By:LARRY MAIER
Score this round for Merokeans and conservationists everywhere.
At a July 5 meeting of the Nassau County Planning Commission in Mineola, Merrick residents, civic leaders and county Legis. David Denenberg (D-Merrick) faced off with Harbor Farms Inc., a Long Beach real-estate developer that seeks to build homes on tidal wetlands in Cedar Creek Swamp Channel in south Merrick. According to U.S. Army Corps of Engineer documents, the wetlands in question were illegally filled in 30 years ago.
At the recent planning commission meeting, residents hoped to convince the nine-member board to declare as incomplete a draft of an Environmental Impact Statement submitted by the developer's environmental consultant. Their objective was to delay proceedings over the construction project because, as long as no final decision over the property is reached, no homes can be built.
The planning commission declared the EIS incomplete and put the matter off until September, leaving the future of the land where it has been for the past three decades -- in question.
Residents oppose the development because, they argue, the land was filled without required federal permits and because 25 years of directives from the Army Corps to restore the lands to their pre-fill state were ignored by the developer. Residents also have safety concerns about the contents of the illegal fill, which were never determined to their satisfaction.
For almost 25 years, the Army Corps marched side by side with Merrick residents, refusing to allow construction of homes on the 2.5-acre property, which is located at the base of Wynsum Avenue. However, in 1996, the corps did an about-face, reaching a settlement with the developer that could allow homes to be built.
In the "mitigation" settlement, Harbor Homes agreed to pay $37,570 to fund several Fire Island seashore restoration projects and donate five acres of wetlands to the Town of Hempstead. In exchange, the Army Corps removed violations from the property and gave permission to build on part of the former marshland.
In the years since the settlement, only resident opposition and holdups with the planning commission have prevented Harbor Farms from building on the property.
30 years of debate
In 1971, B and B Homes, a real-estate developer that purchased the land from Harbor Farms that year, filled tidal wetlands in Cedar Creek Swamp without required permits from the Army Corps. The corps' permission is needed for any development projects involving navigable U.S. waterways.
Over the years, the Army Corps repeatedly denied development applications from B and B Homes and Harbor Farms, who bought the property back from B and B in 1975.
Many times, the Army Corps also directed the developers to restore the wetlands to their original, pre-fill state and stabilize the area to prevent the illegal fill from eroding into the channel.
Despite the directives, no remedial work was ever performed.
In 1987, another builder, Long Island Area Properties Inc., received permission from the Army Corps to build on the land without mentioning in their application that the area was a site of illegal landfill.
When informed of this fact by Merrick residents, the Army Corps rescinded its permission.
Today, residents say that, in the 30 years since the land was illegally filled, native plant and wild life have returned to the land, making it a viable ecosystem once more.
"It's not like it once was, but it has renewed itself," said Dr. Elliot Cohen, 68, whose Wynsum Avenue home borders the property. Since the land was filled, Cohen has served as the neighborhood's chief spokesman against development.
The 1996 settlement allowed the developer to build on land that was determined to be originally "upland" of the illegally filled area - or higher than the average high-water mark before 1971 - and thus out of the waterway and the Army Corps' jurisdiction.
Army Corps documents maintained by Cohen show that the corps repeatedly listed the illegally filled area as 2.5 acres, practically the entire parcel. However, in the settlement agreement, the fill area is listed as 1.38 acres, leaving room for five homes to be built.
The settlement outraged residents, who say the Army Corps backed down because it grew tired of fighting this matter.
"They got fed up of being involved with a situation they could not resolve," said Cohen, referring to the Army Corps' failed efforts to have the developer restore the land. "They took the easy way out and they did not live up to their obligations to the citizens of this country."
But Dr. Christopher Mallery, chief of the Harbor Supervision and Compliance Section for the Army Corps of Engineers, said that the settlement was made because the developer scaled back building plans and that the provisions of the settlement are fair.
"It was a substantially reduced development from what was originally intended," said Mallery, in a telephone interview a day after the planning commission meeting.
Originally, Harbor Homes had wanted to build 11 homes on the plot before trimming that number to five.
"We took a close look at what was within our jurisdiction. We gauged the reduced impact of the development, and when we asked for mitigation, we asked for mitigation commensurate with those impacts," Mallery said.
Cohen believes the Army Corps was fooled by the developer and erred in its final determination regarding how much land could be developed. He claims the Army Corps made the settlement based on photographs submitted by the builder that were taken at low tide and did not accurately record the true high-water mark.
"They jumped at anything instead of using their own expertise and going into their own records for the truth," said Cohen.
Denenberg agreed, telling the planning commission that his review of the matter convinced him that almost the entire land parcel is fill. "Every single map shows that line was 2.5 acres," Denenberg said.
If all proposed building sites are on land that was originally underwater, "then the application is moot," Denenberg added.
Mallery, however, maintains the Army Corps' decision was accurate.
"We had both local residents and their consultants in here to argue the case, at length, time and time again," said Mallery. "We determined that these were the proper limits of jurisdiction."
More testing wanted
Residents want the Nassau County Planning Commission to rule that the developer never be allowed to build on any part of the property.
At the planning commission meeting, the developer's consultant, Charles Bowman, of Land Use Ecological Services in Baiting Hollow, indicated that his client would not oppose a denial of their building application by the planning commission. This way, the developer could take the issue to court and end years of delays at the county level. Bowman said the Army Corps has decided the matter, and the planning commission should reach a conclusion as well.
"The settlement speaks for itself," an exasperated Bowman told the commission. "If you don't agree with it, deny the application." But Howard Blankman, planning commission chairman, said that a rushed decision would not be made.
Many residents want to see more testing of the land to determine potential dangers from the fill.
"We live in Merrick with so many environmental threats. We don't need another," Joseph Kralovich, president of the Old Lindenmere Civics Association, told the planning commission.
As the meeting ended, Blankman suggested that Cohen and an environmental expert chosen by Merrick residents meet with Bowman on the site to discuss potential fill tests.
A question of fairness
A more fundamental question raised at the hearing by residents and by planning commission member Parveen Chopra is how, after years of flouting federal regulations and refusing to perform remedial work, can permission now be granted to Harbor Homes to build on the illegally filled land.
Chopra asked his colleagues to consider whether the fact that the land was illegally filled was "sufficient grounds to terminate the proceedings."
Barry Fox, co-president of the Merrick Park Homeowners Association, agreed with Chopra, calling any action that would grant building permission to the developer "fruits of a poison tree."
