Abramson v. Miller

No. 73-17475 (N.Y. Sup. Ct. May 30, 1975)

A local planning board's preliminary approval of a subdivision plat for a dunes area is revoked. In determining that the parcel was not tidal wetlands within the meaning of a New York state law protecting such areas, the board failed to consider a major portion of the statutory definition of tidal wetlands and further failed to apply its own rule that the finished grade at all points within a subdivision must be a minimum of ten feet above mean sea level. The matter is referred back to the planning board for further factual determinations and revised findings in accordance with board rules and applicable state and local requirements. The court notes that the board may, under the town zoning ordinances, give weight to "ecological factors" in determining the appropriate development density of the parcel.

Counsel for Petitioners
David Sive
Winer, Neuburger & Sive
425 Park Avenue
New York, N.Y. 10022

Counsel for Respondents
Smith, Finkelstein, Lundberg, Baisley & Yakaboski
458 Griffing Ave.
Riverhead, N.Y. 11901

Counsel for Respondent-Intervenor Gansett Dunes
Scheinberg, Wolf, Lapham, DePetris & Pruzansky
320 Roanoke Ave.
Riverhead, N.Y. 11901

[5 ELR 20661]

Stark, J.

Petitioners bring on this proceeding to review and annul the determination of the Planning Board of the Town of East Hampton made on October 24, 1973, which granted preliminary plat approval to a subdivision to be known as Gansett Dunes. The proposed subdivision lies between Bluff Road and the Atlantic Ocean east of Treasurer Island Drive and west of Mako Lane in the hamlet of Amagansett. The property is presently zoned Residence A.

Petitioners contend that the Board's preliminary approval was arbitrary, capricious and in violation of law because of the threatened destruction of an area expressly protected by the East Hampton Zoning Ordinance and the probability of damage to the environment by flooding and further that the proposed subdivision is in violation of both state and town legislation protecting wetlands.

Section 277 of the Town Law provides:

In approving such plats the planning board shall require . . . that the land shown on such plats shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood or other menace; . . .

The petitioners contend that the Board did not adequately consider whether or not this proposed subdivision was free from peril by flood and both parties attempt to submit to the court evidence by affidavit, which was not before the Board, in an attempt to factually establish their position relative to the likelihood of flooding on this parcel. Whether or not the Board acted arbitrarily must be determined from the record and if there is evidence in the record to reasonably support the Board's implied determination, then the ultimate approval was not arbitrary. Suddell v. Larchmont, Ct. of Ap. April 1, 1975, N.Y.L.J., April 28, 1975, p. 1, c. 8. Evidentiary material dehors the record of proceedings before the Board is irrelevant to the court's determination.

The various affidavits submitted by both parties as to the likelihood of flooding in this area and the effect the development might have upon such a possibility were not before the Board at the time of its determination but contain facts and allegations which should have been considered and findings made by the Board.

The "Tidal Wetlands Act" (Article 2 of the Environmental Conservation Law) provides in § 25-0202(1) "No person shall alter the state of any tidal wetland or any area immediately adjacent to such wetlands as the commissioner may deem necessary to preserve. . . ."

Section 25-0103 defines tidal wetlands:

1. 'Tidal wetlands' shall mean and include the following:

(a) those areas which border on or lie beneath tidal waters, such as, but not limited to, banks, bogs, salt marsh, swamps, meadows, flats or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters;

(b) all banks, bogs, meadows, flats and tidal marsh subject to such tides, and upon which grow or may grow some or any of the following: salt hay (Spartina patens and Distichlis spicata), black grass (Juncus Gerardi), saltworts (Salicornia ssp.), sea lavender (Limonium carolinianum), tall cordgrass (Spartina pectinata and Spartina cynosuroides), hightide bush (Iva frutescens), cattails (Typha augustifolia and Typha latifolia), groundsel (Baccharis halmilifolia), marsh mallow (Hybiscus palustric), and the intertidal zone including law marsh cordgrass (Spartina alterniflora).

The sole evidence before the Board to support their conclusion that the subject parcel is not tidal wetlands is a letter dated October 5, 1973, from Dr. Thore Omholt wherein he indicates his conclusion that none of the flora itemized in § 25-0103(b) was found to be growing in the proposed area of "Gansett Dunes." From this finding the Board concluded that the property was not tidal wetlands. In coming to this conclusion, however, the Board apparently did not consider that portion of the definition contained in paragraph (a). This parcel apparently includes "banks" of a tidal area (the dunes) and may include lands which could be classified as bogs, swamp and meadows. The preliminary layout map of Gansett Dunes as last revised on August 21, 1973, with contours contains the standardized symbol for swamp land in many places on the map including areas proposed to be divided as lots.

An issue of fact must be determined by the Board, therefore, as to whether or not the subject parcel (or parts of it) fall within that portion of the definition of tidal wetlands contained in § 25-0103(1a). The factual scope of that definition and whether or not this parcel is included within it is a matter for further consideration by the Board which is entitled to receive all necessary testimony in this regard before rendering their determination.

By letter dated December 11, 1973, Mr. Daniel J. Larkin, Local Permit Agency of the New York State Department of Environmental Conservation, indicated to the then attorney for Gansett Dunes that a permit was not required for the subdivision of this property although the letter does indicate that any "further alteration" within 300 feet of tidal waters will require a permit. This letter, dated almost two months after the Board's preliminary approval could not have formed the basis for any determination by the Board. Such contentions must be fully explored before the Board so that evidence to support its findings and determination are in the record.

"Gansett Dunes" further contends that a state permit or waiver is not necessary since it will not be doing any construction but merely selling building lots and that the obligation to obtain a permit will devolve upon the actual home builder. The erection of roads is specifically enumerated as an activity subject to regulation in § 25-0401(2). The proposed construction of "Marine Boulevard" is within three hundred feet of the mean high water mark.

If the subject parcel is a "tidal wetland" within the meaning of the Environmental Conservation Law, (a matter of fact to be determined by the Board), the approval of the preliminary plan by the Board should be contingent on the developer complying with the rules and regulations of the Department of Environmental Conservation relating to the improvement of tidal wetlands.

Section 518.1 et seq. of the East Hampton Town Zoning Ordinance establish as the policy of the Town the preservation and maintenance of "wetlands . . . natural drainage systems, watersheds and water recharge areas and other natural resources and processes associated therewith. . . ."

A reading of the return indicates that the town planner and the Board appeared to conclude that this area was a wetland within the meaning of the town ordinance and that the Board preferred a more clustered site use plan [See Memo from Town Planner dated March 26, 1973, (Item 86 in Return) and "Proposed Open Space Development for Gansett Dunes" from Office of Town Planner] in order to preserve the wetlands and the environment.

The third "whereas" paragraph in the resolution of the Board granting preliminary approval declares:

WHEREAS, this Board feels strongly that more of a cluster development would have been a better use of this land and made several suggestions to the developer of clustering dwelling units behind the dune at the edge of high ground along Bluff Road, as devised by the Town Planner and Committee of this Board. The developer, for his own reasons, was unable to comply with these requests and the Planning Board has no legal authority to compel the developer to, in effect, become a builder and erect clustered units as envisioned by this Board. . . .

The Board is correct that it has no legal authority to compel the developer to become a builder. However, economic hardship is an irrelevant and inappropriate criteria to be considered by a planning board since it is not set out in § 277. Diamond v. Spector, 33 A.D.2d 942, aff'd 32 N.Y.2d 811; Matter of Cohalan v. Schermerhorn, 77 Misc. 2d 23; Matter of McEnroe v. Planning Board of the Town of Clinton, 81 Misc. 2d 537.

The Board is empowered pursuant to § 276 of the Town Law to modify any proposed plat submitted to it using the appropriate criteria set forth in §§ 276 and 277 and the Town Zoning Ordinance. While the Board may not mandate cluster use in the absence of developer's application [Town Law, § 281(a)], neither is the Board [5 ELR 20662] required to approve plots for the maximum permitted zoning density where such use may result in risk to the water resources of the Town. Landing Estates, Inc. v. Jones, 67 Misc. 2d 354. The Board may, therefore, in its subsequent deliberations give weight to ecological factors in determining the appropriate density for this parcel.

Section 204, Paragraph 9, of the Planning Board Rules and Regulations of the Town of East Hampton relating to finished grade provisions was amended on December 6, 1974, to provide:

A minimum finished grade of ten (10) feet above mean sea level in the United States Coast and Geodetic Survey datum shall be required of all locations within a subdivision.

Respondents contend that this provision applies only to the finished elevation at the immediate building site. Petitioners contend that it means the entire surface of the building plat must be at that elevation thereby requiring the introduction of massive amounts of fill.

The interpretation of and findings relative to this rule must rest first with the Board. The Board must also determine the interaction between this rule and the requirement of the Suffolk County Department of Health which requires that the minimum depth of earth above the ground water table within which to locate the type of leaching pools approved for this development is eight feet.

Large areas of proposed lots 7, 8, 10, 11, 12, 13, 14, 15, 16 and 18 are indicated on a map prepared by the Suffolk County Soil and Water Conservation District as being land where the seasonal high water table may rise above the surface.

All of these factors are relevant and appropriate to the Board's consideration of this proposed development. They must be considered by the Board within the statutory framework of § 276 et seq. of the Town Law so as to provide for the orderly development of the Town of East Hampton.

Accordingly the preliminary approval granted to respondent Gansett Dunes by resolution of the East Hampton Town Planning Board on October 20, 1973, is annulled and the matter is referred back to the East Hampton Town Planning Board for further consideration pursuant to the applicable provisions of state law and the ordinances of the Town of East Hampton.

Submit order.