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HomeMy WebLinkAboutWILTON, LINDA C HARVEY A. ARNOFF �� ' TT L. HARRIS Town Attorney �" Supervisor MATTHEW G. KIERNAN 1, 53095 Main Road Assistant Town Attorney �" P.O. Box 1179 1 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOL D INTER-OFFICE MEMORANDUM FROM THE TOWN ATTORNEY°S OFFICE TO: John M. Bredemeyer, 111, President, Board of uste FROM: Matthew G. Kiernan, Assistant Town Attorney /4/e DATE: March 15, 1991 RE: Linda C. Wilton Annexed hereto, please find a copy of the decision and order received from the Appellate Division (via fax) with regard to the above-referenced matter. This decision affirms the lower court ruling that the DEC and the Trustees had the jurisdiction to issue the Notices of Violation pursuant to the Environmental Conservation Law and the Wetlands Ordinance of the Southold Town Code. cc: Town Board III I t,40 .D2d Submitted- Jan au y 14 LAWRENCIE J. B CK ; _.P. SY IL HART KOOPER S TA NUTEY LEE ]I TOWN OF SOU OLD 1378E Linda C.Wilton, appe—H 3nt,v New Fork State Depae. t of - Enviro:.ental col= respondents. NIX-for appellant. - 2- _ e .�x, A� °t: h i%AaIY A�• 1 • �4e✓�13ail� \/��ti.T3 _ 2 3s a j�.e _ 3.y"L. -�3L 6i:�v6.AC of Ell Ys��adt3: lTtanh--e K ms -- A�aIs as€t T-v raa At ne , —S - own of Sonr 6iri. In an ac. j clam that the defimidw t~ i the hint �fs propef, t r brief, _ judg ent (one paper) Of m __ _ �f—' � - t as up=ten denying the l i� s� rt� � y}� �t/�} e'���tt ��st���'$$�� p A denying ' ,,,a firninaty «a'junc�forl 'i RC4G3}ra¢i' tihS.' 4i✓ S'�,t� cross motion to dusmisS � •� $ l � 7t ad �ecl � fa—fa-- had �} udsdiiction. ±Ivnn4 A'V £t Ld 11 i},jVis, L di1oB. with costs to the spondt� _ � -AD _=�fy fdi.+ se;�acate LriYs. In t1b �'4 =•4f'± 3}. !p;\! w a'}t43tV Fr�ti6f1l2J.G47�A4 YF Consetvation and the Eon �t � T = � �{ _ Town of coutnoid nao the .ra r� e ! „ otices of`iolataor ,•St , z o`" Code §§ 97-13 ' N E"MR: Martin H. Brownstein Clerk Fje�bruryawry*T19,�1T99��1y v [� �.r t�'�+ _7��+ �t }�} T�p p 3 WILTON d! 'V 1'4�:Y 10 �r� ,,[: 31 L: ,C`� . r :�`1Y L am" �N- x.0?\1A :`"t1` Li.✓3-1 =a= r � �.. �I ;i_If!i HARVEY A. ARNOFF L Town Attorneyiv;, !� 1991 TTL. HARRIS Supervisor MATTHEW G. KIERNAN � 1, 53095 Main Road Assistant Town Attorney 4 '' P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 OFFICE OF THE TO :g A�j ? Telephone (516) 765-1800 3 TOWN OF SO! 0, INTER-OFFICE MEMORANDUM FROM THE TOWN �. TO: John M. Bredemeyer, III, PresidE FROM: Matthew G. Kiernan, Assistant Tc �'/ DATE: March 15, 1991 RE: Linda C. Wilton Annexed hereto, please find a copy of the decision and order received from the Appellate Division (via fax) with regard to the above-referenced matter. This decision affirms the lower court ruling that the DEC and the Trustees had the jurisdiction to issue the Notices of Violation pursuant to the Environmental Conservation Law and the Wetlands Ordinance of the Southold Town Code. cc: Town Board 1 j SU1�_ R.1-- W COURT OF THE STATE Or N T!4' YOR�YK A Yy—t Mi --MSR01-i SECOND $ DIaCr2J M1EyLP �]a•yg� 04 8- \1, j A Ar?Zd Subrnitted Janui,y ''-, : . LA.WREN'CE J. BRACK-a-11, J.P. a-- SYBIL HART KOOPER jS�T�A•NUEY+s?��Pp pS�NOOD V T SC N 1, 1R,BAL2, zA,JR.,JJ. TOWN OF SO THOLD 1378E Linda C. Wilton, appellant,v DEC'I,St£31 New York State Depa ent of Environmental Conservation,et .i., respondents. R{charrd p. Lana, C�cLop.:e,N.Y..for appellant. =Al # i- . . y 'a 'adac�«f A9Tu r 1Za wiT.ir. � 'ym3iJ � ? -'j c f d 4t -- tr �?r 3 :a_a t_ _ T }.{ vp .e F„"H �- _'n� -�� xnaru�;°�t ':1f i*�"�� ahsa:.nta i..U`�i:itii 3`: Vi5sii6d-'-a . .1--ista t To,%F:i \tofney• dolt and � E.Y �_••._ - Town of Southold. �f �, . ., �T In an, action f:r ;'-Mlent d-claring that the �?efenda: its laces Ju= k" the plaintiff's prope , ,.:y Vn , limited tt,, brief, � r-ni �., of , pdswaa r. ��� J. � 2I173=°..`+.�' L3�her Vri�ii, ��r so s_a��+r.i V,. an judgment S7 ie =3- judgment (cane paper) oz Sum rep#=e -w-u :, Suffolk Co•un ° (Naran, J.), dazed Au 'Z-a : , as upon denying the plaitnth "s —amnion for - pttlir=ary L-ij rnction and granting thcA cross motion to dismiss tit- e�-:-kit �Ei � -- c � n an }' F _ . U iv 3Sz r��';�3, Ct_Si�'i=r3 tit t��. `.or3s�aL�ta it P1R� Q�.��c�� Lr��.'I.t AS�� had ux isdiction. C ED that she r.-A-ajr an-� judgmcr t as F i i=ne' A Lasofkaz a with costs to the respondents appear]g separately and£zlin+ sepazate brir£s. In this =tan e '^ b he r-T-w York: .State Departmew, of A Y x Conservation and tlie Boee{d of T��:,--Pu$s of h hLc a. e Town of Southold had tuthe-nl- Notices of Violation {Sec. C-I L0— 3; SouLhold a'own Code H 97-13, 97-"'20). BRA,CKENT,J.p.,KOOP , 1-LAIR 40110D and BALDI'l'A, JJ., concur. ENTER: Martin H. Brownstein Clerk February 19, 1991 WILTON v NEI7r YORK STATE DEPART,-UNT Or EN-V3RONMEI-TAL COr��Ex� ..�: iltiii B 399—Request for judicial Intervention,22 NYCRR 202.6,1.86. - UCS.BN .. ULIUS BLU 2 Rr�ERG, INC., PUBLISHEF 6 WHITEST c ,NEWYORK.N.Y.1001; � l����,• For Clerk Only SUPREME Court, SUFFOLK County Index No. Full title of action Date Purchased A LINDA C. WILTON, •J.�� IAS entry date Sip �i Name of assigned judge REQUEST FOR Pla►nt ff(.j� JUDICIAL., )dki#rxtx?�f1x INTERVENTION against � o Date of assl:g ...•...nment ❑ Issue joined (date - � NEW YORK STATE DEPARTMENT OF •----•••--- )( reek if applicable) ENVIRONMENTAL CONSERVATION and 0 Bill of particulars served (check if applicable) THE BOARD OF TRUSTEES OF THE TOWN OF SOUTHOLD, In the City of New York only: ❑ The City of New York is a party to this action. Defendant(s) ❑ The Transit Authority(or MABSTccO: �ow� ���tt� A a r s action. ern— xk Town Attorney Chief of Police NATURE OF JUDICIAL INTERVENTION (check) Supt. of Highways ❑ Request for preliminary conference ❑ Other ex arte application Griffin & Southwick P PP Wi �T §� lien, Jr. ❑ Note of issue and/or certificate of readiness ❑ Notice of petition (return a ......ow . ........... •) ❑ Notice of motion(return date ................................................................) Relief sought ......................-------- Reltef sought .......................... .................................................................................................................................. ............................................................................................................................... fOrd .. ...'e'r'..-to sh.-.s'h'...ow.....cau.'a"use.'e........................................................................................ ❑ Notice of medical malpractice action (Clerkk will enter return date ❑ Notice of dental malpractice action ........Novembe.r.�.s9-Z.-,-....1..9.8.8) ❑ Statement of net worth Relief sought prelitninary,...injunction in...favor---of ❑ Writ of habeas corpus plaintiff...&...aga.inst..defendants-,staying-..&..I........ ❑ Other(specify):................................................................... enjoining.--defendants,...-from...holdang-.hearings-or .......................................... __ ___ conferences or taking any other action pursuant to Notices of Violation dated March 2, 1988 & February NATURE OF ACTION OR PROCEEDING (check) Tort 29, 1988. Special Proceedings ❑ Motor vehicle ❑ Tax certiorari ❑ Medical malpractice ❑ Condemnation ❑ Dental malpractice ❑ Foreclosure ❑ Seaman ❑ Incompetency or conservatorship ❑ Airline Other special proceeding, including but not limited to: ❑ Other tort, including but not limited to 'personal injury, ❑ Article 75 (arbitration) property damage, slander or libel (specify): .................................... ❑ Article 77 (express trusts) ...............................................................................................................................-.- ❑ Article 78 .................................................................................................................................. ❑ Other(specify): ............... ❑ Matrimonial (contested) OTHER ACTION❑ Contract j ❑ Matrimonial (uncontested) i kOther(specify):.....Declaratory...Judgment..A.C.kion-.----,---.. Instructions: Attach rider sheets if necessary to provide required information. If any party is appearing pro se (without an attorney), the required information concerning such party is to be entered in the spacc provided for attorneys. AlltlttlNj�lNikiFtP Iola Iitllflbt>wtPtttttiit c Name Address Phone RICHARD F. LARK, ES / , t „ • Q . � :Main Road P:O. Box 973 (516) 734-6807 Cutchogue, New,York 11935 Attorney(s)for defendant(s)jrespond nt(s) Name Address Phone None Name of insurance carriers(if applicable and available) N/A RELATED CASES (if none, write"NONE"below) Title Index # Court Nature of relationshi N/A I affirm under penalty of perjury that,to my knowledge,other than as noted above,there are and have been no related actions or proceedings,nor has a request for judical intervention previously been filed in this action or proceeding. Dated:..........November 2, 1988 �7 .... ............................................ .• Signature=- pe name below.I .......... Attorne%W for Plaintiff RICHARD F. LARK Office h P.O. Addreri Mai - Road n.o 47l C '1114--S111nn1lNl!7 i"!-ho-,N.hice,Blank C ,,,+.* n-78 C1:PY Ri,Kt 19'I3 aY .JULIUS BLUMBERG.INC..LAW BLANK PUBLISHERS Personal Serdc:e. - SUPREM..E COURT OF THE STATE OF' i>dE4'T Y(�RI'. p Indeg No. 88/18695 ' COUNTY OP SUI F OLK '' Plaintiff designates LINDA C. WILTON, Suffolk County as the place of trial The basis of the venue is location o`f plaintiff ' s Plaintiff property against NEW YORK STATE DEPARTME14T OF1Z�t�tIIni ENVIRONMENTAL CONSERVATION and THE BOARD OF TRUSTEES OF THE Plaintiff resides at TOWN OF SOUTHOLD, West Street Greenport, New York 11944 Defendant s County of Suffolk To the above named Defendant s, 1 t tw ft ou art 4err _q i �$mutunth to answer the complaint in this action and to serve a copy of your answer, or,if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, November 2, 1988 RICHARD F. LARK, ESQ. Defendant's address: Attorney(X) for Plaintiff New York State Department of Environmental Office and Post Office Address Conservation, SUNY, Building 40, , Main Road - P.O. Box 973 Stony Brook, New York Cutchogue, New York 11935 (516) 734-6807 The Board of Trustees of the Town of Southold, Town Hall, Main Road, Southold, New York I i SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK---------------------------------------X 1 LINDA C. WILTON, NOV 4 9 Plaintiff, Adfi lold g „ -against- VERIFIED COMPLAINT NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and THE BOARD OF TRUSTEES OF THE Index No. 88/18695 TOWN OF SOUTHOLD, Defendants. ---------------------------------------X Plaintiff , by her attorney, Richard F. Lark, Esq. , complain- ing of the defendants herein, alleges as follows: AS AND FOR A FIRST CAUSE OF ACTION ON THE PART OF THE PLAINTIFF 1. Linda C. Wilton, (hereinafter referred to as "plain- tiff" ) , is a resident of West Street, Greenport, Suffolk County, New York. 2. At all times hereinafter mentioned the defendant, New York State Department of Environmental Conservation (hereinafter referred to as the "DEC") was established by Chapter 140 of the Laws of New York, 1970 and maintains a regional office at Building 40 , SUNY, Stony Brook, New York and has the respon- sibility for regulating fresh water wetlands within the State of New York, as defined in Article 24 of the Environmental Conservation Law. 3 . At all times hereinafter mentioned the defendant, The -1- I i ya , Board of Trustees of the Town of Southold (hereinafter referred to as the "Trustees") is an elected body created by the State of New York Legislature, (Chapter 615 , Laws of New York, 1893, as i amended) ; and has been designated by Southold Town Local Law 6-1984 , as the authority for issuing permits in the Town of Southold for freshwater wetland operations as defined in Chapter 97 of the Code of the Town of Southold. 4 . Plaintiff is the owner in fee simple of certain real property located at 825 Queen Street, Greenport, Town of Southold, Suffolk County, New York (SCTM District 1000, Section 04 .00 , Block 03 .00 , Lot 6 .002 ) by virtue of a gift from her father, Richard C. Wilton, by deed dated August 31, 1987 and recorded in the Suffolk County Clerk' s Office in Liber 10424 page 108 , (hereinafter referred to as the "Subject Property " ) a copy of which deed is attached hereto and made a part hereof as Exhibit 1 . 5 . Plaintiff ' s predecessor in title purchased the Subject Property which is part of a larger parcel, formerly used as a migrant camp containing four buildings on 1.8471 acres of land, by deed dated October 30 , 1985, which deed was recorded in the Suffolk County Clerk' s Office in Liber 9914 page 461, a copy of which is attached hereto and made a part hereof as Exhibit 2 . 6 . On or about November 1, 1985, plaintiff ' s predecessor in title in order to construct a dwelling for himself , and to pro- -2- vide a buildable lot for plaintiff, began to clear the property of debris and tear down the existing migrant labor camp buildings . In the process of clearing the lot he created a small berm in the rear portion of the Subject Property, which now traps street water which flows on the Subject Property from Queen Street. 7. On or about January 10 , 1986, plaintiff 's predecessor in title filed an application with the Southold Town Planning Board to subdivide the property into two buildable lots, and applied to the Southold Town Zoning Board of Appeals for an area variance to divide the premises into two 40 ,000 square foot parcels. 8 . On or about March 20, 1986 , plaintiff ' s predecessor in title obtained a building permit to construct a one-family resi- dence on the southerly portion of the premises and thereafter began construction. A copy of the building permit dated March 20 , 1986 is attached hereto and made a part hereof as Exhibit 3. 9 . On or about May 9, 1986 , the Southold Town Zoning Board of Appeals approved the subdivision by granting an area variance for the property to be subdivided into two building lots. A copy of the Zoning Board of Appeals Decision dated May 9, 1986 is attached hereto and made a part hereof as Exhibit 4. 10 . On or about August 5, 1986 , The Southold Town Planning Board gave notice declaring itself as lead agency under Article 8 -3- i of the New York Environmental Conservation Law on the application for the subdivision into two lots for single family residences. The Southold Town Planning Board found the subdivision applica- tion did not have a significant impact on the environment and notified the defendant DEC and its Commissioner, along with other interested parties of said application. A copy of said Southold Town Planning Board' s Negative Declaration is attached hereto and made a part hereof as Exhibit 5. I 11 . On or about August 10 , 1987, the Southold Town Planning Board approved the minor subdivision application of Richard C. Wilton. The Planning Board Resolution is attached hereto and made a part hereof as Exhibit 6, and a copy of the approved subdivi- sion map is attached hereto and made a part hereof as Exhibit 7. 12 . Plaintiff ' s predecessor in title, Richard C. Wilton, completed the construction of his residence with public water and sewer being supplied by the Village of Greenport. A copy of the Certificate of Occupancy from the Town of Southold is attached hereto and made a part hereof as Exhibit 8; and a copy of a letter dated March 19, 1987 from James I . Monsell is attached hereto and made a part hereof as Exhibit 9 . 13 . On or about January 21 , 1988 , plaintiff obtained a mortgage commitment from Southold Savings Bank subject to peti- tioner obtaining a building permit from the building inspector of the Town of Southold. -4- I 14 . In and about the month of February, 1988 , plaintiff began to construct a driveway to gain access to the rear portions l of the Subject Property to begin construction and to remove the berm in the rear of the Subject Property so the accumulated water could flow freely into Moores Woods as it had done previously. r 15 . On or about February 29 , 1988 , the work stopped when plaintiff ' s predecessor in title, Richard C. Wilton, was served with Notice of Violation of the Code of the Town of Southold Chapter 97, Article II, Section 20, for allegedly filling fresh- water wetlands without a permit upon the Subject Property. A copy of said Notice of Violation is attached hereto and made a part hereof as Exhibit 10 . 16 . On or about June 10, 1988 , plaintiff received by registered mail a Notice of Violation dated March 2 , 1988 , from the defendant, DEC, alleging violations of the Environmental Conservation Law Article 24 , §24-0701, §24-0703 for allegedly filling in freshwater wetlands without a permit upon the Subject Property. A copy of said Notice of Violation is attached hereto and made a part hereof as Exhibit 11. 17 . Thereafter plaintiff, in an attempt to have the matter clarified, caused an application to be filed with the Trustees and the DEC to clear the property of violations and proceed with the filling of portions of the Subject Property in order to com- mence construction of a home. On July 21, 1988 the defendant -5- i i a 1 Trustees informed plaintiff the Trustees would not act until the defendant DEC decided the matter, regardless of whether there were any violations under the Code of the Town of Southold. 18 . On August 29 , 1988 , a meeting was held with Paul Carella, a freshwater wetlands expert employed by defendant DEC, the President of the defendant Trustees, Frank A. Kujawski , Jr. , and Southold Town Attorney, James Schondebare; wherein plaintiff informed defendants her property was not freshwater wetlands as defined in Article 24-0107 of the Environmental Conservation Law and 97-13 B of the Code of the Town of Southold. Paul Carella stated the DEC' s position was that in spite of the fact there was no freshwater wetlands map promulgated under §24-0301 of the Environmental Conservation Law, the plaintiff was considered to be in violation of the Law. Further, she had to remove all fill from her property or have a hearing before the Regional Attorney where she would be found guilty and required not only to remove the fill but pay a fine, and not be allowed to build a home on the Subject Property. 19 . Subsequently on September 8, 1988 , the building inspec- tor disapproved plaintiff ' s application for a building permit until all violations of defendants, Trustees and DEC, were cleared. A copy of the Notice of Disapproval dated September 8 , 1988 , is attached hereto and made a part hereof as Exhibit 12 . 20 . On September 29 , 1988 , defendant Trustees passed a -6- resolution rescinding their "Lead Agency Status" until the DEC violation is satisfied. A copy of said resolution is attached hereto and made a part hereof as Exhibit 13 . 21 . On or about February 29 , 1988 and March 2, 1988 the defendants, Trustees and DEC, did not have jurisdiction as to plaintiff ' s Subject Property pursuant to the Environmental Conservation Law and the Southold Town Code because the Subject Property is not a defined freshwater wetlands and does not con- tain an area of 12 .4 acres, and the Commissioner of Environmental Conservation has not determined that the Subject Property is of unusual local importance as provided in 6 NYCRR §662.1 W . 22 . Plaintiff has the lawful right to construct a one- family dwelling on the subject property without interference from the defendants because at the present time the defendants have no jurisdiction over the Subject Property because said property has not been declared to be statutory freshwater wetlands. 23 . Upon the foregoing a serious dispute exists and there is a justiciable controversy between the parties to determine whether the plaintiff ' s Subject Property fails to come under the definition of freshwater wetlands as defined in Environmental Conservation Law 524-0107 and Southold Town Code §97-13 B and thereby is not subject to regulations or violations of this sta- tute and ordinance. This court is the only forum that can final- ly determine and interpret the rights of the parties. -7- i L e e 5 S t 24 . Plaintiff has no adequate remedy at law except pursuant to this cause of action. AS AND FOR A SECOND CAUSE OF ACTION ON THE PART OF THE PLAINTIFF k 25 . Plaintiff repeats, reiterates and realleges each and . every allegation contained in Paragraphs 1 through 24 herein. 26 . Plaintiff will be irrevocably harmed by submitting to the jurisdiction of the defendant DEC as this defendant has already made a pre-determination in spite of the fact that Article 24 of the Environmental Conservation Law has not been followed by the defendant, DEC. 27 . Upon information and belief the defendant DEC intends to require removal of all fill placed on the Subject Property by the plaintiff , fine the plaintiff an undetermined sum, and pre- vent plaintiff from building her residence on this property. 28 . The actions of the defendants have prevented plaintiff from obtaining a building permit from the building inspector of the Town of Southold (Exhibit 12 ) in spite of the fact the Sub- ject Property meets all legal requirements for the construction of a one-family dwelling and has received approval for the installation of public water and sewage as provided by the Village of Greenport. 29 . Plaintiff ' s right to obtain the building permit is -8- 3 protected by the United States Constitution and the New York State Constitution, and plaintiff cannot be deprived thereof without due process of law. WHEREFORE, plaintiff prays for a judgment as follows: (a) On the First Cause of Action for a declaratory judgment declaring that: (i) At the time of the alleged violations (Exhibits 10 & 11 hereof ) plaintiff ' s Subject Property was not classified as freshwater wetlands under the Environmental Conservation Law, and therefore there were no violations of the Environmental Conserva- tion Law or the Code of the Town of Southold. ( ii ) , That the Notice of Violation dated February 29 , 1988 issued by the Southold Town Bay Constable (Exhibit 10 ) is invalid as applied to plaintiff ' s Subject Property. ( iii ) The Notice of Violation dated March 2, 1988 issued by defendant DEC is invalid as applied to plaintiff ' s Subject Property. (iv) The interim permit regulations of the defendant DEC do not apply to plaintiff ' s Subject Property because the alleged freshwater wetlands area is less than 12 .4 acres and the Commissioner of defendant DEC has not made an affirmative finding that plaintiff ' s Subject Property and the lands adjacent thereto are of unusual local importance for specific benefits as provided in §24-0105 . 7 of the Environmental Conservation Law. -9- (b) On the Second Cause of Action declaratory judgment determining that the aforesaid conduct of the defendants impedes and deprives the plaintiff of her right to obtain a building per- mit and to construct a one-family dwelling on the Subject Property, and said conduct constitutes a deprivation of plain- tiff ' s rights under the United States Constitution and New York State Constitution, all without due process of law. (c) Costs and disbursements of this action, and such other, and further relief as to the Court may seem just and proper. RICHARD F. LARK, ESQ. Attorney for Plaintiff Office & P.O. Address Main Road - P.O. Box 973 Cutchogue, New York 11935 (516 ) 734-6807 -10- form 890:•8-fl6-21M.—Ih.rcnln loot S".n,r I.mnh Coc,•uenl nR.1.0 f md.,'s Acte—Indlrldu.l or Corpor H.m(einglr•L,•,•t) CONSULT YOUR LAWYER BEFORE SIGHING THIS INSTRUMENT—THIS INSTRUMENT SHOULD BE USED EY LAWYERS ONLY. TRANSFER' 10424 K108 ` TAX STAMPS THIS INDENTURE,made the 31st day of August nineteen hundred and eighty—seven' REQUIRED I BETWEENRICHARD C. WILTON and ANITA C. WILTON, his wife, residing at 2605 Deep Hole Drive, Mattituck, New York party of the first part,and LINDA C. WILTON, residing at (no ) Main Street, Greenport, New York party of the second part, WITNFSSETH,that the party of the first part,in consideration of Ten Dollars and other valuable consideration paid by the party of the second part,does hereby grant and release unto the party of the second part,the heirs or successors and assigns of the party of the second part forever, ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being inBEmt Arshamomaque, Town of Southold, County of Suffolk and State of New York, lying on the easterly side of Queen Street, a private road,bounded and described as follows: BEGINNING at a stake set on the easterly side of Queen Street, a private road 33 feet wide, which said point is distant southerly 499.98 feet from the corner formed by the intersection of the southerly side of North Road (C.R. 48) with the easterly side of Queen Street, and from said point of beginning; running thence along the southerly side of the land now or formerly of Ronald and Barbara Edeen, North 61° 17' 20" East 238.68 feet to a stake set and land now or formerly of Daniel G. Conklin; thence along said last mentioned land South 1° 45' 30" East 114.47 feet to a stake sFt and land�ol otrhefovfffige of Greenport; thence along said iNRn ?& CMr�Village of Greenport, South 00 51' 20" West 91.77 feet to a point; running thence through other land of the party of the first part, South 61° 17' 20" West 198.59 feet. to a point on the easterly side of Queen Street; running thence along the easterly side of Queen Street, North 11° • 17' 10" West 190.60 feet to a stake set on the easterly side of Queen Street and the point or place of BEGINNING. BEING AND INTENDED TO BE part of the same premises conveyed to the party of the first part by deed dated October 30, 1905 and recorded in the Suffolk County Clerk's Office on November 14, 1985 in Liber 9914 Page 461. Premises are not subject to a Credit Line Mortgage., 1)H51(;Nr\'I'ION Dw.1000 1'C)(;I I'lll:K with all right,title and interest, if any,of the party of the first part in and to any streets and roads abutting the above described premises to the center lines thereof;TOGrTIiER with the appurtenances s,• 040.90 and all the estate and rights of the party of the first part in and to said premises; TO HAVE AND TO 1101.1) the premises herein granted unto the party of the second part,the heirs or successors and assigns of mi. 03.00 the party of the second part forever. 1_0IH: 006.00A AND the party of lite first part coven:utts that lite party of the first part has not done or suffered anything wherchy the said premises have been encumbered in any way whatever,except as aforesaid. AND Ile party of rite first part, in compliance with Section 13 of the Lien l.aw,covenants that the party of the first part will receive the consideration for this conveyance and will hold the tight to receive such consid- eration as a trust fund to be applied first for the purpose of paying the cost of lite improvement and will apply the same first to the payment of lite cost of the intprovenitnt before using any part of the total of the same fug any other purpose. ( The word"party"shall be construed as if it read "parties" whenever the sense of this indenture so requires. IN WITNESS WHEREOF,the party of the first part has duly executed this deed the day and year first above „ written. IN PRMFNCF OFF"W"I" AL ESIAIRNEIV . c ` W ton P 21 WillNfERKAXAnita C. W lton fO EXHIBIT I $TAJ1jj1JJ�� 22.4 . OF�EW YOIIcc109 Of SUFFOLK ,sit1 STATE OF NEW!VORK,.COUNTY OR sit On the 31st day of August 1987 before me On the day of 19 , before me personally came RICHARD C. WILTON and personally came ANITA C. WILTON to me known to be the individual s described in and who to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that executed the foregoing instrument, and acknowledged that they executed the same, executed the same. Notary Public BARBARA DIACIIIIN NOTARY PUBLIC,Stale of New Yotk No.4635190,Sultolld County Commission Expues Oclobel 30,1988 ' STATE OF NEW YORK,COUNTY OF sit STATE OF NEW YORK,COUNTY OF sit On the day of 19 , before me On the day of 19 before me personally came personally came to me known,who,being by me duly sworn,did depose and the subscribing witness to the foregoing instrument, with say that he resides at No. whom I am personally acquainted, who, being by me duly sworn,did depose and say that he resides at No. that he is the , of that fie knows the corporation described in and which executed the foregoing instrument; that he to be the individual knows the seal of said corporation; that the seal affixed described in and who executed the foregoing instrument; to said instrument is such corporate seal; that it was so that he, said subscribing witness, was present and saw affixed by order of the board of directors of said corpora- execute the same;and that he, said witness, lion, and that he signed It . name thereto by like order, at the same time subscribed h name as witness thereto. I , 39main anb *sh 30etb SECTION WI111 COVENANT AGAINST GRAN IOR'S Acts TITLE No. BLOCK LOT RICHARD C. WILTON and ANITA C. COUNTY OR TOWN WILTON . ,, TAX E11.LiNC ADDRF•SS TO LINDA C. WILTON Recorded At Request ofTkdw Tile Guarantee Company }. RETURN DY MAIL TO: Richard F. Lark., Esq. Dinn6wr,d 4 Plain Road — P. O. Box 973 Cutchoguer New York 11935 TIC®R TITLE GUARANTEE Zip N.. 0 i s R = 0 �= o l—.- rn nC �.w Li°ER 9914 PAGE 461. iris Indenture,made the 30 day of October nineteen hundred and eighty-five Between ROBERT BOLLING Residing at 439 Second Street, Greenport, N.Y. party of the first part,and RICHARD C. WILTON and ANITA C. WILTCN, his wife Residing at RR Al Bix 91A , 2605 Deep -Hole Drive, Mattituck, N.Y. party of the second part, Witnesseth,that the party of the first part,in consideration of Ten Dollars and othervaluable consideration paid by I the party of the second part,does hereby grant and release unto the party of the second part,the heirs or successors and assigns of the party of the second part forever, All that certain plot,piece or parcel of land,with the buildings and improvements thereon erected,situate,lying and being in fbwxArshamettrr-tquer Town of Southold, County of Suffolk and State of New York, lying on the easterly side of Queen Street, a private rode bounded and described as follows: BEGINNING at a stake set on the easterly side of Queen Street, a private road 33 feet wide which said point is distant southerly 499.98 feet from the corner formed o° by the intersection of the south^rly side of North Road, C.R. 48, with the easterly 2TT a o side of Queen Street, and from said point of beginning; _ RUNNING 'I`HENCE ALONG TITE SOUTHERLY side of the land now or formerly of Ronald & 3 o e Barbara Edeen, north 61°17'20" Fast 238.68 feet to a stake and land now or formerly Daniel G. Conklin; THENCE along said last mentioned land, South 1°45'30" East,. 6001 114.47 feet to a stake and land of the Village of C.reenport; rFHENCE along said land of the Village of Greenport, South 0°51'20" West, 457.10 feet to a stake set on the northeasterly side of Queen Street; TIIENCE along the northeasterly and easterly side of Queen Street, the .following three courses and distances: (1) North 48°43'50" West, 195.90 feet; (2) North 8°17'20" West, 123.70 feet; { (3) North 11" 17110" West, 209.22 feet to the point or place of BEGINNING. BEING AND INTENDED TO BE the same premises conveyed to Robert Bolling by deed made by Jean H. Tuthill., as the County Treasurer of the County of Suffolk , dated 2/10/81 recorded 2/11/81 in Liber 8959 cp 374 in the office of the Suffolk County Clerk. Together with all right,title and interest,if any,of the party of the first part in and to any streets and roads abutting the above described prernises to the center lines thereof;Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises;To Have And To Hold the premises herein granted unto the Patty of the second pail,the heirs or successors and assigns of the party of the second part forever. Arid the party of the first part covenants that the party of the first part has not doneor surfered anything whereby the said premises have beenancumbered in any way whatever,except as aforesaid. And the party of the first part,in r.ornpliance with Section 13 of the Lien Law•covenants that the party of the first part wilt receive the consideration for this conveyance and will hold the right to receive such consideration as a trust fund to be applied first for the purpose of paying the cost of the Improvement and will apply the same first to the payment of the cost of the improvement before using any part or the total of the same for any other purpose. The word"party"shall be construed as if it read"parties"whenever the sense of this indenture so requires. In Witness Whereof,the party of the first part has duly executed this deed the day and year first above written. ANENCE OF: fi�'� ber MAL ESTf1 ( 1 g i; NOV 14 1985 TRA N!7,17191TAX r C(:UiVIY r — ---.._-__. EXHIBIT 2 i it .cW YORK,COUNTY OF SUS s3: STATE OF.NEW YORK,COUNTY OF as: t tfi'e 'A'dBy'of October 19 85, before me On the a personally came day of 19 before me Robert Bolling personally came t to me known to be the individual described in and who to me known to be the individual described in and who executed the foregoing instrument, and acknowledged executed the foregoing instrument, and acknowledged that he exe the same. that executed the some. MAN N01ARUBUC,State of flow yolk 110.62-"71422,Owl in Suff.3fk C�J/ Ce Fn"*ion EMI"m March 30,19. STATE OF NEW YORK,COUNTY OF as: STATE OF NEW YORK,COUNTY OF ss: On the day of 19 before me personally came personally the day of 19 before me to me known,who,being by me duly sworn,did depose and Personally came say that he resides at No. p the subscribing witness to the.foregoing instrument, with whom I am personally acquainted,who, being by me duly that he is the sworn,did depose and say that he resides at No. of ;that he knows the corporation describe to be the individual d in and which executed the foregoing instrument; that described in and who executed the foregoing Instrument; that he, said subscribing witness, was present and saw knows the seal of said corporation;that the seal affixed to said instrument is such corporate seal; that it was so affixed by execute the same;and that he,said witness, order of the board of directors of said corporation, and at the same time subscribed It name as witness thereto. that he signed h name thereto by like order. SECTION Bargain ant) —flair UrrL) BLOCK With Covenant Against Grantor's Acts LOT Title No. _ CITYORTOWN of Southold COUNTY Robert Bolling Recorded at Request of TO "FE TITLE INSURANCE Company of New York Richard C. Wilton etux RETURN BY MAIL TO Richard F. lark, Esq. Standard Form of New York Main Rd. Board of Title UnderwNten Distributed by CUtchogt:e, N.Y. 11935 ` U-111FE TITLE INSURANCE Zip No. Company of New Yak W W Lj O t� V 0 w W � �1��JIli� • '' Illli � - TORM NO. f TOWN OF SOUT{TOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N. Y. BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) �T() 14681 Z Date ........ ::47....a.4................ Permission is hereby granted to; �.Q..?c,...`3.1..A............................................... ....... .. . s.D ....l,?.... :....1 ILA�. .�;► ... ....... . ......... .W-A � - ,... ±� �r!,a t '.........Q......�...+�......°�:-.......... �,> .' � ,..�.r...... 0................................................. • of premises located at .. .. . . . ............................................................. .......................................................... .. .......................................................................... .......................... ...........................................,..11......:.................................................................................. County Tax Map No. 1000 Section ......�.`t.Q...... Block .......QJ&..... Lot No. ... ..�p........... pursuant to application dated ..... •••••.••...•...... 19.1 ., and approved by the Building Inspector. Fee Building Inspector Rev. 6/30/80 EXHIBIT 3 i' Southold Town Board of Appeals O�yQl�•� rt>�� MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11971 TELEPHONE(516)765.1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3456 Application Dated January 17, 1986 (Public Hearing March 13, 1986) TO: Richard F. Lark, Lsq. as [Appellantis)) Attorney for RICHARD AND ANITA WILTON Main Road, Box 973 Cutchogue, NY 11935 At a Meeting of the Zoning Board of Appeals held on _April 16, 1986, the above appeal was considered, and the action indicated below was taken on your ( ) Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ 1 Request for Special Exception under the Zoning Ordinance Article , Section [X ) Request for Variance to the Zoning Ordinance Article III , Section 100-31, Bulk Schedule [ 1 Request for Application of RICHARD AND ANITA WILTON for a Variance to the Zoning Ordinance, Article III, Section 100-31 . Bulk Schedule, for approval of proposed lots having•14nsufficfent area, width and/or depth in this pending division of land, located at the East Side of Queens Street, Greenport, NY; County Tax Map Parcel No. 1000- 40-3-6. WHEREAS, a public hearing was held and concluded on March 13, 1986, in the Matter of the Application of RICHARD AND ANITA WILTON under Appeal No. 3456; and WHEREAS, the board has considered all testimony and documentation entered into the record concerning this application; and WHLRLAS, the board members have personally viewed and are familiar with the premises in question, as well as the surrounding area in this Residential and Agricultural Zoning District; and WHEREAS, the board made the following findings of fact: 1 . The property in question has a frontage (lot width) of 332.92 feet along the east side of Queen Street, Greenport, and is identified on the Suffolk County 'Taz Maps 'as District '1000, Section 40, Block 3, Lot 6. 2. The premises as exists contains a total area of 1 .8471 acres , and it is indicated on survey updated December 10, 1985 that premises was of recent date improved with four structures : (a) frame building set back 47.2 feet from Queen Street at its closest point, (b) acces- sory shed structure situated north of the fraine building in "(a)" supra, (c) two frame accessory buildings encroaching over the front property line along Queen Street, which are to be removed or have, as of the date hereof, been removed. 3. By this application, appellant requests approval of insufficient area and depth of two proposed parcels: (a) Lot #1 (CONTINUED ON PAGE TWO) DATED: May 9, 1986. CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS Form ZD4 (rev. 12/81) - - EXHIBIT 4 I I Page 2 - Appeal No. 3456 Matter of RICHARD AND ANITA WILTON " Decision Rendered Apri ) 16, 1986 z of oo area Lot4#20of 40,460 sqn ft. innareaeandeaverageth of 218.63 depth of 191t24 feet. 4. For the record it is noted that the pr'ior nonconforming use of this premises as a preexisting nonfarm labor camp has been terminated for a number of years, and that the parcel will be used for such single-family purposes as permitted by the current zoning regulations in this "A-40" Residential and Agricultural Zoning District. 5. The board finds that the relief requested is not unreason- able. The parcels generally existing along the east side of Queens Street to the north of this parcel are substantially smaller than that proposed by this application. In considering this -appeal , the board finds and determines: (a) that the relief requested is not substantial in relation to the conditions generally existiny in the immediate area; (b) that the circumstances are unique; (c) that the variance will not in turn cause a substantial effect of increased population density or be adverse to the safety, health, welfare, comfort, convenience and order of the town; (d) the information submitted is sufficient to warrant a granting of the variance; (e) in denying the relief requested, the interests of Justice would not be served. Accordingly, on motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, that the relief as applied in the Application of RICIIARD AND ANITA WILTON under Appeal No. 3456 for approval of insufficient of area and lot depth of: (a) Lot No. 1 of 40,000' sq. ft. and average depth of 218.63 feet, and (b) Lot No. 2 of 40,460 sq. ft. and average depth of 191.24' feet, as shown on survey updated December 10, 1985, by Young R Young, L.S. , BE AND HEREBY IS GRANTED SUBJECT TO THE FOLLOWING CONDITIONS: I . Large frame building, if not demolished, must be brought UP the current standards for a princiolal single-family dwelling structure, in conformance with all health, building, sanitary and building codes; 2. "Framed shack" structure may remain if used only as an accessory structure incidental to residential use of the premises, 3. Approvals for city/public water and sewer on Lot #1 ; 4. Approval for city/public water on Lot N2; 5. Previous nonconforming use as a nonfarm labor camp shall remain terminated, not to be reesablished. Vote of the Board: Ayes: Messrs. Goehringer, Doyen and Grigonis. (Members Sawicki and Douglass were absent. ) This resolution was duly adopted. GER RD P. GuE RINGER, fi,iAlRll id May 9, 1986 y N t. llf A D S 'I 44, CT 'Y Southold, N.Y. 11971 (516) 765-1938 August 5, 1986 NEGATIVE DECLARATION Pursuant to Article 8 of the Environmental Conservation Law State Environmental Quality Review Act and 6NYCRR Part 617, Section 617. 10 and Chapter 44 of the Code of the Town of Southold, notice is hereby given that Southold Town Planning Board as lead agency for the action described below has determined that the project will not have a significant effect on the environment. DESCRIPTION OF ACTION The minor subdivision of Richard and-Anita Wilton is for two lots onl. 8471 acres located at Queen Street for single family residences, tax map no. 1000-40-3-6. The project has been determined not to have a significant effect on the environment for the following reasons: An environmental assessment has been submitted which indicated that no significant adverse effects to the environment were likely to occur should the project be implemented as planned. The Suffolk County Department of Health Services has no objection to our designation of lead agency status. There is not record of an application to this Department. The Health Department does require an application to construct prior to further review. It appears that the proposed action conforms to the minimum lot size requirement for Article 6 (Suffolk County Sanitary Code) . Because there has been no correspondence from the Department of Environmental Conservation in the alotted time, it is assumed that there are no comments nor objections from that agency. This project conforms to the Southold Town Code for Subdivision Regulations. Any further information can be obtained by contacting Diane M. Schultze, Secretary, Southold Town Hall, Town Hall,Main Road, Southold, NY 11971 EXHIBIT 5 II, 3 1 I) S[., 1' Southold. N.Y. 11971 (516) 765-1938 August 17, 1987 Mr. Richard Lark Attorney at Law Main Road Cdtchogue, NY 11935 Re: Richard And Anita Wilton minor subdivision at Greenport SCTM # 1000-40=3-6 Dear Mr. Lark: Please let this confirm the following action taken by the Southold Town Planning Board, Monday, August 10, 1987. WHEREAS, a formal application for the appoval of a subdivision plat, entitled Richard C. and Anita C. Wilton was submitted to the Planning Board!.,onJanuary 16, 1986 and filing fee of $350 was paid, and, WHEREAS, a final public hearing was held on said subdivision and plat at the Southold Town Hall, Main Road, Southold, New York at July 27, 1987 at 7:45 p.m. , and, WHEREAS, the requirements of the Subdivision Regulations of the Town of Southold have been met by said subdivision plat and application, NOW, THEREFORE, BE IT RESOLVED, that the application- of Richard C. and Anita C. Wilton for approval of said subdivision plat prepared by Howard Young, dated as last amended April 22, 1987 , be approved. If you have any questions, please don' t hesitate to contact our office. Very truly yours, BENNETT ORLOWSKI, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary i if EXHIBIT 6 I Na��� ID m v / \ . r 1 Eileen 7 ( •c y °tbpto "pt" , G N Dla � e . e(ogDa. o Ron I,lvl. cA I �-^ now or {orrnetl� Z3g68 ^ a Ig1R sE( N 61°1Z 201E SUf01K CDUNfY DEPARt 0 HEALTH SEEYIcts APR Z6 W • O `' At%far sealer sappty in Iwo to etr:ily 1Ha11M pepased mtorlgeme ei sewapsrl%psalfir RsCAidRC-G I/{VITA G• ILTDhI m L.oT,sgO(0 inths at„J��acy _Yn,h.ralald s tar tw !-- cu Sop,rouAs Y. W =, W *.to w. Consent Is hrr[CT G'.ran hr tha tRNIq of Iht mop on which Ilns fY I endorsement gears IOIIa ClHts of the CaantT Clerk in ecco dance ♦— o with prov:siaosl of tU r::c Hauhh Low and Ibe Wick Comfy i a �' Saldlary ceda. le-5�/w"���(/ m 0 Ilk o3 4Q a c P D n 5a �20 W' 1 Ld COf I A t!A \R li ran ��Z'ea.qOr qs IMI...I. Ilse O l rYnuL PLOT_PLAN f o ? N THE WATER SUPPLY AND SEWAGE DISPOSAL FACILITIES FOR ALL °j L--- LOTS IN THIS DEVELOPMENT COMP LY WITH T E STANDARDS AND .,� E0111REMENTS OF THE F LK COUNTY D. ARTMENT OF HEALTH �I�PrttR�t/ED BY lILAliiiIP1G BOARD VOWARDW.YC ,NYB.LS. NO45893 I 9 NO Et `T IMI OF SOUI!lOLD 1. Q l STAKE SET y0 c 2: VIA"a MONUMENT ro o t�AfL S A ZONING USE DISTRICT RESIDE TURAL 4. TOTAL AREA+1.84 T1 ACRES Fa tt. SUFFOLK COUNTY TAX MAP DIST.IOOOSECL04013LKO LOT09 fvrrJ S` -• _ lTAT IOp Q N MINOR SUBDIVISION PREPARECIFOR eus RICHARD C.WILTON B ANITA C. WILTON APRIL 221981T J• O DULY 18,lies DEC.10,1995 p, y AT GREENPORT DATE NOY'22.1995 TOWN OF SOUTHOLD SCALE= I"-so' SUFFOLK COUNTY, NEW YORK Na. 85-1540 N CVNVTHMl2ftl ALtfeATIONOAA013I110N 10 Mlt IXF,a A vIOl/TION OF SECTION 1f Cl M INe -F.'n I'AI[CWEI IIDN LA. ,ATE OF NE„ rollf,OF INIS S,N1v[T"" IE—% THe LAND 1 /•O SUN vE+ON!Il rI Slat OA[Nl'0_I, ALAI!MALL 'pD Ir G 1 NOT of NTE I EMAIF ACF VALID TRV(C°Ft .[( 1O 1` N°UAN ANT[!! NV V fAf ON VVIL I. aVII.En/0 O !TK!fT TNC IKOfOM/Oa L'° me m' IS"'.so[D )M ANO OI HIS lEH1lI 10 tHt nTLf CON.W1,lDVO1M- O NfXfaL /Gf 1. AND 1' 1..Na,X STITVTIDN L141[0 NfNr ON,AXD IO nIC 1SSIl XII1 OF tN(tCNDIMI 41 IH3l11 Vflpl 6UANl AI[[f Ant HOr IMNS1CNAlle f0 AVOI tIONAL INf Tll Vildlf 0A SV ASEaVE NT 'U,J�,_{N/',J' NIStANC[f SN°.X HI,IIfOX fgOY (I,MfA1T UN[7 ( • 10 f11{TIXA 11AUf.fUNlf Aa[IffA a 11CCI(If !r[ 4 SON.TOUND (UAr01[ AND A11[N01 TD/f USEO 10 ESTA/L11M b L(A SUfv�{0` [ro([pTV LINE!Op [N[CT1aN a,rfNC[t 0� C) �tT� ?�y r — 400031RANOER AVENUE t ) YOUNG a YOUNG RIVERHEAD,NEW YORK 961 / ALDEN W.YOUNO,('ROFESSIONAL ENGINEER AND LAND SURVEYOR N.Y.S.LICENSE NO.12943 HOWARD W.YOUNG, LAND SURVEYOR J' N.V.S.LICENSE NO.43893 ' PAeemA a fONa IXc.IOAA EXHIBIT 7 i FORM MO.4 TOWN OF SOUTIIOLD BUILDING I)EPAIUMENT Office of the Building inspector Town (tall Southold, N.Y. Certificate Of Occupancy No. . , Z..1677. . . . . . . . . A rid 5. l988 THIS CERTIFIES that the building . . . . . . , .CONVERS ION . . . . . . . . . . . . . . . . , . Location of Property 825 Queen. St.reet. . . •. . . . Green�ortr. N .Y . House No. Street � � � � � � � . . . . . .Hamlet County Tax Map No. 1000 Section . ,04 0 . . , , , ,Block . . . . 3. . . . . . . . . .Lot . .6. . . . . . , Subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Filed Map No. . . . . . . . .Lot No. . .. . . . , . conforms substantially to the Application for Building Permit heretofore filed in this office dated March h 18 , 1 9 8 . . . . pursuant to which Building Permit No. 4 6 8 1. Z. . , , . . , . . . . . dated . , ?'i a r c h 2 0 ; 1986 , . . . . , was issued, and conforms to all of the requirements of the applicable provisions of the law. The occupancy for which this certificate is issued is . . . . . . . . . CONVERSION OF PIIGRANT CAMP TO ONE FAPIILY DWELLING AS APPLIED FOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The certificate is issued to , . .AN.ITA C.. WILTON of the aforesaid building. Suffolk County Department of Health Approval CITY WATER & SEWER VILLAGE OF_GREENPORT. . DATED'313119881 . . . . . . . . . . . . UNDERWRITERS CERTIFICATE NO. . . .Ngglt 25 . February ,3, 1988 . . . , , , . _ . , . _ . . . PLUMBERS CERTIFICATION DATED: March 7, 1988 — K & K Plumbing 7 Building Inspector nev. vat EXHIBIT 8 Of�iccrs UIILl FY UI 1 Il t; ��• l� f gree MAYOR [ Clye o or/ (516)477-1748 GEORGE W.HUBBARD INCORPORATED fa!• POWER PLANT TEL. NEW TRUSTEES RE-INCORPORATION UND[i1TOC"CRAIL t4W MAT 21• ,.,. (516)477.0172 1EANNE AI.COOPER GAIL C.IIORTONPy DAVID E.KAPEI.L •- - ,. WILLIAM II.LIEBLEIN i Y S L-A t4 SUPT.OF UTILITIES C`J 1AMES 1.MONSELL •••••••• •"'� 236 THIRD STREET GREENPORT•SUrFOLK COUNTY NEW YORK 11944 March 19, 1987 Mr. Richard Wilton R.R. 1 Box 91 A Mattituck, N. Y. 11952 Dear Mr. Wilton, The Village of Greenport will serve your two (2) lots on the east side of Queen Street (Old Labor Camp) with public water and public sewage under the terms and conditions of the Utility Department policy. If I can be of further service, please contact me. Yours truly, James I. Monsell Superintendent of Public Utilities JIM:Ikm cc: George Hubbard, Mayor All Village Trustees I I EXHIBIT 9 i i ' NOTICE Police Dept. - Bay Constable Town of Southold Peconic, New York 11958 NOTICE OF VIOLATION February 29 88 Date:--- ------ ----, 19--�-- To. ------ Richard_Wilton ---- ----- -- ------ f ----------- ---------- . (Owner or authorized agent of owner) Address: 2605 Deep_Hole_Dr.,�_Mattituck,_N_Y. __1195?____ ------------ ------------ (Address of owner or authorized agent of owner) Please take notice there exists a violation of the Code of the Town of Southold, Chapter 97 Article---TI- ---- Section-,- ----- . at premises hereinafter described in _ _ -. that--- u_are_fillin i fresh- waterwetlandswithout a permit._ _______________- _ y------------------ ----------------------------------------------------------------------- You are therefore directed and ordered to comply with the following. Cease all further activities on property. Remove any ------ ---- "fill_wanted"- signs. Apply to the Southold Town Trustees for ----------------------------------------------------- __-- a permit, If permit is denied you must restore area to its ----original_state------------------------------------------- ---------- ----------------------------------------------------------------------- 4th 83 on or before -_ --- ----day of --March ------- 19-— --- The premises to which this Notice of Violation refers are situated at: ____ Queens lane.- Southold -------------------------- town or Southold Suffolk County, W.J . (Suff . County Tax Map Designation: Dist. 1000 Section:-- 040 _ --Block:-- A ----Lot:-6---_� Failure to comply with the applicable provisions of the law may constitute an offense punishable by fine or imprisoNnent or both. NOTICE: You have the right to apply for a hearing before the Board of Trustees of the Town of Southold, provided that y'ou file a written request with the Clerk of the Trustees within 10 days after service- of the Notice of Violation. Such request shall have annexed thereto a copy of the Notice of Violation upon which a }searing is requested and shall set forth the reasons why such notice of violation should be modified or rescinded, �7 Bay Con table,Town o Southold, Y EXHIBIT 10 NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION ; Division of Fish and Wildlife Bldg. 40, SUNY ' Stony Brook, New York �11794 ' (516) 751-7900 NOTICE OF VIOLATION Date of Violation: March 2, 1988 + Location: Queen St. , Greenport, IdY x ' s Permit Number (if applicable) : Dear Its. Linda Wilton P.O. Box 158, Greenport, NY 11944r x} Records of this Department indicate that you are in violation of the Environmental Conservation Law Article 15, Protection of Waters,(,. Seation 15-0501, 0503, 0505 , Article 15, Wild, Scenic and Recreational,1Rivers, Section 15.-2709, 15-2710 ,/g/ Article 24, Freshwater Wetlands, Section 24'0701, 0703 Article 25, Tidal Wetlands, Section 25-0401 '. In that you caused, or permitted to be caused: clear-cutting of vegetation and the placing of fill in a freshwater wetland. A violation of this/these Articles of the E.C.( i ( ) L., is'punishable by a fine of not•more than $3,000 and/or $10,000. j You are hereby directed to cease your operation at the referenced location immediately. Failure to do so may result in additional violations and possible criminal prosecution- Please contact the Bureau of Environmental Protection so that we may attempt to resolve this'matter, sincerely. i CT r dran M. Panek �S �p:ki R nalupervisor...of . Natural Resources..;,:.% EXHIBIT 11 i FOAM NO.3 n TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD,N.Y. NOTICE OF DISAPPROVAL Date . .o ."t! •4�. . .�. . . : . . ., 19 . . V To . . . . . . . . . . . . . . . . . . . . . . . . . PLEASE TAKE NOTICE that your application dated . . �:��-:� . . . . .,�. . .. 19 .�.�.?�. for permit to < . . 4r. . b4.� . . .�. .-?.4- . . . . . . at Location of Property . - � .S-S-e�O-!�t . .!�!� :�,. . . . . ..'�� .c�.{�. . . House No. �q Street Hamlet County Tax Map No. 1000 Section . . . . . Block . . . . . . . . . Lot . . . . . . . . Subdivision . . . . . . . . . . . . . . . . . Filed Map No. . . . . . . . . . . . , Lot No. . . . . . . . . . is returned herewith and disapproved on the following grounds 3.74 . . . . . . . . . . . . . . . . . . . . �. .�.� c. . .-Q- : . . . . . . . . . . '. � :. .� . . . . .�- r :: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • . • • . . . . . • • • • • • w • • • • • • • . • • • • • • • • • • • • • • . • • • • •.• • • • • • • • • • • • • i • • ♦ • • • • • • . . . • • • • . • • • . . • • • • •.• • • ♦ • • • . • . . . . • • • • • • • • • • • • • • • • • • • • • • r • • • • . . • • • • • • . . . . . . • • ♦ • . • . • . • • . . • • • • . • . • . • • . • • • • • • • • • • • . • • a • • •.• • • • • • • • • • • • • • . . . • . • • . • • • • . • • • . . • • . • . • • . • . . • . • . • • . • • • • • • • • • • • • • . • • • • • • • • • • • • • • . . . . . . . . . . . . . . . . . . . . . Building Inspector i RV 1/80 e EXHIBIT 12 . z FRANK A. KUJAWSKI, JR., President cm TELEPHONE ALBERT J. KRUPSKI, JR., Vice-President � JOHN M. BREDEMEYER, III O (516) 165-1892 JOHN L.HENRY P. KI,JR SMITH BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 728 Southold, New York 11971 October 13, 1988 Mr. Richard F. Lark ATtorney At Law Main Road, P.O. Box 973 Cutchogue, New York 11935 Re: Linda Wilton - Application No. 629 1000-040-03-p/o 06 - 10-88-0768 Dear Mr. Lark: The following action was taken by the Board of Town Trustees during their regular meeting held on September 29, 1988 regarding the above matter: RESOLVED that the Southold Town Trustees RESCIND their Lead Agency Status regarding the application of Linda Wilton until the D.E.C. Violation is satisfied. Very truly yours, Frank A. K awski, Jr. President Board of Town Trustees FAK:ip cc: D.E.C. 10-88-0768 I EXHIBIT 13 STATE OF NEW YORK,COUNTY OF ss.: I, the undersigned, an attorney admitted to practice in the courts of New York State, x Certification certify that the within m By Attorney m has been compared by me with the original and found to be a true and complete copy. Attorney's state that I am a Affirmation the attorney(s)of record for in the within action;I have read the foregoing and know the contents thereof;the same is true to my own knowledge,except as to the matters therein stated to be alleged on information and belief,and as to those matters I believe it to be true.The reason this verification is made by me and not by The grounds of my belief as to all matters not stated upon my own knowledge are as follows: I affirm that the foregoing statements are true,under the penalties of perjury. Dated: ---------------------------------------------------------------.......................... The name signed must be printed beneath STATE OF NEW YORK,COUNTY OF SUFFOLK ss.: I, Linda C. Wilton being sworn,say: I am Plaintiff a Individual in the within action; I have read the foregoing Verified Complaint m Verification and know the contents thereof-,,the same is true to my own knowledge,except as to Corporate the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. Verification the Of Y L a corporation and a party in the within action;I have read the foregoing and know the contents thereof, and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief,and as to those matters I believe it to be true.This verification is made by me because the above party is a corporation and I am an officer thereof. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Sworn to before me on November `fir 19 88 wt�J � f^� v e�tt 1��; `1 ----- ----------- -- C---------------------------------------------------- qAIL#fa2ERS441 ��� 'N"`r' � The name signed must be printed beneath NOTARY P;BLM,State of New Ynrk � L LINDA C. WILTON No.52-4649134 !Lfalified in Suffolk Couf.t;r STATE OF NEW YOf)1ttlt1(S4*M19W}6*Fefiruary 28. 11,190 ss.: (If both boxes are checked—indicate after names,type of service used.) I'of age and reside at being sworn, say: I am not a party to the action, am over 18 years On 19 I served the within Se vice by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: Personal by.delivering a true copy thereof personally to each person named below at the address indicated. I knew each a ❑ Service on Individual person served to be the person mentioned and described in said papers as a partytherein: t U Sworn to before me on 19 The name signed must be printed beneath it 0 - ro p a Q o p v o o o n 3 co t3' 0 3 o m o xro O _ � c• c D ® � ci D � C a w It m 0 Z. o ° c D a D 0 �' g m m I o Q y Z I ,O.t � m * m O '� o o f�11 W ti O- � � W `' - � p y• n O _ O (9 f CD K a C7CD a 0zZ4N H C� o o O. U] `G� t� `Lyi +d a CD 0 H M y O OFOF {{ (� O 0 N Fes+ (Y o c D a Z b H O o = b n ClO 3 pi C] m � � LQ r � � DQo = d � z p 0H � ETJ ! HO H f m I ® 7d .. CJa0t7 to m o a Fib ?1 iU to z tx ct z O p Q 1-h i-1 d 1 O H CO � M m r fT! Lam] t'y '� �+ s z p > H tr1 1J �J x y M w C7 C!] C H Fd 1-3m tv CD � � r7 m >1 Z LO Ul Vb th OHtrJ QJ w wzi- � O U rZ-]-I � w a �J � � H O t1 x ! At a Special Term, Part II of /vAy� the Supreme Court of the State of New York, held in and for -�'✓V the County of Suffolk, at the Courthouse located at Griffing Avenue, Riverhead, New York, on the 3 day of November, 1988 . PRESENT: Hon. u Justice. ---------------------------------------X LINDA C. WILTON, Plaintiff, ORDER TO SHOW CAUSE -against- NEW YORK STATE DEPARTMENT OF Index No. ENVIRONMENTAL CONSERVATION and THE BOARD OF TRUSTEES OF THE Assigned Justice TOWN OF SOUTHOLD, Defendants. ---------------------------------------X Upon reading and filing the annexed affidavit of Richard F. Lark, Esq. , sworn to the 2nd day November, 1988 , and the Summons and Verified Complaintof the plaintiff Linda C. Wilton, together with the exhibits annexed thereto, let the defendants, or their attorneys, show cause before the assigned justice of this Court, at an I .A.S. Motion Part of this Court, to be held at the Courthouse located at Griffing Avenue, Riverhead, New York, on the 22nd day of November, 1988 , at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an order should not be made and entered pending the trial of this declaratory judgment action and enjoining defendants, New York -1- • ij State Department of Environmental Conservation and the Board of Trustees of the Town of Southold, from holding any hearings, con- ferences or taking any other action with respect to the alleged Notice of Violation dated February 29 , 1988 issued by Southold Town Bay Constable, Kent McCarthy, pertaining to the property of the plaintiff , Linda C. Wilton and Notice of Violation dated March 2, 1988 issued by Frank M. Panek, Regional Supervisor of Natural Resources, New York State Department of Environmental Conservation; and granting such other and further relief as to the Court may seem just and proper. Sufficient cause appearing therefore, let service of a copy of this Order to Show Cause and the papers upon which it is based and the Summons and Verified Complaint, upon the Clerk of the Board of Trustees of the Town of Southold, and the Southold Town Attorney, James Schondebare, Esq. , at Town Hall, Main Road, Southold, New York; and upon Robert Green the Regional Permit Administrator, and Lori J. Riley, the Regional Attorney of the New York State Department of Environmental Conservation, at SUNY, Building 40 , Stony Brook, New York; and upon the Assistant Attorney General of the State of New York, at State Office Building, Veterans Memorial Highway, Hauppauge, New York, on or h before 5 :00 p.m. on November 165� , 1988 , be deemed good and suf- ficient service. ' ` .. J.S.C. NOV 3 39$ii —2- 1u{sa�tL ,',. 6tdEsvlia �• Ee4 oi.�nffot{�Catrnt i SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------X LINDA C. WILTON, f Plaintiff , -against- SUPPORTING AFFIDAVIT NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and THE BOARD OF TRUSTEES OF THE Index No. TOWN OF SOUTHOLD, Defendants. ----------------------------------------X STATE OF NEW YORK: ss . : COUNTY OF SUFFOLK: RICHARD F. LARK, being duly sworn, deposes and says: 1 . I am an attorney at law, duly admitted to practice in the courts of this State with an office at Main Road, Cutchogue, New York. I am the attorney for the plaintiff , Linda C. Wilton and am familiar with the facts and circumstances of this matter. Your deponent submits this Affidavit in support of the motion for a preliminary injunction enjoining the defendant, The Board of Trustees of the Town of Southold (hereinafter referred to as the "Trustees" ) , from taking any further action on the alleged viola- tion contained in the Notice of Violation dated February 29 , 1988 , a copy of which is attached to the Verified Complaint as Exhibit 10; and enjoining the defendant, New York State Department of Environmental Conservation (hereinafter referred to as the "DEC" ) , from taking any further action with respect to a Notice of Violation dated March 2 , 1988 , a copy of which is -1- attached to the Verified Complaint as Exhibit 11; pending a reso- lution of this matter by the underlying declaratory judgment action. 2. Your deponent respectfully refers the Court to plain- tiff ' s Verified Complaint seeking a declaratory judgment, for background facts concerning this action and the matters set forth herein. A copy of the Verified Complaint is attached hereto as Exhibit A. 3 . Plaintiff contends both defendants, Trustees and DEC, do not have jurisdiction, at all of the times hereinafter mentioned, to issue freshwater wetlands violations as to plaintiff ' s pro- perty. The reason being, plaintiff ' s property and the surrounding land have not been legally classified as "freshwater wetlands" pursuant to the Environmental Conservation Law. The maps as required by the Environmental Conservation Law have not been promulgated by the Commissioner of the Department of Environmental Conservation. At the present time the plaintiff ' s property has not been legally classified as Freshwater Wetlands pursuant to §24-0301 and §24-0107 of the Environmental Conservation .Law. Section 24-0107 of the Environmental Conservation Law defines freshwater wetlands as "lands and waters of the State as shown on the freshwater wetlands map which con- tain any or all of the following. . . "; (emphasis supplied) . The statute goes on to delineate various types of vegetation and plant growth which are capable of being grown on freshwater wet- lands . -2- 6 a j 4. Your deponent realizes 'this point is simplistic, but the definition of freshwater wetlands is strictly statutory and the statute must be followed in order to create freshwater wetlands which is the predicate for a quasi-criminal violation. This is especially so considering a violation can result in the imposi- tion of fines or incarceration. Plaintiff (and her predecessor in title) deny ever receiving any notification the Subject Property was being classified as freshwater wetlands. Even if they did receive such notice, neither the DEC nor its Commis- sioner have complied with Environmental Conservation Law in par- ticular §24-0301 Sub. 5 by creating a final freshwater wetlands map which could be the basis for a quasi-criminal prosecution. 5 . The above also applies to the defendant Trustees because in adopting the freshwater wetlands regulations in the Code of Town of Southold, §97-13 B, the Town Board defined freshwater wetlands as "defined in Article 24, Title 1, §24-0107 , Sub- divisions l (a) to 1 (d) inclusive, of the Environmental Conser- vation Law of the State of New York" . Since the freshwater wetlands maps have not been promulgated by the DEC, there can be no violations as set forth in Exhibit 10 attached to plaintiff 's Complaint. 6 . This lack of a jurisdictional basis is also applicable to any permitting processes under the Environmental Conservation Law and Southold Town Code. After passage of the law by the New York Legislature, the defendant DEC issued extensive regula- -3- i I o tions concerning interim permits which are published in Part 662 of 6 NYCRR; however, the definitions in this freshwater wetlands regulation, in particular, 6 NYCRR 662 .1 (k) states: "Freshwater wetlands or wetlands means lands and water of the State that are sub- ject to regulation under this Part because they have an area of 12 .4 acres or more, or have a smaller area but have been deter- mined by the commissioner to have un- usual local importance because they provide one or more of the benefits of wetlands described in subdivision 24-0105.7 of the act and are listed as such in the office of the appropriate regional permit adminis- trator. " The point being, the plaintiff' s property is only 40 ,000 square feet in area, not 12. 4 acres, and as of either February 29 , 1988 or March 2 , 1988 , the plaintiff ' s property has not been declared to have unusual local importance by the Commissioner which would make plaintiff ' s property subject to the interim regulations at the present time. In fact the DEC Commissioner e was notified by the Southold Town Planning Board on or about August 5, 1986, that a subdivision application was being con- sidered sidered for this property. See Exhibit 5 which is attached to the Complaint. The DEC chose to do absolutely nothing until the plaintiff began to prepare the property for building her home. 7 . Your deponent became involved in this matter after the plaintiff was made aware the defendants had issued Notices of Freshwater Wetlands Violations against her property. It is your deponent' s understanding this was the first time plaintiff had knowledge her property was even considered freshwater wetlands as -4- i defined in the Environmental Conservation Law. An inspection of t Subject Property indicates there is no question plaintiff ' s property is lower than some of the surrounding property and con- tains some of the statutorly defined type of vegetation as set forth in the Environmental Conservation Law. Further, there is no question that plaintiff caused fill to be placed on portions of her property in order to create an access driveway. See topographical survey of Young & Young, dated July 29 , 1988 , which is attached hereto as Exhibit B. 8 . At the time of receiving the Notices of Violations, copies of which are set forth in Exhibits 10 and 11 of the Complaint, plaintiff was faced with the dilemma of ignoring the Notices and proceeding with the filling of her property or stopping the filling process and checking out what the alleged violations meant as applied to her property. The plaintiff to her detriment opted for the latter course and filed applica- tions before both defendants to clarify the situation so she could proceed to obtain a building permit on her property and close on her mortgage commitment with Southold Savings Bank. Because of the confusion that ensued, plaintiff became involved in the usual procedural morass which occurs in these matters. The result being, for over eight months nothing has happened except plaintiff has not been able to close on her mortgage com- mitment and has been denied a building permit until the matter is .resolved. -5- I i I � I �k 9. Both of the defendants to the present time are reluc- tant to make a decision concerning plaintiff ' s request to obtain a clarification as to whether her proper Y-is statutorily defined as freshwater wetlands, and whet r in fact she h ossible violation on her property. The result being, plaintiff has been prevented for over eight months from building, which is her legal right under the facts of this case. In spite of plaintiff ' s repeated requests of the defendants to clarify the situation and admit they are wrong in legally classifying her property as freshwater wetlands, the defendants have informed your deponent they have more important matters to consider. Despite the fact there is water ortions of her lot, this in itself does not make it freshwater wetlands as defined under the Environmental Consermationw because there are no final maps Promulgated by the DEC Commissioner. In fact, in March, 1988 Plaintiff was informed by the local Environmental Conservation Officer, Mr. Obenauer, that her property does not contain fresh- water wetlands and he filed such a report with the DEC. 10 . At a conference with the defendants on August 29, 1988 , Paul Carella, the freshwater wetlands expert representing the defendant, DEC, admits there are no freshwater wetlands maps for this area; however, he stated unless all the fill is removed, the DEC was not going to consider any type of clarification to plain- tiff ' s property. Further, plaintiff was informed if she did not remove the fill she would be required to appear before the -6- i DEC Regional Attorney where she would be assessed fines and g Y required to remove this fill. Plaintiff pointed out Officer Obenauer had made an inspection of the property and informed her due to the facts and circumstances that it was not freshwater wetlands . Whereupon, Mr. Carella became defensive and stated he was going to recommend to the DEC Regional Attorney to classify the property as freshwater wetlands, so that no building can take place. 11 . At the August 29 , 1988 meeting where plaintiff ex- plained her circumstances, Mr. Carella appeared not to be inter- ested and merely stated he wanted no construction on the property. When plaintiff further indicated DEC Officer Obenauer had filed a report that her property was not fresh water wetlands, Mr. Carella acknowledged he had seen such a report, but would not allow anyone to see it. Therefore, plaintiff requested a copy of this report from the Freedom of Information Officer and has been denied a copy. See letter of Roslyn L. Orenstein, dated October 12, 1988 which is attached hereto as Exhibit C. 12 . If the defendant DEC ever decided to act on the alleged violation from the foregoing proceedings, it is a foregone conclusion as to the result. This is not at all fair to the plaintiff but will prolong litigation, which a declaratory judgment can resolve. 13 . It is evident when all the facts of this case are pre- sented to an impartial forum such as this Court, plaintiff will -7- III be successful. Therefore, the only appropriate course of action for the plaintiff to pursue is to seek a declaratory judgment because the sole question is whether or not as a matter of law® gla_intiff ' s property comes within the statutory definition of reshwater wetlands. If the court finds it is not freshwater wetlands, then these alleged violations will be nullified and plaintiff will be able to obtain a building permit and hopefully reinstate her mortgage commitment which has lapsed, and continue with the construction of her home. If on the other hand, for somE reason the Court finds that plaintiff' s property comes within the purview of the Freshwater Wetlands Act as defined in Article 24 of the Environmental Conservation Law, then the plaintiff will have to proceed to clear the alleged violations with the DEC. The point being, plaintiff seeks to avoid irreparable injury where the question is a matter of law whether or not the plain- tiff ' s conduct on February 29, 1988 and March 2 , 1988 was in violation of the Environmental Conservation Law and Southold Town Code. A declaratory judgment will not interfere with the defen- dants ' administration of the freshwater wetlands, but without it the plaintiff is under an unnecessary hardship if she is required to proceed without obtaining a clarification of her rights. 14 . The institution of this lawsuit will result in the defendants taking action on plaintiff ' s applications. In the event the defendants are not enjoined from proceeding with the alleged violations, irreparable injury will result to the plain- tiff . Plaintiff will be required to litigate before defendants a matter for which they do not have jurisdiction. The defendants -8- i are already predisposed as to their decision which is certain to result in an Article 78 proceeding to have it determined by this court, whether or not the defendants did have jurisdiction over the violations. What an enormous waste of time and money! In fact, it could be years (it has already been eight months and nothing has happened) before a final determination is reached. During the period of litigation the controversy will not be resolved, plaintiff will not be able to build her home. Further, plaintiff will not be able to financially sustain the litigation, as the defendants have enormous financial resources to waste on this type of litigation. The delay will mean plaintiff will not be able to use and enjoy her property, which in effect is a tem- porary de .facto taking of her property under the color of the police power of these governmental agencies. 15 . The equities upon this application for preliminary injunction are clearly balanced in favor of. the plaintiff . If the defendants do not have jurisdiction, an adverse determination following a conference by the DEC acting upon the alleged viola- tion will result in economic injury for plaintiff pending appeal . Plaintiff will lose the economic use of her property, could be forced to remove the fill and face possible fines, and incur burdensome and unnecessary legal expenses. The defendants, on the other hand, have no compelling need to proceed expeditiously for the resolution of the violations or take any other action with respect to plaintiff ' s plight in that defendants have effec- tively estopped plaintiff from building on her property which is their stated purpose. -9- I i 16 . No prior application has been made for the relief sought here to this or any other court. WHEREFORE, I pray that the annexed order to show cause issue and that the defendants be preliminary enjoined concerning the Notices of violation dated February 29, 1988 and March 2, 1988, pending the resolution the or rights of the parties in the under- lying declaratory judgment action. R&GHARD F. LAR Sworn to and subscribed before me this 2nd day of November, 1988 . Notary is GALL KOZERSK! NOTARY PUBLIC,State of*Mt York No.52- 60134 Qualified in Wua 1990 emission ExG R -10- i n SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------X LINDA C. WILTON, Plaintiff, -against- VERIFIED COMPLAINT NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and THE BOARD OF TRUSTEES OF THE Index No. TOWN OF SOUTHOLD, Defendants. ---------------------------------------X Plaintiff, by her attorney, Richard F. Lark, Esq. , complain- ing of the defendants herein, alleges as follows: AS AND FOR A FIRST CAUSE OF ACTION ON THE PART OF THE PLAINTIFF 1 . Linda C. Wilton, thereinafter referred to as "plain- tiff" ) , is a resident of West Street, Greenport, Suffolk County, New York. 2 . At all times hereinafter mentioned the defendant, New York State Department of Environmental Conservation thereinafter referred to as the "DEC" ) was established by Chapter 140 of the Laws of New York, 1970 and maintains a regional office at Building 40, SUNY, Stony Brook, New York and has the respon- sibility for regulating fresh water wetlands within the State of New York, as defined in Article 24 of the Environmental Conservation Law. 3 . At all times hereinafter mentioned the defendant, The -1- EXHIBIT A A f Board of Trustees of the Town of Southold (hereinafter referred to as the "Trustees" ) is an elected body created by the State of New York Legislature, (Chapter 615 , Laws of New York, 1893 , as amended) ; and has been designated by' Southold Town Local Law 6-1984 , as the authority for issuing permits in the Town of Southold for freshwater wetland operations as defined in Chapter 97 of the Code of the Town of Southold. 4 . Plaintiff is the owner in fee simple of certain real property located at 825 Queen Street, Greenport, Town of Southold, Suffolk County, New York (SCTM District 1000 , Section 04 .00 , Block 03 .00 , Lot 6.002 ) by virtue of a gift from her father, Richard C. Wilton, by deed dated August 31, 1987 and recorded in the Suffolk County Clerk' s Office in Liber 10424 page 108 , (hereinafter referred to as the "Subject Property " ) a copy of which deed is attached hereto and made a part hereof as Exhibit 1. 5 . Plaintiff' s predecessor in title purchased the Subject Property which is part of a larger parcel, formerly used as a migrant camp containing four buildings on 1. 8471 acres of land, by deed dated October 30 , 1985 , which deed was recorded in the Suffolk County Clerk' s Office in Liber 9914 page 461, a copy of which is attached hereto and made a part hereof as Exhibit 2 . 6 . On or about November 1 , 1985 , plaintiff ' s predecessor in title in order to construct a dwelling for himself , and to pro- -2- vide a buildable lot for plaintiff , began to clear the property of debris and tear down the existing migrant labor camp buildings . In the process of clearing the lot he created a small berm in the rear portion of the- Subject Property, which now traps street water which flows on the Subject Property from Queen Street. 7. On or about January 10 , 1986 , plaintiff ' s predecessor in title filed an application with the Southold Town Planning Board to subdivide the property into two buildable lots, and applied to the Southold Town Zoning Board of Appeals for an area variance to divide the premises into two 40 ,000 square foot parcels . 8 . On or about March 20 , 1986 , plaintiff ' s predecessor in title obtained a building permit to construct a one-family resi- dence on the southerly portion of the premises and thereafter began construction. A copy of the building permit dated March 20 , 1986 is attached hereto and made a part hereof as Exhibit 3 . 9 . On or about May 9 , 1986 , the Southold Town Zoning Board of Appeals approved the subdivision by granting an area variance for the property to be subdivided into two building lots. A copy of the Zoning Board of Appeals Decision dated May 9, 1986 is attached hereto and made a part hereof as Exhibit 4. 1 10 . On or about August 5 , 1986 , The Southold Town Planning 3 Board gave notice declaring itself as lead agency under Article 8 i -3- } of the New York Environmental Conservation Law on the application for the subdivision into two lots for single family residences. The Southold Town Planning Board found the subdivision applica- tion did not have a significant impact on the environment and notified the defendant DEC and its Commissioner, along with other interested parties of said application. A copy of said Southold Town Planning Board' s Negative Declaration is attached hereto and made a part hereof as Exhibit 5 . 11 . On or about August 10 , 1987, the Southold Town Planning Board approved the minor subdivision application of Richard C. Wilton. The Planning Board Resolution is attached hereto and made a part hereof as Exhibit 6 , and a copy of the approved subdivi- sion map is attached hereto and made a part hereof as Exhibit 7. 12 . Plaintiff ' s predecessor in title, Richard C. Wilton, completed the construction of his residence with public water and sewer being supplied by the ,Village of Greenport. A copy of the Certificate of Occupancy from the Town of Southold is attached hereto and made a part hereof as Exhibit 8; and a copy of a letter dated March 19 , 1987 from James I . Monsell is attached hereto and made a part hereof as Exhibit 9 . 13 . On or about January 21, 1988, plaintiff obtained a mortgage commitment from Southold Savings Bank subject to peti- tioner obtaining a building permit from the building inspector of the Town of Southold. -4- 14 . In and about the month of February, 1988, plaintiff began to construct a driveway to gain access to the rearportions of the Subject Property to begin construction and to remove the berm in the rear of the Subject Property so the accumulated water could flow freely into Moores Woods as it had done previously. 15 . On or about February 29 , 1988 , the work stopped when plaintiff ' s predecessor in title, Richard C. Wilton, was served with Notice of Violation of the Code of the Town of Southold Chapter 97, Article II, Section 20 , for allegedly filling fresh- water wetlands without a permit upon the Subject Property. A copy of said Notice of Violation is attached hereto and made a part hereof as Exhibit 10 . 16 . On or about June 10 , 1988 , plaintiff received by registered mail a Notice of Violation dated March 2, 1988 , from the defendant, DEC, alleging violations of the Environmental Conservation Law Article 24., §24-0701, §24-0703 for allegedly filling in freshwater wetlands without a permit upon the Subject . Property. A copy of said Notice of Violation is attached hereto and made a part hereof as Exhibit 11. 17 . Thereafter plaintiff, in an attempt to have the matter clarified, caused an application to be filed with the Trustees and the DEC to clear the property of violations and proceed with the filling of portions of the Subject Property in order to com- mence construction of a home. On July 21, 1988 the defendant -5- f Trustees informed plaintiff the Trustees would not act until the defendant DEC decided the matter, regardless of whether there I were any violations under the Code of the Town of Southold. 18 . On August 29 , 1988 , a meeting was held with Paul Carella, a freshwater wetlands expert employed by defendant DEC, the President of the defendant Trustees, Frank A. Kujawski, Jr. , and Southold Town Attorney, James Schondebare; wherein plaintiff informed defendants her property was not freshwater wetlands as defined in Article 24-0107 of the Environmental Conservation Law and 97-13 B of the Code of the Town of Southold. Paul Carella stated the DEC' s position was that in spite of the fact there was no freshwater wetlands map promulgated under §24-0301 of the Environmental Conservation Law, the plaintiff was considered to be in violation of the Law. Further, she had to remove all fill from her property or have a hearing before the Regional Attorney. where she would be found guilty and required not only to remove the fill but pay a fine, and not be allowed to build a home on the Subject Property. 19 . Subsequently on September 8, 1988 , the building inspec- tor disapproved plaintiff' s application for a building permit until all violations of defendants, Trustees and DEC, were cleared. A copy of the Notice of Disapproval dated September 8 , 1988 , is attached hereto and made a part hereof as Exhibit 12 . 20 . On September 29 , 1988 , defendant Trustees passed a -6- n I resolution rescinding their "Lead Agency Status" until the DEC violation is satisfied. A copy of said resolution is attached hereto and made a part hereof as Exhibit 13 . 21 . On or about February 29 , 1988 and March 2, 1988 the defendants, Trustees and DEC, did not have jurisdiction as to plaintiff ' s Subject Property pursuant to the Environmental Conservation Law and the Southold Town Code because the Subject Property is not a defined freshwater wetlands and does not con- tain an area of 12 .4 acres, and the Commissioner of Environmental Conservation has not determined that the Subject Property is of unusual local importance as provided in 6 NYCRR §662.1 W . 22 . Plaintiff has the lawful right to construct a one- family dwelling on the subject property without interference from the defendants because at the present time the defendants have no jurisdiction over the Subject Property because said property has not been declared to be statutory freshwater wetlands. 23 . Upon the foregoing a serious dispute exists and there is a justiciable controversy between the parties to determine whether the plaintiff ' s Subject Property fails to come under the definition of freshwater wetlands as defined in Environmental Conservation Law §24-0107 and Southold Town Code §97-13 B and thereby is not subject to regulations or violations of this sta- tute and ordinance.. This court is the only forum that can final- ly determine and interpret the rights of the parties. -7- I a? 24 . Plaintiff has no adequate remedy at law except pursuant r to this cause of action. s i r AS AND FOR A SECOND CAUSE OF ACTION ON THE PART OF THE PLAINTIFF 25 . Plaintiff repeats, reiterates and realleges each and r every allegation contained in Paragraphs 1 through 24 herein. 26 . Plaintiff will be irrevocably harmed by submitting to the jurisdiction of the defendant DEC as this defendant has already made a pre-determination in spite of the fact that Article 24 of the Environmental Conservation Law has not been followed by the defendant, DEC. 27 . Upon information and belief the defendant DEC intends to require removal of all fill placed on the Subject Property by the plaintiff, fine the plaintiff an undetermined sum, and pre- vent plaintiff from building her residence on this property. 28 . The actions of the defendants have prevented plaintiff from obtaining a building permit from the building inspector of the Town of Southold (Exhibit 12 ) in spite of the fact the Sub- ject Property meets all legal requirements for the construction of a one-family dwelling and has received approval for the installation of public water and sewage as provided by the 'Village of Greenport. 29 . Plaintiff ' s right to obtain the building permit is -8- protected by the United States Constitution and the New York State Constitution, and plaintiff cannot be deprived thereof without due process of law. WHEREFORE, plaintiff prays for a judgment as follows: (a) On the First Cause of Action for a declaratory judgment declaring that: ( i) At the time of the alleged violations (Exhibits 10 & 11 hereof ) plaintiff ' s Subject Property was not classified as freshwater wetlands under the Environmental Conservation Law, and therefore there were no violations of the Environmental Conserva- tion Law or the Code of the Town of Southold. (ii ) , That the Notice of Violation dated February 29 , 1988 issued by the Southold Town Bay Constable (Exhibit 10 ) is invalid as applied to plaintiff ' s Subject Property. ( iii ) The Notice of Violation dated March 2, 1988 issued by defendant DEC is invalid as applied to plaintiff ' s Subject Property. (iv) The interim permit regulations of the defendant DEC do not apply to plaintiff ' s Subject Property because the alleged freshwater wetlands area is less than 12 . 4 acres and the Commissioner of defendant DEC has not made an affirmative finding that plaintiff ' s Subject Property and the lands adjacent thereto are of unusual local importance for specific benefits as provided in §24-0105 .7 of the Environmental Conservation Law. -9- }k (b) On the Second Cause of Action declaratory judgment determining that the aforesaid conduct of the defendants impedes and deprives the plaintiff of her right to obtain a building per- mit and to construct a one-family dwelling on the Subject Property, and said conduct constitutes a deprivation of plain- tiff ' s rights under the United States Constitution and New York State Constitution, all without due process of law. (c) Costs and disbursements of this action, and such other, and further relief as to the Court may seem just and proper. RICHARD F. LARK, ESQ. Attorney for Plaintiff Office & P.O. Address Main Road - P.O. Box 973 Cutchogue, New York 11935 (516 ) 734-6807 I E i -10- r.rin Mao,1146-20K—Ih.re.In.n4 SO,i1...1. It 1112--1-1.g.1n.t(1,. 1u'.Atu—IndI,Id.*1 er Corpunllun.I.Inglr.11,-41 CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT—THIS INSTRUMENT SHOULD ON USED BY LAWYERS ONLY. NO N.Y.SR T . 10424 K108 '• YtANS1?� ' TAX TAt1PS THi31NDENIURE.made the 31st day of August •nineteen hundred and eighty—seven' REQUIRED BETWEEN RICHARD C. WILTON and ANITA C. WILTON, his wife, residing at 2605 Deep !tole Drive,, Mattituck, New York party of the first part,and LINDA C. WILTON, residing at (no 11 Main Street, Greenport, New York party of the second part. WITNESSETII,ttiat the patty of the first ,In consideration of Ten Dollars and other valuable consideration paid by tile party of the second part,does Itereby grant and release unto the party of the second part,the heirs for successors and assigns of lite party of the second part forever, ALL that certain plot,piece or parcel of land, with the buildings and improvements thereon erected, situate, lyittgand being ht-00t Arshamomaquer Town of Southold, County of Suffolk and State of New York, lying on the easterly side of Queen Street, a private road,bounded and described as follows: BEGINNING at a stake set on the easterly side of Queen Street, a private road 33 feet wide, which said point is distant southerly 499.98 feet from the corner formed by the intersection of the southerly side of North Road (C.R. 48) with the easterly side of Queen Street, and from said point of beginning; running thence along the southerly side of the land now or formerly of Ronald and Barbara Edeen, North 61° 17' 20" East 238.68 feet to a stake set and land now or formerly of Daniel G. Conklin; thence along said last mentioned o land, h 10 45' 30" East 114.47 feet to a IP stake sett an5d land�o o(rhe cif Yage of Greenport; thence along said 1N8'6 �f QtT"&11'llage of Greenport, South 01 51' 20" West 91.77 feet to a point; running thence through other land of the party of the first (tart, South 61° 17' 20" West 198.59 feet. to a point on the easterly side of Queen Street; running thence along the easterly side of Queen Street, North 3.1".17' 10" West 190.60 feet to a stake set on the easterly side of Queen Street and the point or place of BEGINNING. BEING AND INTENDED TO BE, part of the same premises conveyed to the party of the first part by deed dated October 30, 1905 and recorded in the Suffolk County Clerk's Office on November 14, 1985 in Liber 9914 Page 461. TAX HAV Premises are not subject to a Credit Line Mortgage., I ENIGNIALION nt.t.1000 TOGE"I'llhat pith :III right,lisle and interest,it any,of the party of the first part in and to ally streets and ncnls abutting the n1Hwe described premises to(lie center lines thereof;TUGGTIIER with the appurtenances S e.040.00 and all the estate :sod rights of the party of the first part in and to said remises; TO 1tAVl. AND TOIIUI.0 the premises herein granted unto the party of We second part,the 1te(rs or successors and assigns of hll. 03.00 the party of lite second part forever. tat t if: 006.00A AND the party of lite first part cuven:utts than the Iztrly of lite first part has not done or suffered anylldng whereby the said pleinises have been coctnnbered in any way whatever,except as aforesaid. AND the party of the first part, in compliance with Section 13 of the Lien law,covenants that the party of tite first part %%ill receive lite coti6irt ition for this conveyance and will hold the right to receive such consid- `�, cration as a trust fund to be applied first for the purpose of paying the cost of the improvement and will apply the same first t"the lwtymeut of the cost of the improvement before using any part of the total of the smile(or any other purpose. The wind"party"shall be construed as i( it read "patties" whenever the sense of this indenture so requires. 5+ IN WITNESS WHEREOF,the party of the first part has duly executed this deed the day and year first above ,•, written. ,{ IN PRESENCE OF['Ii RK LEALES ia4 E rG CL Wiltongtc.a AX An to C. Wilton EXHIBIT 1 I ICI I . , 10124 K109 ETA OF EW YORK,COUNTY OF SUFFOLK an STATE OF NEW NORK,COUNTY OF gap On the 319tday of August 1987 ,before me On the day of 19 , before me personally came RICHARD C. WILTON and personally came ANITA C. WILTON to me known to be the individual a described in and who to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that executed the foregoing instrument, and acknowledged that they executed the same executed the same. Notary Publ c DARBARA DIACHIIN NOTARY pUOIIC,Stale of New York Na.4635190,SOO*County Commission Espiles October 30,1988 STATE OF NEW YORK,COUNTY OF sat STATE OF NEW YORK,COUNTY OF sst On the day of 19 , before me On the day of 19 , before me personally came personally came to me known,who,being by me duly sworn,did depose Bull the subscribing witness to the foregoing instrument, with say that he resides at V. whom I am personally acquainted, who, being by me duly sworn,did depose and say that he resides at No. that he is the ' of that fie knows the corporation described in and which executed the foregoing instrument; that he to be the individual knows the seal of said corporation; that the seal affixed described in and who executed the foregoing instrument; to said instrument is such corporate seal; that it was so that he, said subscribing witness, was present and saw affixed by order of the board of directors of said corpora- execute the same;and that he, said witness, (ion, and that he signed It . name thereto by like order. at the same time subscribed h name as witness thereto. 3151al:gi fn anb Fride ;DEEb SECTION Willi COVENANT AGAINST GRANItnt's ACIS TITLE No. BLOCK LOT RICHARD C. WILTON and ANITA C., COUNTY OR TOWN WILTON TAX Brt.uKc ADDRESS TO • �: . it , L I NDA C. WILTON Racaded At A"uest d Tim TNIe Oumantes Company i' '•� RETURN BY MAIL TO: --- -- -- -- — ----- _ — Richard F. Lark, Esq. Main Road P. O. Box 973 Cutchogue, New York 11935 TICOR TITLE GUARANTEE Zip N.. o e�E O a - o'= � air e"r+l t� C,) o o W n rn ae'tCA ss o sf ae SC r!.,r i;;llt CV i 12 �-aC= LIBEH 0914 FAGE 4Gi Indenture,made the 30 day of October nineteen hundred and eighty-fwe r Between R013II2T BOLLING Residing at 439 Second Streetr Gzeenport, N.Y. '. Party of the first part,and RICH7M C. WILTON and ANITA C. WILTON, his wife Residing at RR *1 Bix 91A , 2605 beep wHole Drive, Mattituckr N.Y, party of the second part, Witnesseth,that the party of the first part,in consideration of Ten Dollars and othervalueble consideration paid by I the party of tire second part,does hereby grant and release unto the party of the second part,the heirs or successors and assigns of the party of the second part forever. All that cer lain plot,piece or parcel of land,with the buildings and imptovements thereon erected,stluate,lying and being in IbWXArsTkimotrique., Town of: Southold, County of Suffolk and State of New York, lying on the easterly side of Queen Street, a private rode bounded and described as follows: BEGINNING at a stake set on the easterly side of Queen Street, a private road 33 feet wide which said point is distant southerly 499.98 feet from the corner formed o U by the intersection of the south-rly side of North Road, C.R. 48, with the easterly 70--e0 side of Queen Street, and from said point of beginning; RL"'tiG III"" ATCM 'IIIE SO[MIERLY side of the land now or formerly of Ronald & 3 o 0 Barbara tideen, north 61°1712.0" East 238.68 feet to a stake and land now or formerly Daniel G. Conklin; 771ENC.'S along said last mentioned land, South 1"45'30" East, (,C)07 114.47 feet to a stake and land of the Village of Greenport; THENCE along said land of the Village of Greenport, South 0051'20" West, 457.10 feet to a stake set on the northeasterly side of Queen Street; TIiENCE along the northeasterly and easterly side / of Queen Street, the following three courses and distances: (1) Nor1--li 48°43'50" West, 195.90 feet; (2) North 8017'20" West, 123.70 feet; + (3) North 110 17'10" West, 209.22 feet to the point or place of BEGINNING. 13EING AND INI7MFI) TO DR the same premises conveyed to Robert Bolling by deed made by Jean 11. 711thill, as the County Treasurer of the County of Suffolk , dated 2/10/81 recorded 2/11/81 in Liber 8959 cp 374 in the office of the Suffolk County Clerk. Together with all right,lisle and Interest,if any,of the party of the first part in and to any streets and roads abutting fire above described premises to the center lines thereof;Together with the appurtenances and all the estate and rights of the pmty of the first part in and to said prernises;To Have And To Hold the prernises herein granted unto the party of the second par 1,the heirs or successors and assigns of the party of the second earl forever. And the party of the First Part covenants that the party of tine first part has notdoneor suffered anything whereby the siid prernises have been encumbered in any way whatever,except as aforesaid. And the party of the first part,in compliance with Section 13 of the Lien Law,covenants that the party of the first part will receive the consideration for this conveyance and will hold the right to receive such consideration as a mist fund to be applied first for the purpose of paying the cost of the improvement and will apply the same first to thepsyment Of the cast of the trrrprovernent before.using any part of lire total of Ilia,same for any other purpose. 1110 word"early"shall be construed as if it read"patties"whenever the sense of this indenture so requires. In Witness Whereof,the party of the first part has duly executed this deed the day and year first above written, IN ENCE OF: dv:o $. .f 6"°GII M BolRom .- TA1'E NOV 14 1885 13 ` TFIW^FIg1TAX + ' it1Fi^:.11.1C . C(."UNTY ------.._-__. EXHIBIT 2 I I L. A V .'kEW YORK.COUNTY OF SUFF)LX as: STATE OF.NEW YORK.COUNTY OF as: .f lfi`e 'jd'day'of October ,,', 19 85 before meOn the.. .`' day . . Personally came of 19 before me personally same ' Robert Bolling to me known to be the individual described In and who to me known to be the Individual described in and who executed the foregoing instrument, and acknowledged executed the foregaing Instrument, and acknowledged that he exe the same. that executed the some. NOTAR UVUC,StateofNfuryak 116.62-4.17142Z OueL M Suff^C Comfrdfakxr Expires March 20,19.,4 STATE OF NEW YORK,COUNTY OF �� "" sa: STATE OF NEW YORK,COUNTY OF as; On the day of 19 before me On the day of 19 , before me personally came personally came to me known,who,being by me duly sworn,did depose and the subscribing witness to the foregoing instrument, with say that he resides at No. whom 1 am personally acquainted,who,being by me duly sworn,did depose and say that • he resides at No. That he is the ;that he knows of to be the Individual the corporation described described in and who executed the foregoing instrument; In and which executed the foregoing Instrument; that he that be, said subscribing witness, was present and saw knows the seal of said corporation;that the seal affixed to said Instrument is such corporate seal; that it was so affixed by execute the same;and that he,said witness, order of the board of directors of said corporation, and at the same time subscribed h name as witness thereto. that he signed h name thereto by like order, SECTION Rgurgilin aub ealt 11rrl BLOCK With Covenant Against Grantor's Acts LOT Title No. _ Cm OR TOWN of Southold COUNTY Robert Bolling aaeorded of RAoveet of TO U:UFE c TITLE"INSSUR�ANCE mpofNewk Richard C. Wilton etux RETURN 9Y MAIL TO Richard F. lark, Esq. Standard Form of New York fbin Rd. Board of Tltl@ M Uederwrllen bind�uted Cutchogue, N.Y. 11935 ' 4 -11FE TITLE INSURANCE 21p No. Company o1 New York 0 s �1titl;Jb¢� �� tf e W � � 5g,Nti z- 11 h1 nax r FORM no. t) ' TO WN W N OF SOUTIIOLD BUILDING DEPARTMENT TOWN IIALL SOUTHOLD, N. Y. BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) �T tl14681 Z Dote ........hi .4... .Q............... Permission is herebi granted to: ..�.1 ,; ......c...... .: ............. ...11A.. ............................................... 40-.T `r....... .u� � .!ems,►,.... 4- +a... ...... .... ..rL-:?►:�:{ '....��.. ..... �?... .C.a.......�.......... �-�, . ....,..�.<•..... .... . ..::.:.................I............................ of premises located at ..... .. .. ............................. .................................................................. .�.... .. ....................................................................... ................................................................................................................................................................. County Tax Map No, 1000 Section 1P...... Block .......4 .. ►..... Lot No. .. ........... pursuant to application dated .. 1 11 ....•.......... ., 9..�.�P, and approved by the Building Inspector. ��•. Fee $.2Z............ r . . ............... ............................................ Building Inspector Rev. 6/30/BO EXHIBIT 3 I - i Southold TowiI Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTH OLD. U., N.Y. 11971 TELEPHONE 15161 765.1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3456 Application Dated January 17, 1986 (Public Hearing March 13, 1986) TO: itichard F. Lark, Lsq. as [Appellant(s)] Attorney for RICHARD AND ANITA WILTON Main Road, Box 973 , Cutchogue, NY 11935 r At a Meeting of the Zoning Board of Appeals held on ri_A p 1 16, 1986, the above appeal was considered, and the action indicated below was taken on your ( ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a ( ] Request for Special Exception under the Zoning Ordinance Article , Section (X ] Request for Variance to the Zoning Ordinance Article III , Section 100-31 , Bulk Schedule I 1 Request for Application of RICHARD AND ANITA WILTON for a Variance to the Zoning Ordinance, Art�cTe lIl , Section 100-31 , Bulk Schedule, for approval of proposed lots having-Ansufficient area, width and/or depth in this pending division of land, located at the East Side of Queens Street, Greenport, NY; County Tax Map Parcel No. 1000- 40-3-6. in the WHEREAS, public i a held and conluded on Matter oftheApplicationofRICHARD ANDCANITA WILTON cunder Appe No. 3456; and ppeal WHEREAS, the board has considered all testimony and documentation entered into the record concerning this application; and WIILRLAS, the board members have personally viewed and are familiar with the premises in question, as well as the surrounding area in this Residential and Agricultural Zoning District; and WHEREAS, the board made the following findings of fact: 1 . The property in question has a frontage (lot width) of 332.92 feet along the east side of Queen Street, Greenport, and is identified on the Suffolk County 'Ta,x' Maps 'as District '1000, Section 40, Block 3, Lot 6. ... 2. The premises as exists contains a total area of 1 .8471 acres, and it is indicated on survey updated December 10, 1985 that premises was of recent date improved with four structures: (a) frame building set back 47.2 feet from Queen Street at its closest point, (b) acces- sory shed structure situated north of the frame building in "(a)" supra, (c) two frame accessory buildings encroaching over the front property line along Queen Street, which are to be removed or have, as of the date hereof, been removed. 3. By this application, appellant requests approval of insufficient area and depth of two proposed parcels: (a) Lot M1 (CONTINUED ON PAGE TWO) DATED: May 9, 1986. CIIAIRRAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS , Form ZD4 (rev. 12/81) EXHIBIT 4 Page 2 - Appeal No. 3456 Matter of RICHARD AND ANITA WILTON " Decision Rendered pri 16, 1986 of 00 area Lot4#20of 40,460.sgr.� ft. innareaeandeaverageth odepth.63 of 197t24 feet. 4. For the record it is noted that the prior nonconforming use of this premises as a preexisting nonfarm labor camp has been terminated for a number of years, and that the parcel will be used for such single-family purposes as permitted by the current zoning regulations in this "A-40" Residential and Agricultural Zoning District. 5. The board finds that the relief requested is not unreason- able. The parcels generally existing along the east side of Queens Street to the north of this parcel are substantially smaller than that proposed by this application. In considering this .appeal , the board finds and determines: (a) that the relief requested is not substantial in relation to the conditions generally existin in the immediate area; (b) that the circumstances are unique; ?c) that the variance will not in turn cause a substantial effect of increased population density or be adverse to the safety, health, welfare, comfort, convenience and order of the town; (d) the information submitted is sufficient to warrant a granting of the variance; (e) in denying the relief requested, the interests of ,justice would not be served. Accordingly, on motion by Mr. Goehringer, seconded by Mr. Grigonis, it was RESOLVED, that the relief as applied in the Application of RICHARD AND ANITA WILTON under Appeal No. 3456 for approval of insufficient—lot area and lot depth of: (a) Lot No. 1 of 40,000' sq. ft. and average depth of 218.63 feet, and (b) Lot No. 2 of 40,460 sq. ft. and average depth of 197.24' feet, as shown on survey updated December 10, 1985, by Young & Young, L.S.,AND HEREBY IS GRANTED SUBJECT TO THE FOLLOWING CONDITIONS:BE I . Large frame building, if not demolished, must be brought up the current standards for a principal single-family dwelling structure, in conformance with all health, building, sanitary and building codes; 2. "Framed shack" structure may remain if used only as an accessory structure incidental to residential use of the premises, 3. Approvals for city/public water and sewer on Lot #I ; 4. Approval for city/public water on Lot 12; S. Previous nonconforming use as a nonfarm labor camp shall remain terminated, not to be reesablished. Vote of the Board: Ayes: Messrs. Goehringer, Doyen and Grigonis. (Members Sawicki and Douglass were absent. ) This resolution was duly adopted. GNAR P. GOff R I G May 9, 1986 a., Ji LU Southold, N.Y. 11971 (516) 765-1938 August 5, 1986 NEGATIVE DECLARATION Pursuant to Article 8 of the Environmental Conservation Law State Environmental Quality Review Act and 6NYCRR Part 617, Section 617. 10 and Chapter 44 of the Code of the Town of Southold, notice is hereby given that Southold Town Planning Board as lead agency for the action described below has determined that the project will not have a significant effect on the environment. DESCRIPTION OF ACTION The minor subdivision of Richard and Anj±a-WjJ_ton is for two lots onl. 8471 acres located at Queen Street for single family residences, tax map no. 1000-40-3-6. The project has been determined not to have a significant effect on the environment for the following reasons: An environmental assessment has been submitted which indicated that no significant adverse effects to the environment were likely to occur should the project be implemented as planned. The Suffolk County Department of Health Services has no objection to our designation of lead agency status. There is not record of an application to this Department. The Health Department does require an application-to construct prior to further review. It appears that the proposed action conforms to the minimum lot size requirement for Article 6 (Suffolk County Sanitary Code) . Because there has been no correspondence from the Department of Environmental Conservation in the alotted time, it is assumedthat there are no comments nor objections from . that agency. This project conforms to the Southold Town Code for Subdivision Regulations. s Any further information can be obtained by contacting Diane M. Schultze, Secretary, Southold Town Hall, Town Hall,Main Road, Southold, NY 11971 EXHIBIT 5 i� E o S1, 1'T Southold, N.Y. 11971 (516) 765-1938 August 17, 1987 Mr. Richard Lark Attorney at Law Main Road CUtchogue, NY 11935 Re: Richard And Anita Wilton minor subdivision at Greenport , SCTM # 1000-40=3-6 Dear Mr. Lark: Please let this confirm the following action taken by the Southold Town Planning Board, Monday, August 10, 1987. WHEREAS, a formal application for the appoval of a subdivision plat, entitled Richard C. and Anita C. Wilton was submitted to the Planning Boar&,onJanuary 16, 1986 and filing fee of $350 was paid, and, WHEREAS, a final public hearing was held on said subdivision and plat at the Southold Town Hall, Main Road, Southold, New York at July 27, 1987 at 7: 45 p.m. , and, WHEREAS, the requirements of the Subdivision Regulations of the Town of Southold have been met by said subdivision plat and application, NOW, THEREFORE, BE IT RESOLVED, that the application- of Richard C. and Anita C. Wilton for approval of said subdivision plat prepared by Howard Young, dated as last amended April 22, 1987, be approved. If you have any questions, please don't hesitate to contact our office. Very truly yours, BENNETT ORLOWSKI, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary EXHIBIT 6 Rp PO ` `` - - • ,v( f>tch i \ ,�I a IR I Ott c �RW RDoa1d 01 Dal bola °p I oow of t°flnbfl� 306� to 3 -^ 2 b ,t.,tt phi"tt 20 0 � ,sutou counts WAR a fllAl111 Slllvtfas I ,� n ape.fleterttfl APR 2 8 1981 ' Is new*,1*4 p•paed aleng I"Is for irate IT* my lttt•o9,.1*.td fit RCNARp C �l�tTt G.�11701J p A°da%A0.p00 D .s'1. R I the al(a[...s�ltt►�4.1.tsr_.y.����� witaeleldel —2 bit t t_r peel tpp( 1— roN.'resli� ltJ eon•. s.T• Cenleld If hKths G'.+eA fx 14 Il�rp of tM mmp oR which this I elderselRent%peas In eta CHION•1 tht EO"ty Cterk In ecterttrlrct n wiih profitiont of lu F.Lu 1WI%low ad*0 Suffolk CIwMT I � m fanhlrll Cti•. apt{ 190 59 / .,........ . S'61°1T 20 ; s 11 tlJ Nova w w G ' �. � twtlRr v,tw(rr tot eo`90,9g •rinntY ant sore O solo rrneA (� u tllE WATER SUPPLY AND SEW4DE DISPOSAL FACILITIES FOR ALL, LOTS IN THIS 0E1FLOPMENT COMPLY WITH T IE 9TMEANDAR05 AND k F01IIItEMENTS OF THE FgLK COUNTY O. ARTNT OF IEALTH f !�l�Pfi��VLU DY S xr/ 1 Q` I[LAII?II1IG BOARD wwaw.YOV ,NYSLS Naa3G9 rn Sn�`tYt� 0•._TO�vI I OY SOU I I TOLD NO EI. 0 t STAKE SET ro o SArc 2- 0 -MONUMENT 2f. A" RESIDENTIAL-AGRICULTURAL ti ZONING USE DISTRICT At .4. TOTAL AREA.1.6171 ACRES f-�pd1 6.. SUFFOLK COUNTY TAX MAP A�j U DIST.100 SECT.Q/ORLKQSLOTO6 ----- p ti MINOR SUBDIVISION F REPAR roR %D 61 RICNARO C.WILTON a ANITA C.WILTON APmI-zt wRT O JULY I6,19136 iOo. y 199 AT GREENPORT CAtE NOV'T2,19e3 TOWN OF SOUTHOLD SCALE" I"-so, SUFFOLK COUNTY,NEW YORK No. es lsto r INMVrNMItlO QT[AATIDN OR ADo"loN m TNIt yONvrt e A Vol rtlON h[COtIIN rTot a TNe "N.tltlf[bICAlI"N tAN (Drl(1 A MT 1­1,Nnr K-1-1 TNe tt«e �� lVR�LMRt IN.ro![rt C1[NRnlTID if AL!MALL *D W Qr R"V ANANI(Iln Mo'U IfO NI"(ON NI-I tI—OIt+To Tom M"nY t"f Iv-1.1 Is►"('Thin Z' +Ly+• A«O ON I'll ![Net( 10 ,.It rlrtt CW.Iy Y,sovll'M- p, N(Nrtt Ao[NLY AND IINOMe.NI lIt u Tlom Lltrre Nr"r,ON,■N"TO"It A[!It"fft 01 I"(ItNOINt rr ti]fltufltRr 61JANANItt1 ANL «Or ts[1ut«T tRrvq/ttrtLt 1 �/ � to TrDln"NAL INt nrun"N!DN lu OVNIN] ��JrYN Y rl11 AN[r.1 ]INS"N Nt"("N rNOY r«Mfp"U«tt ' k0 1 3 y Q) L _ IOITIl IINr 1INIIf IVNfi AR(r_ A!rlClrtr 1!/-���� •'j - r"N.rOUNe r.."o]t ANp ANt Not oof ,sto To tsl.wsm � L {4� V r«O [Ntt" LIN,I OR TON WE tNtt110N or F[NC[t (4e Setjt —r tt ell b,I ��'l at} 4. P 7yj ` �) YOUNG a YOUNG R{I ER EAbHNEW Yt7RKE ALDfN W.YOUNG,PROF ESSNONAL ENGINEER 14 �I �rft• AND LAND SURVEYOR N CS LICENSE NO.12649 HOwARD W.YOUNG, LAND SURVEYOR J' N.Y.S.LICENSE NO.tSe97 r+.«olf t to-$I—.IDA. EXHIBIT 7 rORM NO.4 TOWN OF SOU-1-1101_D BUILDING I)EPAIUNIENT Office of the Building Inspector Town (fall Southold, N.Y. Certificate Of Occupancy No. . , Z-.16772. • A�'r e il 5 1988 Date . . . . . �. . . . . . . . . . . . . . . . .. THIS CERTIFIES that the building . . . . . . . .�QNVERS ION _ , . . . . . . . . . . • , , . . • . . . _, . . . . . LocationofProperty S25 ,gpeen• Street . , •. . Green�ort�. N. Y . House No. . . . . . . Street . . . . . . . . . . . . . • . • . . . . . . Haml County Tax Map No. 1000 Section • • 04 0 . . , , , •Block . . . . 3. . . . . . . . . .Lot . .6. . . . .. . . . . . Subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Filed Map No. . . . . . . . .Lot No. . conforms substantially to the Application for Building Permit heretofore filed in this office dated March 18 ,, 1986 14611 • • • • • • • • • • • • • • , . . . pursuant to which Building Permit No. , . . Z. , , . , .. . . . . . dated , , ti a.r c h 2 0; 19.8 6 . • . . . , was issued,and conforms to all of the requirements of the applicable provisions of the law. The occupancy for which this certificate is issued is . . . . . . . . . CONVERSION OF MIGRANT CAMP TO ONE FAMILY DWELLING AS APPLIED FOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . The certificate is issued to . . .AN. . . .ITA. . . C WILTON. . . . . . . . . . . of the aforesaid building. Suffolk County Department of Ifealth Approval CITY 14ATER & SEWER VILLAGE OFGREENPORT 'DATED' 31'311988' . . . UNDERWRITERS CERTIFICATE NO. . . .f?004325 . .r(j� uary . , • , PLUMBERS CERTIFICATION DATED: March 7, 1988 — K & K Plumbing . . . . . . .Building Inspector Rev. 1181 j EXHIBIT 8 ' ccrs 0 g . . VIILiTY tll f tt.r. r.L. (516)477.1748 MAYOR i` e� o� �r�eeiworf , GEORGE•W.11UDBARU INeOR►ORATtO lose POWER PLANT TEL. NtW MCOR►ORATION A►RiL 1,loge (e 16)477-0172 TRUSTEES Rt•INCOR/ORATION UNOtR CtHCRAt LAW NAt Is. t894 J ll/ JEANNE Wt.COOPER GAIL F.IIORTON � DAVID E.KAPELL ••.. ..... '� WILLIAM It.LIEBLEIN ti -i / Al SUPi.OF Uf11.1TIES LAMES 1.MONSELL ••�•�••• •'•'� 236 THIRD STREET GREENPORT, SUFFOLK COUNTY NEW YORK 11944 March 19, 1987 i• Mr. Richard Wilton 1 R.R. I Box 91 A Mattituck, N. Y. 11952 f . Dear Mr. Wilton, The Village of Greenport will serve your two (2) lots on the east side of Queen Street (Old Labor Camp) with public water and public sewage under the terms and conditions of the Utility Department policy. If I can be of further service, please contact me. Yours truly, James I. Monsell Superintendent of Public Utilities JIM:Ikm cc: George Hubbard, Mayor All Village Trustees f EXHIBIT 9 NOTICE ' L t a • u s Police Dept. - Bay Constable Town of Southold Peconic, New York 11958 NOTICE OF VIOLATION February 29 �g Date:------ ____ 19- -_ To: --- _ Richard Wilton - - ---- - --- -- -- -------------------------- (Owner or authorized- - agent of owner) • ---------- ' Address:___ 2605 Deep_Hole_Dr.�_Mattituckt_1V.Y._ 11952 (Address of owner or authorized agent of-owner) - Please take notice there exists a violation of the Code of the Town of Southold, Chapter 97 Article---II------= Section—20----------- at premises hereinafter described in that---ML are-filling-in-fresh- water wetlands without a permit. ---------------i------------------ ----------•------------------------------------------- You are therefore directed and ordered to comply with the following Cease all further activities on property. Remove any ------------------------------------------------------- ____ "fill-wanted"- signs.-Apply to- the- Southold-Town Trustees for _-_- a permit.- If permit is denied you must restore area to its original state. ' -- -- -------------------------------------- -------- ----------------------------------------------------------------. an or before14th March _ ----------- y of ----- - __-- ---, 19-88 day --- The premises to which this Notice of Violation refers are situated at: Queens lane_ Southold town of Southold, --------------------------- Suffolk County, W.Y. (Suff. County Tax Map Designation: Dist. 1000 section:-- 040 -Block: Failure to comply with the applicable provisions of the law may constitute an offense punishable by fine or imprisonment or both. NOTICE: You have the right to apply for a hearing before the Board of Trustees of the Town of Southold, provided that you file a written request with the Clerk of the Trustees within 10 days after service- of the Notice of Violation. Such request shall have annexed thereto a copy of the Notice of Violation upon which a Bearing is requested and shall set forth the reasons why ;such notice of. violation should be modified or rescinded, Bay Con table, Town old Southold, Y EXHIBIT 10 I t NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION , / Division of Fish and Wildlife ` Bldg. 40, SUNY , Stony Brook, New York 11794 (516) 751-7900 `F NOTICE OF VIOLATIONd'' Date Of Violation: March 2, 1988 y'a Location: Queen St. , Greenport, 14Y ; Permit Number (if applicable) : f-,,:,nay. Dear Ms. Linda Wilton ; ..-0 P.O. Box 158, Greenport, NY 11944�, Records of this Department indicate that you are in;violation of the Environmental Conservation Law Article 15, Protection of Waters,,, Section. 15-0501, 0503, 0505 Article 15, Wild, Scenic and Recreational.Rivers, Section 15-2709, 15-2710 /X/ Article 24, Freshwater Wetlands, Section 24-0701, 0703 Article 25, Tidal Wetlands, Section 25-0401L' in that you caused, or permitted to be caused: clear-cutting of vegetation and the placing of fill in a freshwater wetland. as , r 1 A violation of this/these Article(s) of the E.C.L.. is, punishable by a fine of not more than $3,000 and/or $10,000. You are hereby directed to cease your operation at the referenced location immediately. Failure to do so may result in additional violations and possible criminal prosecution.. Please contact the Bureau of Environmental Protection so that we may attempt to resolve this matter. Sincerely. E t r + k ran M. Panek R nal'Supervisor of FMP:ki Natural. Resources:.'r 3. EXHIBIT 11 FORM NO.+3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD,N.Y. NOTICE OF DISAPPROVAL Date . . .V�':''3 �. . . . . . 19 .� To .i-+�.c� . : !. .. . . . . . . . . . . . . . . . . . . . . . . . . . . PLEASE TAKE NOTICE that your application dated . . � -�•, , , , , , . .. 19 -Z3 for permit to '. . Gk-r. .0771�. - . . . . . . . at Location of Property h-LL". , .�`�. �:a:a-+:4{�.a�t House No. Street (/ Hamlet County Tax Map No. 1000 Section . , . . . Block . . . . Lot . . . . . . . . Subdivision . . . . . . . . . . . . . . . Filed Map No. . . . . . . . . . Lot No. . . . . . . . . . . . . . . . . is returned herewith and disapproved on the following grounds .L . . .. . CQ. .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . ♦ . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . • . . . . . . . . . . . . . . . . . . . . . . . . . . • • • • • • • • • • • • • • • • . • . • • • • • •. • • • • • • • e • • • • • • ♦ • • • • •.• • • • • • • • • . • • • ♦ • • • • • • • • • . . • • • • • • . • • • • • . • • •.• • • • • • • • • . • • • . • • • • • • • • • •'• • • • • • o • . • • • • • • • • • • • • • • • • • • • • • • • . • . • . • • • • • • • • . • • • • • • • • • • • • • • • • • • • • ♦ • ♦ • ♦ • • • • • • • • • • • • . • • • • • • • . • • • • • • • • • • • • • . • • . • • . • • • • • • r • • • • • • • • • • • • • • • • • • • • • • • ♦ • • ♦ • • , . . . . . . . . . . . . . . . . . Building. . Inspector RV 1/80 EXHIBIT 12 FRANK A. KUJAWSKI, JR., President ALBERT J. KRUPSKI, JR., Vice-President TELEPHONE JOHN M. BREDEMEYER, Ili �� (516)765-1892 JOHN L. BEUNOSKI,JR. HENRY P. SMITH BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Town Hal(, 53095 Main Road P.O. Box 728 Southold, New York 11971 October 13, 1988 Mr. Richard F. Lark ATtorney At Law Main Road, P.O. Box 973 Cutchogue, New York 11935 Re: Linda Wilton - Application No. 629 . 1000-040-03-p/o 06 - 10-88-0768 Dear Mr. Lark: The following action was taken by the Board of Town Trustees during their regular meeting held on September 29, 1988 regarding the above matter: RESOLVED that the Southold Town Trustees RESCIND their Lead Agency Status regarding the application of Linda Wilton until the D.E.C. Violation is satisfied. Very truly yours, JAC- Frank .A. K awski, Jr. President Board of Town Trustees FAK:ip cc: D.E.C. 10-88-0768 i. t. � EXHIBIT 13 I O SOP i _o <R`et,� een 6a I`Z o n t � � �° �a tea__ �, �• o N ; rK pt cn o 0 o 3 .1 lY na\" co In �A p i 'o, to s I Q t I - n:17 -` Z 7 t e \ g`pP�' CJ1 s t / Q i f '4c t s 3 o- ° 's ' ' ICY'\,\. ' 'I °°• � cm CD It t t'^ t\e• \e• �. �g �s i ! _ °\✓ 4r G `t New `tbi'k State De partment of Environmental. Conservation Building 40—SUNY, Stony Brook, New York 11794 (SlG) 751-7900 A ft- - Thomas C. Jorling Commissioner October 12, 1986 Ms. Linda C . Wilton P.O. Box 158 Greenport, NY 11944 RE: FOIL Request - Queen Street, Greenport, NY (FOIL Reference #83-231) Dear Ms . Wilton: This is to inform you that the inspection report forwarded to Paul Carella by Conservation Officer Obenauer is the only report filed . This inspection report is called a "Case Initiation Form" . In ❑ther words they are one and the same . However, the attorneys of our Legal Affairs Department have deemed it undiscoverable . Therefore, access to the report cannot be granted . Very truly y❑urs, Roslyn L . Orenstein Regional Records Access Officer RLO: J es EXHIBIT C ,�;�•� is �;� STAI`�OF NEW YORK, COUNTY OF ss.: µ I,the undersigned, an attorney admitted to practice in the courts of New York State, o ❑ Certification certify that the within a) ey Attorney a has been compared by me with the original and found to be a true and complete copy. Attorneys state that I am n Affirmation a the attorney(s)of record for in the within action;I have read the foregoing and know the contents thereof;the same is true to my own knowledge,except as to the matters therein stated to be alleged on information and belief,and as to those matters I believe it to be true. The reason this verification is made by me and not by The grounds of my belief as to all matters not stated upon my own knowledge are as follows: I affirm that the foregoing statements are true, under the penalties of perjury. Dated: ------------------------------------------------------------------------------------------ The name signed must be printed beneath STATE OF NEW YORK, COUNTY OF ss-: I, being sworn, say: I am x ❑ ' Individual in the within action; I have read the foregoing mo Verification and know the contents thereof, the same is true to my,own knowledge,except as to ❑ Corporate the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. 06 Verification - the of a corporation and a party in the within action; I have read the foregoing and know the contents thereof-, and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief,and as to those matters I believe it to be true.This verification is made by me because the above party is a corporation and I am an officer thereof. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Sworn to before me on 19 The name signed must be printed beneath STATE OF NEW YORK,COUNTY OF SS.: (If both boxes are checked—indicate after names,type of service used.) I' being sworn,say: I am not a party to the action, am over 18 years of age and reside at On 19 I served the within Service by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and By Mai' custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: < ❑ Personal by delivering a true copy thereof personally to each person named below at the address indicated. I knew each a Service on m Individual person served to be the person mentioned and described in said papers as a party therein: t U Sworn to before me on 19 - - ---------------------------------------------- The name signed must be printed beneath o-ti' C I rD rD rD v n O -h i ry •7 N o n 3 s o 0 3 . � a rP a� ry c > `O �' a `° c D O w CD o G) p Q _ o �, `D m m Dp b 9D}7{ 0CD 0 CD � m CD n AWa r a m AWE r �' CD ` x � ;u x � C A CD W CD CD Z CL a C7 a c �-3 1-3 VJ Z L-1 L :; O CD CDCD Z1-3 m o o xb A; n cS 0 O z 1 4 D y m 1-3 P 1-3 A m R, hh Z b �,' © t:1 0 !Z w f u1 o r `y s-3 CD 'a A t7 W 1-3 W o :y tD C3 E-3 M It 0 1-3 ® � a tri D � �t t h r Y TAMES A.SCHONDEBARE Town Hall, 53095 Main Road TOWN ATTORNEY P.O. BOX 1 179 ROBERT H.BERNTSSON ®1ago Southold, New York 11971 ASSISTANT TOWN ATTORNEY qr TELEPHONE (516) 765-1939 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD INTER-OFFICE MEMO FROM THE TOWN ATTORNEY'S OFFICE i TO: Trustees FROM: James A. Schondebare, Town Attorney DATE: July 13, 1989 RE: Linda C. Wilton v. N.Y.S.D.E.C. and Board of Trustees Enclosed please find the decision of the Honorable Justice Stuart Namm, dated June 29, 1989, which dismissed the lawsuit brought by Linda C. Wilton against yourselves and the DEC. Note, the court held both defendants have possession of requisite jurisdiction to issue violation notices. This matter should now proceed within the DEC and likewise within the Town. I will copy this memo to other departments for their information. cc: Town Board Building Department Zoning Board of Appeals i s-aoR•r soaixz oanEa J_IdJJ;�.r� No. 18695 1988 o, e SUPREME COURT - STATE OF NEW YORK TRIAL TERM, PART 28 SUFFOLK COUNTY PRESENT: Hon STUART NAMM MOTION DATE November 22, 1988 - 2/10/89 MOTION NO. #21, 22, 23 - MOTS D : PLTF'S ATTY: LINDA C. WILTON, : RICHARD F. LARK, ESQ. : Main Road - P.Q. Box 973 Plaintiff, : Cutchogue, New York 11935 -against- } : DEFT'S ATTY: NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL : ROBERT ABRAMS, ESQ. CONSERVATION and THE BOARD OF TRUSTEES OF : Oymin Chin, Esq. of counsel THE TOWN OF SOUTHOLD, 120 Broadway : New York, New York 10271 Defendants. • IJAMES A SCHONDEBARE, ESQ. Southold Town Hall P. 0, Box 1179 - 53095 Main Road Southold, New York 11971 Upon the following papers numbered 1 to 14 read on this motion for an order granting a preliminary injunction and cross motions for an order dismissing the complaint Order to Show Cause and supporting papers 1 - 3 Notice of Cross Motion and supporting papers 4 - 9 , Answering Affidavits and supporting papers 10 - 12 Replying Affidavits and supporting papers Other Plaintiff's Memorandum of Law 13 - 14 it is, The instant application before the court requests an order granting plaintiff a preliminary injunction pending trial of the action for a declaratory judgment "enjoining defendants. . .from holding any hearings, conferences or taking any other action with respect to the . . .Notice of Violation. . .issued by Southold Town. . .pertaining to the property of the plaintiff. . .and Notice of Violation. . ,issued by. . .New York States Department of Environmental Conservation. . ." [Order to Show Cause granted by Justice Gerard November 3, 1988 p. 2] . The Notices of Violations In a written Notice of Violation issued by Kent B. McCarthy dated February 29, 1988 to Richard Wilton, plaintiff was notified of a violation of the Code of the Town of Southold (Chapter 97 Article II, Section 20) based upon the "filling in freshwater wetlands without a permit" and was directed to apply to the Town for such a permit. A second Notice of Violation undated was issued by Frank M. Panek, Regional Supervisor of Natural Resources, New York State Department of Environmental Conservation to the plaintiff alleging a violation of Article 24, Freshwater Wetlands, Section 24-0701, 0703 on March 2, i I 1988 at Queen Street, Greenport, New York. The subject property was obtained by plaintiff as a gift from her parents who had purchased a former migrant labor camp 1,84 acres in size in October 1985. The plaintiffs's father began clearing the site of debris and sought subdivision approval from the Zoning Board of Appeals and the Planning Board of Southold Town. In the Spring of 1986 Mr. Wilton was advised that the Planning Board would make inquiry from the New York State Department of Environmental Conservation concerning designation of the property as freshwater wetlands No response was forthcoming and Mr. Wilton obtained subdivision approval from the Planing Board on August 10, 1987. In the latter part of January and February 1988 plaintiff procured clean fill to enable her to install a driveway to have access from the street to the rear part of her lot to begin construction of a home. Shortly thereafter the aforementioned violation notices were issued. After speaking with various Town and State representatives in an effort to clarify the status of the property as freshwater wetlands and to expedite obtaining the various building permits and authorizations, a meeting was held at the offices of Paul Carella, an employee of the State Department of Environmental conservation. Plaintiff was informed by him ,that he had decided that the property was wetlands; that no freshwater wetlands map existed.; that the clean fill would have to be removed before consideration of the application to build a house; and that plaintiff would have to pay a fine. [See Affidavit Richard C. Wilton, sworn January 12, 1989) . The Preliminary Injunction Request In order to prevail on the request for a preliminary injunction the plaintiff must satisfy three essential requirements (1) the likelihood of success on the merits; (2) irreparable injury absent granting the preliminary injunction; and (3) a balancing of the equities. W. T. Grant Co. v. Srogi 52 NY 2d 496. For the reasons set forth in the Memorandum of Law submitted by Oymin Chin, Assistant Attorney General, on behalf of the New York State Department of Environmental Conservation, the court is constrained to deny the application. Pages five through eleven of the Memorandum pointedly and concisely address each of the essential requirements and provides ample factual and legal reasons why such relief must be denied, and this court hereby adopts such reasoning. Simply stated, plaintiff is unlikely to succeed after a trial of the merits of this case. Moreover, she has failed to submit proof of irreparable injury. Cross Motions to Dismiss the Complaint The ad damnum clause of the verified complaint demands the following relief: 2 i I (a) On the First Cause of Action for a declaratory judgment declaring that: (i) At the time of the alleged violations (Exhibits 10 & 11 hereof) plaintiff's Subject Property was not classified as freshwater wetlands under the Environmental Conservation Law, and therefore there were no violations of the Environmental Conservation Law or the Code of the Town of Southold. (ii) That the Notice of Violation dated February 29, 1988 issued by the Southold Town Bay Constable (Exhibit 101 is invalid as applied to plaintiff's Subject Property, (iii) The Notice of Violation dated March 2, 1988 issued by defendant DEC is invalid as applied to plaintiff's Subject Property. (iv) The interim permit regulations of the defendant DEC do not apply to plaintiff's Subject Property because the alleged freshwater wetlands area is less than 12.4 acres and the Commission of defendant DEC has not made an affirmative finding that plaintiff's Subject Property and the lands adjacent thereto are of unusual local importance for specific benefits as provided in §24-0105.7 of the Environmental Conservation Law, (b) On the Second Cause of Action declaratory judgment determining that the aforesaid conduct of the defendants impedes and deprives the plaintiff of her right to obtain a building permit and to construct a one-family dwelling on the Subject Property, and said conduct constitutes a deprivation of plaintiff's rights under the United States Constitution and New York State Constitution, all without due process of law." The heart of the entire action is the jurisdiction of the defendants to issue the Notices of Violations of the Freshwater Wetlands Act. (Environmental Conservation Law Article 24 Sections 24-0101 et seq) . As plaintiff submits: ". . .the sole question is whether or not as a matter of law, plaintiff's property comes within the statutory definition of freshwater wetlands." (Affidavit Richard F. Lark,, Esq. sworn November 2, 1988 p. 8) . In arguing that jurisdiction is lacking plaintiff relies upon the following points: (1) Defendants have not established nor adopted a final freshwater wetlands map which includes plaintiff's property and the surrounding land. See ECL §24-0301. (2) Plaintiff's property is only 40,000 square feet .in area. However, the significance of the foregoing points and the bounds of the jurisdiction of the Department of. Environmental Conservation to identify and protect potential freshwater 3 i wetlands were discussed in depth by Judge Bellacosa in Matter of Wedinger et al v. Goldberger et at 71 NY 2d. 428. In that decision at page 438 the court wrote: "The mere fact that a particular property was not placed on a tentative map is not decisive and certainly does not deprive the DEC of legislatively delegated jurisdiction." [emphasis added] The jurisdictional predicate invoked by the defendants herein is grounded upon the statute itself. ECL §24-0703(5) provides: 5. Prior to the promulgation of the final freshwater wetlands map in a particular area and the implementation of a freshwater wetlands protection law or ordinance, no person shall conduct, or cause to be conducted, any activity for which a permit is required under section 24-00701 of this article on any freshwater wetland unless he has obtained a permit from the commissioner under this section. Any person may inquire of the department as to whether or not a given parcel of land will be designated a freshwater wetland subject to regulation. The department shall give a definite answer in writing within thirty days of such request as to whether such parcel will or will not be so designated. Provided that, in the event that weather or ground conditions prevent the department from making a- determination within thirty days, it may extend such period until a determination can be made. Such answer in the affirmative shall be reviewable pursuant to title eleven of this article; such an answer in the negative shall be a complete defense to the enforcement of this article as to such parcel of land. The commissioner may by regulation adopted after public hearing exempt categories or classes of wetlands or individual wetlands which he determines not to be critical to the furtherance of the policies and purposes of this article. ECL §24-0701 lists the regulated activities which require the issuance of a permit including ". . .any form of dumping, filling, or depositing of any sail. . .or fill of any kind. . ." ECL §24-0701(2) . Therefore, based upon the foregoing statutes and the decision of the Court of Appeals in Matter of Wedi.nger v. Goldberger. 71 NY 2d 428, the court concludes that both defendants possessed the requisite jurisdiction to issue the violation notices which they did. Therefore, the cross motions by the defendants to dismiss the complaint are granted. In view of this determination the suggestion by plaintiff_ that the court alter the relief sought by declaring the outstanding violations against the plaintiff invalid and direct the defendants to process her applications for wetlands permits (Affidavit by Richard C. Wilton sworn January 12, 1989 p. 8; Memorandum of Law pp. 1 thru 18) is moot. This belated request for summary judgment is clearly inconsistent with the relief originally sought and the premise upon which it was initiated. The statement by the plaintiff 4 a in the conclusion of the Memorandum of Law that ", , .plaintiff is not challenging the jurisdiction of the defendants, the statute or ordinance under which they are operating, only their method of application. , ," obviously alters the relief sought. As such it is asking the court to review pursuant to Article 78 of the CPLR an administrative determination which has not yet been rendered! The basis for such a proceeding would be the denial of a permit, See ECL §24-0701 and §24-0703. As such, summary judgment is premature and procedurally defective. In any event, the defendants have both raised sufficient objections in law which warrant denial of a summary disposition. CPLR §7804(f) , Settle Order on Notice. SO ORDERED. STUART MCA Dated: June 29, 1939 STUART NAMM - Acting J.S.C. f 1 5 i i July 27 , 1988 Mr. Paul Carella New York State D.E.C. Bldg. 40, S.U.N.Y. Stony Brook, New York 11794 Re: Linda Wilton - Appl. No. 629 1000-040-03-p/o 06 - 10-88-0768 Dear Mr. Carella: As per our discussion today, this is to confirm a meeting with the Town Trustees scheduled for Friday, August 5, 1988 at 10: 00 a.m. in your office in Stony Brook to discuss the above matter. We look forward to meeting with you and should you have any questions, or need any additional information, prior to this meeting, please do not hesitate to contact this office at the telephone number listed above. Very truly yours, Ilene Pfifferling Clerk to the Board of Trustees IP:hk cc: Richard F. Lark, Attorney Linda Wilton Roy L. Haje, En-Consultants, Inc. Town Attorney Bldg. Dept. Board of Appeals Planning Board John Holzapfel, Chairman, C.A.C. file i October 13, 1988 Mr. Richard F. Lark ATtorney At Law Main Road, P.O. Box 973 Cutchogue, New York 11935 Re: Linda. Wilton - Application No. 629 1000-040-03-p/o 06 - 10-88-0768 Dear Mr. Lark: The following action was taken by the Board of Town Trustees during their regular meeting held on September 29, 1988 regarding the above matter: RESOLVED that the Southold Town Trustees RESCIND their Lead Agency Status regarding the application of Linda Wilton until the D.E.C. Violation is satisfied. Very truly yours, Frank A. Kujawski, Jr. President Board of Town Trustees FAK:ip cc: D.E.C. 10-88-0768 I r I i C 104—Summons without Notice,Blank Court. 9-7$ COPYRIGHT 1973 BY JULIUs BLUMBERG,INC.,LAW BLANK PUBLISHERS Personal Service. SUPREME COURT OF THE STATE OF NEW YORK Index No. 8 8/18 6 9 5 COUNTY OF SUFFOLK Plaintiff designates LINDA C. WILTON, Suffolk -- County as the place of trial NOV - 4 l0 3oi¢ The basis of the venue is - ,.. location of plaintiff' s � a -�-� -Plaintiff property against NEW YORK STATE DEPARTME14T OF F ENVIRONMENTAL CONSERVATION and Plaintiff resides at THE BOARD OF TRUSTEES OF THE TOWN OF SOUTHOLD, West Street Defendant g Greenport, New York 11944 County of Suffolk To the above named Defendant g, Vou art 4trehy suntutourb to answer the complaint in this action and to serve a copy of your answer, or,if the complaint is not served with this summons, to serve.a notice of appearance, on the Plaintiff's Attorneys) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, November 2 , 1988 RICHARD F. LARK, ESQ. Defendant's address: Attorney(X) for Plaintiff New York State Department of Environmental Office and Post Office Address Conservation, SUNY, Building 40,, ,:. Main Road - P.O. Box 973 Stony Brook, New York Cutchogue, New York 11935 (516) 734-6807 The Board of Trustees of the Town of Southold, Town Hall, Main Road, Southold, New York