Town of Islip v. Powell

• Decision Date: 27 June 1974
• Citation: 358 N.Y.S.2d 985,78 Misc.2d 1007
• Parties: TOWN OF ISLIP, Plaintiff, v. Stewart POWELL et al., Defendants.
• Court: New York Supreme Court

Page 985

358 N.Y.S.2d 985

78 Misc.2d 1007

TOWN OF ISLIP, Plaintiff, v. Stewart POWELL et al., Defendants.

Supreme Court, Special Term, Suffolk County, Part I.

June 27, 1974.

Henry G. Wenzel III, Islip Town Atty., Islip, for plaintiff.

James A. Gowan, West Islip, for defendants.

MEMORANDUM

LEON D. LAZER, Justice.

At issue on these motions by the Town of Islip ('Islip') for a preliminary injunction and to strike defenses from the answer is the power of local government units in Nassau and Suffolk Counties to zone their waterfront lands and issue permits for piers, wharves and docks. The relevant portion of the Islip zoning ordinance provides that 'underwater (land) shall be considered as being in the same district as the abutting upland' for a distance of 100 feet unless otherwise classified (Islip Code § 68--12). The Town has instituted an action to enjoin the defendants from renting docking facilities at that portion of their marina which is connected to and extends in front of their own adjacent residentially zoned property. The facts are not in substantial dispute.

The defendants own three contiguous parcels of land which front on the Connetquot River in Islip. One of the parcels is located in the Business I district where commercial marinas are a permitted use while the other two are located in the Residence A district where such uses are not permitted (Islip Code §§ 68--45, 68--46). On the business parcel, the individual defendants operate a commercial marina containing boat dockage, repair and fueling facilities. The second parcel is the site of the individual defendant's home and the third is a vacant lot owned by the corporate defendant. The Town asserts that the defendants store boats and boat trailers on the latter two parcels and have installed in the waters in front of the residence premises floating docks to increase the mooring capacity of their marina. One of the docks is attached to the commercial marina pier which is built out from the business parcel and extends in a westerly direction parallel to and directly in front of the residentially zoned shore. The other dock is attached directly to the bulkheading of the residential parcel and runs parallel with it. On March 21, 1972 the Board of Appeals of Islip denied defendants a special exception permit to utilize these docks on the ground that they had been built on Town-owned underwater lands in violation of the zoning ordinance.

In opposition to the instant motion defendants assert, Inter alia, that the state has preempted regulatory authority over navigable waterways and the Town is without authority to control such waterfront uses.

The legislative power of a municipality stops at its boundary line (1 Rathkopf, The Law of Zoning and Planning, 25--1) and absent a restrictive statute it may zone underwater land within its borders (1 Anderson, American Law of Zoning 8.13; 2 Anderson, New York Zoning Law and Practice 19.02; 1 Rathkopf, The Law of Zoning and Planning 25--1 (1973 Supp.)). Such zoning regulations exist in numerous municipal ordinances (see e.g., Taxpayers' Ass'n v. Board of Zoning Appeals, 301 N.Y. 215, 93 N.E.2d 645; Huguenot Yacht Club v. Lion, 43 Misc.2d 141, 250 N.Y.S.2d 548; Milton Point Association v. Clark, 14 Misc.2d 633, 179 N.Y.S.2d 624; City of Rye v. Boardman, 11 Misc.2d 293, 171 N.Y.S.2d 885; 71 Op.St.Compt. 684). The settled doctrine of local control of waterfront uses was seemingly shaken by the holding in Erbsland v. Vecchiolla, 35 A.D.2d 564, 313 N.Y.S.2d 576, aff'd after remand sub nom. Erbsland v. Rubin, 33 N.Y.2d 787, 350 N.Y.S.2d 653, 305 N.E.2d 775. There, in a case involving the efforts of a local boatyard to install f floating mooring (apparently attached to the state owned bottom) out from the foreshore in Long Island Sound, the Appellate Division of the Second Department held that municipal zoning jurisdiction did not extend to uses upon a navigable body of water. The court declared that navigable waters (p. 565, 313 N.Y.S.2d p. 578) 'are within the sole jurisdiction and control of the State,' except to the extent of any delegation of powers to the United States, with the state having title to land thereunder. In support of the latter proposition, the court cited State Law 7--a which relates to jurisdiction and ownership of offshore waters and lands thereunder and includes only the Great Lakes, the marginal sea and the high seas. Presumably, Milton Harbor in Long Island Sound, which the court found to be outside the regulatory power of the City of Rye, falls within one of the three listed categories of waters, but Erbsland speaks also of navigable waters 'within the state's control and jurisdiction,' a much broader category of waters. The case has been construed as a bar to municipal regulation of commercial marinas on the Hudson River (Piesco v. di Francesca, 72 Misc.2d 128, 338 N.Y.S.2d 286) although on its facts it dealt with a floating mooring, 54 feet from the foreshore and attached to the state owned bottom of the Long Island Sound. Here we deal with docks which float but which are attached to the foreshore directly or indirectly. A careful reading of the Erbsland opinion shows an intent not to affect the zoning of piers and wharves and statutory analysis demonstrates that even the broadest interpretation of Erbsland precludes its application to Nassau and Suffolk Counties.

The Navigation Law provides for state control of navigation and use of 'navigable waters of the state' (Navigation Law § 1). 'Navigable waters of the state' are defined in section 2, subd. 4 as '. . . all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels are operated, Except all tidewaters bordering on and lying within the boundaries of Nassau and Suffolk Counties.' (Emphasis supplied).

The word 'tidewater' means waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt (65 C.J.S. Navigable Waters § 1). It is usually not applicable to the open sea but to coves, bays and rivers (Black's Law Dictionary, 4th Ed.). The Connetquot is a tidal river bordering on and lying within the boundaries of Suffolk County and the Navigation Law definition would appear to exclude it from state control.

The exclusion of Nassau and Suffolk County tidewaters from the regulatory provisions of the Navigation Law dates at least from 1941 when the section exempted waters 'connected by navigable channels with tidewater' (L.1941, c. 941; see People v. Hart, 206 Misc. 490, 133 N.Y.S.2d 98; People v. Bianchi, 3 Misc.2d 696, 155 N.Y.S.2d 703). In 1956, section 2, subd. 4 was amended to provide that navigable waters do not include 'tidewaters lying south of the parallel of the forty-first degree of north latitude and Long Island sound . . .' (L.1956, c. 596, § 1). The forty-first parallel runs at angle north of most of Long Island, cutting south at the eastern end which juts into the ocean. In 1959 the exception was amended to read 'waters of Long Island Sound lying within the boundaries of Westchester County and all tidewaters bordering on and lying within the boundaries of Nassau and Suffolk Counties' (L.1959, c. 840). In 1965 the reference to 'waters of Long Island Sound lying within the boundaries of Westchester county' was deleted (L.1965, c. 168, § 1) leaving only the tidewaters of Nassau and Suffolk immune from the operation of the Navigation Law. It is the effect of this enduring exemption upon the language of the Environmental Conservation Law ('ECL') which leads to the conclusion that the waterways provisions of Islip's zoning ordinance may continue to stand.

Section 32 of the Navigation Law (L.1965, c. 955, § 9) reads as follows:

' § 32. Construction of structures in or on navigable waters

It shall be unlawful to construct, in the navigable waters of the state, any wharf, dock, pier, jetty, or other type of structure without first obtaining a permit therefor in conformity with the provisions of section four hundred twenty-nine-c of the conservation law.'

Section 15--0503, subd. 1 of the ECL, which is the identical successor to Conservation Law § 429--c states in part that no

'dock, pier, wharf or other structure, temporary or permanent, used as a landing place on waters, shall be erected, reconstructed or repaired . . . without a permit . . .' (from the Department of Environmental Conservation).

The interaction of the two statutes has a lengthier hstory than their current language indicates. Prior to 1960, the Navigation Law was administered by the superintendent of public works (Navigation Law § 10) and the related provisions in the Conservation Law were also administered by him rather than by the conservation commissioner (see e.g., Conservation Law § 948) which provided, Inter alia, that the public works superintendent be afforded notice of construction or reconstruction of docks, wharves, jetties, piers or other structures 'used as a landing place on waters' (repealed L.1965, c. 955, § 3). In 1960, administration of the Navigation Law was transferred to the conservation commissioner (now the Department of Environmental Conservation) by an amendment to Navigation Law § 30 which provided that the commissioner 'shall have jurisdiction over navigation on the navigable waters of the state and, except as otherwise provided, shall enforce the provisions of this chapter' (L.1960, c. 304). A subsequent amendment to Navigation Law § 32 (L.1965, c. 955) provided that permits for construction of any wharf, dock, pier, jetty or other type of structure (which were formerly issued by the superintendent of public works) were to be obtained in conformity with Conservation Law § 429--c (now ECL 15--0503). Section 32 further provides (as it has since 1941) that it shall be unlawful to construct such structures 'in the navigable waters of the state' without such a permit. Thus the authority transferred exempted...