The URL can be used to link to this page

Home My WebLink AboutBITSES, JAMESOCornell _Cooperative Extension Suffolk County Suffolk County Marine Environmental Learning Center 36@0 Cedar Beach Road $outhold, NY 11971 516-852-8660 FAX 516-852-8662 Albert J. Krnpski, Jr. President, Board of Trustees Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 James Bitses Property SCTM #1000-50-3-6 December 12, 1995 Dear Nh-. Krnpski: As per your request I have identified existing vegetation adjacent to Sound View Avenue adjoining the subject property. The following species were identified on December 11, 1995: Silky Willow (Salix sericea) - OBL Black Willow (Salix nigra) - FACW Buttonbu~h (Cephalanthus occidentalis) - OBL Red Osier Dogwood (Comus stoIonifera) - FACW Swamp Loosestrife (Decodon verticillatus) - OBL Marsh St. John's-Wort (Triadenum virgunicum) - OBL Sensitive Fern ( Onoclea sensibilis) - FACW Carex spp. - OBL Eleocharis app. - OBL. Wetland indicator status: OBL - Obligate Hydrophyte FACW - Facultative Wetland Plant The presence of these species is consistent with the NYDEC wetland delineation of a Type II freshwater wetland. If you have additional questions about the wetland boundary please contact the NYSDEC Freshwater Wetlands Division ~ 444-0276. If you have any additional questions regarding these plants please feel free to call me ~ 852-8660. Sin~rely,/'~ Christopher Pickerell COOPERATIVE EXTENSION AGENT Marine Program CP Helping You Put Knowledge to Work CornelI Cooperative Extension provides equal program and employment opportunities. NYS College of Agriculture and Life Sciences. NYS College of Human Ecology, and NYS College of Veterinary Medicine at Cornetl University, Cooperat ve Ex ens on associations, county governing bodies, and U:S. Department of Agriculture, cooperating. OFFICE OF ~ ENGINEER TOWN OF SOUTHOLD Mr. Thomas H. Wickham Supervisor, Town of Southold 53095 Main Road, Rte. 25 Southold, New York 11971 November 15, 1995 Re: HUMMELL POND - Drainage Pipe Lighthouse R6ad & Sound Ave. SCTM # 1000-50-06-04 Mr. Wickham: I have been asked by your office to explain how the elevation of the outfall pipe in the above referenced pond was established. First, I would like to verify that the pipe is needed to prevent the road from flooding: Without it, the road would become inundated during a heavy rainfall creating a very hazardous and dangerous condition for vehicular traffic. To set the elevation of the pipe I used two basic criteria. The first, keep the pond as low as possible to eliminate the potential flooding of the road. Second, how low can the pond be drained without killing offthe surrounding wetland indicator species. Mr. Chris Pickerel is a wetland specialist and a Comell Cooperative Extension Agent. He was contacted prior to installing the pipe and a site investigation was performed. As per Mr. Pickerel, the dominant wetland species found at the site is "Cephalanthus occidentalis' or more commonly called "Button Bush". It was also noted that several additional indicator species exist that could further identify and define the wetland area. The Button Bush is designated an "Obligate Wetland Species". The term "Obligate" requires that at least some time during the year, if not always, the bottom of the plant be under water. To ensure the survival of the Button Bush and the surrounding wetlands, the pipe was set at a height that would allow the pond to reach an elevation just high enough to accomplish this requirement. Prior to the pipe installation,, the elevation was maintained by a dirt trench through the berm at the south end of the pond. This trench had to be routinely cleaned to maintain the required pond elevation. During the actual installation of the new pipe, the existing trench was excavated to provide the required elevation. Actually, when the pipe was installed, the maximum elevation of the pond was lowered by over one foot. New York State Department of Environmental Conservation DIVISION OF FISH AND WILDLIFE Region One, Bureau of Environmental Protection S.U.N.Y., Bldg. 40 Stony Brook, NY 11790-2356 PHONE (516) 4dd-0276 FAX (516) 444-0373 Michael D. Zagata 16 November 1995 Albert J. Krupski, Jr. President, Board of Trustees Town of Southold Town Hail, 53095 Ma~n Road P.O. Box 1179 Southold, NY 11971 RE: James and Katherine Bitses (SCTM#: 1000-50-3-6) Dear Mr. Krupski, Jr.: Thank you for your letter dated 23 October 1995 and for informing me of the situation at Mr. and Mrs. Bitses' property. On 13 November 1995 I conducted a field inspection of the property with Bay Constable, Kent McCarthy and Environmental Conservation Officer, Gary Enright. As a result of that inspection, a Notice of Violation was sent to Mr. and Mrs. BitSes (enclosed) for violations of Article 24 of the New York State Environmental Conservation Law. I assure you that the Bureau of Environmental Protection will pursue every avenue possible to rectify the damage to the wetlands. In addition, I wanted to let you know that I enjoyed meeting with Kent McCarthy. He was extremely helpful and provided me with documentation of his previous inspections. When at the site, I was unable to document the existence of the small "retaining wall" because of changes in the pond level. His photographs allowed me to justify the existence of that additional violation. Thank you for your interested and dedication to the protection of our valuable freshwater resources. IfI can be of any assistance please give me a call at (516) 444-0278. Sincerely, Conservation Biologist Bureau of Environmental Protection xc: Ray Cowen (w/o enclosure) Laurie Dowd, Southold Town Attorney, Town Hall, 53095 Main Road, P.O. Box 1179, Southold, NY 11971 (w/ enclosure) Gary Enright (w/ enclosure) Kent McCarthy, Southold Police, Main Road, Peconic, 11958 (w/ enclosure) % New York State Department of Environmental Conservation Building 40 - SUNY, Stony Brook, Now York 117.90-2356 (516) 444-0270 FAX # (516) 444-0373 16 November 1995 NOTICE OF VIOLATION Michael D. Zagata Commissioner James and Katherine Bitses Lighthouse Road Southold, NY 11971 Date of Violation: On or before 13 November 1995 Location: Northwest comer of Lighthouse Road and Soundview Avenue, Southold, NY Tax Map ID #: 1000-50-3-6 Dear Mr. and Mrs. Bitses: Records of this Department indicate that you Conservation Law (ECL): Article 15, Protection of Waters Section 6NYCRR are in violation of the Environmental X Article 15, Wild, Scenic and Recreational Rivers Act Secti6n 6NYCRR Article 19, Air Pollution Control Act (Restricted Burning) Section 6NYCRR Article 24, Freshwater Wetlands Act ' Section 24-0701 6NYCRR Part 663 Article 25, Tidal Wetlands Act Section 6NYCRR In that you caused, or permitted to be caused, filling, cutting of vegetation, and construction of a small retaining wall in a regulated freshwater wetland with a valid permit from the 1 York State Department of Environmental Conservation. .page 1 of 2 Albert J. Kmpski, President John Holzapfel, Vice President William G. Albertson Martin H. Garrell Peter Wenczel BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1892 Fax (516) 765-1823 December 11, 1995 Chris Pickerelt SCMELC 3690 Cedar Beach Road Southold, NY 11971 RE: James Bitses Property SCT~ ~t000-50-3-6 Dear Mr. Pickerell: Can you please visit the above reference propert¥~ and locate and identify existing vegetation. Please submit something in writing as soon as possible. Thank you for your attention in this matter. Albert J. Krupski, Jr. President, Board of Trustees AJK:jmd Albert J. Krupski, President John Holzapfel, Vice President William G. Albertson Martin H. Garrell Peter Wenczel Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1892 Fax (516) 765-1823 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD CERTIFIED MAIL November 3, 1995 James Bitses 2575 Lighthouse Rd. Southold, NY 11971 RE: SCTM 91000-50-3-6 Dear Mr. Bitses: The following action was taken by the Southold Town Board of Trustees on Thursday, October 26, 1995; Whereas Section 97-20 of the Southold Town Code provides that no person shall conduct any operations on any wetlands in the Town Of Southold unless he shall first obtain a written permit therefore issued by the Trustees, and Whereas James Bitses, owner of wetlands property at the North West corner of Lighthouse Road and Soundview Road has Conducted operations on that property, consisting of mowing the wetland vegetation surrounding a perched freshwater pond on that property which is designated on the DEC Freshwater Wetlands Map, dredging the pond and filling and reducing the size and level of that pond, and he has verbally threatened to perform further operations which would destroy the wetlands, and Whereas the Trustees find that James Bitses has not obtained or applied for a wetlands permit for the above-described operations, and- Whereas James Bitses claims to be exempt from the permit requirement under Section 97-12 of the Southold Town code which provides that a permit is not required for the ordinar~ and usual operations relative to agriculture, on the grounds that he is growing 400 blueberry bushes in the above-described area, Whereas the Trustees have considered the application of that exemption as to its applicabilityto the activities of James Bitses based on conversation with Mr. Bitses and an on-site inspection on October 18, 1995, Albert J. Kmpski, President John Holzapfel, Vice President William G. Albertson Martin H. Garrell Peter Wenczel Town Hail 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1892 Fax (516) 765-1823 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD October 23, 1995 Roy Jacobson Fresh Water Wetlands NYS Dept. of Environmental Conservation SUNY, Bldg. 40, RM 219 Stony Brook, NY 11790-2356 RE: James & Katharine Bitses SCMT ~1000-50-3-6 Dear Mr. Jacobson: This letter is to formally place you on notice of a serious destruction of wetlands in the Town of Southold. We have attempted to advise you by phone of this problem, but have been told that the DEC is not taking any steps to prevent it. There is, or was, a freshwater pond located at Lighthouse Road and Soundview Avenue, Southold, Tax Map Number 1000-50-3-6. In the past two weeks, the property owners James and Katharine Bitses have mowed down the wetland vegetation and appear to have dredged a portion of the pond in order to fill. in the surrounding land. We believe that such dredging will destroy the impeza,eable base of this perched pond. The owner threatens to destroy the roots of the mowed vegetation so that the loss of wetland will become irreparable. This property is on the DEC Fresh Water Wetland Inventory Maps and we are appalled that you have taken no steps to protect it. Be advised that we are taking whatever steps we can, and would like to coordinate with you on preventing the destruction from continuing. Please notify us if we can be of assistance. Sincerely, Albert J. ski, Jr. President, Board of Trustees AJK:jmd cc; Kent McCarthy, Bay Constable Town Attorney Ray Cowan, NYSDEC To: ~'- [~--~$ ~-~ NOTICE Police Dept. - Bay Constable Town of Southotd Peconic, New York 11958 NOTICE OF VIOLATION Date: ........ Address: (Owner or authorized agen~ of owner) (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 ..... Section at premises hereinafter described in that ...... You are therefore directed and ordered to copply with the following: ..... on or before day of , 19 The premises to which this Notice of Violation refers are situated at: ~own of Southold, Suffolk County~ NL¥. (Suff. County ?ax Map Designation: Dist. Section: ~---Block: ........ Lot: L Failure to comply with the applicable provisions of the law may constitute an offense punishable by fine or imprisor~n~ent or both. NOTICE: You have the right to apply for a hearing before the Board o~ Trustees of the Town of Southold, provided that ~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 Hearing is requested and shall set forth the reasons why such notice of violation should be modified or rescinded. Bay Constable, Town of Southold, NY ~O'm~ D~i,^.~E.T, Tow. OF SOUT. O.D COM,.^,.T N.° 17]0 · ._ *- '_Peconic, New York 11958 State Of New Cou._nty ~f Suffolk)'~ ss: Tow~~'of Southold) The undersigned pol:~ce officer accitses of a violation of 'S~c ... ?.~...~..~..., Subdiv ............. of the .................................. Ordinance of the~om of Southold,__ ~N'Y~n that on the ............ day of hamlet of ..... ;'. ................. To~ bf Sou~hold, N.Y. the defendant d~d wrongfully, mtentlon~ly and kno~g~y commit the offense of' O~,~r-- ~, Court Appearance Date: ................... 19 ...... Hull Color Type: Safl~ Inboard ~ Outbo~d~ Is Operator the ~ner~ Yes ~ ~o~ Plea: Guilty ~ Not Guilty D Docket No. Finding: Dis ~ : Cony ~ : NG ~ S~nt: in that defendant did . . ...~.~. C~..~..~. C~.e.~ff~ .... ~ false statement made herein is punishable~s a Class mi~emeanor (Sec. 210.45 P.L.) ~ ..... .......... 't .......... f' OA~E NUMBER ACTIVITY NUMSBR CASE DESCRIPTION CLAS~ CODE HOW REC~.~D B" CALL FOR SERVICE [] OFFICER INITIATED [] COUNTER REPORT L INCIDENT LOCATION O CASE TYPE A NBR STREET NM~IE T [] BLOCK [] COMMERCIAL BLDG. ! [] INTERSECTION [] INDUSTRIAL BLDG. O [] PRIVATE HOME ~3 MULTI DWELLING N PER~ON INVOLVEMENT CODEE C - COMPLAINANT F - FINDER D - DRIVER I - INJURED I AIDED E - EMPLOYEE J - JUVENILE INCIDENT REPORT Southold Town Police Department Route 25 Peconic. New York 11958 516-765-2600 [] CRIMINAL CASE ~NON CRIMINAL O PUBLIC BLDG. rm PUBLIC PARK [] PARKING LOT OCCURRED FROM DESK OFFICER PATROL OFFICER TYPE DIR APT. SECTOR [] SCHOOL [] COUNTRYCLUB/GROUNDS ~ BANK ~ OTHER [] CHURCH M-MISSING PERSON R-REPORTING PERSON V-VICTIM O-OWNER S-SUSPECT W-WITNESS P- POLICE OFFICER U- UNKNOWN Z-OTHER P E R S O N $ PERSON LAST NAME FIRST MI J N3DRESS . RACE CODES · A- ASiAN/ORIENTAL B - SLACK H - HISPANIC I -AMERICAN INDIAN O - OTHER W - WHITE PERSON LAST NAME FIRST MI j ADDRESS ~CODE '~;~.~--"~ROME PHONE~,~.~ ¢~. J J BUSINESS PHONE J /Or' ~J'"~ J~ JI~OCCUPATION~. PERSON LAST NAME FIRST MI J N;)DRESS CODE HOME PHONE BUSINESS PRONE J OCCUPATION RACE I SEX DO~ I AGE J HGT WGT EYES HAiR COMPLEXION Narrative: (Print or Type Only) HRS HRS HRS PDTS-1A TRUSTEES John M. Bredemeyer, III, President Henry P. Smith, Vice President Albert J. Kmpski, Jr. John L. Bednoski, Jr. John B. Tuthill Telephone (516) 765-1892 BOARD OF TOWN TRUS~fEES TOWN OF SOUTHOLD SCOTI" L. HARRIS Supe~isor Town Hall, 53095 Main Road P;O, Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 May 18, 1990 AS A POINT OF INFOP~ATION: ON MAY 17, 1990, THE SOUT!qOLD TC%~ BOARD OF TRUSTEES VIEWED THE PROPERTY OF J~4ES BITSES LOCATED ON THE N/W CORNER OF SOUNDViEW AVENUE .~ND LIGHTHOUSE ROAD, SOUTHOLD, NY AND DETEP~INED THERE HAD BEEN NO VISIBLE ACTIVITY OR C~ANGE ON PROPERTY SINCE THE LAST INSPECTION BY THE BOARD. TRUSTEES John M. Bredemeyer, I1~, President Henry P. Smith; Vice President Albert J. Krupski, Jr. John L. Bednoski, Jr. John B. Tuthill Telephone (516) 765-1892 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 May 18, 1990 AS A POINT OF INFORMATION: ON MAY 17~ 1990~ THE SOUTHOLD TOWN BOARD OF TRUSTEES VIEWED THE PROPERTY OF JAMES BITSES LOCATED ON THE N/W CORNER OF SOUNDVIEW AVENUE AND LIGHTHOUSE ROAD, SOUTHOLD, NY AND DETERMINED THERE HAD BEEN NO VISIBLE ACTIVITY OR CHA/~GE ON T~E PROPERTY SINCE THE LAST INSPECTION BY THE BOARD. DIVISION OF MARKETING 516 727-3580 STATE OF NEW YORK DEPARTMENT OF AGRICULTURE AND MARKETS P.O. BOX 551 RIVERHEAO, NEW YORK 11901 January 22, 1990 A1 Krupski Box 275 Peconic, NY 11958 Dear Mr. Krupski, Regarding the definition of a Farm, for statistical purposes, the U.S. Dept. of Agriculture and the U.S. Dept. of Commerce, Bureau of the Census, have defined a farm as "any operation that would normally produce a $1,000.00 worth of agricultural products in a year". According to Paul Bascom of USDA Agricultural Statistics, this definition has been in use since 1975. As far as he knows this is not contained in any legal statute, however. Another definition that is written as part of a law is the one used for Agricultural districts. A copy is enclosed. I hope this is helpful. Sincerely, · ' Jon Obert, ~ Associate Marketing Rep. JVO/dba eric. JAMES A. SCHONDEBARE TOWN ATIORNEY MATTHEW G. KIERNAN Asst. Town Attorney OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD INTER-OFFICE MEMO FROM THE TOWN ATTORNEY'S OFFICE TO: FROM: DATE: RE: Trustees ~ James A. Schondebare. Town Attorne November 27. 1989 Resolution James Bitses Town Ha!l, 53095 Main Road P.O. Box 1 179 Southold, New York 11971 TELEPHONE (516) 765-1939 FAX NO. (516) 765-1823 2 8 [980 Attached is a type written copy of Mr. Bitses proposed settlement agreement. As can be gleamed from a reading of same reference is made to the DEC Fresh Water Wetland Act. This. of course, does not apply to your Board since your authority is pursuant to Chapter 97 of the Town Code. and your actions against Mr. Bitses have been under the Code. I have prepared the enclosed resolution for your review, which I believe, pertains to our involVement with Mr. Bitses. Any differences between the DEC and Mr. Bitses under the Fresh Water Wetland Act is a matter between themselves. WHEREAS, James Bitses and Kathleen Bitses are owners of certain real property located on the north west corner of Soundview Avenue and Lighthouse Road, Southold, New York upon which is located a 'freshwater pond and wetlands, and WHEREAS.'I~he Board of Trustees of The Town of Southold are duly charged with the protection and regulation of freshwater ponds and wetlands pursuant to Chapter 97 of the Code of the Town of Southold entitled "Wetland". and WHEREAS, the Trustees and the Bitses' have reached an agreement concerning the operation and activities of Bitses to and upon the freshwater pond and wetlands upon said property for the purposes of growing blueberries. NOW THEREFORE BE IT RESOLVED. that the parties do hereby agree that the freshwater pond and wetlands as it exist on November 16. 1989 shall not be further reduced or destroyed, and that the Bitses' shall plant, cultivate and harvest their blueberry bushes about the area. and BE IT FURTHER RESOLVED. that any and all actions, proceedings, and prosecutions in the Justice Court of the Town of Southold and in the Supreme Court. Suffolk County be and are hereby discontinued. WHEREAS. numerous disagreements and conflicts have arisen giving rise to numerous legal actions by both parties against each other, and WHEREAS. James Bitses owns a three acre parcel and dwelling on the north side of Soundview Avenue at the intersection of Lighthouse Road. and WHEREAS. the Trustees of the Town of Southold wish to maintain a freshwater wetland area thereon, and WHEREAS. James Bitses has planted a blueberry patch on said ~ property pursuant to the farmers and landholders exemption contained ', .~. Fresh Water Wetlands Act Article 24 Section 701 page 4. and ', WHEREAS. the Trustees wish to retain the existing wild wetlands I / vegetat,on st,II growing on said premises. NOW THEREFORE. in consideration of mutual covenants and agreements hereafter, the parties agree and stipulate as follows: 1. James Bitses agrees to leave untouched such wetland vegetation as is presently in existence on the easterly side of this said property and to cease and desist from the removal thereof, allowing it to flourish naturally. 2. The Trustees agree, now and in the future, to obey and uphold'-'~ the rights of James Bitses to enjoy the agricultural benefits of his~/ (/~/~ £ -~/~ said propertY provided that said Bitses obe s the Fresh Water Wetl ~ Y ands/. Act and adheres strictly to Fresh Water Wetland Act Article 24 Section/ /2 -//~) ~~ 701 page 4 with all its advantages and all its restrictions. This shall ~/ ~ ~be the operant statute in this matter. ~ 3. Both. parties naturally agree that upon execution of these presents, they will each withdraw and discontinue any and all actions of whateveP nature that either party has commenced against the other in any court or tribunal in the State of New York and will hold the other harmless from any penalty or damages arising from these actions. exchanging stipulations of discontinuance as an earnest thereof, 4. The Town of Southold. by its Town Attorney will intercede on '~ behalf of Bitses with the New York State Department of Environmental Conservation to terminate all proceedings as and between said Department and Bitses as part of' this agreement. The Town Attorney will submit a j copy of this Stipulation to the said Department and effectuate a mutua~ '" exchange of stipulations of discontinuance as and between Bitses and the DEC in the Supreme Court. Suffolk County. the Court of the DEC or any other tribunal of the State of New York. 5. As a token and earnest of good faith. Bitses will deliver to each Trustee. one quart of blueberries from the first harvest of his said blueberry farm. Inc~den! Or C, ime / ~ Grid Day o~ Occurrence Dat~ofOcc. I Timeof Occ, Dateo[ Repot1 ~ ~ ,1~-/~ I m~ ~,1~[~ Name ~omplainant Victim D.~.B Address ~ I ~Ph°ne Place Of Occurrence Time Out Time In I ~Founded r~Cleared By Arrest PDTS 2 - Continuation Report Attached? [] Yes Supervisor Reporting Officer Shield No. Form I FRANK A. KUJAWSKI, JR., President ALBERT J. KRUPSKI, JR., Vice-President JOHN M. BREDEMEYER, Ill JOHN L. BEDNOSKI, JR. HENRY P. SMITH TO: FROM: DATE: RE: BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 728 Southold, New York 11971 John Holzapfel, Conservation Advisory Council Frank A. Kujawski, Jr. October 23, 1989 Inspection of SCTM 1000-50-6-4 and 5 TELEPHONE (516) 765-1892 At our November 16, 1989 Board meeting we will be discussing the wetland violation of James Bitses. Would you please inspect the site of the above mentioned property numbers to determine if there are wetlandskon lot number 5 and possible drainage from lot number 6, (there are'culverts under the road leading to Mr. Bitses pond from Hummel's Pond). FRANK A. KUJAWSKI, JR., President ALBERT J. KRUPSKI, JR., Vice-President JOHN M. BREDEMEYER, III JOHN L. BEDNOSKI, JR. HENRY P. SMITH TELEPHONE (516) 765-1892 James Bitses, Esq. Soundview Ave. Southold, N.Y. 11971 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 728 Southold, New York 11971 October 23, 1989 Re: Wetland violations at Hummel"s Pond, Southold, N.Y. Dear Mr. Bitses: At our regular Board meeting, which will be held on Thursday, November 16, 1989, we will be discussing the above mentioned matter at our 6:00 P.M. worksession. Could you please be present at this meeting? Please call this office to advise. FAK: jas cc: James A. Very truly yours, Frank A. Kujawski, Jr, President Board of Trustees Schondebare, Town Attorney ~ POLICE DEPARTMENT, TOWN OF SOUTHOLD .' : Peconic, New York 11958 · State of NewYork)-- ( COMPLAli~ 1523 County 6f Suffolk) -ss: Town of Southold) The trade, signed police officer accuses · .......... lg... at about .............. ~ M at the ~fe~dant di~'w~ngfully, i~tention~ly, and' kno~gly commit the Court Appearance Date: ................... Vessel Reg,-No. [ Yea~ & Make Hull Color ]Type: Sail~'~ · . ,. Ilnboard['] OutboardD · Is Operator the Owner? Yes [--} Nog] - Plea: Guilty [~ Not Guilty r'] Docket No. , Finding: Dis [~]; Cony [~]: NG [] Sent; - in that defendant did · '~.. o..~.-~..r~..~,~. ~.~...w c?~..~.'C: ~....'U..~..~.~. ~.. Present: Hon. PAUL ]. BAISLEY z.s.c. At a Spr -ial Term, Pt. of the S,,preme Court of the State of I~ew York, held in the County of Suffolk, at the Courthouse Gritting Ave Town of Riverhead on flue 1989. /IA1VIES BITSES. KATHERINrE BITSES Petitioners, versus DEPARTMENT OF ENVOIRN1ViENTAL CONSERVATION OF THE STATE OF Respondents. ORDER TO SHOW CAUSE Upon the annexed petition of JAMES BITSES, the Petitioner herein, duly verified the ~Z/~day of September, 1989, md upon the affidavits and exhibits, ( if any)., annexed hereto, duly sworn to the day of September, 1989. Let the Respondents, Thomas C. Jorting, Commissioner, Frank M. Panek, Supervisor, and any and all other necessary members of the ~ep-arfmeiui_~ of Envoirnmental Conservation of the State of New York, SHOW CAUSE at a ~'~~' ara , of this Court, to be held on the 20;TH day of Oc~tobe'P. · . 1989, at nine thirty o'clock in the' fore noon of that day or as soon thereafter as counsel can be heard at the Supreme Court House located on Gritting Avenue, Riverhead, New York why an order pursuant to CPLR Article 78 should not be granted removing Petitioner's property from the New ~rk State Freshwater Wetlands Map as presentl' ~ublished, directing Respondent to vacate and annul the designation of Petitioners ~roperty as wetland and return said property to its former designation as agricultural- residential. Further, to forbid and enjoin any interferance by the DEC or other governmental body in legitimate agricultural activity by flue Petitioner, on subject premises pending the hearing and determination ~this application, and why such other and further and different relief should not be granted to the Petitioner as to the Court may seem just and proper, together with costs and disbursements. Sufficient cause appearing therefor, let service of a copy of this i! order together with a copy of the Petition with annexed exhibits and affidavits, -' if any, on the agent in charge or upon the attorneys r~epresenting the DEC located at their offices in Building 940 Campus State"'University of New York at Stony Brook, N.Y. on or before the ~/~ day of ~_y~..--. 1989 be deem- ed sufficient, and in the meantime it is Ordered that pending hearing and determination of this application the Department of Envoirnmental Conservation and any other governmental authority be and they are hereby stayed from interfering with legitimate agri- cultural activities and proceedures by Petitioners on the premises denominated SO-24 wetlands map of Southold-property on NORTH side of Soundview Ave. Further ordered~ that the DEC produce an official copy of the pertinent Freshwater Wetlands Map at the hearing.// ~6e~ 6~9Z'/$/~. Dated: St R OCT :~ 19~g WILLIAM G. HOLST CLERK OF SUFFOLK C(TJNT? PAUL-J. BAISLET JSC ~ under Which Petitioner is proceeding in the use of Blueberry Ground for ' agricultural purposes is as follOW~: !; FRESH WATER WETLANDS ACT ART. 24 SECTION 701, SUBDIVISION 4 ii "The activities of farmers and other land owners in grazing and watering livestock, making reasonable use of water resources, harvesting natural 5- products of the wetlands, selectively cutting timber. DRAINiNG LAND OR WETLANDS FOR GROWING AGRICULTURAL PRODUCTS, and otherwise , ,i engaging in the use of wetlands or other land for growing agricultural products,i ii re under Subdivision 1 hereof~ except that structures not quired for enhancement or maintainance of the agricultural rodu Il ~ P ct~vity of ii the land and any filling activities shall not be exclude~ hereunder, and provided -~; that the of the land designated as a freshwater wetland upon the freswwater' i! use ii wetlands map at the effective date thereof for uses other than those referred to 'il in this subdivision shall be subject to the provisions of this art/cle." ~ 4- It was clearly legislative intent that a broad exclusion cover "activities of i farmers and other landowners..." · ~n flue enjoyment and use of freshwater i! etland, if any, located on their property that such land be used, "for growing i agricultural products and otherwise engage in the use of wetlands or other !lands for the growing of agricultural products .... THE STATUTORY EXCLUS- !i ION OF AGRICULTURAL ACTIVITIES IS CLEAR AND UNAMBIGUOUS BEYOND PREADVENTURE OF DISPUTE. 5- Petitioners are nearing retirement age and may soon be unable to pay land taxes or provide for themselves. ~or this reason they embarked upon the growing of Blueberries and have invested large sums of money to provi~ a sma STATE OF NEW YORK,~ COUNTY OF is.i The undersigned, an a~tor], admitted to practice in the courts of New York State, Certification certifies that the within Af,~rmatTon ' with the original and found to be a true and complete copy. the attorney(s) of record for action; deponent has r~d the foregoing and knows the contents thereof; the same is to be alleged on information and belief, believes it to be true. This verification is made by deponent and not by of to all matters not stated upon deponent's knowledge are as follows: ] Co.orate the £oregoL'~g ? ' :/ is true to ~ belief, and - :. S//or~ to before own I ~elieves it to' be true; ; -' '::' "; ' tl~er~of; the same is true to belief, and as in the within action; deponent has read the and knows the contents thereof; and the same to the matters therein stated to be alleged upon information and to those-matt~r~ ?eponent believes k to be true. This verification is made by deponent because -' '- . :: :: '.'~ - . is a corporation and deponent is .an officer thereof. of deponent's belief as to ali matters not stated upon depanent's knowledge are as follows: STATE OF NEW YORK, COUNTY OF being duly sworn, deposes and says: deponent is not a party to the action, ' is over 18 years of age and resides at ] 19 deponent served the within of Servlc~ upon " ] " attorney(s) for - ~' in this action, at - ;. ~ ' ' ' --:" the address designated by said attorney(s) for that pm'pose ~ by depositing a true copy of same enclosed in a post-paid properly addressed wrapper, in -- a post office -- official depository under the exclusive care and custody of the United States Postal Service within the State of New York. ct Attidavit On 19 at Se.ice deponent served the within ' - upon _ the herein, by delivering a true copy thereof to h personally. Deponent knew the person so served to be the person mentioned and d~cribed in said papers as the therein. Sworn to before me on 19 '[he nama signed must be p:inted beneat[~ INTER-OFFICE MEMO FROM THE TOWN ATTORNEY's OFFICE TO: FROM: DATE: POLICE DEPARTMENT, TOWN OF SOUTHOLD Peconic, New York 11958 State of New York) County of Suffolk) ss: ~own ~f Southold) The undersigned police officer accuses of the ......... ~C/,~'T"~',"~t b ~' .......... Ordinance of the Town of Southold. N.Y., in that on the ...... .j.] .... day of ·...~,~..~-r... ~9,~. at ,bout ...lq: ¥~.~. .... .eM ,t hamlet of .... ~/-~'~-'f't~/a.J~:' ......... Town of Southold, N.Y. the defendant did w'rongfully, intentionally, and knowingly commit the offense of: · ./v~.~..'~,~_~.,~ ~ ~.. P~c,~', .'~'.. ............. COMPLAINTN-° :[489 Ve~e! ReS, No. { Yea~ &. Make I Lensth I { Hull Color {Type: Saii~'1 J ~board ~ Ou,bo~d~ Is Operator the ~ner? Yes ~ No~ Plea: Guilty ~ Not Guilty ~ Docket No, ~]nding: Dis ~ ; Cony ~; NG D Sent; in that defendant did .... ~. [~.o~.-~. ~~ ........ ................................. ~ 'f~lse statement made herein is punishable as a Class "A' mi~emeanor {Sec. 210.45 P.L.) POLICE DEPARTMENT, TOWN OF SOUTHOLD Peconic, New York 11958 COMPLAINT The undets/~ned police officer accuses .. :.~..-¢..~....~....~..~ ..... : .~.;~ .........of of a ~o, atioo of S,c...-?-9---~ --, Sub~ ............. of the ~"~-'~ 'akt ~ Ordinance of lhe To~ of~outhold, N.Y., in ~hat on the .' .... ~ ~ .... day of n~iet ol ....................... ,To~ of Southold, N.Y. the defendant did wrontfuHy,-intention~ly an~, kno~ly commit the N.°: 1521 ou.^ppea.ance Y ' ' Hull Colo£ ~ Type: Safl~ I~board'D Outbo~d~ Is ~er~tor ~e ~rV Yes ~ No~ Plea: Guilly ~ Not Guilty ~ Docket No. ~nding: Dis ~ ; Cony ~ ; NG ~ Sent; in ~at defendant ~d . ~. :~~. ~.~.. ~~,.. :. ....... A ~alse statement made herein is punishable as a Class "A" misdemeanor (Sec. 210.45 P.L.) POLICE DEPARTMENT, TOWN OF SOUTHOLD Peconic. New York 11958 State of New York) County of Suffolk) SS: ~own Of Southold) The undersiiFted police officer accuses .... ~,..,,'v~aD ..... ~v y ....... ~lq.7 / ........ ora violation of Sec....~7._~.~ .... Subdiv ............. of ,h~ ......... ~ff~ ~.~ ~ ~. .......... of the Tom of Southold, N.Y., in that on the ...... ./.] .... dayof - - ~. · . 19~. at about .../~ .... .eM at hmlet of .... ~&~ ......... Tom of Southold, N.Y. the defendant did wrongfully, intention~ly, and kno~gly commit the offense of: · ./~ - ~a,~s,~ ~ ~.. ~'~ ............. coMP.^,.. NO 1489 O¢.'r~ ~ Co~rt_A~ . Date: . .~., .... ~V ....... Ve~el Res, No. Ye~ & Make Hull Color Type: Safl~ ~board~ Outbo~d~ Is Operator the Owner'/ Yes [] No j--] Plea: Guilty [] Not Guilty [] Docket No. Finding: Dis [] ; Cony []; NG [] Sent; in that defendant did ·..~.~.~..~.~.'r.t.~C..'...O.e .~.~.~.~.~..~.'...~. ~..'r~t.~.... .... 7~.. ~'~-..,.'~'..o~../t..~.~.~.~.~..~...-~__.~.. ........ ·..~.~'~,-4~1~5. "- A false statement made herein is punishable as a Class 'A" misdemeanor (Sec. 210.45 P.L.) Officer ....... ~ ..... ~, ...... Iff ~ 1 POLICE DEPARTMENT, TOWN OF SOUTHOLD Pec0nic, New York 11958 1501 State of New York) County of Suffolk) ss:i -- ~'Town of Southold) · The undersigned police officer ~ccuses ., ~.a.m.~. ~.J.1;~¢~ .......................... of S oundview Ave. Southold ~ ~ N.Y. 1 ~ 97q of a violation of Sec. 97.-.2.0. ....... Subdi¥. · .A. ......... of the ....... 3'./e ~l.ar~4 $ ................ Ordinance ~kUg. t~.9. a, abo~t 700 P $outho]Jd hamlet of , .............. Town of Southold, N.Y. the defendant did wrongfully, intentionally, and knowingly commit the offense of: ~ Conducted operations without a wetianas p e rm'i~ ....................................... Sept. 22,1989 ! Court Appearance Date: ............ , ....... I Type: Sad.l--] Hull Color ] Inboard F'] Outboard[-] Is Operator the Owner? Yes [] NO[--] Plea: Guilty [] Not Guilty [] Docket No. Finding: Dis [] : Cony [] : NG [] Sent: in that defendant did hire a sub~ec~ to dig~a ~ench Southold. A false state~)~n'~, made h.ereiq/q~ptlnish, able as a WILLIAM H. PRICE, JR. ATTORNEY AT LAW 828 Front Street, P.O. Box E Greenport, N.Y. 11944 Phone (516) 477-1016 Fax (516) 477-0130 August 22, 1989 Hon. Judith Terry Town Clerk Town of Southold Main Road Southold, NY 11971 Re: Town Freshwater Wetlands Map Dear Mrs. Terry: Section 24-0501 of the Environmental Conservation Law provides in part: 1. On or after September 1, 1975, each local government may adopt, amend, and, upon the filing of the appropriate freshwater wetlands map, implement a freshwater wetlands protection law or ordinance in accordance with this article to be applicable to all freshwater wetlands wholly or partially within its jurisdiction. Has the Town of Southold filed the appropriate map? If so, please send the undersigned a copy of same. If there is a charge, please bill me. Thank you for your courtesy and cooperation in this matter. Very truly yours, William H. Price, Jr. CZ4-3 Meeting of June 29, 1971 A special meeting of the Southold Town Board was called by the Supervisor, Albert M. Martocchia, at 16 South Street, Greenport~ New York, on June 29, 1971 at 9:30 P.M. All members were given notice according to law. The following were present: Supervisor Albert M. Martocchia, Councilman Howard C. Valentine, Justice Martin Suter, Justice Louis M. Demarest, Councilman James H. Rich, Jr., Town Attorney ~obert W. Tasker, and Town Clerk Albert W. Richmond, Absent: Justice E. Perry Edwards. Moved by Councilman Valentine, seconded by Councilman Rich, ~I~EREAS,Burton Potter Post ~185, American Leglon~ Greenport, New York, applied to the Town Clerk for a Bingo License, and WHEREAS, the Town Board has examined the application and after investigation made findings and determinations as required by law, NOW, THEREFORE, BE IT RESOLVED: That the Supervisor be and he hereby is authorized and directed to execute on behalf of the Town Board the findings and determinations required by law, and it is further, RESOLVED: That the Town Clerk be and he hereby is directed to issue a Bingo License to the Burton Potter Post ~185, American Legion, Greenport, New York. Vote of the Town Board: Ayes: Supervisor Martocchia, Councilman Valentine, Councilman Rich, Justice Suter, Justice Demarest. Moved by Councilman Valentine, seconded by Councilman Rich, it was RESOLVED: That the proposed Zoning Maps and Zoning Ordinance be sent to the Suffolk County Planning Commission for their recommenda- tions and approval. Vote of the Town Board: Ayes: Supervi~ r Martocchia, Councilman Rich, Councilman Valentine. Nays: Justice Suter, Justice Demarest. Resolution declared LOST. STATE OF NEW YORK SUFFOLK COUNTY Office of the Town Clerk of the TOWN OF SOUTHOLD Moved by Councilman Valentine, seconded by Justice Demarest, WHEREAS, by resolution adopted by this Town Board on the 14th day of June, 1971, a public hearing was authorized to be held on "An Ordinance Regulating Dredging, Filling and Construction Operations on Wetlands in the Town of Southold, and WHEREAS, said hearing was held by the Town Board on the 29th day of June, 1971 at the Greenport School, at which time all interested persons were given an opportunity to be heard, and WHEREAS, the Board deems it is in the best interest of the Town of Southold that this Ordinance be adopted, NOW, THEREFORE~ BE IT RESOLVED: That the Town Board of the Town of Southold enact the following ordinance to wit: This is to certify that I, Judith T. Terry, Town Clerk of the Town of ss: Southold in the said County of Suffolk, have compared the foregoing copy of minutes of the June 29~ 1971 Southold Town Board 6f';,r-' ..... .... , ....... ..e.et.i.n.g ~,, ~-u,nance Kegu~ating Dredging, ~ollit~oi(~gd' CtTnst'rucfion' Operations. orr 'Wetlarrds 'irt ~:he 'Town. of w~ [t~°e original now on file in this office, and that the same is a correct and. true transcript of such original minutes .of .tha .J.ur~e. :~ 9,. 1971. $ou.thold Town Board meeting reflecting the enactment of "An Ordinance (Seal) Regu'lati~lg - Dice,.gin.g,. 'Fillin~ '~nd' Cb~'~tYU'¢tiOn' O~(~r'atiOt~s' Oh' ~et[and$. i.rt .t,h(~ .Town .qr. 5.euthol.d". ........ and the whole thereof. In Witness Whereof, I have hereunto set my hand and affixed the seal of said Town this ..... 13.th .... d~y of . . .Aug~s.t... 19 B9 ........... Town Clerk of the ToWn of Southold; County of SuffolLL/N.y. STATE OF NEW YORK SUFFOLK COUNTY Office of the Town Clerk of the TOWN OF SOUTHOLD SS: (Seal) This is to certify that I, Judith T. Terry, Town Clerk of the Town of Southold in the said County of Suffolk, have compared the foregoing cooy of .a .pq~.tio[~. p~. sheet. #1,. Sou.thpJd. Quad[-a~gJe,. fr. Qm. the. $~f)~olk County_ Tentative Freshwater wetlands maps, recieved .o.q June '7',' '1'98'9' '15~ 'l~l~& 'Sbbthbla' Tb'~r~' Cl&/~k'~ 'Offi'6~ ............. with the original now on file in this office, and that the same is a correct and true transcript of such original a portion of sheet #I, Southold .qu. a, .dr.a.ng.l.e,, f.ro..m..tb.e..S.u.(fp! .k..Cp.u.n. ty .T.ep.t.a.ti.v.e. ,F..re. s. b.w.a.t.er.' Southold Town. Clerk's .M. ~f~e~r.e.c.eiv. e..d..o.n..J.u.n.e..7.,..1.9.8.9. .b.y.t.b.e... andtne wnoletnereof. In Witness Whereof, have here~unto set my hand and affixed the seal of said Town this .... ~.l.t.h. ..... day of . .A..ug.u.s.t ..... 198.9 ............. Town Clerk of the Town of Southold, County of Suffolk, N.Y. JAMES A. SCHONDEBARE TOWN ATTORNEY ROBERT H. BERNTSSON ASSISTANT TOWN ATTORNEY OFFICE OF TH~ TOWN ATTORNEY TOWN OF SOUTHOLD INTER-OFFICE MEMO FROM THE TOWN ATTORNEY'S OFFICE Town Hall, 53095 Main Road P.O. Box i 179 Southold, New York 11971 TELEPHONE (516) 765-1939 TO: FROM: DATE: RE: Don Dzenkowski, Bay Constable Robert H. Berntsson, Assistant Town Attorney~~-~? June 30. 1989 People of the State of New York v. James Bitses Please be advised the above mentioned case will appear on August 11, 1989 at 1:00 P.M. for trial. Please advise me if there are any other necessary witnesses, MEMOR~dtDUM TO: FROM: DATE: RE: James A. Schondebare, Town Attorney Valerie Scopaz, Town Planner June 23, 1989 Attached correspondence from Robert J. Hindman, Esq. pertaining to Bitses VS. Town of Southold. As per your request of June 15th, I have reviewed the above-noted letter. On January 11, 1989, James Bitses delivered to me a statement pertaining to the Too-Bee Realty subdivision, which is located on the south side of SoundView Avenue and the west side of Lighthouse Road. I beleive that this subdivision is the property that Mr. Hindman referred to in his letter as being owned by the co-defendents. Mr. Bitses' statement was discussed at the Joint Planning Board-Highway Committee meeting which was held that same after- noon. Copies of this statement were given to Ray Jacobs, Jean Cochran and Ruth Oliva. At this meeting, Ray Jacobs stated that Mr. Bitses had called him to discuss the drainage problem. However, he indicated that he had not agreed to have the Town of Southold install a catch basin on private property. Mention was made that the Planning Board would require the owners of the Too Bee Realty subdivision to install the necessary drainage to handle the runoff generated by their subdivision. You might want to discuss this further with both Ray and Jean. My recollection is that there was agreement at the meeting that no action would be taken by the Town on Bitses' request. As you are aware~ the owners of the Too-Bee Realty subdivision also own, under a different corporate name, the property that lies between the Too-Bee subdivision and the south side of SoundView Avenue. It is the latter property that contains the pond which is the focus of Mr. Bitses' complaint. The subdivision application on the pond property, known as Hanauer-Bagley, has just received a positive declaration. La · 'ii !.;, 1,939 TO~. .,,q ATTORNEY'S OFF CE % Y.,¥N OF SOUTHOLD LAW OFFICES AHMUTY, DEMERS & McMxNus 200 I. U. WlLLETS ROAD ALBERTSON, NEW YORK 11507' .Tames A. Schondebare, Esq. To,.m Attorney 7own of Southold, Town Hall %3095 Main Road ?.O. Box 1179 qouthold, New York 11971 June 13, 1989 NEW YORK CITY OFFICE 55 JOHN STREET NEW YORK. NEW YORK 10088 (212) ,518-7788 RE: Bitses vs. ~Town of Southold, Etc. Our File No. : CN1A2300RH :!ear Jay, I attended a conference on this matter in Hauppauge on June 12th,1989. i~unsel for co-defendants was present and, surprisingly, so too were the '~L~intiffs, James Bitses and Katherine Bitses. Mr. Bitses approached me privately and advised that he has no quarrel [th us, but, rather, with the co-defendants. He blames them for his flood- ]n~ problem and claims that they have obstructed the way in which water ~ormerly drained off the pond, located on the co-defendant's property, which ~s on the other side of Soundview Avenue from Bitses' land. He claims that the co-defendants have built up an earthen dyke, so as to make buildable the adjoining parcel that was formerly the drain-off for the co-defendant's pond. In any event, Bitses claims that he has discussed this problem with Ray ~acobs of the Town of Southold. That Jacobs has said to Bitses that the problem is resolvable by the installation of a canch-basin on the co-defen- kmt's property. Further, that per Jacobs, as mentioned to Bitses, the Town of Southold would be willing to pay for same, provided they are deeded a ri~ht-of-way, or access, in order to service the catch-basin. Hence, I am writing to you to ask for your advices as to whether the foregoing accurately reflects the position of the Town of Southold in this matter? Mr. Bitses has recommended that we all meet at the Town Hall in order to pursue this further, and to extract an agreement from the co-defendant to pro- ceed as mentioned. If this is agreeable to you, please let me know and I will work on setting up the meeting. .~- RJH: jb I thank you for your attention to this matter and await your reply. JAMES A. SCHONDEBARE TOWN A'FFORNEY ROBERT H. BERNTSSON ASSISTANT TOWN ATTORNEY Town Hall, 53095 Main Road P.O. Box 1179 Southold, NeTM York 11971 TELEPHONE (516) 765-1939 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD TO: FROM: DATE: SUBJECT: Board of Town Trustees Robert H. Berntsson, Assistant Town Attorney April 22, 1988 People v. Bitses As you may be aware, there is a violation pending against James and Katherine Bitses for filling activities on their property at the corner of Soundview and Lighthouse AvenueS in Southold. Mr. Bitses has moved for the dismissal of the charges on several grounds. Oral arguments on the motion were . held before Justice Price today. In conducting my legal research to oppose the motion, a number of issues were raised. I am attaching a legal memorandum from myself to Jay Schondebare. As you can see, the Town may not implement local jurisdiction under Article 24 of the Environmental Conservation Law until the DEC has promulgated a final map covering the area of the Town. The Town may, however, regulate wetlands under its police power. It should be noted, that the definition under Chapter 97 of the Town Code refers to the definition of Freshwater Wetlands under Section 24-0107, subdivision l(a) to l(d) inclusive. If an area in question does not fall within that definition, it is not a Freshwater Wetland under Chapter 97. A potential problem area in the enforcement of the Freshwater Wetlands ordinance relates to notice to affected landowners. Under Article 24 of the Environmental Conservation Law, affected landowners will receive notice through public hearings to be held before the promulgation of the final maps. -The affected landowner will therefore have notice that their property contains freshwater wetlands. Under the Town Code, there are no notice procedures. A recent court case has held that there is no requirement for local governments to map freshwater wetlands. However, in that case, the court found actual notice to the affected landowner, in that the previous owner had applied for a wetlands permit on a prior occasion. I recommend that notice be sent to all persons who own property which has been designated as containing freshwater wetlands. This would be an interim measure. Once the DEC promulgates its final map, the Town would best be served by adopting that map and making additions thereto, in accordance with Section 24-0507 of the ECL. As stated earlier, oral arguments on Mr. Bitses' "Motion to Dismiss" were held today. Justice Price has reserved decision on the motion. I will advise you of his decision upon receipt. ~ If you have any questions or comments concerning the above, please feel free to discuss same with me. cc: Town Board Bay Constables RHB: jas JAMES A. SCHONDEBARE TOWN ATTORNEY ROBERT H. BERNTSSON ASSISTANT TOWN ATTORNEY Town Hall, 53095 ~Main Road P.O. Box 1179 Southotd, New York 11971 TELEPHONE (516) 765-1939 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD TO: James A Schondebare, Town Attorney FROM: Robert H. Berntsson, Assistant Town Attorney DATE: April 18, 1988 SUBJECT: Freshwater Wetlands Act, ECL Article 24. A question has arisen as to whether the town may implement on the local level, pursuant to ECL Section 24-0501, a freshwater wetlands protection law. A review of Article 24 of the Environmental Conservation Law indicates that the town may only do so after the Department of Environmental Conservation has completed and filed a freshwater wetlands map. However, it appears that the Town may regulate freshwater wetlands under its police power. The "Freshwater Wetlands Act" is found under Article 24 of the ECL. The rules and regulations for the implementation of the act are found in the Official Compilation Codes Rules and Regulations of the State of New York, 6 NYCRR Section 662 et. seg. Part 665 of' 6 NYCRR covers local implementation of the Act. Under section 665.3 (c) in areas of the State without an official map, the interim procedures apply. Under the interim procedures, Section 662, there is no procedure for local implementation, only the DEC may enforce the act and grant permits. There being no final map covering Southold Town, the interim procedures would apply, with no procedure for local implementation. Once the final map is promulgated by the DEC, the town must notify the department of the adoption of the local law implementing the freshwater wetland act on the local level. Without the possibility of implementing local procedures under Article 24 of the ECL, it appears that the town may still adopt a local law under its police power. Section 130 (15) of the Town Law allows a town to enact an ordinance for the promotion of public welfare. That section allows for an ordinance for the protection and preservation of the property of the town and its inhabitants, among other things. A 1976 opinion of the State Attorney General states: "Local jurisdiction over any area which does not qualify as a "wetland", as that term is defined in sudb.1 of section 24-01.07, cannot be "forfeited" by that local government, since this article does not apply to these areas and therefore, a local government may, at any time, pursuant to its police power, adopt a local law or ordinance applicable to those areas not within the reach of this article". 1976, Op. Atty. Gen. 51. In Drexler v the Town of New Castle 94 AD2d 795 (1983) the court upheld the wetland ordinance of the Town of New Castle, even though a map was not filed. The court found that the property owners had notice that their property contained wetlands in that the prior owner had previously applied for a wetlands permit for other work on the property. New York State Department of Environmental Conservation Building 40--SUN¥, Stony Brook, New York 11794 Thomas C. Jorling Commissioner February 23, 1988 Trustees of the Town of Southold Town Hall Main Road Southold, NY 11971 Dear Trustees: Enclosed are copies of the DEC tentative freshwater wetland maps for the Town of Southold. Please remember that these maps are tentative and therefore are still subject to additions or deietions. If you have additional wetland nominations or comments, please send them to me with a xeroxed copy of the area involved. We will be taking additional nominations from now until March 7th. If you have any ~essions concerning the maps, please feel free to call me (751-7900, ext. 257). RS:ki Enclosure Sincerely, //~ / Fish & Wildlife Technician ~...,.~.POLICE DEPARTMENT, TOWN OF SOUTHOLD Peconic, New York 11958 State of New York) /~oun~of Suffolk) ss: own of Southold) The undersigned police officer accuses · .~,n-,~.S..~,o~oC...~'T~e~.,.q~ - · ~ ~e 50f H"]I Color of a violation of Sec..~ , .3 I ..... Sub~v..~. r-:; .... o~.~ -~-¢4~ S ................... o~a~.an~ Tom of 8outhold, N.Y., in that on the ...... J~.~ da~ of of the . ~,~ o~..~. ~e ~4 .......... ~o~ o~o~o~, ~.~. lhe defendant did wrongfully, int~ntion~ly, and kno~gly commit ' ................................. Court Appearance Date: ...... Cf ............ 19 ...... I ITy~e: ~lea: ~uilty ~ Not Gufl~ ~ Docket Finding: Dis O ~ ~on~ D: ~ D in that defender did · '~" ~.~7 · .~ ~.. ~.~.~¢. · · W,.4. ~.. ¢.~.. ~4,~¢¢,~y ¢~.~v¢.~. .. misdemeanor (Sec. 2~0,~5 P.L;) ,- ( l ocal Criminal SOUTHOLD HAML~T~x~m~ o F DOCKET NO.(S) STATE OF NEW YOBK COL~IfY OF SUFFOLK VILLAGE OF TO~N OF SOU 2HOLD Cour TOWN OF SOU2HOLD INFOHMAT[ V I 0 LAT I ON >~;~[;mC~-i~O~ J~MES & KATHERINE ss BITSES I Defendant(s) Name (Complainant) SBC DONALD DZENKO?fSKI of No. THE SOUTHOLD ~0.~ POLiC~ D~P~. / ON DEFENDANTS IN CUSTODY being duly sworn, says that on County of Suffolk, State of New York, the defendant(s) ' ~ SOU~HOLD SOUNDVIE~V AV~., JUNE 17, 1987 at about 1210 PM SOUTHOLD To~ of SOUTHOLD JAMES & KATHERINE BITSES OF wrongfully, intentionally, knowingly, ~X~C~XXX~J~X~ committed the offense(a~f of: PLACING FILL WITHIN 75' OF A FRESHWATER ~'TETL~MD WITHOUT A A VIOLATION OF ARTICLE II SECTION 9%-20 OF THE SOU~HOLD TOWN CODE ~unt ~ 1 in that:: THE DEFEND.~NTS DID HAVE FILL PLACED )[ITHIN 75' OF A FRESHWATER WETLAND WITHOUT A PERMIT ON THEIR PROPERTY LOCATED ON THE NORTHWEST CORNER OF LIGHTHOUSE RD. & SOUNDVtEW AVE., SOUTHOLD, T0?~ OF SOUTHOLD, COUNTY OF SUFFOLK, NEW YORK. A VIOLA~ION OF ARTICLE II 8ECTION 97-20 OF THE SOUTHOLD T0~ CODE. This complaint is based on (personal knowledge) & (~L~iz~X~fX~j~), the source being the tached ~- sworn deposition (s) of dated 3 r- the attached laboratory report of the dated ~ *' SWOI~N TO BEFOBE/~ THIS -- DAY OF dt at- }NOTICE - Bay Constable Town of Southold Peconic, New York 11958 NOTICE OF VIOLATION To: Date: ........ Janes ant oP }[atherine Bi~£es (Owner or authorized agent of owner) Address: (Address of owner or authorized agent of owner) Please take notice there exists a violation of the Code of the II c Town of Southold, Chapter 97 Article ..... Section ....... Filling at premises hereinafter described in that ...... v.~'e~t~nd has taken ~lac~ on your 0ro0~y located off ~:~: Rd, Souvhold You are therefore direcmed and ordered to co~ply with the ~xemov~ a~ onc.: ali fiii 0~c~d ...... - of' ~ following: ..... ~_s:~;a~_ .=~ Also mevefe~ase were nee~ed~ day of , 19 on or before The premises to which this Notice of Violation refers are situated at: Li~hth~u-~e Rd.~ o~o!a ~own of Southold, Suffolk County, Ni¥. (Suff. County Tax Map ~esignation: Dist. 50 J 6 Section: ....... -~---Block: ........ Lot: 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 T-~-~stees of the Town of Southold, provided that ~ou file a wri=tan request with the Clerk of the Trustees wzthin 10 days after service-of the Notice of Violation. Such request shall h~ve annexed thereto a copy of the Notice of Violation upon which a Hearing is requested and shall set forth the reasons why such notice of violation should be modified or rescinded,..- .... /14 ,4 Bay Constable, Town~Of Southold, NY 1.0NG 50vN° O5O PROPERTY MAP