Rottenberg v. Edwards

• Decision Date: 06 August 1984
• Citation: 103 A.D.2d 138,478 N.Y.S.2d 675
• Parties: In the Matter of Reba ROTTENBERG, et al., Appellants, v. Kenneth S. EDWARDS, Jr., as Chairman of the Board of Zoning Appeals, Town of East Hampton, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 675

478 N.Y.S.2d 675

103 A.D.2d 138

In the Matter of Reba ROTTENBERG, et al., Appellants, v. Kenneth S. EDWARDS, Jr., as Chairman of the Board of Zoning

Appeals, Town of East Hampton, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Aug. 6, 1984.

Cruser, Hills, Hills & Besunder, Riverhead (Edgar Hills, Riverhead, of counsel), for appellants.

Gary N. Weintraub, Huntington, for respondents.

Before TITONE, J.P., and THOMPSON, BRACKEN and O'CONNOR, JJ.

TITONE, Justice Presiding.

In this article 78 proceeding, petitioners appeal from a judgment of the Supreme Court, Suffolk County, dismissing their petition seeking to review a determination of the Zoning Board of Appeals of the Town of East Hampton which denied their application for a special construction permit. They claim that the board lacked subject matter jurisdiction and that, in any event, the determination is arbitrary and capricious. We disagree and affirm.

The salient facts are undisputed. Petitioners own certain residential properties located on bluffs overlooking Gardiner's Bay in the Town of East Hampton. It appears that a serious erosion problem developed after the homes were constructed and, in an effort to halt that erosion, petitioners constructed wooden bulkheads. The bulkhead construction, however, caused an erosion of the beach itself and petitioners focused on another solution, namely the building of groins. ^*

Applications for permission to construct a groin field were made to the Army Corps of Engineers and to the New York State Department of Environmental Conservation. Both agencies granted permits subject to compliance with any local ordinance.

Petitioners thereupon submitted an application to the zoning board of appeals requesting a special permit pursuant to sections 153-40 and 152-41 of the Code of the Town of East Hampton. These sections require the approval of the zoning board of appeals, respondent here, before groins or other structures are erected on or at waterfront properties. Nonetheless, petitioners also stated in their application that it was "not a submission to the jurisdiction of the Board of Zoning Appeals nor the Town of East Hampton unless it can be lawfully shown that such jurisdiction exists".

The board held two public hearings at which a number of individuals and experts testified and various documents were received into evidence. On June 23, 1981, it rendered a 28-page decision denying the petitioners' application. The board found, among other things, that petitioners' proposal was not the most effective method of protecting the bluff because it was only a short-term measure and would accelerate erosion on properties lying to the south; that the groins would be ineffective in providing protection for the bulkheads; that the situation is such that some form of additional coastal construction is necessary to protect the existing bulkhead; that the cost figure of $17,750 was unrealistically low and did not take into account the cost of refilling the groins with sand; that it would approve a more expensive plan for armoring the toe of the existing bulkhead with rock revetments, and might also look favorably upon an application for construction of a cut-off wall; and that petitioners themselves and their predecessors were responsible to some extent for their own predicament as they built their homes very close to the edge of existing bluffs and could have constructed a more benign alternative to a bulkhead. In short, "the basis of the evidence presented, unable to approve application, because believeit be detrimental to adjoining coastal areas to the south, which include privately and publicly owned lands, beaches and shellfish grounds".

Petitioners then commenced this article 78 proceeding alleging that the board of zoning appeals lacked subject matter jurisdiction inasmuch as the issue related to navigable waters and, alternatively, that its determination was arbitrary and capricious. Special Term rejected these arguments and dismissed the petition. We now affirm.

It is true that, as a general rule, navigable waters are subject to the sole jurisdiction and control of the State absent any delegation to the Federal government and, therefore, a municipality cannot regulate navigable waters under its zoning powers (Erbsland v. Vecchiolla, 35 A.D.2d 564, 313 N.Y.S.2d 576, affd following remand sub nom Erbsland v. Rubin, 33 N.Y.2d 787, 350 N.Y.S.2d 653, 305 N.E.2d 775; see Navigation Law, § 30; 3 Warren's Weed, New York Real Property, Land Under Water, §§ 1.01, 2.01, 2.02). But the "tidewaters bordering on and lying within the boundaries of Nassau and Suffolk counties" are specifically excluded from the "waters of the state" (Navigation Law, § 2, subd. 4).

The exemption is historical in origin, "derived from antique, royal land grants and patents" which conferred upon certain Long Island townships and their successors "proprietary rights to certain lands and waters * * * and their right to legislate and control same" (State of New York v. Trustees of Freeholders & Commonalty of Town of Southampton, 99 A.D.2d 804, 805, 472 N.Y.S.2d 394; see, also, People ex rel. Howell v. Jessup, 160 N.Y. 249, 54 N.E. 682; People v. Miller, 235 App.Div. 226, 257 N.Y.S. 300, affd. 260 N.Y. 585, 184 N.E. 103; cf. People v. James H. Rambo, Inc., 36 N.Y.2d 1008, 374 N.Y.S.2d 612, 337 N.E.2d 126). The townships' ownership and control over these lands and waters antedates the formation of the State of New York itself and remains preserved in them (Lowndes v. Huntington, 153 U.S. 1, 14 S.Ct. 758, 38 L.Ed. 615; Trustees of Brookhaven v. Strong, 60 N.Y. 56; State of New York v. Trustees of Freeholders & Commonalty of Town of Southampton, supra ).

Based upon this historical background, the statutory exemption contained in the Navigation Law has consistently been construed as authorizing the Counties of Nassau and Suffolk and their respective townships to regulate the use of such lands and waterways (People v. Anton, 105 Misc.2d 124, 431 N.Y.S.2d 807; People v. Abrams, 82 Misc.2d 979, 372 N.Y.S.2d 138; People v. Texaco, Inc., 81 Misc.2d 260, 365 N.Y.S.2d 661, affd. 87 Misc.2d 255, 383 N.Y.S.2d 788; People v. Wechsler, 79 Misc.2d 103, 339 N.Y.S.2d 939; People v. Poveromo, 79 Misc.2d 42, 359 N.Y.S.2d 848; Town of Islip v. Powell, 78 Misc.2d 1007, 358 N.Y.S.2d 985; People v. Levine, 74 Misc.2d 808, 343 N.Y.S.2d 816, affd. 79 Misc.2d 103, 359 N.Y.S.2d 939; Dolphin Lane Assoc. v. Town of Southampton, 72 Misc.2d 868, 881, 339 N.Y.S.2d 966, affd. 43 A.D.2d 727, 350 N.Y.S.2d 451, mod. on other grounds 37 N.Y.2d 292, 372 N.Y.S.2d 52, 333 N.E.2d 358; see Navigation Law, § 30).

Town of Islip v. Powell, supra is squarely on point. In that case, the Town of Islip sought to enjoin the defendants from renting docking facilities at a portion of a marina adjacent to residentially owned property. Defendants claimed that local governmental units in Nassau and Suffolk Counties were powerless "to zone their waterfront lands and issue permits for piers, wharves and docks" (78 Misc.2d 1007, 358 N.Y.S.2d 985, supra ). Justice LAZER, then sitting at Special Term, struck the affirmative defense, tracing the history of vesting tidal wetlands jurisdiction of Long Island waters in the county and town governments. Similarly, in People v. Anton, 105 Misc.2d 124, 431 N.Y.S.2d 807, supra, the court held that the Town of Huntington had authority to regulate the construction of docks and piers on wetlands and to require construction permits.

The cases relied upon by petitioners are plainly distinguishable. Erbsland v....