The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM DECISION AND ORDER
This case involves the constitutionality of the Village of Lloyd Harbor Code which provides that docks in Lloyd Harbor shall be limited in length to seventy-five (75) feet seaward, and that in no event shall the seaward end of the dock extend beyond the point where the mean low water depth exceeds two (2) feet. This Village Code provision effectively prevents boats with a draft of two feet or more from being moored to any dock in the Village. The Court will also consider the constitutional attack on the Town of Huntington Code (the "Town") limiting the length of docks to 100 feet.
The Court notes that it will discuss two "Lloyd Harbors" in this decision. The first "Lloyd Harbor" is an incorporated village in Suffolk County and consists of land in the Village. The second is a narrow tidal body of water which emanates from Huntington Harbor, which is also known as "Lloyd Harbor." In this opinion, the Court will refer to the Village of Lloyd Harbor as the "Village." The Court will refer to the body of water adjacent to the plaintiffs' property as "Lloyd Harbor," also referred to as the "Inner Harbor." This body of water is also within the Incorporated Village of Lloyd Harbor.
The complaint of the plaintiffs Burt Stutchin and Cheryl Stutchin (the "Stutchins" or the "plaintiffs"), challenges the Village of Lloyd Harbor's denial of a permit to build a 115-foot dock behind their waterfront property to accommodate their 36-foot Trojan vessel. The complaint also attacks the Town Code provision limiting dock length to 100 feet.
The Court has waded through the sea of motion papers from the parties: (1) a motion to dismiss the Amended Verified Complaint ("the complaint") by the defendant Incorporated Village of Lloyd Harbor; (2) a motion to dismiss the complaint by the defendant Town of Huntington; (3) a motion for summary judgment by the married plaintiffs; and (4) a cross-motion by the Village, which the Town adopts in its entirety, for summary judgment dismissing the complaint, Rule 11 sanctions and attorneys' fees and costs. To assist the Court in deciding these motions, which raised issues of fact concerning, among other matters, the conditions present in Lloyd Harbor, the Court conducted a full-blown hearing.
As stated above, the plaintiffs' complaint flows from the Village's denial of their application for a permit to construct a 115-foot dock behind their waterfront property, in excess of the Village Code's maximum length. The plaintiffs raise various claims pursuant to 42 U.S.C. §§ 1983 and 1985, anchored in the state and federal constitutions. Specifically, the Stutchins contend that the Village's refusal to approve their application dampens their legal and constitutional rights to own and use their property and its riparian rights, constitutes a taking of their property for public use without just compensation, and violates their rights to due process and equal protection of the laws.
The plaintiffs' two causes of action are: first, a Section 1983 challenge to the constitutionality of the Village and Town Codes at issue, and second, a Section 1983 "taking" cause of action for monetary damages. The plaintiffs' complaint also dives into State law, contending that the designation of Lloyd Harbor as a Critical Environmental Area failed to comply with certain procedural requirements of New York Law. The defendants respond that the plaintiffs' claims do not hold water, because their claims are not ripe for review, and the local laws being challenged are constitutionally and legally sound.
During the hearing, the Court stated what it believed to be the most important principle in the determination of the constitutionality of Local Law 1 of 1992:
THE COURT: The defendant village wants to show that it had a legitimate governmental purpose in making the laws that it did. That is one of the important tests. Did the village have a legitimate governmental purpose that would override the inconvenience of you in using-in not being able to use your boat at the dock. Did they have a legitimate governmental purpose that would trump your inconvenience?
The undisputed facts in this case are as follows:
The plaintiffs own real property located on the southern shore of Lloyd Harbor, a body of water located entirely within the Village, which itself is located in the Town. The Village has designated Lloyd Harbor as a Critical Environmental Area, so that any action affecting Lloyd Harbor is a "Type I action" under the State Environmental Quality Review Act ("SEQRA"), N.Y.E.C.L. art. 8.
The Stutchins own a 36-foot Trojan motorboat which draws at least 3 feet of water at anchor. The plaintiffs have been mooring their boat in the stream in Lloyd Harbor, and must travel between the vessel and their property in a dinghy. They wish to build a dock 115 feet in length on their waterfront property to allow them more convenient access to their vessel.
On July 25, 1997, the Stutchins received a permit from the New York State Department of Environmental Conservation ("DEC") authorizing the construction and installation of a ramp and floating dock assembly, which stated that it was "contingent upon strict compliance with ... all applicable regulations" and the "obtaining [of] any other permission, consent or approval from the ... local government which may be required." On or about September 4, 1997, the plaintiffs received a permit from the Army Corps of Engineers, which contained a similar proviso that "[t]his permit does not obviate the need to obtain other Federal, state or local authorizations required by law."
On or about February 4, 1998, the Stutchins applied to the Village for the required permit to construct a 115-foot dock adjacent to their property, with the expectation that their application would meet with smooth sailing. Their application ran aground, however, because Village of Lloyd Harbor Zoning Code § 205-104 B(1) allows only seasonal (April through October) floating docks in the district where the plaintiffs' residence is located, provided that the dock length does not exceed 75 feet and does not extend beyond the point where the mean low water depth exceeds 2 feet, whichever is closest to land. In or about January 1998, the Village denied the plaintiffs' permit application because their proposed dock assembly did not comply with the Village Code.
On or about January 26, 1998, the plaintiffs filed an appeal with the Village Board of Zoning Appeals, seeking a variance. As of August 20, 1999, the date of the closing arguments after the hearing, the plaintiffs' application for the variance was undecided and still pending before the Board of Zoning Appeals.
The plaintiffs have not yet applied for a permit from the Town of Huntington, another prerequisite to building the dock. Under Huntington Town Code § 137-22 D(4), the Town will not consider issuing a dock permit unless and until approval has been obtained from the Village. The Town Code provides that when the length of a proposed dock exceeds the 100-foot long maximum permitted under the Town Code, the applicant must apply for a variance pursuant to Section 137-26 A(1) of the Town Code.
On May 13, 1998, the Stutchins launched this lawsuit and on June 23, 1998 filed the complaint at issue.
II. THE ISSUE-The Constitutionality of the Village and Town Dock Zoning Codes
The plaintiffs contend that they are not required to pursue variances or to obtain final determinations on their applications for dock permits, because the Village and Town dock construction ordinances are "unconstitutional, illegal and invalid." In this regard, the plaintiffs assert that the ordinances "do not promote the health, safety, welfare or morals of the general public; are not enacted in furtherance of a comprehensive land use plan; are not rationally related to achieving a permissible municipal goal; and are arbitrary and capricious." The plaintiff Burt Stutchin, Esq., pro se, summarized his position in his opening statement, as follows:
It's my contention, Judge, that there is no basis for the municipal regulation of the plaintiffs' riparian rights to the degree that they've imposed. As-Your Honor is obviously troubled by this two-foot limitation, as you rightfully should be, because it is a ridiculous limitation. And the intent of this limitation, whether the municipalities will admit it or not, is to preclude people from keeping any vessel larger than an inflatable raft or a dingy at a dock.
The question presented is whether the zoning ordinances in question here "bear [ ] anything other than a rational relationship to a legitimate government objective." Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1225 (2d Cir.1994) (citing Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 ; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303  [a property owner can challenge the constitutionality of a zoning restriction if it is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare"]; Greene v. Town of Blooming Grove, 879 F.2d 1061, 1063-64 [2d Cir.1989] ). On the other hand, the defendants contend that the limitation of dock length around Lloyd Harbor, a narrow and environmentally critical area, is a legitimate goal based on safety and rational, legitimate municipal objectives. See Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214.
III. THE HEARING-FINDINGS OF FACT
This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). See Rosen v. Siegel, 106 F.3d 28, 32 (2d Cir.1997); Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir.1991). During this discussion, the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.
Charles Hackeling is a former Councilman of the Town of Huntington and is presently the Presiding Officer of the Suffolk County Legislature. On April 14, 1993, while a member of the Huntington Town Board, Hackeling was the sponsor of Local Law 8-1993, Sections 137-22 and 137-26, regulating the length of private docks in the Town. This law was enacted to provide criteria and standards for erecting a dock in waters over Town-owned underwater land. Among the standards was a dock no longer than 100 feet. He stated that the Town Code provisions were enacted to promote the health, safety and welfare of the community.
Also, Hackeling stated that with few exceptions, the Town is the fee owner of the lands under the water in the bays to the mean high waterline. The land above the high waterline is, for the most part, privately owned. Riparian owners have the right to reasonable access to the water which included the right to construct a dock.
According to Hackeling, the Town is the owner of the land under the water in the bays up to the "mean high tide." Asked by the Court to explain "mean high tide," Hackeling responded as follows:
THE COURT: So average mean high tide means what? And we know what high tide is.
THE WITNESS: It's my understanding, Judge, you take an annualized-it's an average. Basically-
THE COURT: Average of where the high tide goes?
THE COURT: For example, suppose the high tide goes up ten feet on the beach at most, but sometimes it only goes five feet on the beach. So it would be-seven and a half feet would be mean high tide?
THE WITNESS: Correct, Judge.
Hackeling explained that, under the Town law, a homeowner had the right to a dock that extended from the point of mean high tide, for a distance of 100 feet into the Bay:
THE WITNESS: You have as of right, a right to a 100-foot dock under the Town law.
THE COURT: Now, 100 feet from the beach, from the land out into the water?
THE WITNESS: From the mean high tide out into the water.
THE COURT: Okay. One hundred feet is from mean high tide, which we just talked about, right?
THE COURT: Of the seven and a half feet on the beach?
THE WITNESS: Correct, Judge.
THE COURT: One hundred feet out to sea, out to the bay?
THE WITNESS: Correct. If you wanted-that you got as of right. You just filed your papers with the building department. If you wanted a longer dock, you would then appeal to the Town board.
In reaching this 100-foot length determination, the Town relied on recommendations from "assorted Town employees, the Harbor Master's Office, planning directors and DEC people" and, "it is just a number they recommended which, after public hearings, sounded reasonable" to Hackeling, "so that the docks don't run all the way across the harbor" and yet, "people could get access to the water." As stated above, under this Town Code provision, every person was permitted to build a 100-foot dock, and could appeal to the Town Board for permission to build a longer dock. He explained the rationale for restricting docks in a narrow waterway such as Huntington Harbor, as follows:
Q: Can you tell me was the regulation enacted to promote the safety of the general public?
A: I would safely say it was.
Q: Can you describe in what sense that does that or accomplishes that goal?
A: Well, there's an inherent safety aspect with regard to, especially if you look in a congested narrow harbor like Huntington Harbor, clearly docks have to be regulated in some way, shape or form.
Individual people can't decide since putting a dock not on their own property, that in their opinion they would like a dock all the way across the harbor. So by protecting the navigable waterways you are helping the safety of the populous.
A crucial element in this case is the narrow width of the water in the inner harbor of Lloyd Harbor. In this regard, Hackeling testified as follows:
Q: Do you know what the width of Huntington Harbor is, sir?
A: I would estimate at the head, probably half a mile and at the base of it, a mile, maybe three-quarters of a mile.
Q: And that would be somewhere between 2,500 and 3,500 feet; is that right?
A: Well, you have to understand it has nooks and crannies. There are all kinds of legal challenges where when a riparian owner if he takes his dock out at a 90 degree angle and another takes his out at a 90 degree angle, they will actually hit each other (indicating).
Hackeling testified that an applicant must obtain a Village permit prior to making application for a Town permit. Unlike the Village, the Town has no depth requirement.
Roger T. Hawke has been a Village Trustee of the Incorporated Village of Lloyd Harbor for approximately 15 years. Asked about the average width of the waters of Lloyd Harbor, Hawke's best approximation was "a few hundred yards across ... a fairly narrow body of water." (Tr. at 97).
Hawke explained that a "coastal overlay district" ("COD") is one that is created and superimposed over the existing zoning areas for the purpose of establishing certain regulations of waterfront areas in critical environmental locations. Coastal Overlay District Number 1 ("COD1") covers the inner area of Lloyd Harbor and another body of water called Puppies Cove. The plaintiffs' residence and dock area is in COD1. The reason for two CODs is that the inner harbor and Puppies Cove "were more sensitive ecological areas and required more protection than areas in the other parts of the coastline." The other areas were placed in COD2 because "it was felt most areas weren't as fragile ecologically and, therefore, the regulations of those areas could be a little less stringent, perhaps." (Tr. at 102).
The CODs regulated docks and "any kind of construction in the overlay district ... it governed other structures as well." The following testimony by Hawke is material in the determination of the constitutionality of the Village Code at issue:
Q: Well then, sir, what was the primary purpose of the formation of the Coastal Overlay District Number 1 in your opinion?
A: I think the primary purpose was to preserve the sensitive ecological balance in the inner harbor. It is an area which requires protection. It's a very sensitive ecological environment and it was felt that it needed protection. At that time when we first started considering these regulations in the harbor which was set back in 1990 there were a number of applications by people who wanted to build piers and docks in the harbor and we felt that we had to take a look at this and regulate it.
Tr. at 102-03 (emphasis added).
The dock regulation in COD2 is 100 feet in length or to where the low mean water depth is 3 feet; which is less restrictive than the 75-foot long and 2-foot depth mandated in COD1. The reason for this is based on the ecological differences between the two CODs. The Inner Harbor (COD1) is an area where there are "all kinds of plant growth, fish and shellfish." Hawke testified that studies were made of the ecological conditions and consultants were hired to advise the Trustees on this subject, and the Inner Harbor was found to be a very sensitive area. The areas in COD2, namely, the shoreline facing the harbor and the sound, did not have that kind of sensitive environment. Also, in COD1, there is a requirement for floating docks which had to be removed during the winter months to keep the harbor clear during inclement weather and ice storms.
The initial draft of the Village Code banned all docks in COD1. The Local Law at issue is Local Law 1-1992 and was filed with the Village Secretary on April 28, 1992. There was a moratorium enacted in mid-1990 in effect until the enactment of the local law at issue in 1992 while the Trustees studied the effect of docks and other construction in the critical environmental areas. The moratorium temporarily prohibited any construction "in the critical environmental area which ... covered up to 200 feet inland from the shore land." This moratorium was adopted in response to a proliferation of docks in the harbor. At that point, public hearings were held.
In regard to the 75-foot dock length and 2-foot water depth restriction, the Trustees relied upon the Village Planning Board, which did the ground work, the investigation, and considered expert advice and consultation. However, Hawke conceded that the Board of Trustees did not have the benefit of any expert testimony when it considered the enactment of the dock limitations. Hawke explained that the Board started with the proposition that there should be no docks in the Inner Harbor. After a public hearing, the Board first considered a 50-foot length. A committee was appointed to study the situation. Significantly, Hawke testified that "we were looking for a ... dock length ... that would give access to enough water so that a dingy could be put into the water and (the resident) could use the dingy to get to the boat (moored in the harbor)." Further, Hawke stated that the 2-foot depth was at low tide and "during the rest of the day ... there would be sufficient water ... for the boat owner to bring the boat up to the dock." (Tr. at 126-27).
As to the rationale for this restrictive code provision, Hawke testified that the Trustees were concerned that if "everyone could build a dock ... to accommodate any size boat he wanted, then we would have projections out of the harbor that would totally destroy what we were trying to achieve in protecting the harbor ... we felt if every owner of property along Lloyd Harbor could build a 150 or 200-foot pier into the harbor it would destroy the harbor [and] destroy ecology of the harbor [in the] very sensitive ecological area." (Tr. at 127-28).
However, while Hawke testified that he could not produce a written study used by the members of the Board, their conclusions were reached after consultations with experts in ecological matters and, in part, based on information conveyed to them by the Planning Board. The Board also relied on the information gleaned at public hearings during which "a lot of boat owners ... agreed we should have some restrictions." The Board determined "what length of dock would be necessary to get the boat owner to a point where he had access to his boat ... and 75 feet or two feet of water ... during these two or three hours of the day when you could not dock at the ... pier, ... 75 feet would take him to a depth of water which would enable him to launch a dingy to get to the boat." (Tr. at 131).
Hawke insisted that this was a proper compromise between no docks at all and the system in place where large boat owners would be compelled to shuttle their boats twice daily during the low tides, between a 75-foot dock and a mooring in the harbor.
Asked to produce concrete "evidence" as to the need to inconvenience boat owners in this manner, Hawke responded:
[I]t wasn't the object of this legislation to create inconveniences. That was not our purpose. Our purpose was to protect the harbor, to protect the ecology and the sensitive and fragile environment of the harbor. We felt if everyone was allowed to put any length dock no matter how long he wanted, to put as big a boat he wanted at a dock, that would have a deleterious effect on this inner harbor, and that's why the regulation was imposed. It wasn't imposed just to make it burdensome for boat owners. That wasn't the object of the legislation.
However, Hawke readily admitted that the Code does impose a burden on boat owners, which any kind of restrictive regulation would do. Nor could Hawke explain why limiting docks to 75 feet could protect the ecology of the harbor. Also, he stated that the boats would necessarily have to be moored to a buoy or a float, secured by an anchor in the harbor. Hawke does not know if these mooring buoys, which are anchored to the bottom, are more of an environmental concern than the docks.
The plaintiffs reside in the western portion of the Inner Harbor, where the area is more ecologically sensitive and fragile than the other portions of the harbor. Fishing, clamming and setting lobster traps is allowed in the western portion.
The Local Waterfront Revitalization Plan for the Village ("LWRP") states that:
The Board of Trustees' control of underwater lands titled in its name is subject to the riparian rights of private individuals who own waterfront property and who have the right to access and use the waters adjacent to their private property. In general, the littoral owner has the right to build a dock, or "wharf out" to a point of navigability subject to reasonable regulations to preserve the public's right of passage, use, safety, and scenic views.
(Plf.Ex. 6) (emphasis added).
Cynthia Kendall Morrongiello has been a Village Trustee from 1983. She voted to approve Local Law 1-1992. She added some cogent facts underlying the purpose of the legislation at issue. Morrongiello testified that "[W]e have a very lovely harbor ... that is very special for a number of reasons." She said that "environmentally it is [a] very fragile area. It is replete with waterborne animals and plants. It's a great shell fishing area ... there are waterfowl that [are] native to the area and it is a wintering-over place for many birds." (Tr. at 178). Significantly, she stated that the harbor is very fragile "because it comprises some 800 or so acres of surface and it is only an average depth of about five or six feet." She explained that because the Inner Harbor is a relatively small, narrow and shallow body of water, and that "anything that happens in that harbor, therefore is proportionally going to have quite a large impact on the harbor itself... So our concern with this legislation was to try to preserve those qualities that make the harbor a very desirable place." (Tr. at 178-79).
Morrongiello related the background prior to the enactment of Local Law 1-1992. Residents began to apply to build docks extending into the harbor. Five or six dock applications were received. In 1991, a moratorium was placed on dock construction so that the Board could study the situation and consult with experts about the ecology and the environmental concerns. Apparently, some residents wanted long docks and were not concerned with the ecology. The Planning Board headed the investigation and the Board received reports from that body. Morrongiello believed that Clark Associates was one of the expert firms consulted.
The Clark Study concluded that any dock in the harbor had an impact on the ecology with regard to cutting light off in portions of the floor of the harbor and in other respects. According to Morrongiello, the total impact of the report would be to have the least amount of disturbance to the ecology in the harbor and yet, to allow residents to have access to the harbor.
In her study of the subject, Morrongiello was not really concerned with the length of the dock, but with any intrusion to the environmentally critical area of the Inner Harbor. Asked how the Trustees arrived at the 75-foot length and 2-foot depth at low mean water limitation, she stated:
This local law went through a series of permutations. The original intent was to see if perhaps it wouldn't be a good idea to ban all docks. We had hearings on that. We then decided it wouldn't be in the best interests of the members of the community, specifically people who did own property at the edge of Lloyd Harbor, to put a total ban on docks. And, therefore, we sought ways to move toward the sort of the least intrusive type and/or if you want to say "length" okay, but moving towards the least-things that would least intrude on the environment of Lloyd Harbor.
Morrongiello conceded that the result of the Local Law was to compel residents to keep their larger boats at moorings rather than at the docks, which would involve transportation by a dingy to and from the larger boats moored in the harbor. With small children, this would also involve their transportation in this manner, an additional safety problem.
Joseph Enrico is President of an environmental consulting firm and an expert in the fields of coastal marine habitats and wetland environments. He also obtains permits in marine environments. Enrico was retained by the plaintiffs in early 1997 to obtain permits for their dock in Lloyd Harbor to enable them to use their 36-foot Trojan vessel which, when empty, draws 3 1/2 feet of water. In the harbor, the average tidal range is 7 1/2 feet in elevation from low to high tide two times a day, and 100 feet in horizontal distance. The plaintiffs' property included 200 feet of beach frontage on the harbor.
In Enrico's opinion, the plaintiffs' vessel would require a dock of 115 feet in length to safely moor it at the dock for 24 hours at all tidal stages. The parties stipulated that a 75-foot dock would not accommodate the plaintiffs' boat.
Enrico prepared a site plan for a proposed dock at plaintiffs' home (Plf.Ex. 8). In this document, he described the width of Lloyd Harbor as 500 to 600 feet. Questioned about this, Enrico stated that he was "in error because on review of the charts for the Lloyd Harbor area, the actual correct distance is about 1200 feet." On cross-examination, Enrico was questioned closely about the width of Lloyd Harbor at or near the point where the Stutchin dock would be located. He stated that on mean high water on both sides, when there is the most water in the harbor, it is 1200 feet across. However, on mean low water on both sides, the width of the harbor "is approximately 1000 feet, give or take 100 feet on either side." The Court notes that the width of the harbor is a material issue in this case.
Even assuming the width from land to land at low tide is 1000 feet, we are dealing with a very narrow body of water. Placing any obstruction into such a narrow navigable waterway should be approached with caution. Photographs of the harbor taken from the Stutchin residence (Plf.Ex. 9) show the pristine nature of the entire area and waterway, and also the narrow body of water between the land on each side.
On behalf of the plaintiffs, Enrico applied for approval of the proposed dock to the United States Corps of Engineers, the New York State Department of State and the New York State Department of Environmental Conservation ("DEC"). On September 4, 1997, the Corps of Engineers issued a permit for the construction of a floating dock 115 feet long (Plf.Ex. 10). Enrico testified that, in his opinion, the issuance of this permit means that the dock structure does not have an effect on navigation. Further, Enrico testified that the Corps of Engineers "would allow a greater width of the waterway (and) would conceivably allow ... a 200-dock to be installed at the Stutchin residence and not impede navigation." (Tr. at 239). However, the Corps of Engineers' permit expressly states that "this permit does not obviate the need to obtain other Federal, State or local authorizations required by law."
Also in evidence is the DEC permit, dated July 21, 1997, to expire July 31, 2000 (Plf.Ex. 11). Enrico testified that the issuance of the DEC permit certifies that the proposed action complies with the interests of the Tidal Wetland Law "to preserve and protect and enhance tidal wetlands within the State of New York." However, the DEC permit also contains the following conditions:
8. The permittee is responsible for obtaining any other permits, approvals, lands, easements and rights-of-way that may be required for this project.
11. Granting of this permit does not relieve the applicant of the responsibility of obtaining any other permission, consent or approval from the U.S. Army Corps of Engineers, U.S. Coast Guard, New York State Office of ...