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HomeMy WebLinkAboutBITSES, JAMES/HUMMEL PONDLAURY L. DOWD TOWN ATTORNEY JEAN W. COCHRAN Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1889 Fax [516) 765-1823 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD MEMORANDUM TO: FROM: RE: DATE: TRUSTEES TOWN ATTORNEY PEOPLE V. BITSES JUNE 17, 1996 Be advised that Mr. Bitses pled guilty to violating the wetlands ordinance last summer. As you know, we issued multiple tickets for the work he was doing to the pond. He says he is in ill-health and his doctor has advised him to resolve the matter. He pled guilty to one of the tickets and the others were dropped. I asked the court for the maximum penalty of $500. The court dropped the fine to $450. Thank you for your assistance on this matter. Note that the maximum penalty for a future violation will be $1500. Please keep your eyes open for any further illegal activity on that parcel. cc: Kent McCarthy James Richter TRUSTEES John~M. Bredemeyer, III, President Henry P. Smith. Vice President Albert J. Krupski, Jr. John L. Bednoski. Ir. John B Tuthill Telephone (516) 76571892 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD James Lic Southold, RE: Application on Lighthouse Road Dear Mr. Bitses: SCOT1~ L. HARRIS Supervisor Town Hall, 53095 Main Road P,O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 Enclosed please find a return from the Highway Department with respect to a flow control structure near your property on Soundview Avenue, Southold. As their concerns are most serious, this office will require that you supply us with a licensed land survey of your parcel and the adjacent project area - including Town road right-of-way and all structures proposed. Said survey must show all land forms at one foot (1') contours of elevation and accurately depict the current static water level of both ponds, the road surface and road crown height, and the invert elevation and size of all drains in the area. If you have any questions please do not hesitate to call. Very truly yours, John M. Bredemeyer, III President,-Board of Trustees JMB: jmt cc: Raymond Jacobs James A. Richter TRUSTEES John M. Bredemeyer. III, 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 Ydrk 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO: FROM: RE: DATE: Ray Jacobs, Highway Superintendent James Richter, Town Engineer John M. Bredemeyer, III President, Board of Trustees James Bitses SCTM 91000-50-3-6 January 29, 1991 Enclosed please find a copy of the above referenced application. Please prepare a written report of your findings and recommendations with respect to this matter. If you have any questions or need more information, please do not hesitate to contact this office. JMB:jmt cc: Matt Kiernan, Assistant Town Attorney TRUSTEES John M. Bredemeyer, III, President Henry P. Smith. Vice Presidem Albert J. Kmpski, Jr. John L. BednoskL Jr. John B. Tuthill Telephone(516) 765-1892 1991 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD SCO'IT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New'York 11~97I Fax (516) 765~1823 Telephone (516) 765-~1800 Mr. SouthOld Town Southold Town Hall Main Road Southold, New York Advisory Council 11971 Dear Mr. Holzapfel: Transmitted herewith is application No. 50-3-6 for a wetland application submitted by James Bitses. Please prepare a written report of findings and rec~uuendations with respect to this application. Very truly yours, John M. Bredemeyer, III President, Board of Trustees JMB: jt TRUSTEES John M. Bredemeyer, III. 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 2OTr L. HARRIS Supervisor Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 APPLICATION IS HEREBY MADE TO THE TOWN TRUSTEES, TOWN OF SOUTHOLD, SUFFOLK COUNTY, NEW YORK, FORT HE ISSUANCE OF A PERMIT PURSUANT TO THE LAWS, ORDINANCES AND REGULATIONS GOVERNING THE COASTAL AND INTERIOR WETLANDS, FLOOD PLAINS AND DRAINAGE AREAS OF SOUTHOLD TOWN, AND THE ISSUANCE OF PERMITS PURSUANT TO CHAPTER 32 OF THE CODE OF THE TOWN OF SOUTHOLD. APPLICATION NO. APPLICANT'S NAME: MAILING ADDRESS: AGENT: AGENT ADDRESS: JA1VIES BITSES DATE January 22, 1991 TEL. NO. 765-432~ Lighthouse Road Southold,~N. Y. 11971 TEL NO. PERMIT REQUESTED TO: Construct a small flood control gate ~ small semi-circular berm penetrated by a four inch pipe with gate valve~ six feet in diameter and two feet high. with about a half yard fill. LOCATION OF PROPERTY FOR REQUESTED PERMIT: cor. Lighthouse Rd & Soundview Ave. All construction to be on applicants property only and not on highway right of waF TOWN: Southold, N. Y. TAX MAP NO: 1000- Sec:050.00 Block:03.00 Lot: 006.00 CREEK, BAY OR HARBOR FRONTING PROPERTY: None SIZE ,UF PROPOSED WORK: LENGTH::: Semicircle six (6) feet in diameter . Approx. two feet high WIDTH: - - - App. Page 2. YDS. TO BE EXCAVATED: None YDS. TO BE FILLED: One-half yard MANNER IN WHICH MATERIAL WILL BE REMOVED OR DEPOSITED: To be deposited by wheelbarrow WIDTH OF CANAL, CREEK OR BAY FRONTING PROPERTY: None DEPTH AT LOW TID. E: - - AVER. RISE IN TIDE: - - - DISTANCE TO NEAREST CHANNEL: - - - DISTANCE PROJECT EXTENDS BEYOND SIMILAR PROJECTS IN AREA: None AREA ZONING: Residentia~is PROJECT. FOR PRIVATE OR BUS. USE: Private INTENDED USE OF PROPERTY: Residential and farming DESCRIBE KNOWN PRIOR OPERATIONS CONDUCTED ON PREMISES: .. Blueberry plantation] starled 1979. Blueberries destroyed by flooding 1983-6 Replanted 1987. HAS ANY PRIOR LICENSE OR PERMIT BEEN ISSUED TO ERECT STRUCTURES, DREDGE, OR DEPOSIT FILL ON SAID PREMISES: N'o HAS ANY LICENSE OR PERMIT EVER BEEN REVOKED OR SUSPENDED BY A GOVERNMENTAL AGENCY: No DESCRIBE FULLY THE REHABILITATION OF PROPERTY: No rehabilitation necessary. Proper ,ty will not be'changed in any way. DESCRIBE PROPOSED CONDITION OF PROPERTY AFTER WORK IS COMPLETED. INCLUDE AN ADDITIONAL SURVEY OF PROPERTY SITE IF NECESSARY: The job is highly localized of very small extent. No change in property. Sketch of job atlached. ARE THERE ANY COVENANTS OR RESTRICTIONS IN YOUR DEED WHICH WOULD PROHIBIT THIS PROJECT: None WRITTEN CONSENT OF OWNER IF NOT THE SAME AS APPLICANT: COUNTY OF SUFFOLK ) STATE OF NEW YORK ) JAME~ BITSES BEING DULY SWORN DEPOSES AND SAYS THAT HE IS THE APPLICANT FOR THE ABOVE DESCRIBED PERMITS, AND THAT ALL STATEMENTS CONTAINED HEREIN ARE TRUE TO THE BEST OF HIS KNOWLEDGE AND BELIEF, AND THAT WORK WILL BE DONE IN THE MANNER SET FORTH IN THIS APPLICATION AND AS MAY BE APPROVED BY THE TOWN BOARD OF THE TOWN OF SOUTHOLD. THE APPLICANT AGREES TO HOLD THE TOWN OF SOUTHOLD AND THE TOWN TRUSTEES HARMLESS AND FREE FROM ANY AND ALL DAMAGES AND CLAIMS ARISING UNDER OR BY VIRTUE OF SAID PERMIT, IF GRANTED. IN COMPLETING THIS APPLICATION, I HEREBY AUTHORIZE THE TRUSTEES, THEIR AGENT OR REPRESENTATIVE, TO ENTER ONTO MY PROPERTY TO INSPECT THE PREMISES IN CONJUNCTION WITH REVIEW OF THIS APPLICATION. Signature ofj~~ES SWORN TO BEFORE ME THIS DAY OF January , 19 91 NOTARY PUBLIC EXAMINED BY APPROVED DISAPPROVED CONDITIONS (If any) SIGNATURE OF CHAIRMAN COMPUTATION OF FEES Approved 2/27/85 JA~S BITSES L S~LL FLOOD Uu,,~d~m.v Horton's Point Southold. N.Y. cou,.v Suffolk SIE(]I~ CONTROL GATE LOCATION {.cJIree! ndd~e.'~ n.d/o~d I. tn~.ello.~, b~or.l.en! ~ndm,,s,h~l, ele., o~ p~ovlde map) Residential-agricultural property located on corner of Lighthouse Road an'd Soundview A~enue approx, three acres in extent. One hundred yards from Hortons Point Lighthouse. ~. I~ PFIOPO.qEI) ACIIOtI~ [~ flew [.~ Exl~an~lon ~[ DEScnlglE PnOJECT IBFIIIEI:LY: Small semi-circular structure (berm) penetrated by four inch pipe with gate valve. Total structure about six feet in diameter and two feet high. About one-half yard fill. Inlllally None ac~. Ulllmnlety None WILt. ~rlOPOSEO A~tlOr,I COMPLY Wltll I~XI,~TIH~ ZOt~IIHI':t O11 O?iIEI1 I~×l,qHl~g LAI~IO IJ~E ItI~StFIICTION~? [~[Aq,lcultu,e 10. DOES ACHOI! IllVOI_VE A PEI~MIt APPII'~VAL. oii FUIIOIHO. flow oll ULtlMAtlELY I:I1OM Ally otllEI1 GOVIErltlIdEHtAL AOlEklC¥ {FI=*DF_rIAL .qlAl E 0,:1 LOCAtI? ~1. bor~ A~IY ASI'F[:I Of II1~ ACHOII IIAvt~ A CI.J, ltll~fltLY ~M~' O11 APPIIOVAL? t~. AS A Dt~SUI.! or P,ol~os~O Acllol, I wILL I~xlSttN(1 PI~rIMIItAI'PI1OVAL IqI:_OUIRE MODIFICAIIolq? I C~IUm¥ tltAt tll~ I~I~OI1MAIIO~I hMOVlblH3 AUOVt~ lB HIIJI; tO tllt~ II~t Off MY kHoWl~0O~ ~..,,c.~..~.o,,~o, ,.,,,,.: JA MES~I{ITSE S, U~I,: Nov. 22, 1991 t C. 5. [~rowt ~. ~ul~.~qt~-~n! d~v.l,~ptT~enl, et telntn~d ~ctlvllle~ tl~.ly lo ~e Indue. ed by tim t~ror, o.~ed ~cllon? ~nl.'tl. briefly, ~:~;. Lo.~ t~ . .'d~or! In~m. cur,:udnllvd, or olh~.~' ~If~.cl~ not taler, tilled In CI-c57 l~xptnl. ~,l..flv. [~?. Oll~r,r h'rlD."lCl~ II'~cl;tdlnd chn~qe~ In iJ.~e of rdlh~r rlU~.flly o~ lybe o~ ~ne~oy)? I:xplnh~ briefly. o ~s rl~FnF., orl IS 11IF. tiE I_II(~Ly lo I~B, CO!III'lOVErl~y rt~LAII~D 10 POI'EHHAL ADVEIISI~ ~H¥1rlOI.tMBflrAL IMPAcI,~ Itl~ t'111 ~'; I Ir]H.~: I':ot ,,~h ndv..t~. ~.ll~:l him II11 ~t nbov~, dol~.nlnn wlmtlmr 11 I~ ~ub~lnnllnl. Inr~. h.~ott~t Iot o I o~cut. Thetl proceed dlt~clly to Ih~ ~ULL ~A~ ~ndlot pt~pAtg ~ ~o~lllvO domlmenlnllon, tlml lira bto~0~ed ,ellall WILL Hot to~lt 1, ~tty ~igltllle~flt Adv~t~ gnvltonmgnlal Imp,ct~ AHI) ~rovid~ o~ dll~chnmuld ~ ~e~g~l y, th~ t~gun~ ~ppotlllt~ ~l~ld SMALL FLOOD CONTROL GATE PENETRATED BY A FOUR INCH PIPE WlTr~ A GATE VALVE. TO BE BUILT ENTIRELY ON PRIVATE PROPERTY, FOR PRIVATE APPLICANT: JAMES BITSES LOCATION: CORNER OF LIGmTriOUSE RD. AND SOUNDVIEW AVE. SOUTiiOLD, N. Y. OWN OF . _ O. THOLD MEMORANDUM SUPREME COURT, SUFFOLK COUNTY PART V JAMES BITSES, Plaintiff(s), -against- TOWN OF SOUTHOLD AND ITS HIGHWAY DEPARTMENT AND TRUSTEES, together with NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and NEW YORK STATE ATTORNEY GENERAL, Defendant(s), BY: DOYLE, R.W., J.S.C. DATED: August 1, 1996 MOTION DATE: Submitted 2-29-96 INDEX NO.: 96-895 Seq. #O01-Petition; #O02-Dism; #O03-Dism #O01-MD; #O02-MG: #O03-MG DENNIS C. VACCO Attorney General of the State of New York 120 Broadway - 26th Floor New York, New York 10271 PLTF'S/PET'S A-i-W: JAMES BITSES, ESQ. Attorney, Pro Se 2575 Lighthouse Road ~outhold. NY 11971 DEF'S/RESP'S A-f-FY: LAURY L, DOWD, ESQ. 53095 Main Road P.O. Box 1179 Southotd, NY 11971 Petitioner, the owner of a parcel of real property in Southold, New York, has commenced this Article 78 proce~ting seeking to review certain actions by respondents with resoect to that property and seeking to compel respondents to desist from further proceedings with respect thereto. Respondents New York State Department of Environmental Conservation (hereinafter the "DEC") and the New York State Attorney General have moved, as has the Town of Southotd (hereinafter the Town), for an order dismissing the petition. .~;:----_ _ Bitses v Town of Southold Index No. 96-895 Page 2 Petitioner is the owner of a real property located on the north side of Soundview Avenue at the intersection of Lighthouse Road in the Horton's Point area of Southold, New York consisting of a three acre parcel improved by a residence. Respondent Town, owns a four acre parcel on the south side of Soundview Avenue just across Soundview Avenue from petitioner's property. Three acres of the said four acre parcel are covered by a pond known as Hummel's Pond. This pond outflows in a southerly direction through a small stream to a salt marsh owned by the Town of Southold, where the ground is aermeable. ~ The outflow stream has by its very nature controlled the level of Hummet's Pond. When it rains, Hummei's Pond dses and the risen water flows out through the outflow stream into the marsh where it percolates into the aquifer. VVhen the level of Hummet's Pond drop.~ to the height of the stream bed, the stream stops running and ddes, until the next rain. Petitioner contends in this proceeding that the Town, through its Highway Department, erected a small dam across the outflow stream exactly sixteen inches in height, higher than the level of the outflow stream bed, raising HummeI's Pond sixteen inches and back flooding petitioner's property. Petitioner contends that the Town's actions in building this dam were without the procurement of the mandatory permits required by the Southotd trustees or the New York State Department of Environmental Conservation, contrary to Town Code and in gross violation of the Fresh Water Wetlands Acts. -- Petitioner requests judicial review of the Town's alleged installation of the dam as well as the refusal of the DEC to cite the Town of Southold acqd its agents for violation of the Fresh Water Wetlands Act. in addition,_ petitioner seeks (t) an order directing the Town or its agents to remove the dam from the outlet stream of Hummel's Pond together with all fill deposited upon the marsh into which the outlet stream .empties; (2) an order directing the Town or its agents to unbtock and clean out the original concrete culvert under Soundview Avenue between petitioner's oroperty and Humme!'s Pond; (3) an order directing the DEC tc remove petitioner's three acre residential parcel from their wetland map; (4) an order directing the trusteeS of the Town to cease and desist from any futu're interference with or Bitses v Town of Southold Index No. 96-895 Page 3 obstruction of petitioner's quiet enjoyment of his property; and (5) an order directing the Justice Court of Southold to dismiss all pending proceedings against petitioner arising from this matter. tn ooposition to the petition and in support of its motion to dismiss, the DEC points out=that a portion of petitioner's property has been a freshwater wetland since 1993. Respondent notes that this portion of petitioner's property along with Hummel's Pond are included as a single wetland and referred to as "S0-24" on the final freshwater wetlands map for Suffolk County, which was adopted and promulgates pursuant to the procedures set forth in ECL § 24-0301. The DEC scheduled a public hearing in Suffolk County to receive comments on the draft freshwater wetlands map and notice of the heanng was published on July 3~ t989 in Newsday and on July 5, 1989 in the Suffolk Life. Notice was also published in the DEC Environmental Notice Bulletin on July 5, 1989. Landowner, including petitioner were notified by certified mail of the date and time of the public hearing. The public headng was held on July 24 and 25, 1989. Petitioner submitted comments. On February 17, 1993 the Commissioner issued an order directing that the final map by filed on May 26, 1993. On May 26, 1993 the final freshwater wetlands map was filed with the office of the Clerk of Suffolk County and the office of the Clerk of the Town of Southold. Notice of the order was published in the Newsday on May 26, 1993 and in the Suffolk Life on May 26, 1993. Copies of the order were sent to all landowners on the list of affected homes, including petitioner, via first class mail on or about May 26, 1993. _ Insofar as petitioner seeks to set aside the determination by the DEC that a portion of his property is a freshwater wetland, the application is untimely and must be dismissed. CPLR § 217 provides that an Article 78 proceeding "must be commenced within four months after determination to be reviewed becomes final and binding upon a petitione¢. Clearly, the designation of this property as a freshwater wetland became binding on petitioner when the DEC filed the final map with the Suffolk County Clerk on May 26, 1993. Petitioner's commencement of this special proceeding on January 11, 1996 was well beyond the four month pedod of limitations and to the extent it seeks to challenge this determination, it must be dismissed. Bitses v Town of Southold Index No. 96-895 Page 4 To the extent this petition seeks to have this Court compel the DEC to "cite the Town of Southold and its agents for violations of the Fresh Water Wetlands Act", the petition must aisc be dismissed. Mandamus, which is the relief petitioner socks, lies only to compel the performance of an official duty clearly imposed by law and involving no exercise of discretion (Matter of Hamptons Hospital v Moore, 52 NY2d 88, 96; Matter of Fried v Fox, 49 AD2d 877. 878). The act sought to be compelled. must be "ministerial, nondiscretionary and nonjudgmentat, and [must be] premised upon specific statutory authority mandating performance in a specified manner" (Matter of Peirez v Caso, 72 AD2d 797). Mandamus will not lie to compel an administrative agency to exercise discretionary regulatory powers (.Matter of Stannard v Axelrod, 100 Misc 2d 702, 710; see also Youn.q v Town of Huntington, 121 AD2d 641). Here. it is clear that petitioner seeks to have the Court compel the DEC to exercise its discretionary authority to prosecute an entity for alleged statutory violations. This the Court wil not do. Accordingly, the motion by respondent DEC for an order dismissing this proceeding against it is granted. Respondent Town also moves to dismiss this proceeding upon the ground that the petition fails to describe the action complained of and fails to state when the action occurred. Petitioner contends that a sixteen inch dam was '~nstalled at the southerly end of Bitses Pond but does not state when this installation took place. The Town admits that in January 1995 they did install a culvert drain at the southerly end of the pond but did so to insure that the water level of the pond did not dse to a level dangerous to the road adjacent to the pond. The Town denies that a dam was ever installed. - Assuming that petitioner's claim is based upon the installation of the culvert drain in January 1995, this proceeding as against the Town is untimely as well. As hereinabove noted, there ~s a four month statu~e of limitations for proceedings of this nature which requires that to the extent petitioner challenges any actions by the Town in January of 1995, this petition must be dismissed. To the ~xtent petitioner seeks to have this Court enjoin the respondent from further enforcement of alleged violations of the Town Code, that application is denied. injunctions of this nature are only obtainable, if at ail, in a plenary action. Bitses v Town of Southoid Index No. 96-895 Page 5 Finally, insofar as petitioner seeks removal of the proceedings pending in the Southold Justice Court, that application is also denied. Other than his vague allegation that he will be denied justice, petitioner has failed to allege any basis for the relief requested. Submit orders Dated: LAURY L. DOWD TOWN ATTORNEY JEAN W. COCHRAN Supervisor To~vn Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1889 Fax (516) 765-1823 OFFICE OF THE TOWN ATTORNEY TOV~fN OF SOUTHOLD TO: FROM: RE: DATE: ~'~N TRUSTEES JAMIE RICHTER LAURY DOWD BITSES V. TOWN PEOPLE V. BITSES FEBRUARY 29, 1996 MEMORANDUM I enclose an affidavit from Mr. Bitses in which he elaborates on his claims against the Town. According to paragraph 71, in 1987 the Town allowed the developer to the south of Hummels Pond to erect a monstrous dam (although he claims in paragraph L[1 that the Town secretly installed the dam)~ This backed up Hummels Pond, so it flooded Soundvlew Avenue and the Bitses property. Bitses and his neighbors dug a trench through the dam. The Town sent armed officers to guard the dam, and they arrested the innocent Mexican who was sent to check on the trench the neighbors had dug. The Town finally decided that the dam was not a good idea and, sometime in the summer, removed the dam and installed the culvert. However, they installed the culvert 20 inches higher than the real outflow level, and thus created what appears to be a deep pond on the Bitses property. By its actions, the Town is hogging millions of gallons of drinking water and creating a lethal mosquito hazard. You should .read thrOugh the affidavit in greater detail, and look at the pictures at the end. Let me know what, if anything, is accurate or makes a valid point. The case has been submitted to the Court, but I anticipate that the decision will take several months. I will keep you posted. SUPRElvlE COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK JAMES BITSES, PETITIONER' S Petitioner, REPLY AFFIDAVIT - versus - Index No. 895-96 TOWN OF SOLTTHOLD AND ITS HIGHWAY DEPARTMENT AND TRUSTEES, together with NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and NEW YORK STATE ATTORNEY GENERAL, Respondents. TO THE SUPREME COURT OF THE STATE OF NEW YORK: The reply affidavit of James Bitses alleges as follows: 29. That Petitioner reaffirms and realleges paragraphs 1 through 28 as if they had been fully set forth herein. 30_ That ,before we go further, Petitioner wishes to correct an error in prior 28 paragraphs that is of such significance that it deserves to be capitalized: THE HEIGHT OF THE DAM ERECTED BY THE TRUSTEES AND HIGHWAY DEPARTMENT, HERETOFORE STATED AS SIXTEEN (16) INCHES IS IN ERROR. THE TRUE HEIGHT IS ACTUALLY TWENTY (20) INCHES, AS IS DEMONSTRATED BY PHOTOGRAPHS APPENDED HEREINAFTER AS EXt-IIBITS, AFFIXF. D I-rI~RETO AND MADE A PART HEREOF. 31 That Petitioner sets forth a compendium of statutes that have been violated by the Trustees, the Department of Environmental Conservation, the Highway Department and the Justice Court of the Town of Southold. A. Art. 24 NY State Water Wetlands Act, Section 701, etc.; B. Sec. 81 Southold Town Code; C. Sec. 97 Southold Town Code. 32. That each of the above statutes will be directly connected to specific facts constituting violations at commission or violations by regulative bodies guilty of such acts of omission. 33. That the outflow stream mentioned previously herein, qualifies as an 'intermittent stream' pursuant to Town Code Section 70. 34. That the Highway Department has violated Town Cod? Section 81-1 and Section 81-2, Subdivision A. Section 81-1 Purposes: Regulation and control of the general regrading of land, extraction and removal of earth products and other excavations is necessary to protect and prevent serious and irreparable damage to the public health, safety and general welfare as well as to make effective the - general purposes of comprehensive planning and zoning. Section 81-2 Intent of regulations: These regulations and controls are intended to prevent the following conditions from occurring: A. The interruption and diversion of natural watersheds and drainage lines, resulting in inadequate and improper surface water drainage. 35. The statute Section 81-2, Sub. A, states Petitioner's case exactly. The aforesaid twenty inch dam erected by the Highway Department with the concurrence of the Trustees and the Department of Environmental Conservation, specifically violates this statutory prohibition. The dam interrupts and diverts the natural watershed and drainage lines, from its former course into the recharge marsh. This results in inadequate and improper surface water drainage. The blocked water backflows and substantially damages Petitioner's property, rather than forward into the channel of the intemiittent outflow stream and thence into the recharge marsh and thence into the drinking water aquifer. This was a statutory violation of commission by the Highway Department and one of omission by the Trustees and DEC who failed to cite the Highway Department with a notice of violation as required by statute. 36. That regulation and control of the general regrading of land requires a permit from the Department of Environmental Conservation and Trustees. However, Trustees and DEC are forbidden to issue permits that fail to meet standards set forth in Section 97- 28. STANDARDS. Section 97-28. Standards Trustees may adopt a resolution directing the issuance of a permit to perform operations applied for only if it determines that such operation will not substantially: A_ Adversely affect the wetlands of the Town. B. Cause damage from erosion, turbidity or siltation. G. Change the course of any channel or the natural movement or flow of any waters. I. Otherwise adversely affect the health, safety and general welfare of the people of the Town. 37. That as to Standard GA' above, Petitioner submits that the placing of one hundred yards of spoil on a living marsh, ~adversely affects the wetlands of the Town.' This marsh was obliterated. No notice of violation was ever issued. No permit was applied for. By statute I~resh Water Wetlands Act Art. 24), such a permit is forbidden. 38. That as to Standard 'B' above, Petitioner submits that blocking the only outlet to Hummel's Pond caused the waters to stagnate, become turbid and to accumulate silt which was formerly flushed into the marsh. In effect, the Trustees, DEC, and Highway Department converted a living pond into a dead highway sump. 39. That as to Standard 'G' above, Petitioner submits that the erection of the twenty (20) inch dam in the former intermittent outflow stream not only changed the course of flow of said stream, it ended 'the natural flow or movement' of the waters formerly circulating through Hummel's Pond, through the outlet stream, into the living marsh and thence into the aquifer. 40. That as to Standard 'T' above, Petitioner submits that ~he heavy handed and secretive conduct of the Trustees, DEC, and Highway Department in destroying a living, working ecosystem and replacing it with a stagnant highway sump, 'adversely affected the health, safety and general welfare of the people of the Town' in the following manner: A. There are no natural springs in the Hummel's Pond area. All the water entering the Pond is local ground water that has fallen in the natural watershed area as rain. This ground water channels downhill to the roads from which it enters Hummet's Pond, In the past, Hummel's Pond would rise to the height of the outflow stream, overbrim and decant into the marsh to the south, as aforesaid. Since Hummel's Pond is underlain with an impervious layer of clay, this 'perched' water will not recirculate back into the aquifer until it meanders into an area of permeable soil. The living marsh into which Hummel's Pond formerly decanted is just such an area of permeable soil and served to return rainwater to the pure drinking water aquifer below ground. B. By blocking the stream and filling the marsh, the Trustees, DEC and Highway Department have cut off part of the local water supply which now enters Hummel's Pond, stagnates and evaporates into the ak, unused. This concemrates the salt and mineral level in Hunnnel's Pond, radically changing the aquatic environment. 41. That this statute makes it clear that even if the Highway Department had requested a permit to erect the dam and fill in the marsh with one hundred yards of spoil, statute forbids this (Town Code, Fresh Water Wetlands Act), and the Trustees and DEC never had the statutory authority to grant such a permit. The dam was erected in an inaccessible wooded area and its construction was secretly carried out within a very short time, not exceeding half a day, while leaf cover hid the work. Statement by the Highway Depat ~,nent that the work was done in January is in error. Such work would have been observed by skaters on the Pond and would have created an uproar. 42. That by acting in collusion with the High~ way Department in the erection of the dam and filling the marsh with one hundred yards of spoil, the Trustees and DEC violated the laws and their own statutory standards enumerated in Standards Section 97- 28 Southold Town Code. 43. That since the dam was secretly erected, the level of Hummel's Pond has been raised twenty (20) inches as can be seen in the photographic Exhibits attached hereto and made a pan hereof. This action by the Tmstees, DEC and Highway Department has increased the capacity of the Hummel Highway Sump by 5-7/8 acre-feet (257,000 cubic feet) of water. In the process, they have backed-up an additional 1-1/2 acre-feet (66,000 cubic feet) of water onto Petitioner's former lawn and the lawn of his next door neighbor, Florence Rieff The total capacity of the Hummel Highway Sump in excess impounded water is 74/3 acre-feet for a total excess impound of 323~000 cubic feet. Respondents have thereby created a second highway sump on Petitioner's property. 44. Since a highway sump is a public fac'flity, Respondents have appropriated Petitioner's said property for allegedly public usage without the benefit of condemnation or recompense. 45. That let us assume that the Standards statute Section 97-28 and Article 24 Wetlands Act, which specifically forbid the conduct engaged in by Respondents, did not exist and their conduct was somehow lawful. Under those circumstances, a permit from the Trustees and DEC would be mandatory. (Sec. 97-24.) A permit, however, requires a public hearing. A public hearing requires notice to the townspeople and those directly affected: And an entire minuet is requ'n.ed as to publicatio~ etc., pursuant to Chapter 58 Town Code. That after hearing, the Trustees or DEC would either grant or deny the permit. We have already discussed the impossibility of granting an action forbidden by statute. How then was the Highway Department to proceed with this forbidden action when no notice was given either to the public or to the people in the watershed area who were secretly be'rog denied then' drinking water supply? 46. That this brings us to an obvious contention by the Respondents that the standard four month statute of limitations has expired and Petitioner is therefore out of court. That Petitioner submits that under the circumstances stated herein, the statute of limitations does not apply. A. The construction of the dam and the destruction by filling of the marsh were accomplished clandestinely. The entire job could not have taken longer than six hours, hidden from public scrutiny. B. The work done was forbidden by statute and beyond the legal authority of Respondent. The passage of time, no matter how protracted, will not sanitize an act that is unlawful ab initio. C. The construction perpetrated by Respondents was, even if lawful, perpetrated without notice which is mandated by statute. D. The construction perpetrated by Respondents was, even if legal, perpetrated without permit which is mandated by statute. E. The construction perpetrated by Respondents was, even iftegal, perpetrated without public hearing which is mandated by statute. F. The damage inflicted upon Petitioner is so massive as to cry out for equity to override a strict construction of the statute of limitations, even if it did apply, which'it does nor. 47. That the obvious ploy to be used by Respondents is that "the construction of the dam and the destruction of the marsh were necessary and concomitant to the routine and standard maintenance of the highway system and therefore exempt from the necessity of permit. That the Highway Department depends upon this exemption for necessary and untrammeled ability to affect the repairs and to carry out its duties" on the highways of Southold Town. 48. That it is precisely to debunk such a contention that Petitioner has laid out the illegal procedures and gross misconduct of Respondems in paragraphs 34 through 46. Construction of a major highway sump, destruction of the water supply, expropriation of private property without notice and without recompense, these do not, by any stretch of the imagination, constitute highway maintenance, particularly when these constructions are carried out five hundred feet from the nearest highway. 49. That another obvious ploy to be used by Respondents is that "there has always been a dam at this location." When people lie, they do not expect to be tripped-up by the herbage growing around Hummel's Sump. On a cold February day, Petitioner ventured out upon the frozen surface of the Sump and photographed the depth of the water exactly two feet in front of the buttonbush presently inundated by the impounded waters. Not surprisingly, this consistent depth was twenty (20) inches. The depth of water impounded by the dam is also twenty (20) inches~ Remove the dam, the level of the Pond drops twenty (20) inches and the water inundating this natural growth disappears. The growth again grows in dry land where it originally sprouted. Buttonbush sprouts only on dry land, never under water. What reappears when the level of the sump drops to normal is the immemorial shoreline precisely two feet in front o£the buttonbushes. The said bushes reemer~oe on the dry shore of the sump. The bushes do not grow in a straight front but dip landward in some places and pondward in other places, presenting a natural and irregular frontage to the pond. The unmistakable test of verisimilitude is that the twenty (20) inch underwater contour dips in and out with exactly the same irregularities as the inundated buttonbushes, precisely two feet in front of these innocent and unimpeachably honest witnesses so conveniently provided by Mother Nature herself. 50. That at this poim, I will repeat what I wrote in Paragraph Five, but with the addition of the photographic exhibits attached hereto and made a part hereof. The significance of Paragraph Five becomes manifest: 5. Evidence of this flow cycle is to be found in the bushes growing around Hummel's Pond. The first rank of these bushes grows at exactly the edge of Hummel's Pond when the Pond is exactly at the level of the outflow stream bed. People prevaricate. People are evasive. People are duplicitous. But Cephalanthus Occidentalis, also known as Buttonbush, is a silent, unimpeachable and totally honest witness, testifying to the memorial level of Hummel's Pond. 51. That because Long Island has very few springs, the Town Code encourages the excavation of recharge basins to conserve and recycle rain water into the drinking water aquifer. It does this by excepting the diggings of recharge basins from the prohibited acts of Town Code Section 81 as cited heretofore, but .wisely, Town Code Sec. 82-4, Sub& C, requires the prior approval ora resolution of the Town Board which effectively brings the construction before the public. Town Code Sec. 82-4, Sub. C. Operation excepted (from the prohibitions of Sec. 82-2) C -- Excavations to construct a storm water basin, recharge basin or drainage sump...(are excepted from prohibited operations)...with the approval of the Town Board. 52. That Petitioner submits that paragraph 'B' of the wherefore clause which requests an order directing the Town to remove all fill deposited upon tile marsh, can be carried out under this section without th~ requirement of notice. However, the opposite, the filling of the living marsh, is forbidden, with or wiihout notice. PUBLIC NUISANCE 53. That Southold Town is unique. It is the only Town on Long Island that has filled-in a natural recharge marsh and thus deprived ks aquifer of 7-1/3 acre-feet of drinking water per each three month rain period. This amounts to the loss of about one and one-half (1-1/2) million cubic feet of drinking water per year. 54. That the said loss of one and one-half million cubic feet of drinking water seriously lowers the water table in this area and allows Temik laden water lying to the south to percolate northward into the Horton's Point area that was previously free of this insecticide poison. 55. That the loss of the recharge marsh by filling and the consequent water loss and contamination of the dfinldng water supply in this area constitutes a certifiable PUBLIC NUISANCE which cries out for abatement by removal of the dam and removal of spoil deposited on the marsh. 56. That the puddling of Petitioner's land by the erection of the twenty inch dam by the Respondents has created a serious and possibly lethal mosquito hazard. Particularly in the spring and early summer evemngs, it is impossible to walk in the vicinity of Petitioner's puddled land without the attack of clouds of mosquitoes. Since there are horse barns within mosquito range, the threat equine encephalitis, a lethal disease which has, from time to time, killed Southold residents, is very real. The puddling of Petitioner's land by a calculated act by Respondents constitutes a certifiable PUBLIC NLYISANCE which cries out for abatement. ABUSE OF PROCESS - TRUSTEES 57. That the Trustees seem to be embarked upon a policy of vengeance and reprisal evoked by their attempt to preempt my land without benefit of legal process. We reserve our greatest hatred for our victims. Accordingly, they have repeated the same summons served on September 19, 1995, on the following days: 1. October 23, 1995, Docket #95110091, Viol. 97-20. 2. October 24, 1995, Docket #95110092, Viol. 97-20. 3. October 25, 1995, Docket//95110093, Viol. 97-20. 4. November 24, 1995, Docket #95120059, Viol. 97-20. 5. November 27, 1995, Docket #95120066, Viol. 97-20. 6. November 28, 1995, Docket//95120067, Viol. 97-20. 7. November 29, 1995, Docket #95120068, Viol. 97-20. 8. November 30, 1995, Docket #95120069, Viol. 97-20. 58. That Petitioner submits to this Court that each of these summons is a sworn statement. That each sworn statement avers that on that specific day, the complainant saw with his own eyes that Petitioner had illegal concourse with the alleged wetland on said Petitioner's said property. That he had violated Section 97-20 Town Code by conducting operations thereon without permit on those specific days. 59. That the natural consequence of these summonses is that the signatory of these sworn statements must arise in Court and swear under oath as to the truth of the statements made thereon. There is only one problem..MI eight (8) summonses are prevarications and the Trustees know they are not consonant with reality. The dates were picked at random. The Trustees know that there were no operations conducted on these specific days. These eight (8) identical, additional summonses were added for purposes of intimidation and to increase the jail time and/or monetary penalty the Trustees hope to inflict on Petitioner. 60. That, apparently, the Trustees have never read one of their own summonses. A false statement made herein is punishable as a Class 'A' misdemeanor. (Sec. 210.45 Penal Law) Although the signature of the Bay Constable appears upon the summonses, upon information and belief; he was directed by the Trustees to issue the said summonses. He was agent; the Trustees were principals-complainants. 61. That as principals, they are responsible for the publication of any untruth., The service of these summonses constitutes such publication and may very well subject them to the charge of malfeasance in office. They have been emboldened in the past by the successful use of baseless multiple summonses and the absence'of response by their victims. They are now faced by a very different adversary. 62. That according to Justice Court documents filed by the Trustees, Petitioner has been personally served with nine (9) summonses. Again, someone is prevaricating. Petitioner was personally served with only the first three. (See Paragraph 57, items t. 2, and 3.) On or about October 28, 1995, Bay Constable McCarthy drove up my driveway and handed me three summonses for allegedly conducting operations on wetlands on October 23, 24, and 25, 1995. 63. That the Trustees have been in the habit of issuing multiple baseless summonses as a regular practice in the past. On this occasion, they have also included five summonses (November 24, 27, 28, 29, and 30) that were never personally served upon me. As to these five summonses, to the charge of false swearing, we must now also add the charge of a false affidavit of service. Since these five summonses have been included into the Court record as having been personally served when, in fact, they never were, the false affidavit of service cannot be corrected. It is firmly embedded in the record. ABUSE OF PROCESS - JUSTICE COURT 64. That on or about November 19, 1995, Petitioner served a verified Notice of Motion and Petition personally upon the Town Attorney and received an admission of service thereon. The Motion was returnable January 19, 1996, before Justice of the Peace Rudolph Bruer. That the relief sought was similar to that which is souo~t~ in this Article 78 Proceeding, plus a change of venue. 65. That on Friday, January 19, 1996, the return date of the said motion, Petitioner appeared at Justice Court Southold, ready to argue the motion. 66. That at that time and place, he met and spoke to the Town Attorney and had a conversation with her, which Petitioner here sets forth in essence, to the best of his recollection: Petitioner: ~'Hello, Laurie, I haven't received your reply to my motion." Town Attorney: "Oh, that was dismissed by Justice of the Peace Tedeschi." Petitioner: "When? I haven't received any notice of dismissal. And .anyway, how could he dismiss it without your reply in writing. Further, how could he dismiss it when it was not returnable before him?" Town Attorney: "He dismissed k when it was received without a reply." Petitioner. "Today is the return date." Town Attorney: "You are not on the calendar. You are out of Court." 67. That in forty years of law practice, this is the first time that a motion Petitioner has made before any court has been unceremoniously thrown into the nearest waste basket without hearing. (I still can't believe it.) This points up and illuminates previous comments made in paragraphs 21 and 28. 21. That under the hostile circumstances Petitioner has outlined, he can expect very little justice in the Southold Justice Court... 28 .... from their previous conduct, Respondents have demonstrated that they are not governed by law- but by political policy. 68. That the aforesaid acts of the Trustees, together with the acts of Justice of the Peace Tedeschi, defme conduct which, in gentler times, was called 'abuse of process.' By reason thereof, the entire Justice Court proceeding against Petitioner has been hopelessly compromised and must be dismissed. STATUTE OF LIMITATIONS 69. That it is appropriate here to discuss the obvious dilatory defense inevitably raised by governmental bodies such as those used here by the DEC and Trustees to take advantage of the secrecy of their misdeeds. The statute of limitations for a que warranto is normally four months. This is calculated, not from the commission of the misdeed but from the discovery_ by the aggrieved party. This, of course, does not apply to Public Nuisance for which there is no statute of limitations. 70. A public nuisance is a continuing affi-ont of a public nature which is a continuing denial of a basic necessity. In this matter, we are faced with three basic denials because of wrongful governmental acts. The first is the interdiction and denial of that basic life necessity--water. The second is the contamination of that water supply with Temik by dimi~shing the inflow of pure rainwater into the aquifer. The third is the creation of a dangerous mosquito health hazard through the puddling of Petitioner's property. All of the above are unmistakably the result of the erection of a twenty inch dam and the destruction of a recharge marsh. The only statute of limitations on a public nuisance is its abatement. 71. That the question arises as to discover~ of the dam erected by the I-Ii,away Department. Fkst the Court must be advised that this emke mess started around 1987 when a developer purchased the marshzrechar§e area to the south of the pond as well as the pond itself. This developer must have been endowed with a golden tongue. Through the persuasiveness of his golden oratory, he apparently convinced Town offcials that he should be allowed to erect a monstrous darn, six feet high, ei~hty feet long, containing one hundred yards of spoil, across the outlet stream of Hummel's Pond. This backed up a ~igantic flood across Hummel's Pond. The water rose so high that it flooded Soundview Avenue, stopping traffic. It rose so high that it flooded the land ofBitses, gieff, and Aldi. The Town officials were strangely inert. 72. When the Petitioner notified the DEC and the Trustees of the dam and cited the six dozen laws being violated by the persuasive developer, they retaliated with action worthy of a Kafl(a novel. They served Notices of Violation upon the Petitioner but not on the developer. 73. That a dog fight developed. Petitioner sued the developer in 1989 for halfa million dollars in damages, and commenced an Article 78 Proceeding against the DEC and Trustees in 1990 for refusing to do their legally mandated duty, i.e.: remove the dam (which the developer insisted was merely a "berm," a weasel word if there ever was one). 74. That to cut short this doleful litany, let it suffice that the Trustees agreed with the builder that the marsh-recharge area which had been dried out by the developer's dam, was suitable for denomination as an official building lot, and numbered it Lot ~4 of a four lot development. 75. That the Article 78 proceeding ended when the DEC admitted in 1991 that Petitioner's property was not wetland. (I see, however, that in 1993 it was included on the wetland map as #SO-24. Petitioner was given 'sewer service' on that one for he never had notice of the proceeding~ ofwhich he has just learned upon reading the DEC's answering affidavit.) 76. That when the public officials refused to remove the dam, even in the face of a flooded highway, Petitioner and the local residents dug a trench through the dam, unflooding the road and the surrounding area. 77. That the Town retaliated by placing two uniformed and armed police officers to guard the dam. They arrested a Mexican field work sent over to the overgrown area around the dam to make sure that the trench was still open. There is no written record of the arrest, or of the fact that the Mexican was handcuffed and carded in a police car four miles to Greenport where, although he was illiterate in both Spanish and English, he was forced to sign a 'confession' upon threat of deportation. 78. That although the Trustees certified that what had been a swamp for one thousand years was now a building lot, there was still a problem. The dam, even when plugged, leaked. Lot #4 was still a swamp. One hundred angels dancing on the point of a needle would not make it otherwise. 79. That on or about the summer of 1994, wiser heads prevailed and the Town bought Hummel's Pond and the northwest comer of Lot #4, the portion where the marsh was deepest. 80. That sometime during the summer, the Highway DepaxLment removed the developer's dam, and emplaced the plastic culvert. This was cause for rejoicing in the neighborhood. Standing on Soundview Avenue, looking across the six hundred feet of Hummel's Pond, we could see that the developer's dam was gone and the outlet culvert looked as if it was firmly seated upon the original stream bed. It would now be just a matter of time for the water levels to drop to normal, even though the levels were still two feet above notfaat. 81. That inOctober 1995, after a dry summer, the water was back to the ancient level that existed before destabilization by the developer. The shoreline of the Pond again ran in front of the buttonbushes which grew, as of yore, on dry ground. 82. That for the first time, Petitioner could walk dry shod directly to the culvert. For the first time, Petitioner was able to see that the plastic outflow pipe was not lying on the original outflow stream bed. The culvert had been emplaced twenty inches above the stream bed and was, in fact, protruding from the face of the dam. This was the moment the statute of limitations began to run. 83. That there was immediate outcry via a motion made in Justice Cour~ Southold. That motion was trashed, as aforesaid. This motion was then commenced in Supreme Court Suffolk County, well within limitations. 84. That once the Town owned the Pond and marsh-recharge area, it was a simple procedure to tear down the developer's dam. However, instead of tracking away the spoil and disposing of it in a landfill, the Highway Department (apparently in a moment of madness) spread the one hundred yards of developer spoil over the marsh-recharge area, blocking the percolation of surface waters into the drinking water aquifer. 85. That in the process, they left in place the lower twenty (20) inches of the developer's dam and would have this Court believe that 'this is the way it always was.' Photo Exhibits Three, Four and Five show the original stream and also the Highway Department's culvert protruding from the remains of the developer's dam at an elevation of twenty inches above notaml. All of the water being impounded in the immobilized twenty inch layer of water is lost as drinking water. This amounts to a loss of one and one-half million gallons of water. 86. That Petitioner submits to this Court that the Respondents are keenly aware of ground shapes and contours. Twenty inches does not seem like a great amount but is sufficient to spread a puddle over Petitioner's billiard table lawn that looks, for all intents and purposes, like a fairly deep pond. As Photo Exhibits Six, Seven and Eight show that it is one very large and expansive puddle, diminishing the value of Petitioner's property to a point at which it is unsaleable 87. That sweet logic dictates the following: A. Remove the developer's spoil overburden from the marsh. B Deepen and clean the bottom of the immemorial marsh within the triangular borders purchased by the Towr~ C. Dig out the marsh down to a clean leaching bed with sides having the standard slope of all the other recharge sumps on Long Island. D. Finally, remove the plastic culvert. It was never necessary. Let the water mn untrammeled through its immemorial stream bed, into a properly built sump. WHF, REFORE, Petitioner requests judicial review of Respondents' refusal to remove the twenty inch dam and its refusal to remove the one hundred yards of fill from the marsh and the refusal of Respondent, Department of Environmental Conservation, to cite the Town of Southold and its agents for violations of the Fresh Water Wetlands Act as aforesaid in this petition and grant a stay of proceedings against the Town of Southold .and the New York State Department of Environmental Conservatior~ FURTHER, Petitioner prays for the following: A. An Order directing the Town of Southold or its agents to remove the twenty inch dam from the outlet stream of Hummel's Pond within ninety (90) days. B. An Order directing the Town of Southold or its agents to remove alt fill deposited upon the marsh into which the outlet stream decants and to remm said marsh to its pristine condition, within ninety (90) days. C. An Order directing the Town of Southold orits agents to unblock and clean out the original concrete culvert under Soundview Avenue between Petitioner's property and Hummel's Pond, within ninety (90) days. D. An Order directing the NYS Department of Environmental Conservation to remove Petitioner's three acre residential parcel from their Wetlands Map forthwith. E. An Order directing the Southold Trustees to cease and desist from any future interference with or obstruction of Petitioner's quiet enjoyment of his three acre residential parcel or any artificial ponds thereon, which are not part of the Dongen Patent. F. An Order directing the Justice Court of Southold to dismiss all pending proceedings against Petitioner arising from this matter. TOGETHER WITH, any further and other relief as to this Court is deemed just and reasonable, v, fith costs and disbursements of this action. Dated: Southold, New York February 26, 1996 James Bitses, Petitioner :~i,: '<(',IT:IAIJ !T,i,'.~', .'~mLT,I,:[),',', I,"~ [',rpANlll[ql', j,ljT~j~:~,: i.'~.'h'U' ?[ ~(~N'l' ,~I.' 'l'IJ~' 'J'[[E Rf)D ON '.[[IE RO'I."I'OM OJY 'VITa] SA.ID ;:'t'RI,:AM. '"i[~ ~oD A'U qqiFZ I,OCA'PTON f'AIi:I ~'' ~f'fflC f!I,:l,;ii'l' '~"' --'f~' POND IN !IH;:,~; %'~[TTCI[ CAII~F::; A ~ACK F'T.,f'~OI~ 'l'[rA'l' lJ'lrH NPA'I'FIS P~'IT1ON~S HWI;iT,V~; i NCI[I,:r~ ~o ~/IO~,]N ON t,A'PRR FlXfli l~i'l'~',. 't'}IR f~POIIND OF ~4A'~ ('.AUSEI} ~¢ 'Pile H'I~II f'~Hi T/P:V~IT, AM(}IIH'I'¢~ ['( AP. OTI'I' ON.R AND ONR {AT,P M'IT,T,'ION ~-II';Vi'~ RP:ACflE¢ q'ilE RF:CflARf:E A~I;',A RRYOND 'Pill,: k EXIt] BIT FOUR A'? A DTSTANCE OF FIFTE].~,~ FEE'f FROM THE PLASTIC CULVERT T~ WAT~ DE~'}{ OF THE ~'I~FAM [S S~ENTEEN 'INCHES IN DE~H. FROM TI{IS Pf~SPECTIVF,. THE ELfNATIO~ OF CUt,V~~- ABOVE T~{E STREAM BED C~l ~SII,Y ~'. SE~. THE RAW EARTH ~2~,~ ~BEDDED WITH Eo(~JfS CROSSES T[~: CUI,V~T T~,I FE~ WAF~ "-'i~.~Iq(U;:fiFAI<N . THE NA'I'I~RA1, RTRI;:N'~ EKttIBIT FIVE AT A DISTANCE OF SEVENTY FIVE FEET FRO~'I DAM~ TIlE DEPTH OF Tt~ STREAM BED IS TWENTY INCt[ES. WE FOUND THIS TO BE THE CO['~STANT -:DEF2H OF THE STRKAM BED FROM ITS MOUTH TO WITHIN FI~EEN FE~ OF T~ CULV~T (EXIt. RO~N: SELL~S. PHOTO: BITSES FEB, 9TH. ~',~II'I I~ ~ T SIX ROr~.~A['~ SELLI~RS TS STAND'[Nt~ [bl THE DI?,AD CE$~T~2~ OF THE PETITIONER.S FROPERTY. THE AI,I.E~?,I, P©~'D. fIERE SHOWN A.T -I'TS DEEP.~.~T POtIT~ IS ONLY TH2RTEEN INCITES DEEP. THIS IS PROOE ~)S ~'!" THAT IT IS NO']' A PON[) BUT A LARGE PUDDLE. THE ~ENERAL DEPI'H A~-ERAGES ABOUT EIG~I' INCHEg;. R['~O¥~ THE DAM CONSTRUCTED ~Y THE Ht~',HWAY DEPT. AND THE LEVEL OF THE POND WILL RETURN T? ~.[0P~4AL T~ENTY ]NC~]ES LOWER THAN ITS PRESENT FLOOD STAGE. THE ~ROP IN WATER LEVEL WOULD COMPI,ETELY DRY PETITIONER.S FROPE?~TY AND T_~[E ORIGINAL LAWN WOULD REAPPEAR. T[~IS WOUI,D [':?~ T[~ FAIRE CIAI~.~ l~Y TR[~STEFX~ AND DEC T~[AT P~[i'ITIONE~.S LAWN WAS WETLA~[D. SE[LERS:BITSES EXHIBIT SEVEN EXHIBIT EIGHT FOURTY FEET FROM TI~ SHORE~HE ROD SHOWS A DE~H OF FO~ INCH~ SI~Y FE~ ~O?I T~ S!tORE. EXHIBIT EIG}~ ROD SHOWS NINE INC~S. T~S IS TI~ POND T~T T}~ RES~ND~TN [(EEP TALKING ABOUT. R~PON.D~TS ~ ~t~NED P~ITION~,S ~EE ACRE ~TATE INTO AN AN~G~E DEEP H.]DDLE AND ,NOW C~YI6~ T[IAT IT IS A W~f~ND OF U~SU~ INT~T ~{!CH ~ST BE ~ES~VED. T~Y DISCRetELY AVOID THE FACT T[~T TI-~Y ~TED T~ ~DDLE BY ~ECTING A ~Y INCH DAM AT Tt{E SOUTI~ZN EXIT OF tt[~L'S ~ND. THEY BLITHELY I(~NORE T~[E FQ.CT THAT T~Y ~VE CAUSED FO~ t~[NDRED THOUSAND DOLORS DA[v~GE AND R~ID~ED T~ ~OP~TY LAURY L. DOWD TOWN ATTORNEY JEAN W. COCHRAN Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1889 Fax (516) 765-1823 TO: OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD MEMORANDUM TOWN TRUSTEES JAMIE RICHTER KENT MCCARTHY FROM: RE: DATE: TOWN ATTORNEY PEOPLE V. BITSES FEBRUARY 13, 1996 The court has advised me that they are continuing the trial of Mr. Bitses from February 23 to March 22, due to the pending action filed by Mr. Bitses in the Supreme Court. Since you will have to be available to testify, please check your calendars and make a note of the March 22 date commencing at 1:00 PM. Kent, please stop by with your file so that we can review it. The Court advises me that the Long Form Information fails to describe the "operation" which constitutes the violation. I never received a copy of the Long Form, but would like an opportunity to review it with you and amend it if necessary. As I do not want the action dismissed on technical grounds, please get together with me as soon as possible. LAURY L. DOWD TOWN ATTORNEY JEAN W. COCHRAN Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Telephone (516) 765-1889 Fax (516) 765-1823 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD TO: FROM: RE: DATE: MEMORANDUM AL KRUPSKI. TRUSTEES / KENT MCCARTHY. BAY CONSTABEE~'~ JAMIE RICHTER. TOWN ENGINEER LAURY DOWD, TOWN ATTORNEY PEOPLE V. BITSES TRIAL JANUARY 16, 1996 The trial of Mr. Bitses for code violations relating to the pond on his property is scheduled for Friday, February 23 at 1:00 p.m. Please keep your calendars open so you can testify on this date. Be advised that Mr. Bitses has filed a civil action against the Town and the DEC. He asks the court to prohibit the trial in Justice Court on February 23, and to have the Supreme Court in Riverhead hear both the DEC and Town cases. The case was originally scheduled for January 17, but has been continued over to February 1~. He is basing his request on his claim that the Town artificially created a puddle on his property by raising the height of ouffall from Hummels Pond, and that the puddle cannot be characterized as a wetland either by the Town or by the DEC. I believe the case to be without merit, but will keep you advised of further developments. Please call if you have questions. Attachment SOUTHOT.D 53095 P-O- SOUTHOT.D TOWN JUSTICE COURT MAIN ROAD BOX 1179 NEW YORK 11971 RUDOLPH H. BRUER, $OUTHOLD TOWN JUSTICE 516-765-1852 516-765-3898-FAX January 10, 1996 James Bitses, Esq. Lighthouse Road and Soundview Ave. Southold NY 11971 Dear Mr. Bitses, This letter is in reference to the pending Southold Town Code violations. These are docket nos. 95090335-violation date 9-19-95, 95110091-violation date 10-23-95, 95110092-violation date 10-24-95,95110093 violation date 10-25-95. These are the matters which were marked for trial on December 15, 1995. The other cases are docket nos. 95120059-violation date 11-24-95, 95120066 violation date 11-27-95,95120067 violation date 11-28-95, .95120068 violation date 11-29-95 and 95120069 violation date 11-30-95. These are the matters which were on for arraignment on December 15, 1995. After reviewing the files' history and careful consideration, Justice Bruer has set all these matters for his calendar date of February 23, 1996 at 1:00 PM in the after noon. This is being done to facilitate your preparation for trial on these cases and to make sure that your calendar is cleared of other obligations. It is quite important to you to obtain your evidence and other necessary paperwork for the trial on these matters and to have this day and time available as these matters should be resolved expeditiously. Very trulyyours, Christine A. Stulsky, Justice Court Clerk cas: ~So~thold Town Attorney Southold Town Bay Constable, Kent McCarthy HARVEY A. ARNOFF Town Attorney MATIHEW G. KIERNAN Assistant Town Attorney P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD MEMORANDUM TO: FROM: DATE: RE: John J. Bredemeyer, III, President, Board of T~ Matthew G. Kiernan, Assistant Town Attorney September 22, 1992 Town of Southold v. James Bitses Annexed hereto, please find a letter from Ken Etzel of the Supreme Court stating that the above-entitled case has been inactive for more than one year. Kindly review the enclosed copy of the orginal summons and notify this office of your intentions regarding this matter (i.e., continue' to prosecute or dismiss the proceeding in its entirety). Lastly, should you wish to continue prosecution of this matter, please note that the Town has ninety (90) days in which to re-activate same. JAMES SCHONDEBARE,ESQ. 53095 MAIN ROAD POB 1179 SOUTH0£D,NY. 11971 8/24/92 019906/89 Re: - ; SOUTHHOLD TN OF vs BITSES Dear Counsel: · Please be advised that the Conrt~ ~onstrues the lack of activity on the above entitled case and its presence on the calendar for more thag~one year without the filing of a Note of Issue as constituting unl~'asona~le delay in prosecuting this matter. Pursu'ant to CPLR Rule 3216, the Court mandates that you resume prosecution of this action. Within ninety (90) days after receipt of this demand, all discovery must be completed; certification conference held and Note of IssUe shall have been iii. ed. In the event that you decline to act in accordance with this directJ:ve, the Court w±l 1 exercise its perogative to dismiss the pleading filed herein. If, however, this action is full~ disposed as to a] l _part.les, please indicate as to tile reel:hod ~. di'spos£tion ol] this letter and return to the managing clerk named below. At the court's directive, plaintiff's attorney MUST send copy of this notice to all parties upon receipt. Jack J. Cannavo Justice of the Supreme Court Managing Clerk Trial Term Part 3-L SUPREME COURT : STATE OF NEW YORK COUNTY OF SUFFOLK TOWN OF SOUTHOLD, Plaintiff. -against- JAMES BITSES AND KATHERINE BITSES. Defendants. Index No. Plaintiff designates SUFFOLK COUNTY as the place of trial The basis of the venue is Plaintiff's Residence SUMMONS Plaintiff resides at 53095 Main Road Southold. New York County of Suffolk To the above named Defendant YOU ARE HEREBY SUMMONED 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, judgement will be taken against you by default for the relief demanded in the complaint. Dated: October /~;~. 1989. James A. Schondebare Attorney for Plaintiff 53095 Main Road Southold. New York 11971 516 765 1800 Defendant's address: James Bitses Katherine Bi,tses Soundview Avenue Southold. New York SUPREME COURT : STATE OF NEW YORK COUNTY OF SUFFOLK TOWN OF SOUTHOLD, Plaintiff, -against- JAMES BITSES AND KATHERINE BITSES. Defendants. VERIFIED COMPLAINT Plaintiff. by its attorney James A. Schondebare. Esq.. complaining of the defendants alleges as follows: FIRST: That at all times hereinafter mentioned, the defendants are residents of Suffolk County. State of New York. SECOND: That at all times hereinafter mentioned, the defendant. James Bitses. owned the real property located at the north west corner of Lighthouse Road and Soundview Avenue. Southold. New York. THIRD: That at all times hereinafter mentioned, the defendant. Katherine Bitses. owned the real property located at the north west corner of Lighthouse Road and Soundview Avenue, Southold. New York. FOURTH: That at all times hereinafter mentioned, the defendants. James Bitses and Katherine Bitses. jointly owned the real property located at the north west corner of Lighthouse Road and Soundview Avenue. Southold. New York. FIFTH: That at all times hereinafter mentioned, plaintiff was and still .!_s_ a _municipal corporation of the State of New York. having the principal office for the transaction of business at 53095 Main Road. Town of Southold. County of Suffolk and State of New York. SIXTH,: That the plaintiff has in existence a duly enacted Wetland Ordinance of the Town of Southold. Chapter 97. adopted by the Town Board of the Town of Southold on June 29, 1971, with amendments thereto. SEVENTH: That said ordinance prohibits the destruction of wetlands and further provides that no material may be removed from wetlands nor may material be deposited on wetlands, and no structure may be built on wetlands without a permit duly issued by the Southold Town Board of Trustees. EIGHTH: That on or about the 11th day of September 1989 and continuing to date. the defendants have violated Chapter 97 of the Code of the Town of Southold by destroying the pond a-nd surrounding wetlands upon their above mentioned property by their cutting and removing of wetland vegetation, by their dumping wetland vegetation into the waters of the pond. and by their construction of a wooden structure into the waters of the pond all in violation of the above mentioned ordinance. NINTH: That the defendants have been served with numerous vio ations for the above mentioned activities and have ignored same and continue to engage in said conduct and activities. TENTH: That the plaintiff has no adequate remedy at law. WHEREFORE. plaintiff demands a judgment that the defendants, their agents, servants and employees, be permanently enjoined and restrained from engaging in any and all activities and conduct that destroys the wetlands and pond located on defendants property or that reduces in any manner the size and shape of the pond and surrounding wetlands on defendants property, and that the plaintiff herein have such further legal and equitable relief as shall deem just and proper, together with the costs and disbursement of this action. Dated: October j$~1~. 1989 Southold. New York James A. Schondebare Town Attorney Town of Southold 53095 Main Road Southold. New York 11971 516 765 1800 TO; James Bitses Katherine Bitses Soundview Avenue Southold. New York 11971 POLICE DEPARTMENT, TOWN OF SOUTHOLD Peconic, New York 11958 Stere of New York) County of Suffolk) ~own I~f Southold) " The undetsiFned police offer ........ (~OMPLAINT NO. 1489 - · · .~ ~-~ ...... ~-i ..... Veuel Reg, No. [ Ye~ & Make ] ~ngth Hull Color Type: SaU ~ ~boatd ~ Outbo~d D ' h Operator the ~ne~ Yes ~ ~o~ Plea: Gui]ty D ~ot Guilly ~ Docket ~o. o~ · ~ol,.o. of s~... '~?:-'4'0 .... s,b~ ............. ofth. ......... ~.~'~'~/' b ~' .......... Ordinance of Iht To~ of Southo]~, H.Y.,~n th~l on tht ...... ~.~ .... dly of · · ~. ·. ~. ,t ,bo,~ .../~ V~ .... .~ ,, h~let of .... ~~ ......... To~ of Southold, the defendant did wrongfully, ~tention~ly. and kno~g]y commit the offing of: . .~. ~.~ ~ ~.. P~',~ ............. tn that defendant did .... 7~. £~..~..oF../~. ~.~.~.~. ~ .~,R-. ~ .... A false statement made herein is punishable as a Class misdemeanor (Sec. 210.45 P.L.} Signature of. . POLICE DEPARTMENT, TOWN OF SOUTHOLD Peconic, New York 11958 State of New York) County of Suffolk) xs: Town of Southold) The undersigned police office[, accuses ...... .c..~....~4...q.~ ...... .~.;~. ......... of ..... !.~.?.~.~.~ .... ~..~.~ ............... .... .~...~..~.. ~ .~ ...... .~.~ ....... ~/.??/. ....... ' Of a ~iolation of Sec....<~.~ ."'~t .., Subdiv ............. of the l~'C~*' ~--~"JC~'~ '~'~ Ordinance of the Town of Southold, N.Y.,in that on the .' .... /.~. .... day of hamlet of ....................... , Town of Southold, lq.Y. the defendant did wrongfully, intentionally, an~. knowingly commit the COMPLAINT N.° 1521 Court Appearance Da~e: ................... 19 ...... Vessel ReD No. I Year & Make : I Length I I Hull Color IType: Sail[-] . I Inboard [] Outboard[-] Is Operator the Owner? Yes [] No[] Plea: Guilty ~] Not Guilty ~] Docket No. Finding: Dis [] ; Cony F'~ : NG [] Sent; in that defendant did A false statement made herein is punishable as a Class "A" misdemeanor ($ec..210.45 P.L.} -/-~ _ ~ POLICE DEPARTMENT, TOWN OF $OUTHOLD CDMPLAINT NT.o -- Peconic, New York 11958 1523 State of New York)" County of Suffolk) ss: Town of Southold) The unde~igned police officer accuses of the Town of Southold, N.Y., in that on the ............ day of hamlet of ........................ Town of Southold. N.Y'. the defendant did wrongfully, intentionally, and knowingly commit the offonse of: / /- Court Appearance Date: ................... 19~// .... Vessel Reg.'No. Year & Make [ Length ! Hull Colo£ Type: Sari[--] ~hoard C] Ootbo~dF3 Is Operator the Owner? Yes['=] No[~ Plea: Guilty [] Not Guilty [] Docket No. Finding: Dis [] ; Cony []; NG [] Sent: in that defendant did ~mt,~.'~.,v~...~..~.~,~....'y~. ~$..~,..,rm~. 7.~.~.. ~ A false statement made herein is punishable as a Clas~ "A" misdemeanor (Sec. 210.45 P.L.} -~ /1 - ." - Officer ........ RAYMOND L. JACOBS SUPERINTENDENT OF HIGHWAYS 765~3140 TO: FROM: SUBJECT: DATE: OFFICE OF THE ENGINEEr. TOWN OF SOUTHOLD RAYMOND L. JACOBS JAMES A. RICHTER~[~ MR. BITSES APPLICATION JAMES A. RICHTER ENGINEERING INSPECTOR 734-5211 ME M 0 RAN D U__M ~i~~/ TO CONSTRUCT A.FLOoD GATE - SOUNDVIEW AV SCTM # 1000 ~ 50 - ~ - 6 JANUARY 30, 1991 As per your request I have inspected the existing culvert that runs below Soundview Avenue between two fresh water ponds just west of Lighthouse Road in Southold. Mr. James Bitses has made a permit application to construct what he calls a Flood Gate at the north end of the existing cutverc. The purpose for this Flood Gate appears to be to control the water level of the northern pond which is located on Mr. Bitses property. I see at least two major problems with his request. My first concern is the installation of this Flood Gate itself. If this Gate operates as intended, it would prevent the twa Ponds from achieving equilibrium. Since the average level of the two Ponds are close to .the existing road grade and some flooding does still occur from time to time, it would be highly likely that this Flood Gate would create a severe road hazard due to the increased elevation of the southern Pond. The second concern is the design & location of the Flood Gate. The dam or berm will require much more material than the one half yards proposed in the. application. Also, the design calls for this berm. to be constructed entirely on Mr. Bitses property. The Town R.O.W. for Soundview Avenue is 66 feet wide. If we assume the road pavement to be centered in this R.O.W., the Town property line will be located approximately twenty feet out into the Northern Pond. Therefore the construction of this Flood Gate as proposed would be entirely on Town Property. I understand the desire for Mr. Bitses to try and reclaim existing Fresh Water Wetlands on his pyoperty for his own use but I can not recommend the construction of this Flood Gate at the expence of Public Safety on a Town Road. Page 2 ~ neighbors navigation and dock. Vote of Council: Ayes: All On a motion by Bruce Louckaf seconded by Cynthia Sturner, it was RESOLVED to recommend to the Southold Town Trustess disapproval of Wetland Application No. 50-3-6 of James Bitses to construct a small flood control gate; small semi-circular berm penetrated by a four inch pipe with gate valve , six feet in diameter and two feet high. The Council recommends disapproval until an engineers report is submitted to determine the results of 2", 3" etc. of rain (will it flood the road?). Vote of Council: Ayes: Ali Motion carried. On a motion by Stephen Ang~ell, seconded by Margaret Feeney, 'it was RESOLVED to recommend to the $outhold Town Trustees approval of Wetland Application No. 111-1-16 by Frank Curran to replace (within 18" 101 I.f. of existing ~dmber bulkhead, install one 10" mooring pile and dredge a 21' x 25' boat basin to 4' below MLW. Vote of Council: Ayes: All Motion carried. On a motion by John Holzapfel, seconded by Bruce Loucka, it was RESOLVED to recommend to the Southold Town Trustees approval of Wetland Application No. 116-6-24 submitted by Kinogenor Point Company to replace (within 18) 135+ I.f. of existing bulkhead. Vote of Council: Ayes: All Motion carried. On a motion by Stephen ^ngell, seconded by Cynthia Sturner, it was RESOLVED to recommend to the Southold Town Trustees approval with suggestions of Wetland Application No. p/o 122-3-14(Iot 1) of Alan Cardinale to construct a catwalk, platform, ramp and float to piles. The Council suggests the applicant extend the catwalk and send the ramp from the catwalk to float and eliminate the stairs. Vote of Council: Ayes: All Motion carried. On a motion by Stephen Angell, seconded by John Holzapfel, it was RESOLVED to recommend to the Southold Town Trustees approval with su~l~lestions of Wetland Application No. p/o 122-3-14 (Lot 2) of Alan Cardinale to construct a catwalk, platform, ramp and float to piles. The Council suggests the applicant extend the catwalk and send the ramp from the catwalk to float and eliminate the stairs. Vote of Council: Ayes: All Motion carried. Application No. p/o 122-3-14 (Lot 3) was tabled pending further information from environmental experts concerning the length of catwalks over wetlands. On a motion by Margaret Feeney, seconded by John Holzapfel, it was RESOLVED to recommend to the Southold Town Trustees disapproval of Wetland Application No. 126-9-p/o19, 26.2 and 26.3 of Mark and Lisa Davis toconstruct a single family dwelling with garage and driveway. The Council feels this should not be subdivided, it is not a buildable lot. The Council recommends denial because of environmental con~erns and to uphold zoning. Vote of Council: Ayes: All Motion carried. Telephone (516) 765-1801 Town Hall. 53095 Main Road P.O. Box 1179 Southold. New York 11971 SOUTHOLD TOWN CONSERVATION ADVISORY COUNCIL To; From: Dated: Re: Southold Town Trustees Southold Town Conservation Advisory Council February 13, 1991 Recommendation of Wetland Applications The following recommendations were made by the Council at its meeting held Thrusday, February 7, 1991: On a motion by Stephen Angell, seconded by Margaret Feeney, it was RESOLVED to recommend to the Southold Town Trustees approval with limitations on Wetland Application No. 1'11 - 1 of Thomas Samuels to maintenance dredge a channel 30-+' x 1440+' to maximum depth 6' below MLW with spoil to be used as beach nourishment on southwest side of Fisherman's Beach. The CAC approves if the dredgin9 depth is limited to 4'. The Council feels that 6' is too big, 4' is adequate for most pleasure crafts in the area and the Council is concerned that the 6' depth would create potholes and problems to the surrounding water and shellfish~ Vote of Council: Ayes: All Motion carried. Application No. 12-2-90-78-5-16 of James Grathwohl was tabled pending receipt of the landscape plan, buffer zone and placement of a retaining wall as requested by the Board of Trustees. On a motion by Stephen Angell, seconded by Bruce Loucka, it was ~ RESOVLED to recommend to the Southold Town Trustees approval with suggestions of Wetland Application No. 12-4-90-123-10-1 of Panagiotis Gazouleas to construct a single family dwelling, attached decking and associated sanitary system. Construct a 4' x 30' fixed dock, 3' x 10' ramp and 6' x 20' float. The Council approves the house as submitted with the stipulation that the applicant follow the checklist the CAC submitted to the Trustees in a letter dated February 9, 1990 which requires roof gutters and drainpipes, no runoff by grading, straw bales during construction, no planting requiring fertilization and heavy watering within 75' of wetlands, etc. The Council approves the dock with the suggestion that the two floats be turned 90° to plan so it would be in line with the last adiacent dock. Vote of Council: Ayes: All Motion carried. On a motion by John Holzapfel, seconded by Cynthia Sturner, it was RESOLV, ED to recommend to the Southold Town Trustees approval with stipulations of Wetland Application No. 24-2-11 to remove existing dilapidated docking facility and replace in-kind, in-place, a 4' x 28' fixed timber dock, 3' x 16' aluminum ramp, 6' x 20' float dock and two 2-pile float support dolphins. The Council approves provided the project does not interfere with the adjacent RAYMOND L. JACOBS Superintendent Highway Department Town of Southold Peconic Lane Peconic, N.Y. 11958 JAN3~ ig~l' TOWN OF SOUTHOLD Tel. 765-3140 734-5211 TO: FROM: RE: DATE: John M. Bredemeyer, III, President,Board of Trustees Raymond L. Jacobs, Sup't of Highways~ uames Bitses, SCTM #1000-50-3-6 January 31, 1991 A field inspection in reference to Mr. Bitses application was done by me and Jamie. After which, I requested uamie to give me a written report. I concur fully with Jamie's report. RAYMOND L. JACOBS SUPERINTENDENT OF HIGHWAYS 765-3140 734-5211 OFFICE OF THE ENGINEER TOWN OF SOUTHOLD TO: FROM: SUBJECT: DATE: MEMORANDUM RAYMOND L. JACOBS JAMES A. RICHTER ~ MR. BITSES APPLICATION TO CONSTRUCT A FLOOD GATE - SOUNDVIEW AVE. SCTM # 1000 - 50 - 3 - 6 JANUARY 30, 1991 As per your request I have inspected the existing culvert that runs below Soundview Avenue between two fresh water ponds just west of Lighthouse Road in Southold. Mr. James Bitses has made a permit application to construct what he calls a Flood Gate at the north end of the existing culvert. The purpose for this Flood Gate appears to be to control the water level of the northern pond which is located on Mr. Bitses property. I see at least two major problems with his request. My first concern is the installation of this Flood Gate itself. If this Gate operates as intended, it would prevent the two Ponds from achieving equilibrium. Since the average level of the two Ponds are close to ~he existing road grade and some flooding does still occur from time to time, it would be highly likely that this Flood Gate would create a severe road hazard due to the increased elevation of the southern Pond. The second concern is ~he design & location of the Flood Gate. The dam or berm will require much more material than the one half yards proposed in the application. Also, the design calls for this berm. to be constructed entirely on Mr. Bitses property. The Town R.O.W. for Soundview Avenue is 66 feet wide. If we assume the road pavement to be centered in this R.O.W., the Town property line will be located approximately twenty feet out into the Northern Pond. Therefore the construction of this Flood Gate as proposed would be entirely on Town Property. I understand the desire for Mrs. Bitses to try and reclaim existing Fresh Water Wetlands on his pyoperty for his own use but I can not recommend the construction of this Flood Gate at the expence of Public Safety on a Town Road. cc: file