HomeMy WebLinkAboutSavino, Michael & Dana WILLIAM C. GOGGINS V, ,
ATTORNEY AND COUNSELOR AT LAW
13235 Main Road, P.O. Box 65D E C _
Mattituck, New York 11952
Phone (631) 298-4818 q--:5s-,4H
Fax: (631) 298-4214
gogginslaw@gmail.com
WILLIAM C.GOGGINS
Attorney at Law
December 5, 2014 ANTHONY H.PALUMBO
Of Counsel
Town Attorney of the Town of Southold DONALD MATES
53095 Main Road Of Counsel
Southold, New York 11971 DONNA M.PALMER
Attn: Martin D. Finnegan, Town Attorney Paralegal
Ree Michael Savino and Dana Savino v. Board of Trustees
Dear Mr. Finnegans
Please be advised that we will be proceeding by Order to Show Cause for
Contempt against the Board of Trustees for the failure to abide by the terms
of the Decision and Order dated October 14, 2014. A copy of which is
attached.
We respectfully request that the Board of Trustees immediately issue a
permit to Mr. and Mrs. Savino "consistent . . . with the prior approval of the
Department of Environmental Conservation", which means to issue a permit
for the:
"in-kind/in-place repair or reconstruction of bulkheads and shoreline
erosion structures that were functional before hurricane sandy".
Please issue the permit to avoid further litigation, delay and damages to Mr.
and Mrs. Savino.
Ve truly your
William C. Gog
WCG/dmp
CC: Southold Town Board
Southold Board of Trustees
Smith, Finkelstein, Lundberg, Isler & Yakaboski
SUPREME COURT-PART 50
COUNTY OF SUFFOLK- STATE OF NEW YORK
PRESENT Index No. 33788/2013
Orig. Date: 1/7/2014
HON. ANDREW G. TARANTINO, JR. Adj.Date: 7/14/2014
A.J.S.C. Motion Dec. 001: MotD
-----------------—------------------------------------------------x
MICHAEL SAVINO and DANA SAVINO,
Petitioners, ORDER ANNULLING
DECISION OF THE
TOWN BOARD
-against-
BOARD OF TRUSTEES OF THE TOWN OF
SOUTHOLDI
Respondent.
-------------------------- ---------------------------------------x
Upon consideration of the Order to Show Cause to review, void, annul, and overturn the
decision of the Respondent Board of Trustees of the Toy-in of Southold ["the Board" or"the
Respondent"],dated November 13,2013,the Verified Petition, the petitioners' memorandum of
law, and supporting exhibits A through J,the Respondent's Answer and Return,the
Respondent's memorandum of law, the Respondent's supplemental affirmation and exhibit A,
and the petitioners' reply affirmation, it is now
ORDERED that after hearing counsel for the parties and after consideration of the papers
filed in support and in opposition thereto,this application(seq 00 1) by the petitioners, Michael
Savino and Dana Savino ["the Petitioners"], pursuant to Article 78, annulling the decision of the
Town Board of Trustees for the Town of Southold dated November 13,2013, is granted, and it is
further
ORDERED that the application is remitted to the Southold Town Board of Trustees for
reconsideration consistent with the provisions of the entirety of applicable provisions of§275 of
the Town Code of the Town of Southold,and the prior approval of the Department of
Environmental Conservation rDEC"], within 45 days of the date that this Short Form Order is
served with Notice of Entry, and it is further
ORDERED that counsel for Petitioners shall serve a copy of this Order with Notice of
Entry upon counsel for all other parties,pursuant to CPLR §§2103(b)(1), (2) or(3),within thirty
(30)days of the date the order is entered and thereafter file the affidavit(s) of service with the
Clerk of the Court.
The instant proceeding seeks relief pursuant to CPLR Article 78 annulling the Decision
and Resolution of the Southold Town Board of Trustees dated 11/13/2013 which denied,
without prejudice,petitioners' application for an amendment of their Wetlands permit no. 2')03
seeking to repair and replace an existing 100 linear foot bulkhead with a 38 foot north return and
a 64 foot south return,,removal and replacement of a gazebo, deck reconstruction, and add 275
yards of topsoil at their property at 1945 Bayview Avenue,Mattituck. The denial of this
approval precluded the petitioners from reconstructing their bulkhead and appurtenant structures
which were damaged as a result of Super Storm Sandy ["Sandy"].
According to the Verified Petition,on December 26, 2012, Petitioners applied to the
Trustees for an administrative permit to repair and replace their existing bulkhead and dock that
had been damaged by Sandy.Petitioners claim they have a pre-existing wetlands permit for an
existing bulkhead 100 feet across the property that was approved by the Trustees upon
application by a prior owner on September 24, 1971.
The petitioners also contend that on June 20, 1987, the Trustees issued a second permit
to another prior owner, Trustees Permit No. 2303, for the following: timber dock 4'x 35'with
fixed elevated walk extending from the existing bulkhead,4'x 16'hinged ramp, 6'x 50'float,
two (2)6'x 3 P floats, a Gazebo,and a 30'x 100 ` deck(see Petitioners' Exhibit D;see also
Respondent Town's Return,photographs at 0023, 0041-43, 0055). On November 22, 1988, the
Trustees amended the permit allowing ten foot extensions to the existing floating docks.
Petitioners contend that pursuant to § 275-5 B (1)of the Southold Town Code,their
application to rebuild their bulkhead and reconstruct the deck, dock and appurtenant structures
should have been granted by a mere administrative review, an expedited review process without
a public hearing(see Town Code §275-5 B (2)(i); (2)(1). The petitioners contend that by
denying the administrative permit, the Respondent Town acted irrationally, arbitrarily and
capriciously and seek an annulment of the Trustees' determination.
Petitioners also maintain the decision to deny the permit when the Department of
Environmental Conservation,which has concurrent jurisdiction, had already issued its permit
for the proposed replacement/reconstruction project was arbitrary and capricious. The Trustees
sought recommendations from the Southold Town Conservation Advisory Council and the
Local Waterfront Revitalization ["LWRP"] Program Coordinator. Without any further
discussion, the Trustees' determination states that the LVJRP Program Coordinator issued a
recommendation that the application be found exempt from the Local Waterfront Revitalization
policy standards. Although the Conservation Advisory Council adopted a unanimous resolution
that it did not support the petitioners' application,the Council's position was apparently based,
at least in part, on the fact that the square footage of the floating docks exceeded"the Code."
The Board's determination makes no reference to the basis of the Conservation Advisory
Council's recommendation.
The Trustees' determination dated November 13,2013, states that the Board
recommended potential modifications to the proposed construction that would have a less
deleterious effect on the wetlands and adjacent areas.The only suggested"modification"
reflected in the minutes of the Board meeting that took place on October.16, 2013, was the
following made by then Board President Jim King:
"the bulkhead could be moved landward about ten feet to try and reestablish
some of the wetland areas..... Our concern is,I don't even know how this was
ever permitted-to begin with.And I think this is a time we can maybe fix
something that should be fixed, by backing that in ten feet and re-establishing
that wetland along there."
Several additional comments were made by Board members at the October 16"hearing
suggesting that the petitioners consider backing (the bulkhead] up ten feet landward. The
discussion concluded with Trustee King's recommendation to the petitioners "D]ust give us
some time to work our way through it. And please consider what we suggested on moving that
whole structure ten feet landward. Environmentally, it really would be a nice thing to do."
At the second Board meeting on November 13, 2013, President King reaffirmed the
Town's desire to have the petitioners move their bulkhead and adjoining:dock ten feet back.
"That's where I'm coming from on this. I think it would be a tremendous gain of wetlands for
The Town maintains that the petitioners are not entitled to the expedited,administrative
review process. Pursuant to a Town Code provision adopted in 2004, the Town may issue an
administrative permit for remodeling,renovation, or rebuilding of a bulkhead that had
previously been given a wetlands permit by the Trustees, provided that there would be no harm
to the wetland. Town Code § 275-12 authorizes the Town to issue a permit only where,inter
alio, the issuance of a permit for operations will not substantially adversely affect the wetlands
of the Town, adversely affect fish, shellfish or other beneficial marine organisms,aquatic
wildlife and vegetation or the natural habitat thereof, and otherwise adversely affect the health,
safety and general welfare of the people of the Town.
Tidal wetlands are defined by the Southold Town Code, §275-2:
(1) All lands generally covered or intermittently covered with,or which border
on, tidal waters, or lands lying beneath tidal waters,which at mean low tide are
covered by tidal waters to a maximum depth of five feet,including but not
limited to banks, bogs, salt marsh, swamps,meadows, flats or other low-lying
Iands subject to tidal action;
(2) All banks,bogs, meadows, flats,tidal marsh and beaches subject to such
tides and upon which grows or may grow some or any of the following: smooth
cordgrass (Spartina altemiflora), salt hay grass(Spartina patens), blackgrass
(Juncus gerardii), saltwort(Salieornia spp.), sea lavender(Limonium spp.),
marsh elder(Iva frutescens), groundsel (Baccharis halimifolia), or marshmallow
(Hibiscus spp.).
The patties do not dispute that the requested construction adjoins tidal wetlands. The
Town argues that the petitioners are not entitled to an administrative permit for the replacement
of the bulkhead, as distinguished from a wetlandpermit, because the administrative permit
review only applies to pre-existing structures that have been previously approved by issuance of
a Trustees' wetland permit. The Town denies that the Trustees issued a permit for the
construction of the bulkhead in 1971 because at that time, no permit was required.In fact, the
previous owner was advised by letter from the Board's then Chairman that no permit was
required because the structure was entirely on the owner's property and was not on"tidal
waters".
On the issue of whether the petitioners were entitled to an administrative permit as to the
bulkhead,the Court agrees with the Town that 1) a wetlands permit was not previously issued
for the bulkhead,and 2) as to the replacement of the bulkhead,the petitioners were required to
obtain a wetlands permit under the Town Code.
Town Code § 275-3, adopted in 2004,requires a permit to reconstruct the entire
bulkhead. Excepted from the permit requirement is the ordinary and usual maintenance or repair
on a wetlands-permitted structure (of the same dimensions) of a functional building, dock,pier,
wharf,jetty, groin, dike,dam or other water-control device or structure (Code § 275-4 []) [1]
[e]). The petitioners' application requires a wetlands permit because the request is for the
replacement of the existing bulkhead as distinguished from mere maintenance and repair.
However,with respect to whether the petitioners should have received the required
permit,the Trustees conducted several site inspections of the property and held a public hearing
on the application on October 16,2013, and again on November 13, 2013. The Trustees
concluded that the bulkhead had been located in a healthy, active wetland that included a
flourishing oyster population and that rebuilding the bulkhead in the same location would be
detrimental to the wetlands. The Board also questioned whether the prior bulkhead may have
been constructed on public bottom and therefore encroached on public land. ' The Trustees
admit they suggested, bort did not require,that Petitioners consider relocating the bulkhead ten
feet landward which the Board contends would protect the intertidal marsh and prime oyster
habitat.
When the petitioners refused to consider moving the bulkhead landward,their
application was denied without prejudice. The"without prejudice"designation would allow
Petitioners to apply to rebuild the bulkhead in a different location if they elected to do so.
The"without prejudice"denial of the application begs the question as to whether the
"suggestion"that the application would only be approved if the petitioners agreed to move the
bulkhead ten feet landward was arbitrary, capricious, and without a rational basis (see Fuentes V.
Planning Bd. of Village of Woodbury, 82 A.D.3d $83. 918 N.Y.S.2d 213 [2d Dept. 2011]).
Respondent also submitted the affidavit of Trustee Bredemeyer,a Trustee of 14 years
duration,the Board's current President,and a retired marine researcher for Suffolk County's
Bureau of Marine Resources. The only reference in Bredemeyer's affidavit about the"Trustees'
suggestion of moving the bulkhead ten feet landward is a single conclusory statement at the end
of the affidavit, "[t]he.Trustees merely pointed out to the Petitioners that moving the bulkhead
landward ten feet would benefit the wetlands in the area and reestablish the tidal zone."
No factual recitations or findings of fact were set forth in the resolution and no analysis
' Such a conclusion would be in direct contradiction to the letter from the Trustees to the
prior owner in 1971 stating, "It is the determination of this Board that the bulkhead is essential to
prevent further erosion, and there is no permit or fee required as this bulkhead is to be entirely on
your own property, as specified in your application,making it beyond the jurisdiction of the
Board of Town Trustees."(Petitioners' Exhibit Q. In addition,the Trustee President's affidavit
also unequivocally reaffirms that no permit was issued in 1971 because the bulkhead was located.
on private property-not the Trustees' lands.
was provided in the resolution outlining the deliberations of the Town Board in reaching its
determination that the current location of the bulkhead is detrimental to the wetlands.
Importantly,no explanation was proffered as to why the applied-for structure would adversely
impact the wetlands, the shellfish, aquatic life and vegetation,but moving the structure
landward by ten feet would not.The implication of the comments made by President King at the
hearing was that by denying the application to rebuild the existing bulkhead,the Town would be
in a position to reclaim land once thought to be privately owned if the petitioners agreed to push
back the bulkhead landward by ten feet.
Given the fact that there is no reasoning whatsoever included in the Town Board's denial
of the petitioners' application why replacing the existing bulkhead would threaten the integrity
of the wetlands but moving the bulkhead landward would not, the determination is arbitrary and
without a rational basis and therefore,must be annulled. Accordingly,the matter is remitted to
the Town Board for reconsideration of the application in accordance with the applicable
provisions of the Town Code as set forth herein.
Dated:Riverhead,New York
Dated:
ANDREW G. T ARAiNTINO,.R.,A.J.S.C.
FINAL DISPOSITION NON-FINAL DISPOSITION
L,LIAM C. GOGGINS
ATTORNEY AND COUNSELOR AT LAW
13235 Main Road,P.O. Box 65
Mattituck,New York 11952
Phone (631) 298-4818
Fax: (631) 298-4214
gogginslaw@gmail.com
WILLIAM C.GOGGINS
Attorney at Law
ANTHONY H.PALUMBO
December 4, 2014 Of Counsel
DONALD MATES
Town Attorney of the Town of Southold Of Counsel
53095 Main Road DONNA M.PALMER
Southold, New Fork 11971 Paralegal
Attn: Martin D. Finnegan, Town Attorney
Re: Michael Savino and Dana Savino v. Board of Trustees
Dear Mr. Finnegan:
Please be advised that we will be proceeding by Order to Show Cause for
Contempt against the Board of Trustees for the failure to abide by the terms
of the Decision and Order dated October 14, 2014. A copy of which is
attached.
We respectfully request that the Board of Trustees immediately issue a
permit to Mr. and Mrs. Savino "consistent . . . with the prior approval of the
Department of Environmental Conservation";which means to issue a permit
for the:
"in-kind/in-place repair or reconstruction of bulkheads and shoreline
erosion structures that were functional before hurricane sandy".
Please issue the permit to avoid further litigation, delay and damages to Mr.
and Mrs. Savino.
Ve ruly yours
M
William C. og i
WCG/dmp
CC: Southold Town Board