MATTER OF ALLEN v. Strough

• Decision Date: 15 October 2002
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of SUSAN ALLEN, Respondent,<BR>v.<BR>SCOTT A. STROUGH, as President of the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton, et al., Appellants.

301 A.D.2d 11

752 N.Y.S.2d 339

In the Matter of SUSAN ALLEN, Respondent,

v.SCOTT A. STROUGH, as President of the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton, et al., Appellants.

October 15, 2002.

Hodgson Russ, LLP, New York City (Scott E. Silberfein and Stephen A. Aschettno of counsel), for appellants.

Anthonty B. Tohill, P.C., Riverhead, for respondent.

FEUERSTEIN, LUCIANO and SCHMIDT, JJ., concur.

OPINION OF THE COURT

PRUDENTI, P.J.

The case now under review, and the case of Matter of Poster v Strough (___ AD2d ___ [decided herewith]), reflect particular facets of a larger question, that is, the extent to which responsible government agencies should protect individual investments in shore-front properties at the risk of exacerbating the overall problem of coastal erosion to the detriment of the public at large. One particularly narrow aspect of this question is whether the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton (hereinafter the Board) exceeded its jurisdiction in denying an application by Susan Allen, and a similar application by her neighbor, John F. Poster (see Poster), for permission to construct rock revetments, without the protection of which, they fear, their houses are doomed to eventual destruction. Resolution of this question hinges entirely on an interpretation of the term "ocean beach area" as defined in the Rules and Regulations for the Management and Products of the Waters of the Town of Southampton (hereinafter the Rules) article I. Aside from the jurisdictional question, we are called upon to decide whether the Board acted arbitrarily, capriciously, or irrationally in denying these applications.

These two cases are singularly interwoven, in that the record before the Supreme Court in the present case contains evidence which strongly preponderates in favor of the conclusion that the proposed revetment will not exacerbate the effects of erosion on neighboring properties, while the record before the Supreme Court in Poster strongly preponderates in favor of the contrary conclusion that the proposed revetment, like any "hard structure," will ultimately do more harm than good. Elemental considerations of fairness, not to mention notions based on principles derived from the Equal Protection Clauses of the State and Federal Constitutions, militate against piecemeal resolution of individual applications for permission to build hard structures along isolated portions of the shore line, and in favor of a uniform policy of either allowing or prohibiting the construction of new hard structures along the entire ocean front on Long Island, both within the Town of Southampton and beyond. These same considerations virtually require us to examine the records of the two appeals in conjunction with one another. In light of the particular circumstances presented in these two contrasting cases, in which the Supreme Court issued what on the surface, at least, appear to be two inconsistent judgments, we believe that a remittal for further proceedings with respect to the jurisdictional issue in both matters is warranted. Assuming that the Board is ultimately found to have jurisdiction, we also find that the Board's adherence to a policy of prohibiting the construction of new hard structures along the areas within its permit-issuing jurisdiction is not arbitrary, capricious, or irrational.

Susan Allen is the owner of a one-family house which, along with a cottage and other accessory structures, is located at 340 Gin Lane in the Town of Southampton (hereinafter the Town). This property is on the beach in the Town, and is bounded on the south by the Atlantic Ocean. Fearing that a future hurricane or severe storm could damage or destroy her house, Allen applied to the Board for permission to construct a "tapered transitional rock armor revetment."

The proposed revetment would run from east to west, roughly parallel to the water line, and would, at its west end, join the similar revetment proposed by John F. Poster (see Poster). At its eastern extremity, it would tie into an existing steel bulkhead on the adjacent property of Allen's neighbor to the east, Carl Spielvogel. It would be 310 feet by 28 feet, and consist of three layers: (1) a filter fabric liner, (2) a two-foot layer of 200 to 1,000 hundred-pound core stones, and (3) a top layer of five- to nine-ton armor stones. The proposed project also called for the placement of approximately 6,000 cubic yards of sand over the revetment, and for the planting of beach grass.

The application for the permit was submitted by Allen's agent, First Coastal Corporation, on or about July 22, 1998. Beginning on September 9, 1998, the Board held a public hearing on the application. The president of First Coastal Corporation, Aram V. Terchunian, vigorously argued in favor of the granting of the application. He conceded, however, that "in geological time," there is a landward migration of the sea to the south of Long Island, even while demurring on questions as to the extent to which the sea would migrate landward, say, in one person's lifetime. The participants in the hearing also debated questions as to what, if anything, could be done to save the homes that are in peril as a result of this landward migration of the sea, and as to whether the measures necessary to save such homes may be taken only at the unacceptable cost of destroying the recreational beaches enjoyed by a wider public. As illustrated more graphically by the evidence submitted by the Board to the Supreme Court in Poster, there is a significant body of scientific opinion which holds, essentially, that the use of hard structures to retard the process of erosion in one coastal location will merely exacerbate that process elsewhere.

At this point, it should be noted that the public hearing held was not one at which "evidence was taken, pursuant to direction by law" (CPLR 7803 [4]). The "witnesses" were not sworn, and the arguments made by the participants in the colloquy have no evidentiary value. Rather than an adjudicatory hearing in a legal sense, this "hearing" consisted of a dialog between Terchunian, on behalf of Allen, and the members of the Board, including Board President Scott A. Strough, who demonstrated a personal familiarity with the condition of the ocean beach area in the Town of Southampton, and a similar familiarity with the contours of the ongoing debate within the scientific community in regard to the question of how the shore line can best be preserved.

On October 2, 1998, Dr. Robert Dean, an expert in coastal and oceanographic engineering, examined Allen's property. In his report dated October 4, 1998, he asserted that the property exists in what can be described as a "pocket beach," located between two hard structures, that is, a seawall protecting the home of Allen's neighbor to the east, Carl Spielvogel, and a dune with an old concrete foundation to the west. He asserted that Allen's home is in jeopardy due to the possibility of a severe winter storm, and that the proposed revetment would act as an "insurance policy." He also asserted that, in his opinion, "the proposed revetment * * * would not cause any adverse impacts to the adjacent properties."

In a letter dated October 5, 1998, Terchunian recapitulated for the members of the Board what, in his view, had been demonstrated at the prior sessions of the hearing, and forwarded a copy of Dr. Dean's report. He asserted, among other things, that the record established:

"A. Sand waves propagating westward through the Village have caused avulsion on the Allen property, especially during a series of storms from 1993 to 1996.

"B. Ms. Allen has placed in excess of 4,000 c.y. of sand in an attempt to retard erosion caused by these erosional waves. This sand placement has been ineffective and almost the entire dune has been avulsed by storm waves. In fact, erosion has exposed upland sediments.

"C. In February 1998, Ms. Allen applied for and received emergency permission from the [New York State Department of Environmental Conservation hereinafter] NYSDEC and the Village of Southampton to place rocks to prevent further avulsion of her property during storms.

"D. The Allen situation is unique, because the property is located between two headlands (the seawall to the east and the remains of the concrete foundation to the west) and all of the proposed dune and revetment will be landward of these two structures. The Allen project will, by location and design, be less impactive [sic] than these existing structures.

"E. * * * NYSDEC has granted a permit for installing a revetment on this property * * * One of the permit requirements is that Ms. Allen cover the rock revetment with 6,100 c.y. of compatible sand and that such sand cover is replenished.

"F. Ms. Allen requests that the Trustees approve the same type of permit. As support for these conditions, we submit the enclosed report prepared by First Coastal Corporation entitled, `Allen Dune and Revetment Permit Application—Project Construction and Maintenance.'"

On November 2, 1998, the Board voted to deny the application. In a letter dated November 24, 1998, Strough advised Allen's expert that the application had been denied based on the Board's consideration of what it believed would be the project's adverse impact on the public's right to pass along the beach area.

The present hybrid proceeding and action was commenced by summons, notice of petition and petition-complaint dated March 1, 1999. In her petition-complaint, Allen alleged that, as the result of certain storm damage inflicted in 1998, as well as prior to that year, her house and her cottage were "a few feet [from and] at risk of collapse into [an] eroded area" of the beach along the Atlantic Ocean. She alleged that, during the course of the public hearing noted above, she had "proved" that the Board did not have jurisdiction over the eroded area which threatens her...