Stonehill v. N.Y. Dep't of Envtl. Conservation

• Decision Date: 05 June 2009
• Docket Number: No. 7606/08.,7606/08.
• Citation: 2009 N.Y. Slip Op. 52787,30 Misc.3d 1206,958 N.Y.S.2d 649
• Parties: David STONEHILL, Petitioner, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
• Court: New York Supreme Court

30 Misc.3d 1206

958 N.Y.S.2d 649

2009 N.Y. Slip Op. 52787

David STONEHILL, Petitioner,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.

No. 7606/08.

Supreme Court, Suffolk County, New York.

June 5, 2009.

Kelly & Hulme, P.C. by James N. Hulme, Esq., Westhampton Beach, for Petitioner.

Andrew M. Cuomo, Attorney General by Kevin G.W. Olson, Esq., New York, for Respondent.

ARTHUR G. PITTS, J.

Upon the following papers numbered 1 to 37 read on this motion article 78 Notice of Motion/OSC and supporting papers_ 1–11 _Notice of Cross–Motion and supporting papers; Affirmation/affidavit in opposition and supporting papers 12–13–; Affirmation/affidavit in reply and supporting papers 14–25/26–29/30–31/32–34/ Other 35/36/37; (and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the petition for a judgment, pursuant to CPLR Article 78 annulling and vacating the respondent New York State Department of Environmental Conservation's (“DEC”) ruling dated September 11, 2008 which denied his appeal of the location of the Coastal Erosion Hazard Area (“CHEA”) line designated on the subject property in 1988 on the grounds that it is arbitrary and capricious, is not based upon substantial evidence, is an abuse of discretion and is unauthorized by law is denied under the circumstances presented herein and accordingly, the petition is dismissed.

Petitioner David Stonehill, who acquired title on or about May 10, 2007, is the owner of certain improved real property located at 361 Dune Road, Village of Westhampton Beach, Suffolk County, New York. At the time of the purchase of the subject property it was improved with a two story residence, a deck and pool, a play area, a stone wall and lawn area. The property also contains two dunes (a northerly dune closer to the property's improvements and a southerly dune closer to the ocean) and a beach area.

On September 21, 2007 the petitioner was issued a Notice to Cure from the Village of Westhampton Beach asserting that the lawn and play area was installed entirely inside the CHEA in an area that was part of a sand dune that the DEC designated it as protected land after it was mapped in 1988. In response to the Notice to Cure the petitioner filed a Coastal Erosion Permit Application to remove a portion of the lawn area and play area so that it extended up to but not beyond the line located 25 feet from the landward dune toe as depicted in a survey proffered by the petitioner dated November 8, 2007. Thereafter he also submitted an application to the DEC appealing the CHEA designation on the property pursuant to 6 NYCRR 505.10. The Village of Westhampton Beach Buildings Department denied the petitioner's application for a Coastal Erosion Permit and the appeal to the Zoning Board of Appeals was discontinued without prejudice pending the outcome of the instant proceeding.

The petitioner's CEHA line designation appeal dated October 2, 2007 seeks to have the CEHA line on his property moved seaward and therefore, allow additional land on his property available for development. The CHEA law of the State of New York limits the construction in protected areas for the purpose of preserving dunes and safeguarding oceanfront structures from storm and erosion damage. (see 6 NYCRR 505.1(c); 6 NYCRR 505.3) “All development is prohibited on primary dunes unless specifically allowed by the CEHA” (see 6 NYCRR 505.8(d)(5). In applying the aforesaid provisions the DEC uses the following terms: “primary dune” and “toe” of the primary dune which is the lowest point on the slope of the dune. The definition of “primary dune” includes the provision that “the landward limit of a primary dune is 25 feet landward of its landward toe.” (6 NYCRR 505.2(dd)) The effect of said regulations is that no development is permitted 25 feet inland from the toe of the primary dune without prior approval of the DEC. In 1988 the DEC issued the CEHA map setting forth the primary dune and toe of the primary dune on the petitioners property. The petitioner appeals the designations set forth on said map averring that the subject area was erroneously identified as a natural protective feature area.

In response to the petitioner's appeal the respondent did an on site inspection of the property conducted by a member of its staff, Robert McDonough, a specialist from the Coastal Erosion Management Unit together with the Buildings and Zoning Administrator from the Village of Westhampton Beach. By way of his affidavit dated January 2, 2009 he states that a portion of the property inside the CEHA had been altered since the DEC had mapped it in 1988 in order to install a level turf lawn and play area. However, by using the toe of the primary dune on the adjacent properties and using a tape measure to find a point 25 feet inland from the toe, he confirmed the landward limit of the natural protective feature area as set forth on the 1988 map. He also concluded that the dune on the petitioner's property had been artificially manipulated in that its contours were unnaturally steep and windblown sand on Stonehill's property fell where the dune would otherwise be located if it had not been excavated. McDonough concluded that the dune on the petitioner's property is the primary dune, there is no secondary dune and the CEHA line was properly drawn.

In support of the instant petition, the petitioner avers that the respondent in establishing the CEHA line did so while referencing a secondary dune on the property as opposed to the primary dune which located seaward of that dune. Annexed thereto is a survey of the subject property dated November 8, 2008 which shows the landward limit to be different than the line designated by the respondent DEC as well as affidavits of Aram Terchunian, a coastal geologist and David Fox, a licensed surveyor. Terchunian after reviewing aerial photographs of the area from 2004 and superimposing over the photograph a 1995 topographic map concluded that the CEHA line was incorrectly located. There are two dunes on the property, the southerly dune is the primary dune The petitioner argues that based upon there being two dunes on the property, the DEC has erred in that it has designated the secondary dune as the primary dune. Although in and of itself as such it does not alter the location of the CEHA line, it does impact what would be allowed to be done at the location of the lawn and play area.

“In article 78 proceedings, ‘the doctrine is...