made this showing by referencing the site's configuration together with the requirements of local authorities. In view of the foregoing, the subject application of Susan Tasker for a Tidal Wetlands Permit and variance from certain tidal wetlands _, setback requirements is hereby approved subject to the standard conditions for tidal wetland permits. The Department Staff shall promptly issue to the Applicant the permit and variances described above. IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports and other papers relating thereto in its office in the County of Albany this 29TH day of December, 1994. DEPARTMENT OF ENVIRONMENTAL CONSERVATION LANGDON MARSH, COMMISSIONER /s/ TO: Susan Tasker 202 Sixth Street Greenport, NY 11944 · · · · UST (A' C.ED) OFFICIAl_ SERVICE ClST - March 26, 1997 NAME OF HEAR]lNG: Susan Tasker; Application No. 1-4378- 00583/00001-0 Tidal Wetlands Permit; variance from tidal wetlands setback requirements STAFF: DEC Region :2 c/o Gall Iv1. Hintz, Esq., Assistant Regional Attorney NYSDEC Region ::[ Offices Building 40, SUNY Campus Stony Brook, NY :21790-2356 FAX 516 444-0373; PHONE: 516 444-0260 APPLICANT: Susan Tasker c/o Esseks, Hefter & Angel 108 East Main Street P.O. Box 279 Riverhead, NY 11901 attn: Stephen R. Angel, Esq. FAX 516 369-2065; PHONE: 516 369-1700 AM: Frank Montecalvo Department of Environmental Conservation Office of Hearings 50 Wolf Road, Room 409 Albany, NY :22233-1550 STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION Office of Hearings 50 Wolf Road Albany, New York 12233-1550 Tel. 518 457-3468 In the Matter of the Application of Susan Tasker for a Tidal Wetlands Permit and variances from tidal wetlands setback requirements, pursuant to Environmental Conservation Law Article 25 and 6 NYCRR Part 661 DEC Project No. 1-4378-00583/00001-0 · · · HEARING REPORT -by- ~si Frank Montecalvo Administrative Law ]udge THE PROPOSED PROJECT and PERMITS SOUGHT Susan Tasker, 202 Sixth Street, Greenport, N.Y. 11944 (the "Applicant") seeks a Tidal Wetlands Permit and variances from tidal wetlands setback requirements from the Department of Environmental Conservation (the "Department" or "DEC"). Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 25 (Tidal Wetlands); and Article 8 (Environmental Quality Review). Also, Title.~ of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); NYCRR Part 661 (Tidal Wetlands); and Part 617 (SEQR). Applicant's proposed project consists of a single family dwelling, deck, driveway, septic system, and a stone revetment with backfill, to be Io_ca__ted adiacent to Loncj Island Sound on Middle Road, Greenport, Town of Southold, Suffolk County, N.Y. The dwelling and deck requir_e variances from the 75 foot tidal wetlands setback restriction. The diNelling_anrl dCrl~ rare propm~¢~38' and 32' of apparent high .water_E_[AHW). Th~ ~ptic ~.v~rem !_~ prmpn~_e_d within 47' of AHW~ which requires a variance from the 100 foot setback ~pplicable~to septic- systems. PROCEEDINGS Application papers were initially filed during August, 1992. Following the submission of other documents, DEC Region i Staff ("Staff") issued a Notice of Complete Application that was published on June 23, 1994 in the Southold Traveler-Watchman and June 22, 1994 in the Environmental Notice Bulletin (ENB). On August 26, 1994 the DEC Office of Hearings received Staff's request to schedule a public hearing. On August 29, 1994, Frank Montecalvo was assigned to be the Administrative Law Judge (the "AL3") who would hear the matter. The Notice of Public Hearing (the "Notice") was issued September 7, 1994, and was published September 14, 1994 in the ENB, and September 15, in the Traveler-Watchman! ~tice was also directly mailed September 12, 1994 to the clerk or chief executive officer of the Town of Southold and Suffolk County. The Notice indicated Staff's tentative determination that the proposed project would not meet permit issuance standards of Part 661.9. The Notice required that petitions to intervene in these proceedings be filed by October 10, 1994, and that written public comments on the proposed project be received by October 17, 1994. The AU received no written comments on the proposed project and no petitions to intervene. As advertised in the Notice, the AU opened the public hearing at 11:00 AM on October 17, 1994, at the Southold Town Hall, 53095 Main Road, Southold, N.Y. DEC Staff was represented by Gall M. Hintz, Esq., Assistant Regional Attorney. The Applicant was represented by Esseks, Hefter & Angel; Stephen R. Angel, Esq., of counsel. No one made a statement at the public statement session. The Tssues Conference was convened immediately following the public statement session. Potential issues were discussed, narrowed and set forth. None were appealed. These are identified below ("l~ssues"). The adjudicatory hearing commenced immediately following the Issues Conference, and concluded the next day. Applicant called as her witness Roy L. Haje, President, En-Consultants, Inc. Staff called as its witnesses Louis Chiarella, Regional Manager, DEC Bureau of Marine Habitat Protection; and Dawn McReynolds, Acting DEC Marine Resource Specialist. Oral closing arguments were taken. The record closed November 7, 1994 on receipt of the stenographic transcript. ISSUES 1) Does the proposed house in the "adjacent area" qualify under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures (which would enable compliance with 661.9(c)(2))? 2) Does the proposed deck in the "adjacent area" qualify under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures (which would enable compliance with 661.9(c)(2))? Sub-issue: Is the setback required by 661.6(a)(1) 75 feet or the "average" setback as calculated by Applicant? 3) Does the proposed septic system in the "adjacent area" qualify under required by 661.6(a)(2) for same (which would enable compliance with 661.9(c)(2))? 4) Does the proposed septic system meet the permit issuance standards for "adjacent areas" specified in 661.9(c)(1)? 5) Do the (a) house, (b) deck, and (c) septic system meet the permit issuance standards for "adjacent areas" specified in 661.9(c)(3)? Of concern here is the potential for undue adverse impacts to wetland values for wildlife habitat, erosion control, recreation (here, beach width), cleansing ecosystems, storm control, marine food production, and open space/aesthetic appreciation. Not of concern are values for education, research, and silt absorption. 6) Does the revetment meet permit issuance standards under 661.9(c)? Of concern here is the potential for undue adverse impacts to wetland values for wildlife habitat, erosion control, recreation (here, beach width), cleansing ecosystems, storm control, marine food production, and open space/aesthetic appreciation. Not of concern are values for education, research, and silt absorption. STAFF'S POSITION Staff objects to the proposed project, contending that it will cause undue harm to tidal wetland values, and, thus, not meet the requirements of 661.9(c)(3). Staff argues that the lot is too small to develop, with so little room behind the bluff that Applicant's consultant had to configure the proposed house half-way into the "adjacent area." In spite of its size, Staff contends that the property fosters a large quantity of tidal wetland values. It's a vital area for wildlife that can be used for feeding, and for birds to nest and rest. It is important for marine food production providing part of the food chain for Long Island Sound. The site is important to recreation, having a beach and providing water vehicle access to the water. It provides open space and offers a beautiful view to passers-by. Staff contends that these wetland values will suffer negative adverse impacts, meaning that 661.9(c)(3) (which requires absence of undue adverse impacts) will not be met. Staff also argues that the setbacks under 661.6(a)(1) [75 feet for the house and deck] and (a)(2) [100 feet for the septic system] will not be met, and that the deck does not qualify for the average setback because of non-compliance with the "numerous and substantially all" portion of the regulation (i.e., 5 structures with decks is less than 50% of 12 structures structures on the water). Although Staff · · · · · · · recognizes Applic~[['s difficulty in complying wi~the setbacks, Staff argues that the project will not qualify for variances because it must be shown that the spirit and intent of the regulations be observed, that public health and safety must be protected, and that there will be no undue adverse impact on present or potential tidal wetland values. Regarding public safety, Staff has concerns over the migration of septic material and the cumulative impact on Long Island Sound. Staff contends there has been an insufficient showing of why the house cannot be moved back further; and that Applicant did not mention other mitigation possibilities such as placing sand over the revetment to make a dune. APPLICANT'S POSITION Applicant contends that the only economic use of her property is for a single family residence with associated septic system. Applicant argues that this project will have very little actual deleterious effect on the environment or even the potential effects identified in the Tidal Wetlands Act and regulations. The site is a 50 foot wide lot sandwiched between two existing houses (both of which are close to the property line) located on a highly traveled county route. Applicant points out that all construction would be either in the adjacent area or beyond DEC jurisdiction. No intrusion into the wetland itself is involved, and all the proposed structures are classified as "generally compatible" with tidal wetland adjacent areas. Applicant notes that there have been no acknowledged problems with Sound water quality in the vicinity of the site and that the active portion of the proposed septic system (the leaching pools) are admittedly outside of DEC jurisdiction. Only a few feet of the solid holding tank are inside the ~ adjacent area. Staff's concerns for the beach and possible scouring are belied by the testimony and evidence that indicates no beach movement over the years and no identifiable scouring. A~L2plicant X.C.. notes that the Suffolk County Department of Health Services h_~_~ , a~proved of the septic system, that $o'uthnOle nas issued a coastal v~¢'. erosion hazard perm,.t, and that the Southold Zomna Board of I, ~s has issued a varian.ce approving ot Uae hou-~e'~s setback fr____om the Sound.. Applicant also argues that practical difficulty has been established because at most the house's location could be moved only 6 inches. ~, FINDINGS OF FACT Project Site and Setting: 1. The project site consists of an approximately 50' wide by 100' deep parcel of land at Arshamomoque near Greenport, Town of Southold, Suffolk County, N.Y., designated on the Suffolk County Tax Hap as District 1000, Section 044.00, Block 02.00, Lot 0:[1.000. Applicant acquired the site by Executor's deed dated April 14, 1992 from · · · · · · · deceased. Ruth W. Tasker (mother-in-law of the Applicant) acquired the site from another person in 1953. 2. The project site is a 4050 square foot parcel of land bounded on the north by the high water mark of Long Tsland Sound and on the south by County Route 48 (also called Middle Road). Official Tidal Wetlands Map No. 718-552 classifies the waters of Long Island Sound here as "LZ," littoral zone. 3. The project site is bounded on both the east and west by parcels improved with single family dwellings, decks, and shore stabilization structures. The parcel immediately to the west is protected by a vertical timber bulkhead. The parcel immediately to the east is protected by a stone (or gabion) retaining wall with "rip-rap" (large stones) at its toe. The distance between these two stabilization structures (i.e., the width of the project site) is approximately 50 feet. The distance between the two houses is approximately 60 to 70 feet. The deck on the parcel to the east encroaches on the site itself. 4. The site is physically constituted by a lawn area extending from the southerly property line to an eroded bankline, and an unvegetated sand and stone beach extending from the bankline to the water. Access from the lawn to the beach is via a stairway. There are no apparent changes in the trend of the shoreline in front of the neighboring stabilization structures with that on the site. There is no apparent "toe scour" or erosion at the foot of these structures. The only vegetation on the site is lawn grass with upland weeds mixed in. 5. The beach contains a line of wrack, i.e., a line of debris found around the spring high tide line. The wrack line stretches across the site, and continues in front of the neighboring shore stabilization structures which abut both sides of the site. The wrack contains (among other things) chondrus, reeds, sticks, crab carapids, slipper shells, and horseshoe crabs. The wrack line is most prevalent on the adjacent parcel to the west, where the beach is wider. The wrack line becomes discontinuous on the adjacent parcel to the east, where it is broken up by the rock rip-rap. 6. The neighborhood's character within 500 feet of the site on the north side of County Route 48 is primarily waterfront one-family residences. Exhibit A-16 indicates that of the 13 waterfront parcels of varying size in this area (including the site), 8 contain houses (6 of which existed prior to 1977), one contains a restaurant (also pre- 1977), 3 are vacant and I is unknown. Five decks existed in this area prior to 1977: three attached to dwellings and two attached to the restaurant. The average setback of these decks from the water is 36 feet. The site plan (see Attachment) indicates an additional (post- · · 1977) deck on th~ · · · ,arcel immediately west of tl~llsite. 7. A public beach is located on County Route 48 approximately 1/4 mile west of the site. 8. The single family residences within the general vicinity of the site have domestic septic systems to get rid of their sanitary waste. Wetland areas and benefits: 9. Mapped littoral zone (see Finding 2) and unmapped shoals and mudflats (here, the beach area between mean Iow and mean high water) are immediately adjacent to the project site on Long :Island Sound. Littoral zones have value as open water for marine food production, wildlife habitat, recreation, education, and scientific research. In particular, seagulls have been observed feeding and loafing on nearby rocks below the mean high water line at the site. 10. The project site itself is comprised of tidal wetland "adjacent area" (about half of the site, extending from the high water line landward to the top of the eroded bankline or bluff at an elevation of approximately 1:[ feet), and land further upland. The top of the bluff is 51 feet from the high water line, more or less depending on the particular portion of the site. There are no vegetated tidal wetlands at or adjacent to the site. 11. The site's beach is used for recreation. People use the site for beach access, lounging, and for launching and retrieving jet skis. 12. The beach's wrack line is an area where organic material decays. It is habitat for organisms such as sand fleas and arthropods. ]t is also the prime feeding habitat for many wading and shore birds, such as the least tern, piping plover and the roseate tern. The components of wrack lines in general are an important food source for birds and other species in the food chain (e.g., raccoons). The Proposed Project, Design Constraints and Expected Tmpacts: 13. The proposed project consists of the following elements, as shown on the Attachment to this Report: a) a two story 22 feet by 25 feet one-family dwelling on pilings; b) a septic system consisting of a solid septic tank approximately 4 feet by 8 feet, two 8 feet diameter leaching rings 6 feet deep, and an area for a future ring of similar size if needed; c) a stone revetment that will extend between the corners of the adjacent shore stabilization structures, consisting of one and a half to two ton capstones over 100 to 300 pound core stones on filter cloth, with top elevation~~ 11.5 feet above mean sea~vel, and with a slope of approximately I on 1; d) backfill consisting of approximately 265 cubic yards of clean fill which will be trucked in to raise the site's grade landward of the revetment to equal the existing upland (i,e,, the site would be raised to elevations between 11,5 (at the revetment) and 13 feet (under the house)); e) an irregular shaped open-wood deck extending across the north side of the house and extending to the south side of the revetment (5 feet deep on the east and 10 feet deep on the west); and f) a bluestone or similar pervious driveway, 14. None of the project elements would be located in the tidal wetland itself. Due to the bank on the site, all project elements would be located in the tidal wetland "adjacent area" and/or further upland. Specifically, the revetment, the deck, the northern half of the house, the northern third of the septic tank (i.e., not the leaching rings), and the fill would be in the "adjacent area;" with the remainder of the project further upland. 15. The sanitary system has been situated as far from the water as possible while being in accordance with regulations of the Suffolk County Department of Health Services ("SCDHS," the primary agency responsible for regulating septic systems in the area). The solid septic tank would be located approximately 47 feet from the line of mean high water, and the nearest leaching pool would be approximately 64 feet from the water. The septic tank encroaches approximately 4 feet into the "adjacent area." Five foot setbacks of the sanitary system from a retaining wall on the south, from the east property line, and from the proposed house, are the minimum acceptable to the SCDHS. SCDHS has already approved of the proposed sanitary system. Effluent from the sanitary system will travel vertically downward from the leaching rings (which are located upland of the "adjacent area") through clean sand and gravel and will be largely absorbed onto these particles within two feet of the bottom of the rings. Nutrients and certain pathogens are not absorbed, however, and will travel freely to groundwater. 16. The house would be located approximately 38 feet from the line o__f m~an~n--hiqt~ water~ ancl approximately 20 feet from the southerly property line. The house encroaches approximately 13 feet into the adjacent area. The seaward face of the proposed house would be approximately in line with the seaward face of the houses on the adjoining parcels. The location of the septic system between the proposed house and property line inhibits relocating the house any significant distance southward. 17. The deck woui~II be located approximately 3~lJ~eet from the line of mean high water and, thus, encroach approximately I9 feet into the adjacent area. The seaward edge of the deck would be set back from the water a greater distance than the seaward edges of the decks on the adjacent parcels immediately to the east and west. The distance separating the proposed deck from the deck on the east would be no more than ::[5 feet. Due to fill behind the revetment, it will be at an elevation of at least 1:[.5 feet. 18. The revetment would be located above the high water line in line with a line connecting the ends of the neighboring stabilization structures. The area behind the revetment would be filled, covering the natural bluff. The revetment and filling is expected to prevent flooding and further erosion of the site. The Town of Southold has issued Applicant a Coastal Erosion Management Permit and a variance for the proposed project. Given the apparent lack of effect of the neighboring stabilization structures on the shoreline and wrack line (see Findings 4 and 5, particularly the timber bulkhead which would be more likely than the proposed revetment to cause toe scour owing to its vertical face), the proposed revetment is not expected to cause any significant beach change or loss of the wrack line. DISCUSSION A tidal wetlands permit and compliance with development restrictions are required to lawfully conduct regulated activities on a tidal wetland or on an "adjacent area" (see 6 NYCRR 661.8 and 661.6). Here, all project elements would be located either in the tidal wetland's "adjacent area" or further landward. None are proposed in the wetland itself (Finding 14). Its undisputed that the "adjacent area" here is confined to the area lying between high water and the top of the bluff, approximately 51 feet away. (See Finding :10 and 661.4(b)(1)(iii)). Of all the project elements, only the revetment, the deck, the northern half of the house, the northern third of the septic tank (not leaching rings) and the fill would be subject to the tidal wetland permitting requirements and development restrictions, with the remainder being beyond DEC's jurisdiction because they are further upland. (See Finding 14). Of the 661.6 development restrictions, only 661.6(a)(1) and (a)(2) are in issue on this application. Section 661.6(a)(1) imposes a 75 foot setback on principal buildings and all other structures in excess of 100 square feet, with provision for applying an average setback under certain circumstances. Section 661.6(a)(2) imposes a 100 foot setback on septic systems. However, because the adjacent area here extends no further landward than the top of the bluff, the Department may apply the setback provisions only from the water up to the top of the iff, in effect limiting the setl~k requirements to approximately 51 feet on the project site. These setback requirements, therefore, will affect only the deck and northern portion of the house [661.6(a)(1)], and the northern portion of the septic tank [661.6(a)(2)]. To be lawfully built excluding, for the moment, the possibility that the deck may qualify for application of an average setback, these structures must either be moved landward of the top of the bluff to take them out of the adjacent area (4 feet for the septic tank, 13 feet for the house, and 19 feet for the deck), or they must be otherwise permittable and receive variances allowing such encroachments into the adjacent area. (See Findings 15, :[6, 17; 661.11) Section 661.11 authorizes the Department to vary strict application of the setback requirements where there are practical difficulties in complying with them, provided that the spirit and intent of the provisions is observed, public safety and welfare are secured, substantial justice done, and action pursuant to the variance will not have an undue adverse impact on the values of the protected tidal wetland. "(a) Where there are practical difficulties in the way of carrying out any of the provisions of section 661.6 of this Part or where in the department's judgment the strict application of the provisions of section 661.6 of this Part would be contrary to the purposes of this Part, the department shall have authority in connection with its review of an application for a permit under this Part to vary or modify the application of any provisions in such a manner that the spirit and intent of the pertinent provisions shall be observed, that public safety and welfare are secured and substantial justice done and that action pursuant to the variance will not have an undue adverse impact on the present or potential value of any tidal wetland for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation. The burden of showing that a variance to such provisions should be granted shall rest entirely on the applicant." (661.11, Variances) Here, practical difficulties in complying with the setbacks have been shown: the portion of the lot behind the top of the bluff is simply not large enough to accommodate the structures given the constraints already placed by the local health department on the location of the septic system (Findings 15, 16). Also, this difficulty was not self imposed, because the site had been owned by the Applicant's family for many years (Finding 1). Furthermore, the Applicant is not asking for anything more than what her neighbors already have (see Findings 6, 8, 13, :[6, 17). The basic inquiry regarding the other requirements for variance is whether strict application of the setbacks will serve a valid public purpose which outweighs the injury to the · · · · · · From the testimony presented, Staff's primary concerns for this project center around preservation of the beach and wrack line, and septic system impacts. In spite of being classified as generally compatible with wetland preservation when built in an adjacent area (661.5 (a)(2) and (b)(2g)), Staff opposes the revetment, fearing that toe scour will cause the beach and wrack line to diminish, adversely impacting the wetland benefits (recreation, wildlife habitat, marine food production) that they provide. Staff's fears are not borne out by the evidence, however, which indicates that adjoining structures have not caused such problems, resolving :issue 6 (Findings 4 and :[8). Staff objects to the entire septic system (including portions beyond the adjacent area) over concern that material from the septic system will migrate to Long :island Sound and adversely affect water quality and public health. :it's noted that the system's effluent will be largely absorbed within the first 2 feet of travel from the leaching rings. Regardless, the effluent would be released landward of the adjacent area and outside DEC jurisdiction. Although certain nutrients and pathogens may still travel and reach ground water, this is not considered a health threat because the local authority (the SCDHS) which has the jurisdiction and responsibility to protect public health has already approved Applicant's proposed system. (See Findings :[4, :[s.) Only a portion of the septic tank (a part which is not intended to release effluent to the environment) is within DEC jurisdiction. Even so, such use of the adjacent area is classified as generally compatible with tidal wetland preservation (66:[.5 (b)(45) and (a)(2)). Staff's concern over the tank possibly becoming exposed and rupturing or becoming flooded, particularly during storms, is addressed by the proposed revetment and filling, which can be expected to prevent this from happening (see Finding :[8). The septic system thus is compatible with public health and welfare (resolving Tssue 4), and will not have an undue adverse impact on wetland values (resolving part of :issue 5). Given Applicant's practical difficulty in siting the tank and apparent lack of public purpose The words "public purpose" are used here to mean advancing the spirit and intent of the setback provision, securing the public safety and welfare, and protecting wetland values from undue adverse impacts, that would be served by enforcing an additional 4 feet of separation between the tank and the wetland, substantial justice would be done by granting a variance for the septic tank (resolving issue 3). A house in an adjacent area is generally compatible with preservation of wetland beneff 661.5 (a)(2) and (b)(46)) the fact that the houses on the adjacent parcels are only 60 to 70 feet apart (Finding 3), that the seaward face of the proposed house will be approximately in line with the adjoining houses, yet still 38 feet from high water (Finding 16), and that the house will be at an elevation of 13 feet which provides a vertical separation from the wetland The elevation is considered significant here because it is greater than the 10 feet elevation used to define "adjacent area" under natural conditions (661.4(b)(1)(iii)). (see Finding 13), it does not appear that a house at the proposed location will have any impact on the wetland's value as wildlife habitat that has not already been caused by the adjacent homes close by. Although Staff wishes to preserve public beach access and the view of the water from the road, such purposes are not served by enforcing an additional 13 feet of setback for the house (i.e., the house would still block the view and access across the site even if it were possible to move it 13 feet further from the wetland). The house will not change the open space character of the wetland itself, nor will it inhibit access to the wetland from public areas such as the area below the high water line. The public has access to the wetland from a public beach 1/4 mile away (Finding 7). The house thus will not have an undue adverse impact on wetland values (resolving part of Issue 5). Given Applicant's practical difficulty in siting the house and apparent lack of public purpose that would be served by enforcing an additional 13 feet of separation from the wetland, substantial justice would be done by granting a variance for the house (resolving Issue 1). If the deck qualifies for application of an average setback (i.e., 36 feet per Finding 6) it will need a variance of 4 feet, otherwise it will need 19 feet (Finding 17). The sub-issue of average setback is moot, however, because the deck will qualify for either. It is not clear that an average setback would apply to the deck, because 5 decks is not obviously "numerous." Compare with the discussion in the Hearing Report accompanying the Commissioner's 8/9/94 Decision on the Seewald application. A deck is generally compatible with preserving tidal wetlands when constructed in an adjacent area (661.5 (a)(2), (b)(49)). The proposed deck will be vertically separated from the wetland due to the backfill (see Finding 17 and footnote 5 above). The deck adds no apparent impact to what is already there from the decks on the adjoining parcels only a short distance away (especially since the proposed deck is set even further back from the wetland than the neighboring decks), nor to what would be caused by filling the area (not subject to a setback). (See Findings 3, 17, :~8; resolving the remaining part of Issue 5). It would not be reasonable to requir. LEe Applicant to relocate or do awav with the deck unless some ~nviro'nmental purpose would be served. (~iven the apparent lack of public purpose that would be served by enforcing an additional 4 or 19 feet of separation from the wetland, substantial justice would be · · · · · · done by grantingOvariance for the deck (resollIIg Issue 2). Based on the above rationale, the following Conclusions of Law are reached. CONCLUSIONS OF LAW 1. The proposed house in the "adjacent area" qualifies under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures, enabling compliance with 661.9(c)(2). 2. The proposed deck in the "adjacent area" qualifies under 661.11 for a variance of the setback required by 661.6(a)(1) for principal buildings and other structures, enabling compliance with 661.9(c)(2). Whether or not the setback required by 661.6(a)(1) is 75' or an "average" setback as calculated by Applicant is moot. 3. The proposed septic system in the "adjacent area" qualifie§'under 661.11 for a variance of the 100' setback required by 661.6(a)(2), enabling compliance with 661.9(c)(2). 4. The proposed septic system meets the permit issuance standards for "adjacent areas" specified in 661.9(c)(1). 5. The (a) house, (b) deck, and (c) septic system meet the permit issuance standards for "adjacent areas" specified in 661.9(c)(3). 6. The revetment meets permit issuance standards under 661.9(c). RECOMMENDATIONS The Department should grant the requested ~ermit and variances. Attachment: Plan of proposed project FAX 518 485-7714; PHONE: 518 457-3468 Other persons requesting a copy of the decision: David S. Corwin 639 Main Street Greenport, NY 11944 Back to top of page · · · · · · · extent it implies the Department is compel~ll to approve a permit for a smaller dock, if applied for by the Applicant, based upon the existence of previous permits approved for the Applicant's property. The determination of whether or not to grant a permit must be_~g__overned .b..y the site specific factors exiting at the time a permit a_pplication is made, including particularly the current state of th~ natural resour(;es at the site. See In the Matter of the Application of Richard and Carol Leibner, Decision of the Commissioner, March :[6, 2000; vacated on other grounds, Leibner v. NYSDEC, 291 A.D.2d 558 (2nd Dept. 2002). Accordingly, the application for the requested permits is denied. I have also reviewed the record with respect to the ruling rendered by the Al_] excluding the admission in evidence of permits for dock structures issued by the Department in areas other than Noyack Bay and concur that they lack sufficient relevance to the instant proceeding, Accordingly, I decline to open the record for their receipt in evidence, For the New York State Department of Environmental Conservation /s/ By: Erin M, Crotty, Commissioner Albany, New York July 8, 2002 STATE OF NEW YORK DEPARTMENT OF ENVTRONMENTAL CONSERVATI'ON 625 Broadway Albany, New York :[2233-1550 In the Matter - of - the Application for a tidal wetlands permit, use and protection of water permit, and water quality certification pursuant to the Environmental Conservation Law (ECL) Articles :[5 and 25 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 608 and 66:[ - by - · · · STEPHEN KROFT Permit Application No, 1-4736-05614/00001 HEARING REPORT PROCEED'rNGS - by- /s/ Richard R. Wissler Administrative Law .ludge An application for permits from the New York State Department of Environmental Conservation (the "Department" or "DEC") was made by Stephen Kroft, 2211 Broadway, New York, New York 10024 (the "Applicant"), for construction of a private dock facility. The proposed project would be located at the Applicant's private residence at 3541 Noyack Road, Noyack, New York. The site is in the Hamlet of Noyack, Town of Southampton, Suffolk County, and is on the south shore of Noyack Bay, a part of the Peconic Estuary. The project would require a Tidal Wetlands permit pursuant to Environmental Conservation Law (ECL) Article 25 and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 661), a Protection of Waters permit pursuant to ECL Article 15, Title 5 and 6 NYCRR Part 608, and a Water Quality Certification pursuant to 6 NYCRR Section 608.9. By letter dated March 9, 2001, Department Staff advised the Applicant that his permit application was denied because the dock as proposed did not meet the standards for permit issuance as articulated particularly in 6 NYCRR 661.9(b)(1)(i),(ii) and (iii). The proposed structure would have an undue impact on the present and potential values of the tidal wetlands at this site, Department Staff asserted. Moreover, according to Department Staff, the proposal is not reasonable and necessary taking into account reasonable alternatives such as the use of a mooring to anchor a boat. Pursuant to ECL Article 8 (State Environmental Quality Review Act) and 6 NYCRR Part 617, the Department Staff determined that the proposed project is a Type :IT action, a residential dock, requiring no further review pursuant to those regulatory provisions. The matter was referred to the Department's Office of Hearings and Mediation Services to schedule a hearing. A Notice of Hearing was published on .lune 27, 2001, in the Department's Environmental · · · · · · y 12, 001. The hearing began on August 13, 2001, at the North Haven Village Hall, 335 Ferry Road, North Haven, New York, before Richard R. Wissler, Administrative Law 3udge (AL]). The hearing continued, before Al] Wissler, on the following dates: August 15, October 3, 4 and 5, December 3, 4, 6, 19 and 20, 2001. The Applicant was represented by Eric 3. Bressler, Esq., of the law firm of Wickham, Wickham &. Bressler, P.C., Mattituck, New York. The Department Staff was represented by Craig L. Elgut, Esq., Assistant Regional Attorney, DEC Region 1, Stony Brook, New York. The Notice required that petitions to intervene be filed by August 3, 2001, and that written public comments on the proposed project be received by the AL] prior to the hearing. The AL] received 5 written . comments and no petitions_~to intervene. Th'~comments opposed the .2.~.~1!~[ p~opo~ed project and came from local residents and an environmental-~' ¥ a'dy~ocacy organization called Grou~p_~For The gouth F~rk. Their- - '. comments expressed doncerns-over the size of the proposed project, ,- '~. t~e lac_k, of other docks in the area exc-~ept for one at a restaurant built before enactment of the DEC tidal wetlands regulations, the impact of the project on the ecology of the area and the interference Ch-~ dock would pose to the public's use and enjoyment of this section of Noyack Bay. A petition containing 157 signatures of individuals opposed to the project was among the written comments received. Pursuant to the Notice, the AL] convened the public legislative hearing at 11:00 AM on Monday, August 13, 2001, at the aforementioned North Haven Village Hall. Fourteen persons spoke at the hearing, including the Applicant. Thomas Samuels commented that there are other docks on Noyack Bay which he has designed and built, that they have to be built substantially to withstand winter ice impacts and that they are not detrimental to either navigation or the environment. Robert Reiser, Mayor of the Village of North Haven, commented that he was there to observe the proceeding because North Haven was at that time assessing their current policies with respect to docks as part of the overall development of a harbor management plan for the Village. ]on Semlear, a Town of Southampton Trustee, expressed his personal concern that the granting of this permit could lead to a proliferation of other docks along this section of Noyack Bay. David Corwin, an engineer and dock designer, who also testified on behalf of the Applicant at the adjudicatory hearing, stressed the need to make a dock substantial enough to withstand winter ice impacts. 3ean C. Land, a member of the South Fork Groundwater Task Force, stressed the need to protect the waters of the Peconic Estuary, and stated that the construction of this dock and others that would follow would be detrimental to this · · · · · · · effort. Michael the AppJicant's next door~ighbor, spoke in favor of the project and had no objections to it either environmentally or aesthetically. Steven Reiter said he had visited the site with the Applicant's consultant and found the area to have few dams. 3ulie Penny, a neighbor of the Applicant's also residing on Noyack Road, spoke in opposition to the dock and its potential impact to the environment and noted that the Applicant could use a mooring as other residents do; she also submitted a letter from she and her husband which was read into the record. Richard Jackson, a geologist who testified for the Applicant at the adjudicatory hearing, said the proposed dock would have no geological impact. Nancy Haynes, a manager of three marinas in the area, said that they are filled at this time with seasonal boats. Kevin McAIlister, the Peconic Bay Keeper who testified for Department Staff at the adjudicatory hearing, said that this dock and the proliferation of others like it would have a cumulative negative impact on the ecology of Noyack Bay and the Peconic Estuary and would also interfere with the public's right to use and enjoy the Noyack Bay waterfront. An Issues Conference was convened immediately following the public legislative hearing. Only the Department Staff and the Applicant participated as no one else had flied for party status. The reasons for the Department Staff s denial were discussed. The issues for adjudication were identified as follows: Whether the proposed project meets the standards for issuance of a tidal wetlands permit specified in 6 NYCRR 661.9(b)(1)(i), (ii) and (iii); Whether the proposed project meets the standards for issuance of a protection of waters permit specified in 6 NYCRR 608.8; and Whether the proposed project meets the standards for issuance of a water quality certification pursuant to 6 NYCRR 608.9. The parties agreed on the record that the above were the issues for adjudication and the AL] so ruled, There was no appeal of this ruling, The adjudicatory hearing then proceeded. The following witnesses testified on behalf of the Applicant: Stephen Kroft, the Applicant in this matter; Edward Burke, former owner of a property east of the Kroft site; Richard Jackson, David Corwin, John Cronin, Olive Perry- Weiss and Dr. Ronald W. Abrams, all of whom are environmental consultants retained directly or indirectly by the Applicant; Harry Reiter, a scalloper and clammer; and John Costello, a marine contractor. The following witnesses testified on behalf of the Department Staff: Joan Croan, an area resident; George Stadnik, Marine Resource Specialist T, DEC Region :[; Kevin McAIlister, Peconic Baykeeper; Charles T. McCaffrey, Jr., Coastal Resource Specialist with the New · · · · · · · York State Depar~ient of State; and Pamela Marine Biologist in the Marine Habitat Protection/Tidal Wetlands Unit, DEC Region 1. The parties submitted briefs on or about February 1, 2002, and the Applicants submitted a reply brief on March 1, 2002. The hearing record closed on March 6, 2002, upon receipt of the Applicants' reply. APPLI'CABLE REGULATORY PROVI'STONS 6 NYCRR 661.9(b)(1) states, in pertinent part: "The department shall issue a permit for a proposed regulated activity on any tidal wetland only if it is determined that the proposed activity: (i) is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 66:~.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity; (ii) is compatible with the public health and welfare; (iii) is reasonable and necessary, taking into account such factors as/1_. reasonable alternatives to the proposed regulated activity and the degree to which the activity requires water access or is water dependent; and (vi) complies with the use guidelines contained in section 661.5 of this Part." 6 NYCRR 661.5(b)(:[5) lists the construction of docks more than four feet in width as a generally compatible use in coastal shoals, bars and flats and littoral zone, for which a permit is required. With regard to the standards for issuance of a protection of waters permit, 6 NYCRR 608.8 states: "The basis for the issuance or modification of a permit will be a determination that the proposal is in the public interest, in that: (a) the proposal is reasonable and necessary; (b) the proposal will not endanger the health, safety or welfare of the people of the State of New York; and (c) the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State, including soil, forests, water, fish, shellfish, crustaceans and aquatic and land-related environment." · · 'O · · · · With regard to thlIttandards for issuance of a ~t:er quality certification, 6 NYCRR 608.9 states, in pertinent part: "Any applicant for a Federal license or permit to conduct any activity, including but not limited to the construction or operation of facilities that may result in any discharge into navigable waters.., must apply for and obtain a water quality certification from the department. The applicant must demonstrate compliance with... (6) State statutes, regulations and criteria otherwise applicable to such activities." RULING Introduction Into Evidence of DEC Issued Permits for Other Dock Structures The Applicant sought to introduce into the record during the hearing evidence of, and copies of permits for, other dock structures issued in the past by the Department. Some of these dock structures were in Noyack Bay, but the great majority of these structures were located in other areas such as Shelter island or the east side of the Village of North Haven, not on Noyack Bay. The Applicant argued that these structures and the sites where they were located were similar to the Applicant's proposal and its site. The Department Staff pointed out that the issue for this hearing was whether this proposal comported with the standards for permit issuance, regardless of any decision made on any other permit application. The Al_] ruled that the Applicant would be allowed to introduce documentation with respect to sites in Noyack Bay, but that documentation with respect to the other sites was not relevant to this hearing and would be excluded. Transcript, page 613, hereinafter, T and page number. The Applicant renewed its motion to introduce this documentation toward the end of the hearing and the motion was again denied by the AL]. T, p.1878. In its closing brief and subsequent reply brief, the Applicant requested that if the Commissioner determines not to grant the instant application, she reverse the AL] and direct that the record be reopened to receive the proffered evidence. FINDINGS OF FACT The Applicant in this matter is Stephen Kroft, 2211 Broadway, New York, New York 10024. Mr. Kroft is the owner of a personal residence in the Hamlet of Noyack, Town of Southampton, New York, located at 3541 Noyack Road in Noyack which is the site of the proposed project. The specific Suffolk County Tax Map designation for the subject property is SCTM 900-6-1-47.8 & 47.9. Mr. Kroft acquired the property in 1998. The property is improved by a two story residence, a stable with attached apartment and a tennis court. The property is oriented northeast t · · · · · to southwes' along its northeast bord~ronts on Noyack Bay for approximately 355 feet. Noyack Bay is a body of water lying between ]essup's Neck to the west, Mill Creek and the Hamlet of Noyack to the south and the Village of North Haven to the east. At its widest part it is approximately 2.7 miles across, from .]essup's Neck to North Haven. From the northern tip of ]essup's Neck around the Bay to the northwestern corner of North Haven, the beach runs for about 7.5 miles. The entire length of .lessup's Neck, which is approximately 2 miles, is included in the Elizabeth A. Morton National Wildlife Refuge. From the base of .]essup's Neck in the south, it is about .9 of a mile in an easterly direction to the mouth of Mill Creek, a small body of water separate from the Bay and site of several commercial marinas. From the mouth of Mill Creek, the Bay's beach runs approximately I mile easterly to the site of the Applicant's property. From the Applicant's property, the beach runs in a southeasterly direction for about .3 of a mile and then in a northeasterly direction for approximately 1.4 miles until it reaches the southern boundary of the Village of North Haven. This latter stretch of 1.4 miles for the most part encompasses Long Beach, a municipal bathing beach facility. From the southern boundary of the Village of North Haven, the beach runs in a northwesterly direction approximately 1.9 miles to the northwesterly corner of the Village. Noyack Bay is part of the Peconic Estuary. From the Applicant's property to the tip of ]essup's Neck, a distance of about 4 miles, there are currently no commercial or residential docks. Indeed, docks are not encountered to the west of the Applicant's property until the Shinnecock Canal, some 8 or more miles away. Along the beach about 1500 feet to the east of the Applicant's property is a transient commercial dock belonging to a restaurant called the Salty Dog. This dock was built in the 1950's or 1960's and rebuilt in the 1970's prior to the enactment of 6 NYCRR Part 661 in 1977. From the mean high water line seaward, the Salty Dog dock is 89 feet in length and approximately 6 feet wide. It has no other extensions or floats and is of an open pile design without any wave curtains. From the Salty Dog, moving in a northerly direction along the Bay past Long Beach, no other docks are encountered until within the Village of North Haven, approximately 1.7 miles away. Between the Applicant's property and the Salty Dog there are 16 to 18 other parcels of land which front on Noyack Bay. To the west of the Applicant's site there are approximately 60 to 80 :LO. 11. 12. 13. 14. parcels of lal which front on Noyack Ba of these parcels could be the site of a dock structure. The placement of pilings during dock construction results in the destruction or displacement of the benthic community beneath the piling. accretion of sand to the up current side and erosion of sand to the down current side of a piling. This affects littoral drift in Noyack Bay. Turbidity in the water column is exacerbated from the presence of a dock structure in Noyack Bay. Although a vessel may be moored at shallower depths, the effects of prop dredging are reduced when a boat is moored at water depths of four feet or more. While the use of chromated copper arsenate (CC:A) wood in dock construction will result in the release of a certain level of these toxic compounds to the environment, the impact will not likely be significant enough to be harmful to aquatic life, according to Assessment of the Risks to Aquatic Life from the Use of Pressure Treated Wood in Water, a study published by the Department's Division of Fish Wildlife and Marine Resources, in March 2000. Moreover, other dock structures in Noyack Bay utilize CCA lumber. Vegetation on the Applicant's property between the residence and the shore's high water line is heavily dominated by Spartina patens (or high marsh grass). Seaward of the $partina patens, between the mean high water and mean Iow water lines, is a white sand beach with shells and cobbles which has detritus consisting of various types of submerged aquatic vegetation washed up along the shoreline. Further seaward, Iow water is encountered at all times. At the border of the property immediately to the west of the site is a wetland which connects to Noyack Bay by a culvert and is daily flushed by the ebb and flow of the tide. This wetland provides fish and wildlife habitat for various juvenile species of fish and shore birds such as the least tern and piping plover both of which forage and nest along this entire section of Noyack Bay. The wetland also functions as a source of marine food production. Other water fowl are also indigenous, including various species of ducks, swans, blue heron, egrets and cormorants. · 15. 16. 17. 18. 19. 20. · · · · · · The depth waters adjacent to the sit'are shallow, sloping to about 4 feet at a distance 150 feet seaward of the property along a line perpendicular to the shore, beginning at the mean Iow water line. In moving from the shore seaward, the bottom first consists of course sand and larger cobbie for about 10 feet. At 20 feet from shore, somewhat smaller cobble, rocks and sand are encountered. At 30 feet from shore, detritus is encountered. At 40 feet, shells and smaller rocks appear and the sand becomes medium fine. At 50 feet, rocks and cobble decrease and fine sand, mud and silt begin to appear. The dark coloration of some of the sand indicates biological activity from the breakdown of plant material in the sediments. At 75 and 100 feet from shore, the bottom consists of sand and shells and no larger cobbles are encountered. At 150 feet, predominantly fine sediments are encountered and at 175 and 200 feet the bottom consists of fine sediments and mud. After 50 feet, the amount of dark coloration in the sand steadily increases indicating the presence of a viable benthic community. Five different varieties of submerged aquatic vegetation (SAV) thrive in the waters adjacent to the site. These include Codium (green fleece), Ulva (sea lettuce), Entromorpha (hollow green weed), as well as a species of red algae (Rhodophyta), and Fucus, a .brown algae. These SAV varieties collectively cover from 10 to 30 percent of the Bay bottom adjacent to the site depending upon the time of year. This coverage is typical for the near shore waters of Noyack Bay. The various varieties of SAV constitute the very base of the food chain and all of them require sunlight for survival. A diminution of sunlight will cause a corresponding diminution in SAV growth and production, often as much as 50 percent or more. The complete deprivation of sunlight will result in the death of the particular SAV variety. In addition to forming the base of the food chain, SAV provides marine habitat and protection for various other organisms and species of fish, particularly juveniles. Numerous species of aquatic fauna inhabit the waters seaward of the site. These include three predominant species of fish, Henidia (silversides), Pomatomus (young of the year bluefish) and Fundulus (killiefish). Seventeen different varieties of invertebrates embracing three separate Phyla are also found here. Among Arthropoda, two shrimp, three crab and one barnacle variety were observed. Among Annefida, four 21. 22. 23. 24. · · · · · polychaete species were observed, i~uding tube worms and clam worms. Among Plollusca, five gastropods were observed including limpet, whelk, mud snail and two types of slipper shells, as well as one bivalve, the quahog clam ( Plercenaria mercenaria ). Residents and other visitors utilize this area of Noyack Bay for the enjoyment of various recreational activities including swimming, boating, walking the beach, shellfishing (especially clamming), and waterskiing. As to boating, in addition to power boats, various personal water craft are commonly used in the area including kayaks, sailboats and windsurfers. IVlany of these recreational activities occur in front of the site and, in fact, particularly in the case of walking the beach, utilize the beach immediately in front of the site. The Applicant proposes to construct a new dock at the site consisting of a 6 foot by 150 foot dock with a 6 foot by 40 foot "L" at the seaward end and a 6 foot by 10 foot return extension off the "L". ]~nside the first "L" and parallel to the dock would be a 32 inch by 12 foot ramp leading to a 6 foot by 24 foot float. The project would also entail the installation of 4 two pile dolphins located within the "Ls" and 3 five pile dolphins located on the seaward side of the "Ls". The shoreward end of the dock would begin at the mean Iow water mark and would be connected to the shore by a 6 foot by 36 foot ramp which would extend shoreward to just above mean high water. Thus, from the mean high water line, the proposed ramp and dock would extend out 186 feet into the waters of Noyack Bay. From the high water line, the proposed dock will cover a total of 1592 square feet, exclusive of the area occupied by the outboarc pilings and dolphins, and will be the largest residential dock on Noyack Bay. Moreover, the dock would be capable of mooring several boats at one time, some of which could be of considerable length, r ,f Sv~L The stated purpose of the project is to provide the Applicant with more convenient access to his 22 foot powerboat. Presently, the Applicant moors his boat to a buoy which he accesses by a dinghy. Utilization of the dinghy is an arduous task requiring an expenditure of time of 20 to 30 minutes each way to and from the mooring buoy. The dinghy, which is heavy, has to be dragged across the cobble of the Applicant's beach to be launched. Walking on the cobble while having to perform this task only adds to the challenge. Rowing the dinghy is strenuous and on the trip to and from the buoy, the small boat is subject to capsize. Upon arriving at the powerboat, the dinghy has to be 25. 26. 27. made fast before the latter can be ted. Getting aboard the larger boat is dangerous since one could slip and be injured by the propeller of the powerboat. Upon the return, the powerboat has to be moored to the buoy which is difficult. Rough seas or the wake from other boats only exacerbate the difficulty. The time wasted in this mooring exercise each time he wishes to use his powerboat has impacted the time he has to spend with his family. The Applicant asserts that there are no slips available in Mill Creek and that the drive to Sag Harbor a few miles away where slips might be available would be inconvenient. The proposed dock would enable the applicant to merely walk to his boat and embark and disembark from it conveniently and safely. Official tidal wetland inventory map numbers 722-540 and 724- 540, prepared by the Department in 1974, show that the site includes tidal wetlands. Specifically, the wetlands on the site are labeled SM, denoting coastal shoals, bars and flats. The prior owner of the Applicant's site, Steven C. Greene, did obtain a permit from the Department to construct a dock at the site in 1986. This permit, Number 10-84-1184, was issued August 20, 1986, and ultimately expired on December 31, 1989. The proposed project was for a catwalk and dock. The catwalk was to be 4 feet wide and 25 feet long and would have run landward from the high water line. The proposed dock would have been 4 feet wide and 50 feet long and would have connected with the catwalk at the high water line before running seaward its 50 foot length. Accordingly, from the high water mark, this structure would have extended out over the water only 50 feet and covered an area of 200 square feet. This project was never undertaken, however. Beginning four residential properties to the east of the Applicant's site, are the contiguous properties of Edward Barry and Edward Burke, Jr., at 3625 and 3633 Noyack Road, respectively. Their properties are separated from the beach along their entire length by a bulkhead. Pursuant to a joint application, the Department granted them a permit, Number 1-4736- 02553/00001, on March 11, 1996, to construct an open pile dock, ramp and float along their common property line. The project would have entailed construction of a 4 foot wide by 50 foot long fixed pier running seaward from the bulkhead. According to the plans submitted, the high water line is approximately ten feet seaward of the bulkhead. At the end of this 50 foot pier would have been a 3 foot wide by 16 foot long ramp which would have connected to two 6 foot by 16 foot floats attached end to end. The project was never constructed, 28. 29. 30. · · · · · · however. Th~forementioned permit ex on March 11, 1999, and has not been renewed by the Department. Were it to have been built, however, from the high water line, the project would have extended seaward some 88 feet and covered 400 square feet of the surface of Noyack Bay. About 1500 feet east of the Applicant's property is the dock of the Salty Dog restaurant. Tt is a commercial structure providing transient mooring for its patrons. As noted in Finding Number 4, above, this dock was built in the 1950's or 1960's and rebuilt in the 1970's prior to the enactment of 6 NYCRR Part 661 in 1977. From the apparent mean high water line seaward, the Salty Dog dock is 89 feet in length and approximately 6 feet wide. It has no other extensions or floats. Accordingly, from the mean high line this structure covers 534 square feet of the waters of Noyack Bay. Beginning approximately one and a half miles northeast of the site across the waters of Noyack Bay and running northwesterly along the beach for about one mile, in the Village of North Haven, are a series of six docks, five private residential docks and one community dock constructed as part of West Banks, a residential community development. Some of these docks were constructed prior to the enactment of 6 NYCRR Part 661 in 1977. Starting from the south and moving northwesterly along the beachfront, the first four of the five docks are built on contiguous residential parcels. They are located respectively at the Tweed, Palmieri, Malloy and Morrell residences. All four of these docks where either built or refurbished pursuant to a permit issued by the Department. All that the record reveals about the fifth residential dock is that it is north of the Morrell dock but south of the West Banks dock and that it is a straight dock structure 125 feet long. The Department has also issued a permit for a dock at the Ernst residence which is south of and contiguous with the Tweed residence. The Ernst dock has not yet been constructed. Findings 30 through 35, following herein, provide a description of the Ernst proposal and the Tweed, Palmieri, Malloy, Morrell and West Banks docks. Permit Number 1-4736-05339/00001 was issued by the Department on _]une 12, 2000, to Dallas Ernst. The proposed project entails construction of a 6 foot by 40 foot ramp running seaward from the high water line where it connects to a 6 foot by 100 foot dock, at the end of which it joins a 6 foot by 32 foot "L". Tnside the "L" is a 4 foot by 8 foot ramp running parallel to the dock and leading to a 4 foot by 24 foot lower platform. This structure, if built, would cover 1160 square feet of the surface of the waters of Noyack Bay. It would also be of a size similar to 31. 32. 33. 34. 35. the docks ofl hboring properties. Moree the proposed structure would be built along a section of the Noyack Bay shoreline that has already been fragmented by other docks and suffered irreparable degradation and damage to the immediate marine habitat. On April 25, :L989, the Department issued Permit Number 10- 88-2:[69 to Gary Tweed for a residential dock to be repaired or reconstructed and added to in connection with the construction of a single family house and other improvements on his property. As to the dock, the project built included a 6 foot by 96 foot dock starting at the mean high water line and extending seaward perpendicular to the shore. At the end of the dock is a 6 foot by 32 foot extension angled at 45 degrees to the right, out into the water. The extension is joined by another 6 foot by 32 foot extension angled to the right at 45 degrees and thus perpendicular to the initial 96 foot dock section. Within the "L" thus created and parallel to this latter extension is a 5 foot by 32 foot platform. This structure, as built, when measured from the high water line, covers ::[120 square feet of the waters of Noyack Bay. On May :[:[, 1999, the Department issued Permit Number 4736-03817/00005 to Victor Palmieri authorizing the replacement and modification of a preexisting residential dock at his property. Beginning at the high water line and moving seaward, the construction resulted in the completion of a 6 foot by 40 foot ramp leading to a 6 foot by 80 foot dock with an 8 foot by 40 foot "L" extension angled to the end of this dock. Inside this angled "L" and parallel to it is a 6 foot by 24 foot lower platform. Dolphins and a boat lift were also installed. The completed structure covers 1:[84 square feet of the waters of Noyack Bay. On June 12, 1985, the Department issued Permit Number 10- 85-0584 to Patrick E. Malloy to reconstruct a 6 foot wide by 40 foot long section of an existing dock 180 feet in length, as well as a 5 foot by 20 foot lower platform which parallels the dock. This entire structure covers 1180 square feet of the waters of Noyack Bay. On December :[9, :[986, the Department issued Permit Number :[0-86-1373 to George Morrell authorizing the extension of an existing 8 foot by :[60 foot dock by the addition of an 8 foot by 32 foot "L" at the end thereof. This entire structure covers 1536 square feet. On June 3, 1992, the Department issued Permit Number 10-87- 0121 to NFB Development Corp. for construction of a community 36. 37. dock at West~nks, a residential communi ~in the Village of North Haven. From the high water line, the project entailed construction of a dock 4 feet wide by 125 feet long with a 4 foot by 25 foot "L" extension at the seaward end. The project thus built covers 600 square feet of the waters of Noyack Bay. Noyack Bay has been included in numerous recent studies recognizing and focusing on the unique marine habitat embraced by the Peconic Estuary. These studies include Commercial Finfish And Crustacean Landings From Peconic And Gardiners Bay, New York, 1980-1992, published by the Department's Division of Marine Resources in 1995; An Assessment Of Shellfish Resources In The Deep Water Areas Of The Peconic Estuary, jointly prepared by the Marine Sciences Research Center of S.U.N.Y. Stony Brook and the Division of Environmental Protection of the Town of Brookhaven in 1997; An Assessment Of Shellfish Resources In The Tributaries And Embayments Of The Peconic Estuary, issued by the Cornell Cooperative Extension of Suffolk County Marine Program in 1998; and Species Composition, Seasonal Occurrence and Relative Abundance of Finfish and Macroinvertebrates Taken by Smafl-Mesh Otter Trawl in Peconic Bay, New York, published by the Department's Division of Fish, Wildlife and Marine Resources in 1998. The study of Noyack Bay has also been included as one of the components of the Peconic Estuary Program which is part of the National Estuary Program administered by the U.S. Environmental Protection Agency (EPA). The Peconic Estuary is one of only 28 estuaries in the United States included in the EPA program. Of particular importance in this regard is a study of submerged aquatic vegetation (SAV) prepared by Cashin Associates, P.C., in 1996, for the Suffolk County Department of Health Services, the local agency with coordination and oversight responsibility for the Peconic Estuary component of the National Estuary Program. The study, entitled Peconic Estuary Program Final Submerged Aquatic Vegetation Study, asserts that SAV beds constitute one of the most important habitats in the Peconic Estuary providing various habitat functions essential to the Estuary's biota. The study concludes that: · SAV beds are responsible for a large portion of the primary production that forms the base of the Estuary's food chain. SAV provides nursery areas, and shelter and protection for various species of finfish and invertebrates, many of which are of recreational or commercial importance, · $AV provides surfaces for the attachment of various epiphytes and epifauna, which increases species diversity and ab~t lance compared to areas Ilack vegetation. All SAV is involved in nutrient cycling, since these plants absorb nutrients (e.g., nitrogen and phosphorus) from the surrounding environment, and re-release those nutrients through organic decay. Rooted SAV stabilizes bottom sediments, even through the enormous stresses of hurricanes and northeast storms. SAV slows currents and waves in the near-bottom zone and, thereby, promotes sedimentation of particles from the water column, inhibits resuspension of previously settled particles, and moderates water column turbidity. Pages 8-9, Peconic Estuary Program Final Submerged Aquatic Vegetation Study. 38. An objective of the aforementioned Peconic Estuary Program was the development of a comprehensive management plan for the Estuary. ]~n 200:1, this effort resulted in the issuance of the Comprehensive Conservation and Management Plan ( CCMP) for the Peconic Estuary. With issuance of this exhaustive document, the Peconic Estuary Management Conference, which was responsible for its development, made the following declarations and pledge: "The Peconic Estuary is an important natural resource that provides incomparable beauty and significant recreational and commercial benefits; The Peconic Estuary's living resources, water quality, and aesthetic character have suffered from development and other human uses; and Restoration and protection of the Peconic Estuary's environmental quality require focused management by a partnership of Federal, State, and local governments, affected industries, academia, and the public. We therefore pledge to restore and protect the environmental quality of the Peconic Estuary through the preparation and implementation of the Comprehensive Conservation and Management Plan." CCPIP, p. 1-1. 39. Chapter Four of the CCMP entitled, Habitat and Living Resources Management Plan, enumerates eight Objectives for this latter Plan, includir ~inter alia, the following: Objective 1) Preserve and enhance the integrity of the ecosystems and natural resources present in the study area so that optimal quantity and quality of fish and wildlife habitat and diversity of species can be assured and conservation and wise management of the consumable, renewable natural resources of the estuary are promoted and enhanced. Objective 3) Protect and enhance the ecosystems and the diversity of ecological communities and habitat complexes throughout the system, particularly tidal wetlands, eelgrass meadows, and beaches and dunes by preventing or minimizing loss, degradation, and fragmentation and by maintaining and restoring natural processes essential to the health of the estuary and its watershed. Objective 4) Restore degraded habitats to maintain or increase native species and community diversity, provide connectivity of natural areas, and expand existing natural areas. Objective 6) Protect and enhance species which are endangered, threatened, or of special concern throughout the system by mitigating stresses to these species and ensuring essential habitats crucial for their survival. Objective 7) Promote coordination and cooperation among Federal, state, and local governments and stakeholders to maximize protection, stewardship, and restoration of the Peconic Estuary. Objective 8) Develop and carry out an estuary-wide research, monitoring, and assessment program to guide and evaluate management decisions concerning the estuary and to ensure management and policy decisions are based on the best available information. CCMP, p. 4-1. 40. 40) To achieve these six Objectives, certain specific actions called Habitat and Living Resources Actions (HLRs) are recommended. Of these Actions, HLR-2 seeks to "Manage Shoreline Stabilization, Docks, Piers, and Flow Restriction Structures to Reduce or Prevent Additional Hardening and Encourage Restoration of Hardened Shorelines to a Natural State." CCMP, p. 4-30. · In its discussion of HLR-2, with respect to shoreline hardening structures such as bulkheads, the CCMP recommends that there "ideally" be no net increase in such structures and that various land use planning regulations and find ~ial incentives be explored !ncourage landowners to remove such structures. CCfifP, pp, 4-30 and 4-31. With respect to docks, the HLR-2 discussion, while not specifically asserting that no further docks be constructed, contains the following cautionary language: "The cumulative impacts of docks will eventually contribute to the degradation of local water quality and natural communities through fragmentation of habitats, shading of submerged aquatic vegetation and other potential impacts." CCMP, p. 4-31. Continuing, the CCfvlp concludes, "Tt is not clear just how many of these structures exist in the Peconics and exactly where they are located. A concentrated effort to identify all of them and to assess the impacts that they have had and are having on adjacent natural communities will help in the development of recommendations on how to manage them in the future." ~d., at 4-31 and 4-32. In order to be approved, the Applicant's project must be found by the New York State Department of State to be consistent with the State Coastal Policies of the New York Coastal Management Program (CMP). Policies 20 and 44 of the CMP provide as follows: Policy 20) Access to the publicly owned foreshore and to lands immediately adjacent to the foreshore or the water's edge that are publicly owned shall be provided and it shall be provided in a manner compatible with adjoining uses. Policy 44) Preserve and protect tidal and freshwater wetlands and preserve the benefits derived from these areas. The publicly owned foreshore, as pertinent to this matter and as contemplated in CMP Policy 20, is the shoreline of Noyack Bay seaward of the mean high water mark. The proposed dock structure will cover 1592 square feet of the Noyack Bay surface resulting in the shading of submerged aquatic vegetation (SAV) beneath the structure to an equivalent extent. Moreover, the total amount of shading will be somewhat increased above this level by the shading caused by the permanent outboard pilings and dolphins as well as the presence of boats moored at the structure which will vary with the time of day, the length of time, and the size and number of vessels moored. Although the SAV will receive the benefit of some ambient light · · · · · · beneatt~e structure, a permanent tinution of sunlight beneath the structure will occur. This will result in the diminution of SAV growth beneath the structure by as much as 50 percent. Moreover, this permanent impact would be imposed on an area of Noyack Bay which presently only has SAV over 10 to 30 percent of the bottom. The granting of a permit for a dock in this predominantly unbroken shoreline could lead to a proliferation of docks at other nearby sites leading to a permanent fragmentation and degradation of the shoreline and the tidal wetland ecosystem in the vicinity of the site. The proposed structure would extend from above the mean high water line seaward obstructing the public's right of way along the beach in front of the Applicant's property. Although perhaps unavailable at the time of this hearing and perhaps subject to a waiting list at some locations, in- the-water boat slips are available at nearby marinas in Hill Creek, Parson Creek and Sag Harbor. Moreover, nearby marina facilities also provide out-of-the-water rack storage for recreational boats, which is available to the Applicant. The Applicant currently utilizes a mooring buoy to anchor his 22 foot power boat. This buoy is located in water that is 7 feet in depth as measured from mean Iow water. The bottom at the mooring buoy site is sand and cobbles. The tide ranges 2 I/2 to 3 feet at the site of the mooring buoy. Approximately 29 feet of chain connect the anchor of the mooring to its buoy. Depending upon the depth of the water, this can result in 20 to 25 feet of chain dragging along and scouring the bottom. At present, there are about 25 mooring buoys utilized in Noyack Bay. With the construction of the Ernst dock there will be a total of six private residential docks in all of Noyack Bay, all of which will be located in the Village of North Haven more than a mile and a half across the Bay from the Applicant's site. DISCUSSION Undue Adverse :Impacts ) · · · · · · · Section 661.9(b)(I~t(i) of 6 NYCRR directs the D~artment, in considering a tidal wetlands permit application, to make a determination that the proposed activity "is compatible with the policy of the act to preserve and protect tidal wetlands and to prevent their despoliation and destruction in that such regulated activity will not have an undue adverse impact on the present or potential value of the affected tidal wetland area or adjoining or nearby tidal wetland areas for marine food production, wildlife habitat, flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organic material, recreation, education, research, or open space and aesthetic appreciation, as more particularly set forth in the findings in section 661.2 of this Part, taking into account the social and economic benefits which may be derived from the proposed activity." This analysis must begin with a consideration of the ecosystem currently present at the site. As is clear from the record, numerous flora and fauna presently thrive at and near the Applicant's property. The area upland of the shore, heavily dominated by Spartina patens, as well as a wetland immediately to the west which is daily flushed by the ebb and flow of the tide, provide fish and wildlife habitat for various species of juvenile fish and a nesting and foraging area for shore birds, including the piping plover and the least tern. Other water fowl are also found at the site, including various species of ducks, swans, blue heron, egrets and cormorants. Numerous species of aquatic fauna inhabit the waters seaward of the site. These include three predominant species of fish, Menidia (silversides), Pornatomus (young of the year bluefish) and Fundulus (killiefish). Different varieties of invertebrates embracing three separate Phyla are also found here. Among Arthropoda, shrimp, crab and barnacle are observed. Among Anne#da, polychaete worm species are found, including tube worms and clam worms. Among Mollusca, various gastropods thrive here, including limpet, whelk, mud snail, slipper shells and the bivalve quahog clam (Mercenaria mercenaria ). Five different varieties of submerged aquatic vegetation (SAV) thrive in the waters adjacent to the site. These include Codiurn (green fleece), UIva (sea lettuce), Entromorpha (hollow green weed), as well as a species of red algae (Rhodophyta), and Fucus, a brown algae. Depending upon the time of year, these SAV varieties collectively cover from l0 to 30 percent of the Bay bottom adjacent to the site. These various varieties of SAV are extremely important to the ecosystem at the site and to the various species that inhabit and feed at the site. Indeed, the SAV constitute the very base of the food chain, providing food for microorganisms which become food for other invertebrat~ nd vertebrate species whic~ turn, become a food source for other species higher on the food chain, including shore birds, water fowl and, in fact, humans. Moreover, the SAV provide shelter and protection for juvenile fish and other organisms, thus enhancing the survival of each of these species. Accordingly, any adverse impact to the SAV will have a corresponding adverse impact on each and every organism that depends on the SAV for food or protection. With respect to the Applicant's site, the primary adverse impacts to the SAV are the effects of shading caused by the proposed project, as well as the potential for the proliferation of similar dock structures and the fragmentation of the tidal marine habitat caused by such docks. Zmportance of Submerged Aquatic Vegetation (SAV) and the Effects of Shading As the record makes clear, in this case SAV is of great importance to the marine ecosystem at the Applicant's site. This conclusion is supported not only by the recent studies of the Peconic Estuary generally, noted above, but by the on-site inspection and verification of five SAV species. As Pamela Lynch, Department Staff Marine Biologist, pointed out, these plant species represent "a lush and diverse plant community. Each plant is the food source and a habitat for different invertebrate and fish, not just one species but many, showing that there is a food web. Many different organisms feeding on many different plants living in and among each other. Any disturbance to this area is going to have a significant impact to the marine food production and the community system there." T, pp. 1368-1369. Although the Applicant presented evidence that the SAV at or near the docks located in North Haven was similar to that found at the Applicant's site, the significant importance of SAV to the benthic community at the Applicant's site was not refuted. With respect to shading, Department Staff Marine Biologist George Stadnik asserted that the proposed dock structure would limit the amount of sunlight penetration and, accordingly, limit the amount of SAV beneath the dock. T, p. 1039. If the SAV cover at the Applicant's site is 10 percent, a potential for no SAV cover beneath the dock exists. Id. Mr. Stadnik pointed out that while the precise percentages could not be determined unless the proposed structure was actually built, so that the effects of height above the water and alignment of the dock with respect to the daily passage of the sun could be directly observed, in his opinion, SAV growth beneath the proposed structure would be reduced by 50 percent. T, pp. 1039-1042. Department Staff Marine Biologist Pamela Lynch essentially concurred with Mr. Stadnik, and opined that for an area two feet wide directly beneath the centerline of the 6 foot wide dock, SAV growth would be reduced by 50 percent and by 25 percent in the two foot wide area on either side of the medial two~iot area. T, pp. 1553-1586.~1~1e Applicant's expert, Dr. Ronald W. Abrams, sought to refute this position by opining that the SAV in this area will get adequate sunlight throughout the day including ambient light beneath the proposed dock. T, pp. 1780-1781. Although not indicating the precise elevation above the water, Dr. Abrams asserted that if the dock is built to a certain height, the effect of shading is negligible. T, p. 1780. Moreover, he argued, that even if the proposed dock completely shades :[600 square feet, this would be an insignificant impact when compared to the ecology of the entire Bay. T, p. 1779. While Dr. Abrams' arguments are cogent, they do not refute the fact that dock structures like the one proposed do, in fact, shade SAV and impact their ability to thrive. Moreover, this impact would only be exacerbated by the outboard dolphins and pilings proposed, as well as the potential mooring of multiple vessels at the site. Given the importance of SAV to the marine ecosystem at this site and the fact that, at some seasons of the year, SAV bottom coverage at the site is only 10 percent, shading from the proposed dock structure will result in an undue adverse impact on the present and potential value of the tidal wetlands at the site. Moreover, the analysis required by 6 NYCRR 661.9(b)(1)(i) is site specific. In the Matter of the Application of Richard and Carol Leibner, Decision of the Commissioner, March 16, 2000; vacated on other grounds, Leibner v. NYSDEC, 291 A.D.2d 558, 738 N.Y.S.2d 65, 2002 N.Y. Slip Op. 01490 (A.D.2d Feb. 25, 2002). The fact that the size of the Applicant's project is minuscule when compared to the entire area of Noyack Bay is irrelevant and does not negate the existence of important tidal wetland functions at the site essential to the survival of the marine community located there. Potential for the Proliferation of Other Dock Structures and Fragmentation of the Shoreline The standards for permit issuance articulated in 6 NYCRR 661.9(b)(1)(i) require that the Department determine that the proposed activity will not have an undue adverse impact, not only on the present value of a particular tidal wetland, but on potential value as well. Accordingly, it is appropriate for the Department to consider the impact of future projects similar to that proposed by an applicant and the cumulative impact these projects could have on the subject tidal wetlands. Failure to engage in this predictive analysis would be to ignore the fundamental purpose of the State's tidal wetlands laws and regulations which is to preserve and protect tidal wetlands and to prevent their despoliation and destruction. Moreover, such an approach would disregard the dictates of ECL Section 3-0301(1)(b), which requires the Department to consider the cumulative impacts of a project in connection with permit application review. · · · · · · presence or absence of other dock structures in the area where a new structure of this type is proposed. Where the shoreline and indigenous tidal wetlands have already been subject to degradation and despoliation by other docks or other shoreline hardening structures, the Department may rely upon this as one determining factor in granting a permit for a new dock structure. As the record shows, this is indeed the case with the Ernst permit application. T, pp. 140,~-1405. This dock is proposed to be constructed contiguous to five other pre-existing residential docks in the Village of North Haven, a mile and a half across Noyack Bay from the Applicant's property. As a result of these pre-existing structures, the tidal wetlands in that immediate area are already fragmented and disturbed. The addition of the Ernst dock in this area would not result in an undue adverse impact. Department Staff expressed concern that granting the instant application could result in the proliferation of docks in the area of the Applicant's property where currently none exist except for the commercial Salty Dog dock. This dock was built prior to the enactment of 6 NYCRR Part 661 and is some 1500 feet eastward of the proposed site. T, pp. 854 and 1441. This concern is not unfounded. While the dock structures in North Haven are not relevant to the siting of a dock structure on this stretch of the Noyack Bay shoreline, the fact that other dock structure permits have been issued in the past by the Department for this site as well as a neighboring site are relevant, namely, the Greene and Barry/Burke applications. Neither of these proposed dock structures was ever built, and the permits for them have expired. But the fact that these permits were issued in the past is indicative of a potentially ongoing interest in the construction of residential docks in an expanse of the Noyack Bay shoreline that has heretofore remained untouched by such structures. Moreover, it is clear that since these permits were issued, a heightened sensitivity to the importance of the marine ecosystem in the Peconic Estuary has occurred, as evidenced, for example, by the promulgation of the CCI~P in 2001. As this document emphasizes, the cumulative environmental impacts of the proliferation of docks cannot be ignored. The CCMP's assertion at page 4-3:[ bears repeating here: "The cumulative impacts of docks will eventually contribute to the degradation of local water quality and natural communities through fragmentation of habitats, shading of submerged aquatic vegetation and other potential impacts." While the CCMP does not have the force of taw, it does express current thinking with respect to dock structures in the Peconic Estuary and is therefore a reasonable touchstone to be considered when determining whether a proposed activity comports with the policy of the State's tidal wetland laws and regulations which is to preserve and protect tidal wetlands and to · · · · prevent their desl~lliation and destruction. With respect to fragmentation, Department Staff offered testimony that a dock at the Applicant's site would fragment the benthic habitat, especially impacting sessile organisms. T, p. 1673. The physical presence of the dock would also disrupt littoral drift along this section of the Noyack Bay shoreline. T, p. 1672. impacts from the fragmentation of the habitat by one dock would be proportionately greater than that resulting from the addition of another dock in an area where other docks already existed because, in the latter instance, fragmentation of the habitat and degradation of the habitat would have already occurred. This is why the cumulative impacts of dock structures is so important. T, pp. 1683-1684. Although he disagreed with the Department Staff's view of fragmentation stating that it should be viewed as a process, the Applicant's expert, Dr. Ronald W. Abrams, while asserting that the Applicant's project would not have a significant adverse environmental impact, agreed that it was reasonable for the Department to consider the future cumulative impacts of docks, provided the consideration was based upon appropriate scientific studies. T, pp. 1788, :[790 and 1863-1864. Although stating that in his understanding such studies did not exist, he agreed that from a scientific standpoint there is a point at which, environmentally, the proliferation of docks becomes impermissibly excessive. T, p. 1864. The record in this matter indicates that there are about 18 residential sites east of the Applicant's property that could each be the site of a residential dock structure. To the west, there are perhaps 60 or more potential sites for residential dock structures. The Applicant's site was, in fact, the site for a dock permit issued in 1986 authorizing a residential dock structure 4 feet wide and 50 feet long covering a total of 200 square feet of the waters of Noyack Bay. This dock was never constructed. A nearby neighbor to the east was granted a permit in 1996 to build a residential dock structure consisting of a pier and floats that would have covered 400 square feet of the waters of Noyack Bay. This dock was never constructed. The only dock that exists on the Applicant's section of the Noyack Bay shoreline is a commercial transient dock about 1500 feet to the east which covers 534 square feet of the waters of Noyack Bay and was constructed before the enactment of the State's tidal wetland laws and regulations. The Applicant's proposed dock would be the first residential dock built on an otherwise unobstructed stretch of shoreline running from the Shinnecock Canal 8 miles to the west to the Village of North Haven 2 miles to the north and east. Based upon these facts, Department Staff's consideration of the possible proliferation of docks and the fragmentation of the marine habitat occasioned by the docks is eminently reasonable. · · · · [nterference Wi Public Access As the record indicates, the public currently enjoys unobstructed use of the foreshore at the Applicant's property. Recreational activities in this area which specifically involve the foreshore include shellfishing, swimming and walking. The proposed project would interfere with this public use and enjoyment, because of the magnitude of its size and the fact that it would obstruct the foreshore to above the mean high water mark. Testifying on behalf of Department Staff, Charles McCaffrey, a Coastal Resource Specialist with the New York State Department of State and responsible for ensuring that proposed waterfront projects are consistent with the articulated Policies of the New York Coastal Management Program (CMP), pointed out that CMP Policy 20 (see, Finding of Fact 43, above), embodies the Public Trust Doctrine and essentially provides "that the public's right to the use of the foreshore should be protected and increased consistent with the nature of surrounding land use." T, p. 1274. Based upon his review of the Applicant's proposal, its location on Noyack Bay, the fact that there are no other docks in the immediate area and the public uses existent in the area, McCaffrey opined "that given the nature of the public uses in this area, the alternatives that would be available to the applicant to exercise his littoral rights, that a project other than as proposed would be more consistent with our obligations under Policy 20 of the Public Trust Doctrine to protect [the] public's use of this area." T, pp. 1275-1276. During cross examination, Mr. McCaffrey pointed out that the CMP consistency analysis necessary to a particular project would depend on a consideration of the facts unique to that site. T, p. 1289. He did concede that the public's right to walk the foreshore at the site could be maintained by the installation of stairs going up and over the dock as well as permission from the Applicant to the public to walk around the dock landward of the structure's end. T, p. 1291. However, expressing concern over the total square footage of the proposed project, Mr. McCaffrey asserted that the Department of State in its review would seek to ensure that the design of any proposed residential dock be of the minimum size necessary to afford the landowner his or her riparian rights while at the same time minimizing the effect on the public's use. T, p. 1303. While a viable solution may exist to address the public's right to walk the beach in front of the Applicant's property, it is apparent from this record that the sheer size of the proposed project will still permanently impair public's heretofore unobstructed access to this open expanse of beach along the waters of Noyack Bay. The proposed dock will be an obstacle to swimmers, boaters and shellfishers. While the CMP consistency review is solely within the purview of the Department of State, it would appear that the design parameters of the project far exceed the minimum intrusion upon the public's right of access contemplated by CMP Policy 20. · · · · · · · · ,,"/ Reasonableness~f and Necessity for the ~' From the high water line, the Applicant's proposed dock structure would extend 186 feet into the waters of Noyack Bay and cover :[592 square feet of the surface of the Bay and would be the largest residential dock structure in ail of Noyack Bay. Tn fact, the total area of the Bay impacted will be greater than 1592 square feet when the presence of the proposed multiple outboard pilings and dolphins and the potential to moor several boats at the dock at one time are taken into account. The residential docks located in North Haven are not entirely relevant to the analysis here. First, they are remote, being all a mile and a half away and more from the subject site and all located within the Village of North Haven. Second, for the most part they extend from contiguous properties and some of them were constructed prior to the enactment of the tidal wetlands regulations in 1977. Third, and relevant to this discussion, an irreparable degradation of the marine habitat in this area has already occurred, due, in part, to the proliferation of these docks. Except for the Salty Dog dock 1500 feet away, the shoreline of Noyack Bay is unobstructed by residential dock structures for approximately 6 miles from the northerly tip of ]essup's Neck to the proposed Ernst dock in the Village of North Haven. The Salty Dog dock is a transient commercial dock which extends from the high water line 89 feet into the waters of Noyack Bay and covers a total area of 534 square feet. This commercial structure is only one third the size of the structure proposed by the Applicant. A 1986 permit issued by the Department to the site's prior owner, Stephen C. Greene, to construct a residential dock at the Applicant's site, proposed a structure that would have extended from the high water line 50 feet into the waters of Noyack Bay and would have covered an area of only 200 square feet. This structure, if built, would have been one eighth the size of that proposed by the Applicant. A 1996 permit issued by the Department to contiguous neighbors four properties to the east of the Applicant's property, Edward Barry and Edward Burke, .]r., proposed a shared residential dock structure that would have extended from the high water mark 88 feet into the waters of Noyack Bay, covering a total area of 400 square feet. This structure, if built, would have been only one fourth the size of that proposed by the Applicant. The Applicant owns a single 22 foot powerboat and, based upon the record, needs the dock to provide convenient access to this vessel, · · · · · · · to moor ~S t-~-F r-~dential dock structures in ~ea of I~oyacR~y. Commercial marinas are a~ailol~le to th~-- Applicant providincj_~b th in-the-water boat slips and out-of-the-water fia~ck stora eg~. Based u on th s record, the AoDlicant's orooosal is simply not r~e~-s-onabPle and necess~r-~-ii'g'ht of reasor;able alternatives available to him. CONCLUSTONS I. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(i) in that it will have an undue adverse impact on the present and potential value of the tidal wetland at the site for marine food production, wildlife habitat, flood and hurricane storm control, cleansing ecosystems, absorption of silt and organic material, recreation and open space appreciation. In particular, shading of submerged aquatic vegetation (SAV) by this 1592 square foot structure will cause a significant diminution in the ability of these species to survive. SAV forms the base of the food chain and is essential to the survival and health of the marine ecosystem at the site. The bottom coverage of SAV here is already sparse, as little as l0 percent during certain seasons of the year. Shading by the proposed dock will, therefore, have an undue adverse impact on the aforementioned tidal wetland values. Moreover, the proposed dock will have an undue adverse impact on recreation in the area of the site, obstructing public access along the beachfront, and diminishing shellfishing, swimming, and recreational boating opportunities. Finally, the potential value of the wetlands at and adjacent to the site would be unduly and adversely impacted through the proliferation of similar residential dock structures which could result should a permit for the structure be issued. 2. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(ii) in that it is not compatible with the public health and welfare. At present, the public enjoys unobstructed access to nearly 6 miles of beachfront in this area of Noyack Bay. The area is currently used by the public for walking, swimming, shellfishing and recreational boating. The Applicant's proposal would significantly diminish this fundamental right of access. 3. The project does not comply with the standards in 6 NYCRR 661.9(b)(1)(iii) in that it is not reasonable and necessary, taking into account the reasonable alternatives that exist to the proposed project. These alternatives include the continued utilization of a mooring buoy, as is predominant in this section of Noyack Bay; the utilization of a nearby commercial marina; or proposal of a residential dock structure of much smaller size and · · · · · · With regard to the standards for a protection of waters permit pursuant to 6 NYCRR 608.8, as stated above, the project as proposed is not reasonable and necessary and therefore does not comply with Section 608.8(a). The project as proposed will cause unnecessary damage to the natural resources of the state, specifically SAV and the aquatic environment and therefore does not comport with Section 608.8(c). With regard to the standards for granting water quality certification under 6 NYCRR 608.9, since the proposal does not meet the tidal wetlands and protection of waters permit requirements, it fails to be in compliance with state statutes, regulations and criteria otherwise applicable to activities needing water quality certification as required by Section 608.9(a)(6). Accordingly, the certification required pursuant to 6 NYCRR 608.9 cannot be made. RECOMMENDAT'rONS ! recommend that the application be denied without prejudice to pursue a new application for a residential dock structure similar in design and size to the Greene and Barry/Burke permits previously issued by the Department. Back to top of page SUP-.VtE¥ OF: PP-.OPF:P-.T'Y 51TUATE.. ~UTHOLD TOI"~-' '30UTHOLD 5Ut=POLK COUNTY, ~UI~VEYEE;' 10-10-,02 ~CT~ I000-D4-4-24 ~OFFOL~ COONT¥ HEAL_TH OEPT. Ct~.'l'u,u~u TO: ! ! N 5-21-O~ IO:OO A.H. EL=~.25' 5ond EL=2.25'- Cleon ~and / / NOTES: · MONUMENT POUND PP--C'POSED SEPTIC (5"¢STEi'd PETAIL ELEVATION5 REFERENCE N~VD'2q ~.E.H.L. F~H N.~.S. ~.E.G. COASTAL ~OSION A~Ea HAP SH~T ~ Of 4~ PHOTO ~ AREA = 26~12 5F OR 0.82 ACRE5 CRAPHIC 5GALE I": ~O' JOHN C. EHI.ERS LAND SE RVEYOR 6 EAST MAIlq STREE~ N.Y.S. LIC. biO. 50202 RIVERHEAD, N.Y. 11901 369-8288 Fax 369-828? RE, F.\~Ip scrvcx¢,d~PRO$\02-294b.pro #7137 STATE OF NEW YORK) )SS: COUNTY OF SUFFOLK) Joan Ann Weber of Mattituck, in said county, being duly sworn, says that he/she is Principal clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper once each week for 1 weeks, commencing on the 14th day of October ,2004. Sworn to before me this 2004 i~_ il,~.'. ~,.~.'- .,, ·~V~ ~ ~/~'. J CHRISTINA VOLINSKI NOTARY PUBLIC-STATE OF NEW YORK No. 01-VO6105050 Quahued in Suffolk County Commission Expires February 28. 2008 Principal Clerk day of ,~. ''] NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN chat dwelling. The property in question is identified by SCTM# 1000-54-4-24. ter 37 (Coastal Erosion Hazard Areas) of 53095 Main Road, Southold, New York. RECEIVED LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the Town Board of the Town of Southold hereby sets November 4, 2004 at 9:00 a.m., Southold Town Hall, 53095 Main road, Southold, New York as the time and place for a public hearing on the question of appealing the determination of the Southold Town Trustees dated August 18, 2004, which decision den/ed the application of John Betsch to construct a two-story, single-family dwelling, in place of his existing dwelling. The property in question is identified by SCTM# 1000-54-4-24. The application was denied under Chapter 37 (Coastal Erosion Hazard Areas) of the Town Code. A more detailed description of the above mentioned application is on file in the Southold Town Clerk's Office, 53095 Main Road, Southold, New York, and may be examined by any interested person during business hours. Dated: October 5, 2004 BY ORDER OF THE SOUTHOLD TOWN BOARD ELIZABETH A. NEVILLE SOUTHOLD TOWN CLERK PLEASE PUBLISH ON OCTOBER 14, 2004, AND FORWARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK, TOWN HALL, PO BOX 1179, SOUTHOLD, NY 11971. Copies to the following: The Suffolk Times John Cushman, Accounting Town Clerk's Bulletin Board Town Board Members Southold Town Trustees Town Attorney John Betsch STATE OF NEW YORK) SS: COUNTY OF SUFFOLK) ELIZABETH A. NEVILLE, Town Clerk of the Town of Southold, New York being duly sworn, says that on the '~ day of ~__?cO [::>~n~ .2004, she affixed a notice of which the annexed printed notice is a tree copy, in a proper and substantial manner, in a most public place in the Town of Southold, Suffolk County, New York, to wit: Town Clerk's Bulletin Board, 53095 Ma'm Road, Southold, New York. NOTICE OF PUBLIC HEARING FOR 11/4/04 tt~'~e[l~ X*. Neville Southold Town Clerk Sworn before me this '~ ~day of ~[:~'. 2004. - ' N~tary Public LYNDA Mm BOHN NOTARY PUBLIC, State of New No. 0 IBO6020932 Qualified in Suffolk Count,/ Term Expires March 8, ELIZABETH A. NEVILLE TOWN CI,F-RK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD October 7, 2004 Certified Mail, Return Receipt Requested Mr. John Betsch 3 Wincester Lane Huntington, NY 11743 Dear Mr. Betsch: Enclosed find one certified resolution adopted by the Southold Town Board at their regular Town Board meeting held on October 5, 2004. Also find one copy of the Legal Notice that will be published in the official 2004 Southold Town Newspaper, The Suffolk Times, October 14, 2004. A copy of this letter along with original inserts will also be sent to Twomey, Latham, Shea & Kelly and Erin Cmtty, Commissioner of the NYSDEC. If you have any further questions please fell free to contact Southold Town Assistant Town Attorney, Kieran Comoran. Very truly yours, Elizabeth A. Neville Southold Town Clerk Encs. cc: Twomey, Latham, Shea 8: Kelly NYSDEC SENDER' ~OMPLETE THIS SECTION · Comple[,, cams 1, 2, and 3. Also complete item 4 it Restricted Deliver/is desired. · Print your name and address on the reverse so that we can return the card to you. · Affach this ca~ to ~e back of ~e m~lplece, or on ~e from E ~ace ~rmits. Mr John Betsch 3 Wincester Lane Huntington, NY 11743 (Trustees Appeal) COMPLETE THIS SECTION ON DELIVERY ri ~eent X [] Addre~ee B. Rsce~ by ( Printed Name) C. Date of Delive~ D. ~m~d~me~m~l? []Yes 3. Se~ice Ty~ ~ Ceded Mall [] Express M~I ~ R~e~ [] Return i for Memhand~se [] Insun~ M~I ~ C.O.D. 4. Re~ D~befi~ ~e Fee) •Ye~ 7003 3110 0001 8547 9182 PS Form 3811, August 2001 Dom~o Ream Re~l~ SENDER. COI~ IPLE FE THI~ SEC TIOtv · Com~e •ems 1, 2, and 3. Nso com~e · item 4 ~ Res~ctad Del~e~ ~ de,md. · PH~ your name and address on fl~e reverse so thet we can n~um the crud to ~u. · Affach th~ crud ~ ~e back of ~e mallplece, or on U~e ffo~ E space ~rm~. Mr Christopher Kelley Attorney at Law TWomey, Latham, Shea & Kell PO Box 9398 Riverhead, NY 11901 (Trustees Appeal) 0~ar~ lmm s~v~ce ~b~ PS Form 3811, A~ust 2~1 SENDER: CO~.IPLETE THIS SECTIOt~ · Compile ~ms 1,2, and 3. Nso complete Earn 4 ff Res~c~d D~!v~y ~ desired. · Pdnt ~ur name and 8ddrees on ~e reveme so fl~at we can n~um fl~e card to ~u. · Affach ~ls c~d ~ ~e back of the mNIp~ce, B. Receded by (Pdn~d Name) C. D~e of Del~ D. Is~ad~e~s~ffem~om~ml? []Yes 4. ~ ~ ~ ~) O~ 7003 1010 0000 9662 5644 X ~ 1. A~c~ ~dm~ed to: Erin Crotty Commissioner NYSDEC 50 Wolf Road Albany, NY 12233 ff YES. enter de~,e~ eddm~ betow: [] No (Trustees appeal) 2. ~ Num~ ~tan~er ~om a~ce ~b~ Ps Form 3811, August 2001 3. Se~ce T~e Irla Ce~lfled Mail D Ex~a~ M~I ~ ae~ate~d 0 Patt~ Pa~pt fo~ Me~ t [] Insured MaI~ [] G.O,D. 4. Restfl=tad De~ve~? ~.x'~a Fee) ClYe~ 7003 1010 0000 Dome~tlo Return Receipt 9662 5651 ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 743 OF 2004 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON OCTOBER 5, 2004: RESOLVED that the Town Board of the Town of Southold hereby sets a public hearing for November 4~ 2004 at 9:00 a.m. in the Meeting Hall of thc Southold Town Hall~ to hear the appeal of the determination of the Southold Town Trustees dated August 18~ 2004~ which decision denied the application of John Betsch to construct a two-story, single-family dwelling, in place of his existing dwelling. The property in question is identified by SCTM# 1000-54-4-24. The application was denied under Chapter 37 (Coastal Erosion Hazard Areas) of the Town Code. Elizabeth A. Neville Southold Town Clerk PATRICIA A. FINNEGAN I TOWN ATTORNEY patricia.finnegan@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran@town.southold.ny.us LORI HULSE MONTEFUSCO ASSISTANT TOWN ATTORNEY lori.monte fusco@town.southold.ny.us JOSHUA Y. HORTON Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold~ New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD To: From: Date: Subject: MEMORANDUM Members of the Town Board Patricia A. Finnegan, Town Attorney September 21, 2004 Appeal of John Betsch Please be advised that I have recused myself from all matters involving the "Appeal of Denial of Co~3stal Erosion Management Permit to John Betsch", which was filed with the ToWn Clerk on September 17, 2004. I had previously recused myself from advising the Trustees on this matter. Please direct all inquiries to Kieran Corcoran. Thank you for your attention. PAF/Ik cc: Elizabeth Neville, Town Clerk ~ Board of Trustees Kieran M. Corcoran, Esq., Assistant Town Attorney ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD September 24, 2004 Erin Crotty, Commissioner State of New York Depmhiicnt of Environmental Conservation 50 Wolf Road Albany, New York 12233 Dear Commissioner Crot~y: Transmitted herewith is a copy of the "Appeal of Denial of Coastal Erosion Management Permit of John Betsch, 2235 North Sea Drive, Southold, New York SCTM# 1000-54-04- 24. It is being sent for your information in accordance with Southold Town Code Chapter 37, Section 35B. This matter has been assigned to our Assistant Town Attorney Kiernan Corcorar~ You may contact him at 631 765-1939 for further information. Very truly yours, El/zabeth A. Neville Southold Town Clerk cc: Town Board Town Attorney Town Trustees ,! 1,HOMAS A. TWOMEY. JR. STE[PHEN B. LATHAM JOHN F SILVA, III CH~ISTC)PNER O. KELLEy TWO~EY, LATHAM, SHEA & KELLY, Post Office Box 9398 Riverhead New York 11901-9399 33 West Second Street RIverhead New York 11901-9398 Telepr~one' 631.727.21 80 Facslrnlle: 631.727.1767 WWW. SUffoIklaw. com Email address: ckelley@suffolklaw.com Direct fax: (631) 727-2385 Ext. 223 LLP OF COUNSEL KENNETH p. LAVALLE JOAN C HAI'FIELD ANNE MARIE GOODALE LAURA I. ~UAZZlN Coastal Erosion Hazard Board of Review c/o Supervisor, Joshua Y. Horton Town of Southold 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 September 17, 2004 RECEIVED SEP 1 7 2,]04 $o,.,t.t~cl '~ T~wn Clerk RE: Appeal of Denial of Coastal Erosion Management Permit to John Betsch, 2325 North Sea Drive, Southold SCTM #54-04-24 Dear Supervisor Horton & Members of the Board: Pursuant to Section 37-34 and 37-35 of the Southold Code ("Town Code"), please accept this correspondence as the written appeal of John Betsch from the decision of the Board of Trustees for the Town of Southold ("Trustees"), acting in its capacity as the Administrator of the Town of Southold Coastal Erosion Hazard Law, dated August 18, 2004 (a copy of which is annexed hereto as Exhibit "A'), denying his application for a Coastal Erosion Management Permit to construct a two-story, single-family dwelling with a two-car garage, in place of his existing one-story two-car garage dwelling, at the above-referenced property. For the reasons set forth below, Mr. Betsch is requesting that the Town Board invoke its authority as the Coastal Erosion Hazard Board of Review to set aside the Trustees' decision as erroneous pursuant to Section 37-34:B of the Town Code or, in the alternative, to permit the proposed construction by way of a variance pursuant to Section 37-34:A of the Town Code. 20 MAIN STREET 51 HILL STREET 105 MAIN STREET ONE EAST MAIN STREET. SUITE 1 400 TOWNLINE ROAD 56340 MAIN ROAD. RD BOX 325 EAST HAMPTON. Ny 11937 SOUTHAMPTON. NY 11 g~8 PORT JEFFERSON S?A.. NY 11776 BAY SHORE. NY 11706 HAUPPAUGE. Ny 117B8 SOUTHOLD. Ny 11971 September 17, 2004 Page 2 FACTUALBACKGROUND At the present time, the Betsch's home on North Sea Drive is a small summer cottage with a garage, deck and patio. (Photographs of the Betsch property and surrounding parcels are appended hereto collectively as Exhibit "B'). The existing one- story frame house is constructed on a concrete slab and is well over 100 feet from the mean high water mark of the Long Island Sound. As such, the property is beyond the jurisdiction of the Department of Environmental Conservation ("DEC") and the Trustees with respect to the issuance of a wetlands permit. As depicted by the survey appended hereto as Exhibit "C", the Betsch property is flanked to its east by an asphalt parking lot and to the west by the property of Lawrence and Josephine Pearlstein which was substantially enlarged in 1997 after the issuance of a Coastal Erosion Management Permit by the Trustees. (A photograph of the Pearlstein property is attached hereto as Exhibit "D"). Appended hereto as Exhibit "E" is the application submitted by Mr. Betsch to the Trustees on October 17, 2003 seeking a Costal Erosion Management Permit pursuant to Chapter 37 of the Town Code to construct a new two-story, two-car garage, 3 bedroom single family dwelling in place of the existing one-story two-car garage dwelling. The application explained that the proposed structure would be built on wood pilings. The proposed construction is entirely compliant with the dimensional requirements set forth in the Southold Town Zoning Code and exceeds the applicable FEMA requirements. Moreover, although not as substantial in size, the 3 bedroom home that the Betschs propose to construct is entirely consistent with the character of neighboring homes along North Sea Drive, photographs of which are appended hereto collectively as Exhibit "F'. The only impediment to the Betsch's ability to construct a suitable year-round residence is the seemingly arbitrary placement of the Coastal Erosion Hazard Line along North Sea Drive. As depicted on the attached survey (see Exhibit 'C'), the Coastal Erosion Hazard Line actually runs down the middle of North Sea Drive. Mr. Betsch submits that the area where construction is proposed is devoid of any conditions or features which the Coastal Erosion Hazard Law is designed to protect. The arbitrary placement of the line is further underscored by the existence of an asphalt parking lot to the east of the Betsch property and the northwestern curve of the line to the west of the Betsch property. PROCEDURAL HISTORY On November 19, 2003, the first of fivepublic hearings on the Betsch application took place. A review of the minutes of that hearing, annexed hereto as Exhibit "G", reveals a complete misunderstanding by the Trustees of the nature of the application and the reason why the Betsch property was even located within the Coastal Erosion Hazard Area. Nevertheless, in the absence of any reference to physical evidence, Trustee Krupski opined that Mr. Betsch's property was "probably in a dune". Moreover, although the application clearly speaks to a reconstruction, the Trustees deemed the proposed construction to be a "major addition" as that term is defined in Section 37-6 of the Town Code. The Trustees' confusion with the placement of a Coastal Erosion Hazard Line along North Sea Road was evident when Trustee King noted "we may have to move it back. Never realized that it is the middle of the road. I would September 17, 2004 Page 3 never have thought of such a thing. Until you see it in black and white." At the conclusion of the first hearing, the Trustees informed Mr. Betsch that they were going to consult with the State with respect to the location of the Coastal Erosion Hazard Line and what, if any, natural protective feature existed on his property to justify the location of the line. At the second public hearing in December, 2003, the minutes of which are annexed hereto as Exhibit "H', a letter from Robert McDonough, an Environmental Program S~vecialist for the DEC, directed to Mr. Betsch was read into the record. As noted in the minutes, Mr. McDonough indicated that the proposed project was "generally approvable by the State standards." Trustee Krupski also read a letter from Mr. McDonough addressed to the Trustees which purported to respond to inquiry by a Charlotte Cunningham, representing the Town of Southold, requesting information regarding the identification of any natural protective feature that exists along North Sea Drive to the west of the town beach parking area, north of the Coastal Erosion Hazard Line. In response to that inquiry, Mr. McDonough advised the Trustees that he could not identify the natural protective feature that existed on the Betsch's property, i.e., a beach, bluff or dune, without Mr. Betsch instituting a formal challenge to the location of the Coastal Erosion Hazard Line. At that time, Mr. Betsch had already been informed by the State that such a challenge would be extremely time consuming and expensive. Mr. Betsch also reminded the Board of the nature and extent of reconstruction and renovation that his neighbors have been permitted to do along North Sea Drive. This testimony was offered by Mr. Betsch in light of the Trustees apparent belief that the ground coverage for the proposed structure could only be 25% larger than the ground coverage for the existing structure.~ Following the second public hearing, Mr. Betsch retained this firm to assist him in the presentation of his application to the Trustees. At the third public hearing on April 21, 2004, the minutes of which are appended hereto as Exhibit "I', an effort was made to redirect the Trustees attention to their role as Administrator of the Coastal Erosion Hazard Law for the Town of Southold. Specific reference was made to the criteria for issuance of a Coastal Erosion Management Permit under Section 37-12 of the Town Code for regulated activities.2 The applicant argued that a Coastal Erosion Management Permit could be issued for the proposed construction if the Trustees determined that the proposed regulated activity, i.e., the reconstruction: ~ As explained in more detail below, the extensive debate between the applicant and the Trustees regarding the percentage increase in ground coverage from the existing to the new construction was based on the Trustees' erroneous characterization of the proposed construction as a "major addition." The applicant submits that, notwithstanding the confusion regarding this issue during the initial public hearings, the dimensional restrictions applicable to maior additions are irrelevant to the issuance of a permit for a reconstruction. 2 As defined in Section 37-6, a regulated activity is the "construction, modification, restoration or placement of a structure, or major addition to a structure, or any action or use of land which materially alters the condition of land, including grading, excavating, dumping, mining, dredging, tilling or other disturbance of soil." September 17, 2004 Page 4 A) Is reasonable and necessary, considering reasonable alternative to the proposed activity and extent to which the proposed activity requires a shoreline location. B) Is not likely to cause a measurable increase in erosion at the proposed site and at other locations. C) Prevents, if possible, or minimizes adverse effects on natural protective features and their functions and protective values, existing erosion protection structures and natural resources. Because there was absolutely no evidence in the record that the subject property was subject to any erosion and no natural protective features had ever been identified, the applicant submitted that the issuance of a permit by the Trustees hinged on a determination by the Board of whether the proposed construction was reasonable and necessary. Rather than address that issue, Trustee Krupski stated "I don't think we want to lawyer it up" and suggested tabling the application for yet another public hearing so that the Board could visit the site again after the applicant had staked the boundaries of the proposed structure? Thereafter, in compliance with the Trustees request, Mr. Betsch had a surveyor stake the footprint of the proposed structure on his property and a field inspection by the Trustees took place on May 18, 2004. In follow-up to the third public hearing and the Trustees' site inspection of the Betsch property, this firm submitted a letter dated May 25, 2004, a copy of which is appended hereto as Exhibit "J', which was submitted for the record at the Trustees' hearing in June 2004. That letter reiterated the applicant's position that the proposed construction, whether characterized as a "reconstruction" or a "major addition", fell within the definition of "regulated activity", under Section 37-6 of the Town Code and was, therefore, an activity for which a Coastal Erosion Management Permit could be issued by the Trustees pursuant to the criteria set forth in Section 37-12. With respect to those criteria, the applicant's letter underscored the fact that no evidence had been presented to the Board indicating that the proposed construction would increase erosion on the Betsch property or that it would have any adverse effect on any natural protective feature, their functions or their protective values. As for the last criteria, whether or not the project is reasonable and necessary, the applicant submitted that the proposed construction is reasonable since it is entirely in keeping with the character of the surrounding homes and is entirely compliant with the dimensional requirements of the Town Zoning Code and FEMA requirements. Although the term necessary is not defined in Chapter 37 of the Town Code, Mr. Betsch suggested to the Board that the evaluation of necessity was subjective and that the Trustees had to determine whether the proposed project was necessary for the intended use of the property by the applicant which, in this case, was the conversion of a summer cottage to a winterized full time residence. No substantive response was received from the Trustees or their counsel, Assistant Town Attorney, Brownell Johnston to the arguments raised in the aforesaid letter. Instead, Mr. Johnston contacted the applicant's counsel with the surprising 3 This suggestion was presumably made in furtherance of the Trustees' improper analysis of the percentage increase of the proposed footprint based on their erroneous designation of the proposed activity as a major addition. September 17, 2004 Page 5 suggestion that the Trustees were poised to deny Mr. Betsch's application because they now believed that the property was located within a "Structural Hazard Area" as defined in Section 37-13 of the Town Code. Although this suggestion seemed somewhat contrived and was entirely unsupported by any evidence of record, the applicant nevertheless endeavored to dispel the Trustees of this contention. Appended hereto to Exhibit "K" is this firm's letter dated June 9, 2004 accompanied by a Memorandum of Law addressed to Mr. Johnston addressing the Trustees' seemingly gratuitous allegation that the subject property was located in a Structural Hazard Area. By way of response, Mr. Johnston advised our office that the Trustees believed that the applicant's property was located in a Structural Hazard Area because of the extreme rate of erosion which they believed was occurring on the applicant's property. Again, record is devoid of any evidence suggesting that any erosion has occurred on the applicant's property. Nevertheless, the Trustees maintained that the Town Code defined a Structural Hazard Area as a shoreline property located landward of a natural protective feature on a shoreline which receded at a long term average recession rate of one foot or more per year. The applicant responded by way of letter from this firm dated June 23, 2004, a copy of which is appended hereto as Exhibit "L", submitted for the record at the Trustees July, 2004 hearing, which confirmed, based on documentary evidence and expert testimony, that there was no evidence of erosion on the property for the past five years and, in fact, the property has accreted more than 24 feet over that five year time period, as, supported by the survey submitted with the letter. In further support of the applicant s position that the beach on his property has accreted over the past five years, an Affidavit of John C. Ehler's Land Surveyor, who is fully familiar with the subject property, was submitted to the Trustees. Mr. Ehler's Affidavit confirms, based on his personal site inspections and surveys of the property, as well as his analysis of earlier surveys prepared of the property, that the beach has increased by at least 24 feet over the last five years. A copy of Mr. Ehiers Affidavit is annexed hereto as Exhibit "M'. Despite the uncontroverted evidence that there was no erosion on the Betsch property, the Trustees announced at the fourth public hearing of the Betsch application on June 28, 2004 that, in an effort to validate their contention that the property was located in a Structural Hazard Area, they would be meeting with the DEC on June 30t~ to discuss whether the Betsch property suffered from erosion. The Trustees indicated that they would notify the applicant immediately after that meeting of the DEC's recommendation and how the Trustees were intending to proceed. On July 14, 2004, nearly nine months after the submission of the Betsch application, this firm contacted Assistant Town Attorney Brownell Johnston to inquire about the outcome of the Trustees' meeting with the DEC. During that conversation, which was memorialized in a letter dated July 21, 2004 to the Trustees, a copy of which is annexed hereto as Exhibit "N", our office was informed that the DEC confirmed that there was no erosion on the Betsch property and that, therefore, it was not located in a Structural Hazard Area. Mr. Johnston reported that the Trustees were nevertheless inclined to deny a permit to Mr. Betsch based solely upon the recommendation of someone from the DEC. In the July 21, 2004 letter, the Trustees were reminded that the DEC has relinquished jurisdiction over Coastal Erosion Hazard Areas in the Town of September 17, 2004 Page 6 Southold to the Trustees who have sole discretion to consider the pending application. Furthermore, despite their ongoing confusion regarding the characterization of the proposed construction as a major addition, we reiterated Mr. Betsch's position that the proposed project included removing the present structure and reconstructing a new structure on the premises which was a regulated activity under the Town Code and not a major addition. As such, the Trustees retained the jurisdiction to issue a permit upon the satisfaction by the applicant of the criteria set forth in Section 37-12 of the Town Code. Thereafter, Mr. Johnston advised our office that the Trustees' determination of the application was further delayed by their misunderstanding of what activities were considered "reasonable and necessary" pursuant to Section 37-12. Mr. Johnston advised that the Trustees were once again awaiting input from the DEC in the form of regulations which were promised to them by the DEC representatives at the June 30a meeting in order to assist them in understanding the meaning of reasonable and necessary in the context of considering an application for a Coastal Erosion Management Permit. Although Mr. Betsch was encouraged that the Trustees were finally considering the relevant criteria, he had difficulty understanding the Trustees' confusion over the meaning of reasonable and necessary. Consequently, in an attempt to expedite the approval process which was entering its 10~ month, counsel for Mr. Betsch undertook to research whether any regulations had been issued by the DEC defining the terms reasonable and necessary. Although the DEC has not published any regulations in the context of the Coastal Erosion Haz, ard Law, the applicant provided the Trustees with a published DEC Commission s decision which discussed "reasonable and necessary" in the context of a wetlands permit application and submitted that decision to the Trustees undercover of an August 10, 2004 letter, a copy of which is annexed hereto as Exhibit "O'. As noted in that letter, the research performed by counsel for the applicant uncovered an application entitled "Susan Tasker' which had also been made to the Trustees for a Coastal Erosion Management Permit for a similar parcel of land located in Greenport on the Long Island Sound. As can be seen in the DEC Commissioner's decision, presented to the record at the fifth and final public hearing on August 18, 2004, the Trustees issued a Coastal Erosion Management Permit to Ms. Tasker for a similar project under similar circumstances. THE DECISION On August 18, 2004, in the absence of any evidence in the record establishing the existence of any coastal erosion or the identity of a natural protective feature on the Betsch property, and notwithstanding the obvious fact that Mr. Betsch was requesting a permit for a reconstruction rather than a major addition, the Trustees issued a decision ,cl, en,,ying Mr. Betsch? application for Coastal Erosion Management Permit (see Exhibit A ). The Trustees denial, which is entirely unsupported by the substantial evidence of record, is based upon a finding that the proposed activity is to occur in a "dune area" and that construction of a major addition is prohibited in a dune area under Section 37- 16:C of the Town Code. The Trustees' decision fails to reference any documentary evidence which substantiates their fundamentally flawed decision. That is, contrary to September 17, 2004 Page 7 the Trustees' holding that the instant application is for a "major addition", in the first "resolved" paragraph of the decision, the Trustees state that the application itself was "to construct a two-story, single-family dwelling with a two-car garage in place of the existing one-story, two-car garage and dwelling" (emphasis added). It is illogical to suggest that the construction of a dwelling "in place of an existing dwelling" could possibly be considered a "major addition." This point was repeatedly underscored to the Board in the applicant's submissions in June and July 2004. THE RELIEF SOUGHT HEREIN By way of this appeal to the Coastal Erosion Hazard Board of Review, pursuant to Section 37-35:C of the Town Code, the applicant submits that the Trustees denial of a Coastal Erosion Management Permit pursuant to Section 37-16 of the Town Code is clearly in error and based solely upon the Trustees' conjecture and surmise that the subject property is probably a "dune" and their improper characterization of the proposed construction as a major addition. Both of these findings are contrary to the substantial evidence of record. A review of the minutes of the five public hearings that the Trustees held and of the entire record of this proceeding, confirms the unfortunate truth that the Trustees did improperly interpret or construe the provisions of the Southold Town Coastal Erosion Hazard Law in rendering its determination. In addition, the Trustees' resolution confirms that they completely ignored the indisputable fact that there has been no erosion on the Betsch property in the past five years, the proposed construction of a three-story dwelling on pilings will, in fact, decrease erosion rather than contribute to any potential erosion, neither the DEC nor the Trustees were able to identify for the record any natural protective feature justifying the location of the Coastal Erosion Hazard Line in the middle of North Sea Drive and the proposed construction did not, in any way, involve an addition to the existing structure. The record further confirms that the Trustees failed to comprehend much less apply the criteria mandated by Section 37- 12 of the Town Code and the Trustees' determination of August 18, 2004 is devoid of any reference to the relevant criteria. In addition, a review of the record confirms that the conclusions set forth in the Trustees' decision are in no way reflective of the evidence presented to the Board and completely ignore the purpose and mandate of the Coastal Erosion Hazard Law. Had the Trustees properly applied the relevant facts to the provisions of Chapter 37 of the Town Code, they could never have concluded that the proposed construction was in a dune, or that the application was for a major addition rather than a reconstruction. Moreover, it is inexplicable that the Trustees could not render any determination as to the reasonableness and necessity of the proposed construction. Therefore, so that they can exercise the same rights that every other homeowner on North Sea Drive has heretofore exercised, Mr. Betsch implores this Board to set aside the Trustees' resolution and issue a Coastal Erosion Management Permit to the applicant to enable him to construct a suitable year round residence in place of his existing summer cottage. September 17, 2004 Page 8 In the alternative, and in the event that this Board is inclined to accept the Trustees' determination that the subject premises is located in a dune area, the applicant requests a variance from the restrictions of Section 37-16 upon which the Trustees relied to deny the instant application. The variance should be granted to Mr. Betsch because his proposed construction meets the criteria set forth in Section 37 of the Town Code which include: a) b) c) d) e) No reasonable, prudent, alternative site is available. All responsible means and measures to mitigate adverse impacts on natural systems and their functions and values have been incorporated into the activity's design at the property owner's expense. The development will be reasonably safe from flood and erosion damage. The variance requested is the minimum necessary to overcome the practical difficulty or hardship which was the basis for the requested variance. Where public funds are utilized, the public benefits must clearly outweigh the long-term adverse effects. Mr. Betsch submits that no reasonable, prudent, alternative site is available to him as he does not own any other parcel of land upon which to construct his home. The design and dimensions of Mr. Betsch's proposed construction not only satisfy the Southold Town Zoning Code requirements but exceed all FEMA requirements. The construction will result in the removal of the existing structure which consists of a concrete slab sitting directly on the ground and the installation of pilings which will reduce or eliminate any adverse impacts on natural systems, their functions and values, to the extent any are identified. In addition, the proposed reconstruction will be reasonably safe from flood and erosion damage because it will be on pilings. As noted previously, there is no evidence of erosion at the site. Moreover the applicant submits that the variance req~"eested is the minimum necessary for the applicant to reside there permanently with his family. It was noted by the applicant during the numerous hearing that a larger footprint is required to construct the winterized year round home with a garage deck. As a practical matter, the applicant has endured nearly one year of hearings seeking relief from a law which is intended to prevent coastal erosion. The simple fact that the record is devoid of any proof that the proposed construction will increase erosion or have any impact on a natural protective feature mandates the issuance of a permit to Mr. Betsch. No justification has been offered by the DEC or the Trustees for the arbitrary placement of the Coastal Erosion Hazard Line along North Sea Drive. As such, after incurring significant expense of presenting his application to the Trustees, Mr. Betsch should not be required, as suggested by the DEC, to finance their re- evaluation and reconsideration of the erroneous placement of the line along North Sea Drive before he is permitted to rebuild his home. Were it not for the arbitrary placement of the Coastal Erosion Hazard Line, a building permit could have been issued to the Mr. Betsch as of right for the proposed construction. September 17, 2004 Page 9 Based on the foregoing, it is respectfully requested that the Town Board direct the Trustees to issue a Coastal Erosion Management Permit to Mr. Bet$ch to construct his home or, in the alternative, to issue a variance pursuant to Section 37-30 of the Town Code. The undersigned would welcome the opportunity to be heard on this appeal at the Town Board's earliest convenience. Respec~-ully submitted, Christopher Kelley CK/yq Enclosures cc: Mr. John Betsch