Matter of Lynch v. Board and Trustees of Freeholders & Commonalty of Town of Southampton, 2008 NY Slip Op 32123(U) (N.Y. Sup. Ct. 6/11/2008)
| Decision Date | 11 June 2008 |
| Docket Number | Motion Sequence No's.: 001 MG,No. 0035916/2007,0035916/2007 |
| Citation | 2008 NY Slip Op 32123 |
| Court | New York Supreme Court |
| Parties | In the Matter of the Application of KENNETH LYNCH and VERA LYNCH, Petitioners, For a Judgment under Article 78 of the Civil Practice Law and Rules, v. BOARD AND TRUSTEES OF TH4E FREEHOLDERS & COMMONALTY OF THE TOWN OF SOUTHAMPTON Suffolk County, New York, Respondent. |
Esseks, Hefter & Angel, LLP, Riverhead, New York, Attorney for Plaintiff.
Devitt Spellman Barrett, LLP, Smithtown, New York, Attorney for Defendant.
ORDERED, that the Petition (motion sequence number 001) by KENNETH LYNCH and VERA LYNCH for a Judgment pursuant to CPLR Article 78 annulling the permit issued by respondent dated September 5, 2007, directing and compelling respondent to approve petitioners' application to construct a 165 foot long by 4 foot wide upland walkway, a 55 foot long by 4 foot wide elevated pier, a 16 foot long by 3 foot wide ramp, and a 20 foot long by 6 foot wide float, secured by four (4) guide piles, is granted to the extent indicated below.
This is the fourth Article 78 proceeding involving an attempt by petitioners, KENNETH LYNCH and VERA LYNCH ("petitioners") to construct certain structures on their property located on the Shinnecock Canal, Village of Quogue, Town of Southampton, County of Suffolk, State ofNew York (the "subject premises"). The subject premises is located on the north side of the Quogue Canal and is more particularly described on the Suffolk County Tax Map as district 0902, section 010, block 03.. lot 10.003. According to petitioners, in or about 1995, they began the process of obtaining the necessary approvals to construct an indented boat slip on the subject premises, but in 1996, the New York State Department of Environmental Conservation ("DEC") advised respondent that the construction of the proposed indented boat slip was not compatible with the purposes of the Tidal Wetlands Act. In 2003, the DEC denied petitioners' application for the indented boat slip and such denial was communicated to respondent.
As a result of the foregoing denial by the DEC, on or about January 13, 2005, petitioners thereafter sought permission from respondents to construct a dock, specifically, a 165 foot long by 4 foot wide upland walkway, a 55 foot long by 4 foot wide elevated pier, a 16 foot long by 3 foot wide ramp, and a 20 foot long by 6 foot wide float, secured by four (4) guide piles. In conjunction with this application, petitioners obtained approvals and permits for these structures from the DEC and Army Corps of Engineers and also received a determination from the New York State Department of State that the project met the general consistency concurrence criteria required for such construction.1 When respondent failed to act on petitioners' application, on or about August 23, 2005, they commenced an Article 78 proceeding seeking to compel respondent to act. However, in the interim, it appears that at a meeting on or about September 7, 2005, respondent voted to deny petitioners' application, thus rendering the Article 78 proceeding moot.
Petitioners then commenced a second Article 78 proceeding challenging respondent's denial o their application. On or about June 19, 2006, the Court (LOUGHLIN, J.) issued a decision and on August 24, 2006, issued Judgment dismissing the petition in the second Article 78 proceeding and remitted the matter to respondent for a new determination. In its decision, the Court found that respondent's determination lacked a rational basis, in that there was no evidence in the record supporting a policy of denying all dock applications in Quogue Canal and petitioners submitted evidence from DEC indicating that "the canal was wide enough to allow construction of a reasonably sized dock with no interference of the navigation channel." Thus, the Court granted the petition, annulled respondent's determination and remitted the matter to respondent for a new determination on the application.
When respondent again failed to schedule a hearing on petitioners' application after directed la do so by Justice Loughlin and demanded by petitioners, on or about April 4, 2007, they commenced vet a third Article 78 proceeding seeking to compel respondent to schedule a hearing and issue a new determination. Seemingly in response thereto, respondent agreed to reschedule the hearing and by the third Article 78 proceeding was withdrawn. By letter dated June 20, 2007, respondent's scheduled a public hearing on petitioners' application for August 20, 2007.
Counsel herein represented petitioners at the public hearing. Robert Fox of Sea Level Mapping and David Fox of Fox Land Survey, testified on behalf of petitioners. In support of the application, petitioners submitted the permits from the DEC and Army Corps of Engineers and Department of State consistency letter, together with the prior Order of Justice Loughlin. Robert Fox testified that he did the hydrographic measurements and located both the channel on a survey and the structures shown on the survey prepared by David Fox. David Fox testified that he prepared the survey submitted to respondents in support of the application. David Fox stated that he and his crew located the property lines, shoreline and outer roadway and Robert Fox located the structures on the eater. David Fox also testified that he observed two (2) docks located o the south side of Quogue Canal and that the closest distance between each of those docks to the southerly edge of the channel was eighteen (1 8) feet. He also measured the distance from the northerly edge of the channel to the proposed float and found that it was sixty (60) feet.
Trustee Warner stated that he believed there although the distance from the docks on the south side was only eighteen (18) feet as opposed to the sixty (60) feet proposed by petitioners, the likelihood of hitting either of the docks on the south side was less. He indicated that based on his experience, having clammed the Quogue Canal since he was 16 years old, and because the depth of water is greater on the north side and boats tend to "hug the shoreline" where the water is deep enough to navigate a "substantial size boat". He stated that he believed that placing a dock "that's never been there in history out in the middle of the channel" would be "very much of a navigation hazard'
In response, petitioners' counsel advised that petitioners would be willing to undertake the cost of putting in a channel marker and maintaining whatever safety lights were deemed necessary for the dock structure. Trustee Warner, in response to a question from Trustee Havemeyer, stated that he did not believe there was any better location for a dock on the subject premises. Additionally, petitioners' counsel advised that he attempted to get approval from DEC for a boat slip, but they have refused and instead insist on a dock.
Bay Constable Sadleir also testified at the hearing. He testified that the water is actually deeper than indicated on petitioners' survey and also that the placement of any buoys requires approval from the United States Coast Guard. Mr. Sadleir refused to indicate whether the placement of any buoys or channel markers would help but merely stated upon questions from the trustees that It might. You know, I'm not gonna say whether it would or wouldn't. It might help, but the federal government would be involved."
At the conclusion of the August 20, 2007 hearing, respondents voted to "leave the hearing open for written comment for ten days" and render a decision at their next meeting on September 5, 2007. Thereafter, on or about August 30, 2007, petitioners' attorney wrote to respondents and advised that he contacted the Coast Guard to inquire about the placement of navigation aids in conjunction with this application. Counsel stated in his letter that he was advised by a representative of the Coast Guard that the Town of Southampton had installed numerous aids to navigation in town aters and that the Town could place an aid to navigation in the Quogue Canal. He further advised that petitioners would be willing to pay for the cost of acquiring and installing such navigation aid. By separate correspondence, also dated August 30, 2007, petitioners' counsel advised respondents that the Coast Guard representative also advised that the speed limit in Quogue Canal is five (5) miles per hour, there are markers posted indicating such speed limit, and as a result, there is little likelihood of any accidents, let alone accidents resulting in serious damage.
As discussed at the conclusion of the August 20, 2007 public hearing, petitioners' application was placed on the calendar for September 5, 2007. However, although petitioners were advised on August 20, 2007 that the matter would be calendared for a determination, at the beginning of the September 5, 2007 public hearing, respondents voted to "reopen" the public hearing. Thereafter, when Trustee Havemeyer asked whether the matter should be postponed because noone representing petitioners was present, Trustee Shultz stated:
No, we have the lead on it. We're gonna make a — we advised the Lynches that we were gonna have a decision for them at this meeting. So we ought to discuss it, discuss the situation and, as you know everybody, the applicants appeared last week and presented testimony and brought the surveyors and indicated that the DEC was not apt to approve a slip into the shoreline of their property on Shinnecock Avenue and they wanted a dock projecting out into the Quogue Canal. We made some comments about the navigational issues and they had assured us that they were gonna put any kind of lights or navigational aids on the dock in order to...
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