WHEREAS, there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 22nd day of April 2008 a Local Law entitled “A Local Law in Relation to a One Hundred and Eighty (180) day Moratorium on the Processing, Review of, and Making Decisions on Dock Applications (new or pending) made to the Board of Trustees pursuant to Chapter 275 ‘Wetlands and Shoreline’ of the Code of the Town of Southold” now, therefore, be it
RESOLVED that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 20th day of May 2008 at 4:45 p.m. at which time all interested persons will be given an opportunity to be heard.
The proposed local law entitled, “A Local Law in Relation to a One Hundred and Eighty (180) day Moratorium on the Processing, Review of, and Making Decisions on Dock Applications (new or pending) made to the Board of Trustees pursuant to Chapter 275 ‘Wetlands and Shoreline’ of the Code of the Town of Southold” reads as follows:
LOCAL LAW NO.___of2008
“A Local Law in Relation to a One Hundred and Eighty (180) day Moratorium on the Processing, Review of, and Making Decisions on Dock Applications (new or pending) made to the Board of Trustees pursuant to Chapter 275 ‘Wetlands and Shoreline’ of the Code of the Town of Southold”.
BE IT ENACTED BY, the Town Board of the Town of Southold as follows:
Section 1:Legislative Intent
The Town Board finds that the construction of docks in the Peconic Bay, Long Island Sound, Block Island Sound and Fishers Island Sound impairs the Town’s unique environment and ecology.The construction of docks in these waters results in environmental and physical degradation including, but not limited to, impacts to vegetation, water quality, marine life and benthic communities.Docks have the effect of impeding the public access and use of waters and shorelines, affecting navigation of vessels and creating negative aesthetic impacts.
The Town Board finds that it is necessary to temporarily suspend the approval process for new docks in these waters, in order to comprehensively review the current code provisions and recent scientific studies. The Town Board expects to prepare legislation to address when, and under what circumstances, docks may be permitted in the Peconic Bay, Long Island Sound, Block Island Sound and Fishers Island Sound.
Section 2:Enactment of a Temporary Moratorium
Chapter 275
§275-17 Temporary Moratorium
A. For a period of one hundred and eighty (180) days following the effective date of this Local Law after which date this Local Law shall lapse and be without further force and effect:
1)The Board of Trustees of the Town of Southold shall not accept for review, continue review, hold a hearing or make any decision upon any application (new or pending) made pursuant to Chapter 275 of the Town Code of the Town of Southold for any new dock (as defined in Chapter 275) proposed to be located in the Peconic Bay, Long Island Sound, Block Island Sound and Fishers Island Sound;
2)The Board of Trustees of the Town of Southold shall not accept for review, continue review, hold a hearing or make any decision upon any application (new or pending) made pursuant to Chapter 275 of the Town Code of the Town of Southold for any extension or addition to any existing dock (as defined in Chapter 275) located in the Peconic Bay, Long Island Sound, Block Island Sound and Fishers Island Sound.
B. APPLICATION
1)This Local Law shall apply to ALL (new or pending) applications for a Chapter 275 permit from the Board of Trustees of the Town of Southold for any new or existing dock (as that term is defined in Chapter 275).
C. EXCLUSIONS
This Local Law shall not apply to:
1)the ordinary and usual maintenance or repair, in-place, of a presently existing dock that has been issued a permit by the Board of Trustees.
D. CONFLICT WITH OTHERS LAWS AND AUTHORITY TO SUPERCEDE
To the extent that any provisions of this Local Law are in conflict with or are construed as inconsistent with the provisions of Chapter 275 of the Southold Town Code this Local Law supercedes, amends and takes precedence over such provisions pursuant to the Town’s municipal home rule powers, pursuant to Municipal Home Rule Law section 10(1)(ii)(d)(3); section 10(1)(ii)(a)(14) and section 22 to supercede any inconsistent authority. Inparticular, this local law supercedes Southold Town Code Chapter 275 sections 275-5 and sections 275-7 through 11, to the extent that these sections require the Board of Trustees to act upon, hold hearings on, and make decisions concerning applications.
E. APPEALS PROCEDURE
The Town Board shall have the authority to vary or waive the application of any provision of this Local Law, in its legislative discretion, upon its determination that such variance or waiver is required to alleviate an extraordinary hardship.To grant such a request the applicant must file with the Town Board and the Board of Trustees supporting documentation.
Any request for a variance or waiver shall be filed with the Town Clerk and the Board of Trustees (for recommendation) and shall include a fee of $50.00 dollars for the processing of the application.The application and Board of Trustee recommendation shall be transmitted to the Town Board which may conduct a public hearing and make a final decision on the application, with or without conditions.Final approval is reserved to the absolute legislative discretion of the Town Board.
Section 3:SEVERABILITY
If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not effect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid.
Section 4:EFFECTIVE DATE
This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law.
I wanted to provide everyone with the latest update on meetings concerning docks on the bays. I received notification today that there has been a meeting scheduled for this Thursday July 10 at 9 AM in the Town Hall Annex. Invited to the meeting are all Town Board members, all Trustees plus additional town employees to hold a conversation with Steve Resler with the NYDOS. The agenda includes overview of the moratorium, historic court decisions on the regulation of docks, town authority and jurisdiction, types of regulation to include designation of areas and the zoning of underwanter lands to “advance public interest”, the economic impacts of banning docks, what is the legal authority of the DOS Significant Fish and Wildlife Habitats and availability of model laws. This meeting will be followed by the evening session on Thursday at 6 which is a roundtable discussion. My feeling is that the information discussed during the morning meeting will be significant. Both meetings are being held in the Town Hall Annex conference room.
The meeting on Docks on the Bays has been changed again. Now July 10 at 5 PM in the Annex. I commend those who decided to change the date. Have a great July 4th weekend!
The first meeting concerning the topic of docks on the bays legislation was held last Thursday. I am sorry that I can not report on it as I was not able to attend. The next meeting has been scheduled for 5 PM on June 24 in the Town Hall Annex (Bank building) conference room on the second floor.
The following citations have recently been brought to my attention:
32NY2d859: “Property rights arise as a result of ownership of the land on the banks as such a waterway which are known as riparian rights. These are, in general, rights to use the water way and to have access to it and its navigable portions….. These rights are not merely easements…. But are incident to the right of property on the banks of the water…. They are inherent in ownership of the adjacent land…..The defendants have, simply, made their right of access practical. It is a general rule that when the use of a thing is granted by which the grantee may enjoy such use. By analogy, we may reason that the riparian owner’s right of access to the navigable waters in front of his upland comprehends, necessarily and justly, whatever is needed for the complete and innocent enjoyment of the right”..) (NYS DOS. Underwater Lands and the Public Trust Doctrine. 1997.)
Barnes v. Midland Railroad Terminal Company, 218 NY 91, 95 (1916) the Court of Appeals “defined the relative rights of the littoral owner on the one hand and the public use on the other. (It) held that the littoral owner has the right to construct a pier in order to provide a means of passage from the upland to the sea; that the public must submit to any necessary interference with their right of passage over the foreshore; but that unnecessary obstruction is an invasion of the public right.” (NYS DOS. Underwater Lands and the Public Trust Doctrine. 1997.)
Thus it is apparent to me that owners of bay front property enjoy the “right to construct a pier in order to provide a means of passage from the upland to the sea” and any blanket injunction to prohibit same “violates” “NYS DOS. Underwater Lands and the Public Trust Doctrine. 1997″.
Dan Christianson