Brookhaven Baymen's Ass'n Inc. v. Town of Southampton

• Decision Date: 28 June 2011
• Citation: 85 A.D.3d 1074,2011 A.M.C. 1668,2011 N.Y. Slip Op. 05646,926 N.Y.S.2d 594
• Parties: BROOKHAVEN BAYMEN'S ASSOCIATION, INC., et al., appellants,v.TOWN OF SOUTHAMPTON, et al., respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1074
926 N.Y.S.2d 594
2011 A.M.C. 1668
2011 N.Y. Slip Op. 05646

BROOKHAVEN BAYMEN'S ASSOCIATION, INC., et al., appellants,
v.
TOWN OF SOUTHAMPTON, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 28, 2011.

[926 N.Y.S.2d 595]

J. Lee Snead, Bellport, N.Y., for appellants.Michael C. Sordi, Town Attorney, Southampton, N.Y. (Joseph Lombardo of counsel), for respondents.DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

[85 A.D.3d 1074] In an action, inter alia, for a judgment declaring that Local [85 A.D.3d 1075] Law No. 21 (2008) of the Town of Southampton, chapter A340 of the Town Code of the Town of Southampton, and portions of chapter 278 of the Town Code of the Town of Southampton are unconstitutional, void, and unenforceable, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Mayer, J.) dated August 21, 2009, which denied their motion for a preliminary injunction enjoining the enforcement of the challenged laws and granted the defendants' cross motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants' cross motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs are commercial fishermen and women and an association of baymen and women who are not residents of the Town of Southampton. They commenced this action, inter alia, for a declaratory judgment against the Town of Southampton, members of the Town Board of the Town of Southampton (hereinafter the Town Board), and the Trustees of the Freeholders and Commonalty of the Town of Southampton (hereinafter the Trustees) (hereinafter collectively the defendants), challenging, on procedural and substantive grounds, local legislation passed by the Town Board that, inter alia, regulates who may take, and the manner of taking, “shellfish” from waters within the Town. Under Local Law 21 (2008) of the Town of Southampton (hereinafter Local Law 21), amending ch. 111, § 37 of the Town Code of the Town of Southampton (hereinafter the Town Code), “[e]very person shall comply with the regulations as provided in the Rules and Regulations for the Management and Products of the Waters of the Town of Southampton promulgated by the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton in all matters.” The Rules and Regulations for the Management and Products of the Waters of the Town of Southampton, promulgated by the Board of Trustees (hereinafter the Trustees' Rules and Regulations), which are included as an appendix to the Town Code ( see Town Code, ch. A340), define “shellfish” to include crabs, conchs, and shrimp, and prohibit anyone from taking them from “Town waters” unless he or she is a freeholder, resident, temporary resident, or a taxpayer, and has obtained a permit from the Town Clerk. In addition, the Trustees' Rules and Regulations regulate the manner of taking “shellfish” by, for example, prohibiting the placement[85 A.D.3d 1076] of a “fish pound, fyke, trap, pot or other anchored device[ ] for the taking or keeping of shellfish, fish, eels, crabs, lobsters or conchs” in Town waters unless authorized by written permission of the Trustees, with such permission available

[926 N.Y.S.2d 596]

only to residents and freeholders (Trustees' Rule and Regulations, art. V, § 1[C] ). Although the Trustees' Rules and Regulations authorize only a $50 fine, recoverable in a civil action, for a violation thereof, as set forth in Local Law 21, the Town may impose a fine and/or imprisonment for a violation ( see Town Code § 111–39). Many of the provisions in the Trustees' Rules and Regulations are also found in chapter 278 of the Town Code, including restrictions on those who may take “shellfish” from the Town waters to...