Schlegel v. Shea

• Decision Date: 20 July 2010
• Docket Number: MOTION SEQ. NO.002-MG,INDEX NO:45122/08
• Citation: 2010 NY Slip Op 32001
• Parties: WILLIAM A. SCHLEGEL,Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules. v. MARTIN SHEA, as Chief Environmental Analyst of the Town of Southampton Land Management Environmental Division; SOUTHAMPTON TOWN CONSERVATION BOARD, HARRY S. LUDLOW, as Chairman of the Southampton Town Conservation Board, GILBERT S. FOSTER, THOMAS RICKENBACH, GEORGE HEINE, JEREMIAH COLLINS, TERRENCE FLANAGAN and ZEB YOUNGMAN, as Members of the Southampton Town Conservation Board,Respondents.
• Court: New York Supreme Court

2010 NY Slip Op 32001

WILLIAM A. SCHLEGEL, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules.
v.
MARTIN SHEA, as Chief Environmental Analyst of the Town of Southampton Land Management Environmental
Division; SOUTHAMPTON TOWN CONSERVATION BOARD, HARRY S. LUDLOW, as Chairman of the Southampton
Town Conservation Board, GILBERT S. FOSTER, THOMAS RICKENBACH, GEORGE HEINE, JEREMIAH
COLLINS, TERRENCE FLANAGAN and ZEB YOUNGMAN, as Members of the Southampton Town Conservation Board, Respondents.

INDEX NO:45122/08
MOTION SEQ. NO.002-MG

Supreme Court Of The State Of New York
County Of Suffolk
Ias Part43.

ORIG. RETURN DATE: Junaury 30, 2009
FINAL SUBMIT DATE: May, 6, 2010
Filed: July 20, 2010

PLTF'S/PET'S ATTY: MICHAEL G. WALSH, ESQ.

DEFT'S/RESP'S ATTY: DANIEL L. ADAMS, ESQ., Town Attorney Town of Southampton by: Michael Sendlenski, Esq.

Page 1

Order

ARTHUR G. PITTS, J.

Upon the following papers numbered 1-86 to read on this motion article 78_ Notice of Motion/OSC and supporting papers 1-7 Notice of Cross-Motion and supporting papers_; Affirmation/affidavit in opposition and supporting papers 8-10; Affirmation/affidavit in reply and supporting papers 11-81; Other 82-84/85/86 _(and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the petition of petitioner William A. Schlegel for a judgment, pursuant to CPLR Article 78 annulling and setting aside the determination of respondents Martin Shea, Chief Environmental Analyst of the Town of Southampton Conservation Board dated November 19, 2008 which denied, by resolution, his application for a modification of a wetlands permit issued to the petitioner on February 26, 2003 on the grounds that said determination is illegal, arbitrary, capricious, unjust, contrary to law and an abuse of discretion is granted solely to the extent that a hearing is directed to be held before this Court at 11:00 am on September 16, 2010 at the Arthur M. Cromarty Court Complex, 210 Center Drive, Riverhead, New York to determine whether the respondent Southampton Town Conservation Board had jurisdiction and whether a wetlands permit was required prior to commencing construction on the subject premises.

Page 2

Petitioner William A. Schlegel is the owner of a vacant bulkheaded parcel of land fronting Wells Creek identified on the Suffolk County Tax Map as 900-322-4-1.9 and known as 17 Windermere Close, Hampton Bays, Southampton, Suffolk County, New York. On February 26, 2003 the petitioner was issued a wetlands permit to construct, on the subject parcel, a two-story residence and attached garage with a footprint of approximately 2, 540 square feet located 126 feet from the wetland boundary, 512 square feet of swimming pool located 125 feet from the wetland boundary and approximately 109 feet from wetlands on the parcel to the south, approximately 496 feet of a deck located at its closest point 125 feet from the wetland boundary and a previous driveway located at its closest point 136 feet from the wetland boundary. Said permit further provided for the installation of a septic system compromised of a 1, 200 gallon septic tank eight (8) feet in diameter and two (2) feet deep, leaching pools located at their closest point 189 feet from the wetland boundary, the installation of a water service line located 155 feet from the wetland boundary and the clearing of approximately 5, 800 square feet of natural vegetation to allow for the proposed construction.

By application dated March 11, 2008 the petitioner sought modification of the wetlands permit previously issued seeking to relocate the footprint of the approved swimming pool, deck, residence with attached garage, previous driveway and sanitary system at least 9.8 feet further north of the southern property boundary to provide a greater setback and privacy from the residence on the parcel to the south. As a result thereof, the swimming pool would be constructed approximately 100 feet from the subject property's wetlands and approximately 92 feet from the closest wetlands on the parcel to the...