MATTER OF POSTER v. Strough

• Decision Date: 15 October 2002
• Citation: 299 A.D.2d 127,752 N.Y.S.2d 326
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of JOHN F. POSTER, Appellant,<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., Respondents.

299 A.D.2d 127

752 N.Y.S.2d 326

In the Matter of JOHN F. POSTER, Appellant,

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

October 15, 2002.

Anthony B. Tohill, P.C., Riverhead, for appellant.

Ahmuty, Demers & McManus, Albertson (Neil H. Angel of counsel), for respondents.

FEUERSTEIN, LUCIANO and SCHMIDT, JJ., concur.

OPINION OF THE COURT

PRUDENTI, P.J.

In the case under review on this appeal, and in a case involving a neighboring property (see Matter of Allen v Strough, 301 AD2d 11 [decided herewith]), the Board of Trustees of the Freeholders and Commonalty of the Town of Southampton (hereinafter the Board) prohibited two owners of beachfront properties from erecting rock revetments intended to protect their homes from the threat of eventual destruction posed both by the inevitable effects of beach erosion and by the potential effects of possible future storms. The Board asserts that its determination was based on the probability that such revetments would exacerbate the effects of beach erosion on other properties, to the detriment of the overall community. The primary questions on this appeal are whether the Board acted within its jurisdiction in prohibiting the proposed revetment and whether the Board's action was arbitrary, capricious, or irrational.

Over past decades, the shoreline in the Southampton area has, according to one report, ineluctably moved landward at an average rate of one foot to seven feet per year. The owners of beachfront homes in Southampton have a critical interest in combating the effects of this trend in the area immediately adjoining their properties. As between (1) "retreat," that is, the landward relocation of their homes, (2) "soft stabilization," that is, the renourishment of the surrounding beach and the replenishment of the dunes, and (3) "hard stabilization," that is, the "armoring" of beaches with "hard structures" designed to dissipate wave energy or to trap sand and widen beaches, such homeowners may see the last option as being the only one that is at once effective, at least in the short term, and economically feasible. However, the possibility that the "hard stabilization" approach, while temporarily allaying the concerns of particular homeowners, might simultaneously accelerate the natural long-term process by which the beaches of Southampton, and of southern Long Island in general, are being narrowed and brought closer to destruction, has created a dilemma for government agencies answerable both to homeowners and to recreational beach users.

In the present case, John F. Poster applied for a permit for the construction of a "sloping rock revetment" in order to protect his oceanfront home. The record on appeal in Allen reveals that Poster's house is in fact the "gatehouse" to an "old house [that] got wiped out in the '38 hurricane." The proposed revetment was to measure 144 feet by 28 feet, and was to join a similar revetment which Poster's neighbor to the east, Susan Allen, also proposed to build (see Allen). The revetment would 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 revetment was to be built in conjunction with a dune restoration project consisting of the placement of approximately 3,000 cubic yards of sand over the revetment and the planting of beach grass.

On April 5, 1999, the Board denied Poster's application, just as it had denied the similar application of Susan Allen in November 1998 (see Allen). In its resolution denying Poster's application, the Board stated that it had considered "the potential adverse impacts to both the environment and the rights and resources of the [public], including whether the proposed activity applied for will unreasonably interfere with the rights of the [public] to use their lands or to pass and repass along their rights of way." The Board also stated that any grant of the permit requested would be "inconsistent with the [Board's] current policy towards such hard structures and would be detrimental to adjacent property owners."

By notice of petition, summons, and "petition-complaint," all dated July 15, 1999, Poster commenced the present hybrid proceeding and action against the Board. In the proceeding-action, Poster seeks (1) a judgment annulling the Board's determination dated April 5, 1999, and compelling the Board to grant his application for permission to construct the revetment on his property, (2) a judgment declaring that the Board's action constituted a "taking" of his property in violation of the State and Federal Constitutions, and (3) a money judgment in the sum of $10,000,000, and an award of an attorney's fee pursuant to 42 USC § 1983.

It should be noted that at the time this hybrid proceeding-action was commenced, Poster's attorney, Anthony Tohill, Esq., was also representing Susan Allen, Poster's neighbor to the east, in connection with her pending hybrid proceeding and action against the Board in which she was seeking similar relief. It appears that Tohill also represents or represented several similarly-situated homeowners whose properties were allegedly placed in peril as the result of storms which occurred in January and February 1998.

In support of his demand for relief, Poster asserted that he is the owner of a house designated as 328 Gin Lane in Southampton, which is located on a lot that is bounded on the south by the Atlantic Ocean. Poster alleged that, since 1998, his property has undergone "extraordinary" erosion, that the dune which had stood between the ocean and his house had essentially disappeared, and that the eroded area of the beachfront had come to within "a few feet" of his house, placing it at risk of collapse at some point in the future.

Poster alleged that the Board denied his application for a revetment permit despite evidence showing that the area in which the revetment was to be placed was on property beyond the Board's territorial jurisdiction. He alleged that the Board's action was arbitrary, and hence subject to vacatur in a proceeding pursuant to CPLR article 78, in that it was made "without any evidence whatsoever in the record [to support] a finding * * * that the proposed revetment was within the territorial jurisdiction of [the Board]." He also alleged that there was no substantial evidence to support the determination that the revetment would "interfere with any public right to pass and repass along the shore of the Atlantic Ocean or that such revetment will cause environmental damage."

In support of his "taking" claim, Poster asserted that the resolution of the Board dated April 5, 1999, effectively took his property without just compensation in violation of the Due Process Clauses of the State and Federal Constitutions. He asserted that the resolution in effect deprived him of the use and enjoyment of his property, which, without the revetment, was at the mercy of "storms and tidal forces." He also asserted that his right of equal protection had been violated because the Board had allowed other similarly-situated persons to construct such revetments. In support of his claim based on 42 USC § 1983, Poster asserted that the Board, acting under color of state law, had committed the due process and equal protection violations noted above.

The Board submitted an answer dated October 29, 1999, and the affidavit of its president, Scott A. Strough, sworn to October 27, 1999. Strough asserted that the Board's authorization was required prior to the erection of the proposed revetment pursuant to the "Rules and Regulations for the Management and Products of the Waters of the Town of Southampton" (hereinafter the Rules), article VII, § 1 (A) (3), and pursuant to Code of the Town of Southampton (hereinafter the Town Code), article VI, § 111-30. In addition, he asserted, "Article II, Section 49-6 of the Code of the Village of Southampton [hereinafter the Village Code] has designated the area that includes Poster's house to be a Coastal Erosion Hazard Zone."

According to Strough, the record before the Board consisted of Poster's permit application, and the Board's resolution denying that application. He asserted that "there were no evidentiary hearings * * * because the Board had recently held such hearings on the application of Poster's neighbor, Susan Allen, as well as [on that of] other residents of the Town for permits to construct the exact same types of revetment structures" (see Allen). He stated that the remainder of his affidavit would deal with the reasons why, in general, the Board denies such applications.

Strough asserted that the Board had "amassed a considerable volume of experience and expertise in [its] efforts to minimize the loss of beach area to the Atlantic Ocean and [to] preserve this priceless natural resource for future generations." He annexed to his affidavit a copy of a report to the Legislature of the State of New York dating from February 15, 1945. This report graphically illustrated the geographical metamorphosis which the southern coast of Long Island, from Coney Island to Montauk Point, had undergone over the course of preceding decades, both imperceptibly over time as the result of inevitable erosion and more sporadically, and more dramatically, as the result of prior storms and hurricanes. This report warned that the state's "heritage along the ocean" was at risk of eventual destruction. The report noted that a comprehensive plan was essential, and that the erection of "erosion arresting structures" by individuals or communities out of their anxiety to protect their own properties might only aggravate the damage done to neighboring properties. In regard to various properties in Southampton, this report indicated that the bulkheads which were then being erected were often ineffective and, in many cases, did "more harm than...