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HomeMy WebLinkAboutDOS Letter regarding Trustees authority STATE of NEW YORK DEPARTMENT OF STATE ONE GOMMERGE'PLAZA flAVID A: PATEit$ON 99 wAgHINGTON AVENUE CORRAINE A.0oRTte-_VAZQUEZ' GOVERNOR ALBANY,NY 12231--0001 SECRETARY OF STATE March 10, 2009 :. Patricia A. Finnegan,.Town Attorney - - Town of Southold P.O. Box 1:179 MAIR 1 2 .2009 Southold; NY 11971 Dear Ms. Finnegan: Ina letter dated November 24,.20.08; you asked the.Department of State for an opinion about whether the Town Board can delegate to the Town Trustees authority to control private activities'in town waters; wetlands and.,coastal erosion hazard areas within So lthold's boundaries; whether'or not such:,lands and waters,are town-owned. This letter responds to;that -,request. Background:. Before the:Ame'rican Revolution,''colonial Dutch and English.governors granted some of l ew.York`s tidelands to;towns on Long Island, to certain individuals and to New York CRy,by colonial charters or patent: People v N.Y. and S:i. Ferry Co.,.68 N.Y.-7.1, 77 78 (1877).-O i October 31, 1676, Governbr Edmund-Andros°' English governor of the Province of New York, issued a,royal.patent to seven (7) named"proprietors"' in Southold. All colonial patents to towns on Long Island, whether.made by Dutch or English Governors, contained complete grants . oi'.owriersliip within.the boundaries of.the grant,including Southold. The Andros Patent conveyed to the patentees all the land in Southold,including all uplands,ponds, creeks aft, wetlands,.as follows.: ' The spelling of Andros appears as such in the Southold Patent. Some court decisions Spell his last name as Andross." Their full'title is"proprietors of the'common and undivided.land and meadows in . Southold.".(Laws ofNew'York,Laws of 1796;c. 52).They were Isaack Arnold,John.Young, Joshua Horton,Barnabas Horton;Benjamine Young, Samuel Glover and Jacob Corey. s The original Andros patent to-the proprietors of Southold resides.in a Brooklyn museum. Town of Southoldw.BrookT Historical Socift Oct.26,"1994 New Yoik Law Journal 33 (col. 5) "A certaine Towne ... upon Long.Island-commonly called and knowne by the.name of Southold situate lying and.being on the North side of the said Island towards the Sound having a certain tract of land thereunto belonging. The western bounds whereof extend. to a certaine River or Creeke called Wading Creeke in the Indyan Tongue : . Pauquacunsuck and bounded to'the eastward by Plum Island together with the said Island, on the north with the Sound or North Sea and on the South with an arme of the Sea or River which runneth.up between Southampton land and the aforesaid tract of land unto a Certaine Creeke which fresh water runneth into called in English the red Creeke ... together with said creek.and meadows belonging thereunto...so running::on a straight line from the head of the afore named fresh water to the head of a Small Brooke that runneth into the Creeke called Pauquacunsuck including all-the necks-of 'land.and Islands within the afore described bounds and limits." The Andros Patent declared that the.lands"shall have relation to the town in general for the well-government thereof:" The uplands comprising Southold were:distributed to ` associates and freeholders for the purpose of tillage and industry.' During,the colonial period,-the proprietors governed many of the affairs of the town, including the disposition,of the common.property.' +Gradually, as uplands were conveyed;, most governmental functions of the early proprietors were'taken over by other officials..The remaining undivided common lands, comprising mostly underwater.lands,.eventually passed to.the.SoutholdTown government, The Town of Southold owns all lands under its harbors and creeks by virtue of the . Andros Patent; to the extent not otherwise he1_d by the State or conveyed into private ownership. The Peconic and Gar Bays did not pass`by colonial patent to the Town.of Southold,nor.any:of the'otlier towns'on eastern Long.island. The lands under those waters.are in.the possession of the'State. Town of Southold'y. Parks: 41 Mice; Rep.:,456, '84 NN.Y.S. 1078 (Sup.Ct,. Suffolk Co.), afVd. 97'App: Div: 63, 90 N.Y:S..1116 (2nd-Dept.) aff d. �183:N Y. 513 (1905); Claudio v. Village of Qr'eenport, 55'Mise.2d`371, 284 N.Y.S:2d 965'(Sup. Ct. Suff. Co. 1967) and Laws.of 1884; chapter 385 as amended by Laws of 1896, chapter 916. Likewise, title to the foreshore of and submerged lands-under Long Island Sound is vested in the State of.New'York,unless otherwise conveyed away by the State,-Loundes.v.Town.cif In 1792, the Town of Riverhead.was created.out of the western end of the Town of Southold(Laws of 1792, Chapter 24).In 1964,Riverhead obtained quit claims from the trustees of.Southold of all rights_oflandwithin Riverhead-town. (Suffolk County Qlerk's.office,Liber, 5662, op. 169;Liber 5733,cp. 350): s Over time,most the lands of the original proprietors were either conveyed into private or town ownership, although they did,until recently,retain to themselves some undivided lauds. ,In 1995,the last proprietors transferred the remaining 34 acres of."common lands"to thhe Southold Town Trustees for$1. (See Suffolk Times,October 5, 1995,p. 1.) 2 Huntington, 153.1J S. 1, 22.23 (1894). As indicated.in rnyletter to you o€December 22,.2008, although the State owns these underwater lands,ahe.Town's boundaries have been: legislatively extended into the Peconic and Gardiners Bays(L.1906,c. 640) and Long Island Sound(L.'1881,c..6.95)..Therefore,the Town has authority to.ex' ercise its jurisdiction-and taxing authority within its offshore boundaries. Authority of the Southold Town Trustees In 1893, the Southold-Town Trustees were created by the State Legislature at the request of the Town and not by:colonial patent: The State Legislature passed legislation . authorizing the election of five_trustees in Southold who,as a board,would:. "manage,,lease,convey or otherwise dispose of all-or any part of all such common lands; waters.-and-lands under water;or rights or other interests therein, subject as:to lands under water, to the public right.of navigation and-to the riparian rights of adjoining upland owners,.as•the town of Southold acquired-and now holds by virtue of any colonial patent or charter.": (L. 1893,c. 61 S, as amended byL.1952,c. 404).. The Town Trustees administer for the populace the submerged lands and,waters obtained by.the Town through the Andros Patent and by way ofotlier conveyances Generally,.. these'comprise the.lands.beneath Southold's harbors and creeks up to•the high water niark:6 The Town Trustees hold these underwater lands in"trust"for the`benefit of town residents: In your letter,you asked whether the-Southol&Town Board can delegate.to the Southold Town Trustees regulatory jurisdiction over wetlands, docks;coastal erosion areas and shellfshing; whether or not these areas.or resources are.town-owned;.It.is noted that the Southold Town Board'has, over the years, conferred regulatory authority upon the Town Trustees to control private activities in town waters,,wetlands.and coastal erosion hazard areas, in addition to their,proprietary power o.ver*the bottom lands previously described: The literal words of the 1893 statute:( as'ameended.by L.1952,-c. 404 and L. 1983 C. 239).must first be considered. The trustees were created to ,manage, lease, convey, or otherwise dispose of all and.any part of all'such common lands, waters, and lands under •; water, or rights or other interests therein is subject as.to lands under water,to the public - right of navigation and to the riparian rights.of adjoining upland owners, as-the town aff Southold acquired and now holds by virtue of any colonial patentor charter...:". The.' atute- 6 The Trustees have rarely relinquished ownership,of underwater lands. However,by deed dated May23, 1930, the Southold Town Trustees did convey Long Beach in the hamlet of Orient as well as certain lands underwater in Little Bay adjacent.to Long Beach,to the State Board.sf Commissioners of the Land Office,which, in_turn;transferred jurisdiction and ownership to the LongIsland State Park Commission. These lands are now Orient State Park. 4- vision the trustees having management authority over the bottom lands and waters that Southold.acquired by virtue of the original Andros.patent. While their basic authortyis the management of lands and waters within the,Andros Patent,nothing in the state legislation, addresses whether the Southold Town Board'can give the Town Trustees additional aut=horny to regulate docks,wetlands or coastal erosion hazard,areas elsewhere in the Town. It comes to little more: (I) Can the Southold Town Board delegate regulatory,authority. to-.the Town Trustees, an entity that it did notcreate?(2)Can the Town Trustees, aboard created by the State through special legislation, exercise powers that are beyond the scope-of its original purposes.as.stated in the special legislation?To date,no court has squarely answered'these questions. . A recent case from the Town of Southampton may by analogy, lend help in finding the answers: The case of Poster v. Strou h,-299 A.D.2d 1'27, 752 N.Y.S.2d 326(2"d Dept: 2002) involved a challenge to the jurisdiction of the Board f Trustees of the Freeholders and' o .Commonalty of the Town of'Southampton to deny an application by an oceanfront prp+ rty owner who wanted to.erect a rock revetment to protect against beach erosion. The primary question on appeal was whether.the'Board acted within its jurisdiction in prohibiting.the proposed revetment. Southampton; like'Southold, has.an Andros Patent,- also issued in 1676.Ten years later, Southampton was issued a:second charter;the Dongan Patent of 1686, which created a separatelyelected-entity, the Trustees of the.Freeholders and Commonalty of the Tawn.of Southampton.?The Patent vested title to.all.tawn common land, not in the-lawful,possession . of.other individuals, in the trustees. Importantly, the status-of the.trustees.was,also affected by state special legislation. Chapter 155 of the Laws of 181&took away their authority to. superintend--and manage the undivided common lands,and, aters and transferred l egal title and authority to another.set of-trustee denominated Proprietors'Trustees".'However; the 'Covernor Thomas Dongan(served 16834 689)issued confirmatory patents to several -towns on Long Island, formed trustees there and erected.the towns,into bodies ".corpofate and ..public." The Dongan paterits.included lands underwater in many of the rivers,bays and harbors.. Four Dongan patents created"trustees of the freeholders and commonality"to hold and.xnauge all unappropriated lands to the use and benefit of the freeholders in Brookhaven,°East Hampton, Huntington.and Southampton:These colonial patents and the trustees they created were not inviolate. In 1872,the State Legislature-abolished the Trustees of the Freeholders and Commonality of Huntington created.by Governor Dongan and in its place, erected the Board of Trustees of Huntington. (Chapter 492 of the Laws of 1872)hi 1929,-the State Legislature directed that the Board of Trustees be-composed of the town supervisor,the town clerk and two, justices of the peace. Chapter 101 of the Laws of 1929. Similarly,in Brookhaven,the Sate Legislature in 1959 abolished the'original Trustees of the Freeholders and Commonality of , Brookhaven created by Governor Dongan and installed- as their successors- the town trustee; consisting of the Supervisor and,six eouncil members,to manage the underwater lands. (Chapter 841.of Laws of 1959). State Legislature in 1831 (Chapter 283 of the Laws of 1831)re-confirmed the existence of-the Trustees of the Freeholders and Commonaltyof the Town of Southampton, continued provision for their•separate election and authorized them to exercise sole control and. management of the waters of.th.e town based on the rights which flowed from ownership and possession of the Dongan Patent lands. The Proprietary authority of the Trustees of the Freeholders and.C;ommonalty of the Town of Southampton thus derives from both colonial patent ario state legislation. The Southampton Town Board expanded the Trustee'.s functions beyond the proprietary by:authorizing theft to regulate docks,jetties; revetments,beach nourishment or any structure within the bay beach or ocean beach area..(Southampton Town Code,Article VI, 111-30)In the Poster matter,.the Trustees denial of the revetment permit was challenged because the revetment-was to'be placed was on property beyond the-Bo.aril's-ownership.'in.its defense,the Town argued that the Trustees, in denying the application,were not relying.on their proprietary authorityover Dongan Patent land but on regulatory jurisdiction conferred. by the Town Board [T]his is a case where the Board[of Trustees.of the Freeholders and Commonalty of the Town of Southamptonl has.asserted jurisdiction pursuant to certain local laws which confer upon it virtually absolute discretion to grantor deny permits in connection with the proposed construction of defined structures,including revetments; within defined•areas,-including within the"ocean beach area" (Rules art. I) Addressing the regulatory authority of the trustees,the Appellate.Division stated: In this case,Poster sought,.and was denied, a particular permit required by specific local laws,as outlined above:The laws referredto above apply to projects undertaken' by homeowners irrespective of whether such projects might interfere with the<Town's property rights. In other wards;,the Board in this case is purporting to.act pursuant-to.. local laws enacted by it pursuant to the.police powers delegated.io it from the State. Poster's:argument•to_the effeet'that the.Board's jurisdiction depends,on the.Town's having tjhle to, or an easement-over,the area in question is thus without-merit.Poster's rights as a landowner,including:his rights,as a riparian landowner, "m. ust yield to the [Town's] exercise of police power." (Matter o,f Haher's Sodus Point Bait Shop'v. - �Vigle; 139 A.D.2d 950,9S l,.S28 N.Y.S.2d.244). . . Muclrofthe case-law cited by the parties is, for this reason,not pertinent. Case law which addresses the alleged conflicts between the exercise of the State's sovereign powers in connection with the fishing industry;on throne hand, and'the Town of. Southampton's supposedprivate title.to certain.coastal waters pursuant to colonial patents,on the other hand(see.State v. Trustees of Freeholders and-Commonalty of.. Town of Southampton, supra),or case law defining the extent of the'jus publicurn" (the public's fight-of navigation,fishing And bathing)whieh affects areas betweeniho high and the low watermark(see Tiffany v.Town of Oyster Bay,.234 N.Y. 15:; 2Q, 13.6. N.E. �24),is not relevantto the question presented here, which concerns only the definition of the term"ocean beach area" under local law.for the purposes of establishing whether the Board has the right to insist on Poster's obtaining apeim t prior to his constructing a revetment The court inipliedly held that the Southampton Town Board could delegate authority to tb`e Trustees of Freeholders and Commonalty ofTown of Southampton, an entity that it did not create;to regulate docks,jetties,revetments,beach nourishment or any structure writhin the bay beach or ocean beach.area. {Southampton Toren Code,Article.VI, § 111-3.0.)The court also concluded that the Trustees of Freeholders and Commonalty of Town of :.Southampton,a creature ofboth colonial patent and state legislation, could exercise-powers that are.beyond the scope of its original proprietary powers: The Southold Board of Town Trustees are in much the sameposture. While their origins are different from the Trustees of the Freeholders and Commonality of Southampton, the Southold Board of Town Trustees have likewise been conferred by the Town Board with extensive regulatory authority in addition to their proprietary power over Andros patent lands to, among other things,regulate docks,moorings and wetlands. More.fundamentally,the,1.893 Act.(.as amended by L.19S2,c: 404 and L. 1983 C. 239) is a special state law that only applies to theT'own of Southold. A special law is a State statute which applies to some,but not a11,counties, cities, towns and villageslVlunicipal, Home Rule Law'§ 2(12): Local governments are authorized to enact local laws, consistent with'the Constitution and general state laws,in relation to their property, affairs or . government and in relation to other matters specified in'-Municipal-Home Rule Law § 10{1)(ii){a),.even if thhose'local-Iaws are ineonsistentwitli special state laws. So long as the subjects of regulation are within the scope of-the Town Board's authority,they can be delegated by local law to a board created by special legislation for a.different.purpose. Two`cases illustrate this point.In Cizzo v: Town of Mamaroneck, 36 A.D.3d-162,824 N.Y.S:2.d 366(2"a Dept. 2006);the Appellate Division considered whether the Town of Mamaroneck could enact.a local law which changed.the way disciplinary hearings o f police officers are conducted. Special-.state J.egislation, entitled the Westchester County Police Act (L. )936,,ch: 104),, provided that proceedings to discipline:police officers employed by'the towns in Westchester Courity,be conducted.'by the Boards of Police Commissioners of the iownsr This case,.which involved a challenge to the termination.of the petitioner's ficer, asked the court to decide whether the Town could by local employment as.a police of law alter the terms of the special legislation,by providing,that,such disciplinary hearings shall be conducted by a hearing officer designated by the Board of Police:Cornimissione�rs. The court ruled as follows: The petitioner's claim that the Town Board was without authority to vary the terms of the [Special] Act by local law is without merit. A town is empowered to adopt laal . laws relating to its property,affairs; and government, as long,as those laws are'.n4t inconsistent with the terms of the Constitution of the State of New York or any "general law"of the State (Municipal Home Rule L'aw § 10[1],[1]; see XN. Constitution, article IX, § 2[c][I]). There is no similar requirement that a local law be consistent with a"special law"enacted by the Legislature.A"special law"may thus be superseded by a validly enacted local law.(see Landmark Colony at Oyster Bay v. Board-of Supervisors of County of Nassau, 113 A.D.2d 741, 743, 493 N.Y.S.2d 3140) 1. see also Municipal Home.Rule Law§ 10[l][i]; §35[4].). In D`Acldario v.McNab, 73 Misc. 2d 59(Sup. Ct. Suffolk.County.1973);the plaintiff argued that the original Dongan patent establishing the Brookhaven Trustees of the 'Freeholders and Commonality of Brookhaven precluded-establishmeiit-of award system for electing town council members in the-Town ofBrookhaven. The Dorgan Patent of 1686 provided.for the selection oftrustees of the freeholders and commonalty of the Town"by the majority ofvoices,'of the freeholders and.freemen of the Towne of Brookhaven."In 1959, special state legislation(L.`1959,c:`841)established that-,the'Supervisor and the.Town Councilmen would serve in dual positions as and assume the duties of the Freeholders and Commonality of Brookhaven:In 1972, the voters of Brookhaven chose to establish a ward system.Plaintiff argued.that'selection of the town council members under award system, rather than selecting them by voice vote,would.violate the provisions of the.Patent. In upholding the town's adoption of a local law creating the ward system for selecting Town council members,who also serve as town trustees;Justice Leon Lazer said: 44L,1959 c..841 is a special law. It may be superseded not only by act of the New York State Legislature but by local law adoptedby the Town.Board(Johnson v. Etkin, 279 N.Y..1, 17 N:E.2d 401):"(Emphasis added) In many instances,the towns on Long Island do not need the Staie's permission to _ regulate land and water use activities within their boundaries. In the case of People v. An 105 Misc.-2d-124; 127'(Suffolk Co.Dist.Ct.. 1980),the court stated' "[T]he tidewaters bordering on and lying within the.boundaries'of Nassau and Suffolk: counties have been specifically exempted from',,the state law regulating the use of ".navigable waters", (Navigation Law s 2(4)).Hence,the tidewaters ofNassau and Suffolk counties mtist.be deemed to be exempt from State re Ulation.of docks and p iers,.(Navigation-Law ss2(4) 32;People v. Texaco, 81 Misc.2d 260, 36.5 N.Y.S..2d 661,aff d, 87 Misc.2d 255,383 N:Y.S.2d 788;Town.ofIslip v.Powe11,.78 Misc.2,d 1007, 358 N.Y.S:2d 985). The New'fork Attorney General's office went further-in a 2004 opinion: "[Plursuant to these colonial land grants and the statutoryexemption in Navigation Law §2(4);courts have recognized that towns in Nassau and Suffolk Counties have authority to regulate tidal waterways and underlying lands within'their boundaries even absent express statutory autharity. See Melby v. Duffy;304.A.D.2d.at'37; Incorporated Village of Manorhaven v. Ventura Yacht Serm Inc., 166 A.D.2.d 6 5 (2d Dep't 1990);People v. Anton, 105 Misc.2d 124; 12T(Suffolk Co. Dist. CC 1-950):; People v. Wechsler,'79-Misc. 2d 1039 104 (App. Term,2d Dept. 1974). . 7 2004:N.Y. Op. Atty.'Gen,No.5 (emphasis added). Since Southold has the authority to:regulate activities on underwater lands and waters within its boundaries,.itcan,consistent with municipal law principles,delegate to an administrative body the authority to conduct regulatory reviews. "Well settled is the principle that legislative delegations:6fooWer to administrative bodies are legiiimate-so long as adequate standards exist to.channel the exercise of that power's Suffolk County Builders Assn,Inc. v:Suffolk County,46 N.Y:2d 613, 620(1979);Levine v.:Whalen,`39 N:Y.2d 51 a. (1976); and Dur-barReaft •Com an v. Cit of-Utica 57 A.D.2d 51 (4th Dept. 19.77) affirmed44 N.Y;2d 1QQ2{1978). . The.Town Trustees, although separatelyele'ded, are not,entirely independent of the Town Board:.T'he Town Trustees were reportedly created bythe State Legislature ai the .Town's-behest. Soon after the creation of Town Trustees,the Southold Town Board voluntarily transferred to them direct control of wetlands and lands'under,water.As stated by W. Keith Kavenagh in his masterwork Vanishing Tidelands;-Land Use and the Law Suffolk County NY 1650-1979 at P. 153: By.this [1893] act Southold belatedly acquired what the other towns in the county had for generations: trustees invested with a public trust obligation to manage certain lands and lands underwater for the benefit of the cestui que trust,the taxpayers.and residents (that is, freeholders and inhabitants)of the town. But,unlike the other towns, this was not an autonomous body,because the law expressly made the trustees subject to the rules and regulations already passed or thereafter to be adopted by the electors of the 'town.Furthermore,rather than maintain.in a separate account money,collected from . Teases and sales,the,trustees trust turn,it over to the town supervisor each year for-hire. to disburse in the interests of the town as the electors direct at their annual meetings. The 189.3 Act provides that the.Town Trustees are town.officers and are not independent.ofiicers.like board members of public authorities. See Office of the Attorney General,Inf. opinion No:2007-6: .In 1988;the Attorney General,opined that the position of Southold Town Trustee,is subordinate-to the office of Southold Town Board member:Cep.. Atty. Gen. (Inf.)No: 88-20.The Attorney.General found it pertinent.that the salaries and, budget of the Town Trustees are set by-the Town Board and that the Town Board audiAs th'e . bills of the trustees. Finally, several decisions of.the Appellate Division have 'concluded that Southold's Trustees do have jurisdiction to approve or denypermits for docks and other structures in town waters;,bottom lands and adjacent shorelands under local laws adopted by the Town Board:In 2048;the Appellate bvision-Second Department in Loiudice v Southold Town Board of Trustees;SQ A.D:3d 8QQ�S55 N:Y:S,2d 620({ d Dept.2008)upheld the.Southold Town Trustees' authority to deny a property owner's application for a permit-to ennstruet.;a dockin S.outhol&Bay. Southold Bay is comprised of State-.owned waters and underwater. 8 lands and was not granted to the Town by the Andros Patent. Nonetheless, the Town Trustees .possessed regulatory jurisdiction there. Again in.2008, the Appellate Division recognized the administrative authority of the Town Trustees to issue wetlands permits for docking faei.lities: Zupa v Board of Trustees'of Town of Southold,54,.A.D.3d 957, 864 N.Y.S.2d 142 (2na Dept. 2008). In*Long-Island Sound Oyster, LLC v "Board of Trustees 'Town of.Southold, 40 A.D.3d 1098, 837 N.Y.S.2d 261 (2n"Dept: 2007), the Appellate Division upheld the Town Trustees' authority to issue a wetlands permit for a 100,foot dock, 30 feet shorter than the applicant: requested, in the interest of protecting.navigation in Mattituck Creek. See also Wilton v. Now York State De artment of Environmental Conservation et a1;,170 A.D.2d 5.98,566 N.Y.S.20 -873 (2nd Dept. 1.99:1)(R.ecognizing the Trustees' regulatory authority, the court stated:"In this instance both'the.New Y'ork.State Department of Environmental Conservation arid,the Board of Trustees of the Town of Southold had the authority to,issue the Notices of Violation., (See,- ECL 71-2303; Southold Town bode §§ 97-13, 97-209) ") and Clempner v. Town.of Southold, 154 A.D.2d 421546 N.Y.S..2d-101 .(2nd.Dept. 1999) (Town Trustees properly denied moor rig permit.) In conclusion, I:can discern no legal reason why the Southold Town Board cannot delegate to the Town Trustees authority to administer.and enforce the town's water-related laws,.withoutregard to:whether the`lands and:wate' are town-owned. If it wishes, the Town Board may, as a matter of'clarification, submitt-a home ru e request to the State Legislature fora bill.amending the special legislation creating the.Tbwn Trustees.and-specifically ai thoriziyig the Town Board to delegate to them regulatory authority. I trust.the foregoing will`be helpful.' . Sincerely, William L..Sharp 1?.rincipal Attorney ' {. . gSee Town of Southold v. Parks.41 Misc:Rep. 456, 84 N.Y.S. 1078 (Sup.Ct. Suffolk Co.},aft'd:97 App..Div. 63, 90�N:Y:S. 11 l6,(2nd Dept) affd..183 NY. 513 (1.905). 4 Former Chapter 97 of the Southold Town Code dealt with Wetlands. It has.been recodified as Chapter 275 "Wetlands Law of the Town of Southold."