Carreras v. Dep t of Environmental Protection OATH Index No. 3032/09 (July 23, 2009)

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1 Carreras v. Dep t of Environmental Protection OATH Index No. 3032/09 (July 23, 2009) Department s denial of variance application was not an abuse of discretion where applicant did not propose adequate mitigation for a septic system within 50 feet of a stream and did not prove that denial of the variance would impose a substantial hardship. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEBORA CARRERAS Petitioner - against - DEPARTMENT OF ENVIRONMENTAL PROTECTION Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This appeal was filed pursuant to section 18-28, title 15 of the Rules of the City of New York ( Watershed Regulations or RCNY ). Petitioner, Debora Carreras appeals from a denial of her application for a variance concerning the construction of a subsurface sewage treatment system ( SSTS ) in the watershed area north of New York City by respondent, Department of Environmental Protection ( Department or DEP ). I conclude that the denial of the variance was not an abuse of discretion, and recommend that it be affirmed. ANALYSIS Petitioner owns an irregularly shaped 3.2 acre parcel within the New York City Watershed in the Town of Neversink ( Town ), New York. Petitioner proposes to construct, on the footprint of an existing house which is in a state of disrepair, a single-family residence with a new septic system to treat human and household waste. An Engineering Report dated December 18, 2008, by Ward Engineering indicated that the narrow property configuration and nearby stream made it impossible to install a septic system in compliance with the Watershed Regulations and the Town s required setback laws. The only viable location for a septic system

2 2 is within 50 feet of the stream. The Watershed Regulations require a 100 foot setback, 1 and, thus, a waiver from DEP would be required. The Engineering Report proposed that in the event the waiver was denied that the Town and DEP should agree to extend the municipal sewer district to include the property. On December 20, 2008, petitioner applied to DEP for a variance to reduce the minimum separation distance from the septic system to the stream. Specifically, the absorption field for the SSTS would be 50 feet from the stream and the reserve area would be approximately 30 feet from the stream. As mitigation, petitioner proposed an aerobic treatment unit instead of an ordinary septic tank and Eljen Geotextile Sand Filter modules instead of typical stone-and-pipe absorption trenches. The application included a copy of the Engineering Report with attachments. On March 23, 2009, Steven W. Lawitts, the Acting Commissioner of DEP, denied the application to construct a SSTS which does not meet the minimum separation distance from the watercourse. In denying the application, Mr. Lawitts noted that petitioner did not demonstrate that the proposed SSTS includes adequate mitigation measures to avoid contamination to or degradation of the water supply which are as protective of the water supply as the standards set forth in the Watershed Regulations. This appeal was filed on April 18, On May 18, 2009, the Department filed the agency record. Petitioner submitted additional papers on June 10, 2009, and the Department s answer was filed on June 26, On appeal the sole issue is [w]hether the Commissioner or the First Deputy Commissioner abused his or her discretion in denying a request for a variance. 15 RCNY 18-28(d)(3). An agency s interpretation of the statutes and regulations that it administers is entitled to deference, and must be upheld if reasonable. ATM One, LLC v. New York State Division of Housing & Community Renewal, 37 A.D.3d 714 (2d Dep t 2007). A reviewing tribunal may not overturn an agency s decision merely because it would have reached a contrary conclusion by substituting its judgment for that of the agency. To find an abuse of discretion, the reviewing 1 Section of the Watershed Regulations sets forth the requirements for constructing and operating SSTSs in the New York City watershed. Any person wishing to construct and operate a SSTS must make an application for approval and meet the technical requirements of Section Section (a)(2) incorporates by reference the requirements found in Appendix 75-A of 10 NYCRR Part 75 that the minimum separation distance an absorption field can be installed from a watercourse is 100 feet. Section 18-38(a)(5) states, No part of any absorption field for a new conventional individual subsurface sewage treatment system... shall be located within the limiting distance of 100 feet of a watercourse.

3 3 body must find that the determination was arbitrary and capricious and lacked a rational basis. Pell v. Bd. of Education, 34 N.Y.2d 222 (1974). The petitioner has the burden of proving that the Acting Commissioner abused his discretion. 15 RCNY 18-28(e). The Watershed Regulations were promulgated for the purpose of protecting the quality of the drinking water used by approximately nine million New Yorkers. The quality of the water faces a continuing threat from the cumulative and episodic impacts of pollution sources generated by certain land uses and activities in the watersheds such as improperly located or designed SSTS. 15 RCNY 18-11(a) (Lexis 2009). The Department has the discretion to grant a variance from regulatory requirements if the applicant can: i. Identify the specific provision of the rules and regulations from which the variance is sought or identify the nature and extent of the alteration or modification of the noncomplying regulated activity; ii. Demonstrate that the variance requested is the minimum necessary to afford relief; iii. Demonstrate that the activity as proposed includes adequate mitigation measures to avoid contamination to or degradation of the water supply which are at least as protective of the water supply as the standards for regulated activities set forth in [the] rules and regulations; and iv. Demonstrate that for the proposed use or activity for which the variance is requested, compliance with the identified provision of the rules and regulations would create a substantial hardship due to site conditions or limitations. 15 RCNY 18-61(a)(1). The applicant bears the burden of proof with respect to each of these requirements. Id. at 18-61(a)(4). Petitioner s variance application did not address any of the provisions of section 18-61(a)(1). Except for petitioner s proposal to install an aerobic treatment unit instead of an ordinary septic tank and Eljen Geotextile Filter modules instead of typical stone-and-pipe absorption trenches, there was no evidence that this SSTS would provide adequate mitigation measures to avoid degradation of the water supply which are as protective as the standards set forth in the Watershed Regulations. Moreover, the application was devoid of any discussion concerning substantial hardship which would require the granting of a variance. Therefore, petitioner did not meet her burden of proof and there is no basis for finding that the Acting Commissioner abused his discretion in denying the request for a variance.

4 4 On appeal, petitioner claimed that the proposed SSTS should be exempted from the setback requirements because it emits a very high-quality effluent and that it would protect the water source to the same degree as the Watershed Regulations (Pet. letter dated June 10, 2009). Petitioner also alleged that since the denial of the variance application would prevent construction of a residence, the property will remain vacant and useless. Id. She further argued that her proposal is the least-intrusive means of making residential use of the property, and that the Acting Commissioner s decision was not premised on all the facts as it did not consider her alternative proposal of connecting to the Town s sewer district. Id. Petitioner submitted a copy of an approval from the Town dated November 8, 2007, to connect to the municipal sewer. The regulations provide that an appeal from a denial of a variance shall be decided on the record before the Department in its review of the application and any other written submissions allowed by the ALJ. 15 RCNY 18-28(f)(1). See also Guard Hill Farms Associates v. Dep t of Environmental Protection, OATH Index No. 157/98 (Aug. 11, 1998), aff d, Comm r Dec. (Sept. 11, 1998) (declining to consider factual argument of applicant that was not raised before the Department prior to its ruling on the variance application). Having failed to meet her burden before the Acting Commissioner, petitioner should not be allowed to supplement the record on appeal with new arguments and additional documents, leaving respondent without any reasonable means to determine whether petitioner s supplemental submissions have merit. Even if I were to invoke my discretion to consider such claims and documents, see 15 RCNY 18-28(f)(1) ( Appeals from determinations relating to... variances shall be decided on the record before the Department in its review of the application and any other written submissions allowed by the ALJ ), the result would be the same. Except for conclusory allegations, there is no evidence that the proposed septic system, which would be 50 feet from a stream that feeds into the City s drinking water, provides adequate measures to avoid degradation of the water supply which are as protective as the Watershed Regulations. Moreover, the possibility that compliance with the Regulations might be achieved by connecting to the Town sewer, a means outside the variance procedure, is irrelevant to this appeal. Finally, petitioner has not demonstrated hardship which would require the granting of the variance.

5 5 As explained by the New York State Court of Appeals, an applicant seeking a variance on the basis of substantial hardship is required to describe those physical conditions on the subject parcel that make compliance with a particular regulation difficult or impossible and thereby explain the perceived need for a variance. Nilsson v. Dep t of Environmental Protection of City of New York, 8 N.Y.3d 398, 404 (2007). A denial of a variance that renders a property unusable or unsalable may constitute a substantial hardship. See Lucas v. S.C. Coastal Council, 505 U.S (1992); Farley v. Dep t of Environmental Protection, OATH Index No. 941/06, at 7 (Jan. 19, 2006). In Buckskin Realty, Inc. v. Department of Environmental Protection, OATH Index No. 216/04 (Dec. 30, 2003), an owner sought a variance in order to construct and use an on-site SSTS to treat human and household waste from a three-bedroom, single-family residence to be built on the parcel on a 17% to 18% slope. The variance was denied because the owner failed to establish that compliance with the standard from which a variance was sought would result in a substantial hardship. On appeal, the owner claimed that construction of the residence was not feasible without the variance and that it would be deprived of a reasonable use of the property. This tribunal rejected this argument as speculative and recommended that the appeal be denied. Here, petitioner failed to establish that compliance with the Department s regulations constitutes a substantial hardship. First, petitioner failed to make any showing regarding the feasibility or infeasibility of alternate uses of the parcel. Second, petitioner s hardship claim is undermined by her proposal that the planned residence be connected to the Town s sewer system. Although petitioner obtained approval from the Town prior to filing her variance application, there is no evidence that this request was submitted to DEP and denied, leaving petitioner with no other options. Nor is there any evidence that connecting to and using the municipal sewer would be prohibitively expensive. Indeed, such a solution would be the least intrusive means of making residential use of the property and would make a variance unnecessary. Guard Hill Farms Associates, OATH No. 1757/98, at 12 ( the existence of alternatives makes it impossible to satisfy the criterion that the variance sought be the minimum necessary to afford relief, since the minimum necessary in such case is, in fact, no variance at all ). Accordingly, I find that petitioner has failed to demonstrate a substantial hardship within the meaning of the Watershed Regulations.

6 6 FINDINGS AND CONCLUSIONS 1. Petitioner failed to prove that the Acting Commissioner abused his discretion by denying the variance application. 2. Petitioner failed to demonstrate adequate mitigation for a septic system within 100 feet of a watercourse. 3. Petitioner failed to prove that she would suffer substantial hardship from the denial of the variance application. RECOMMENDATION I recommend that the denial of petitioner s variance application be affirmed. Given that Acting Commissioner Lawitts decided the initial application, it may be appropriate to refer this matter to another member of the executive staff for final decision. Cf. Matter of General Motors v. Rosa Corp., 82 N.Y.2d 183 (1993) (Commissioner, having previously appeared as general counsel in the matter, should not have issued final order but rather appointed a subordinate to conduct the review required). July 23, 2009 SUBMITTED TO: STEVEN W. LAWITTS Acting Commissioner APPEARANCES: DEBORA CARRERAS Petitioner, Self-represented MELISSA S. SIEGEL, ESQ. Attorney for Respondent Alessandra F. Zorgniotti Administrative Law Judge