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In re Perry

Supreme Court of New York, Second Department

August 2, 2017

In the Matter of Jonathan Perry, et al., appellants,
v.
Patricia A. Brennan Qualified Personal Residence Trust, also known as Patricia A. Brennan Personal Residence Trust, et al., respondents. Index No. 18508/14

          Wickham, Bressler & Geasa, P.C., Mattituck, NY (Eric J. Bressler of counsel), for appellants.

          Esseks, Hefter Angel, LLP, Riverhead, NY (Anthony C. Pasca of counsel), for respondents Patricia A. Brennan Qualified Personal Residence Trust, also known as Patricia A. Brennan Personal Residence Trust, 1663 Bridge, LLC, Patricia A. Brennan, and Donald P. Brennan.

          Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, NY (Christopher B. Abbott of counsel), for respondent Board of Trustees of the Town of Southold.

          WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         Appeal from a judgment of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated March 19, 2015. The judgment denied the petition filed pursuant to CPLR article 78, which sought to annul a determination of the Board of Trustees of the Town of Southold dated May 21, 2014, granting a dredging permit, and dismissed the proceeding.

         ORDERED that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

         The petitioners and the respondents Patricia A. Brennan and Donald P. Brennan (hereinafter together the Brennans) own property on the shores of an inland body of water called "the Lagoon" in the Town of Southold. The Lagoon is connected to Peconic Bay by a navigable waterway (hereinafter the Channel) that runs between land owned by the petitioners and land owned by the Brennans.

         In December 2013, the Brennans applied to the Board of Trustees of the Town of Southold (hereinafter the Board) for a permit to perform maintenance dredging in the Channel. The Brennans' application stated that the section of the Channel they sought to dredge was on their property, and that the dredging was necessary for "navigation, beach nourishment, [and] tidal flow" purposes. The application was sponsored by the Lagoon Association, a community organization of landowners with property around the Lagoon that had previously obtained permits to dredge the Channel. Attached to the application was a Department of Environmental Conservation (hereinafter DEC) permit that had been issued to the Lagoon Association in October 2013 for maintenance dredging in the Channel.

         At public hearings before the Board, the petitioners opposed the Brennans' application to perform maintenance dredging, arguing that they were the owners of all the underwater land in the Channel. Although the petitioners had given their permission for similar dredging in the past, they no longer supported the dredging because it damaged their bulkhead and the Lagoon Association refused to contribute to their cost of maintaining and repairing their bulkhead.

         The president of the Lagoon Association appeared in support of the Brennans' application. He asserted that the Brennans owned the area of the Channel that they wanted to dredge and that it is the same area the Lagoon Association has dredged for the past 80 years. The president of the Lagoon Association said that, if the Channel was not "reopened through dredging, " the Lagoon, a fragile environment requiring tidal flow and oxygen-rich water, would become an "environmental disaster." He emphasized that there was an immediate need for dredging because sand accumulations in the Channel were preventing fish from swimming in and out of the Lagoon.

         The petitioners confirmed that they did not want the Channel to close, but they refused to consent to the dredging until the resolution of their dispute with the Lagoon Association about the cost of their bulkhead maintenance and repairs.

         The petitioners and the Brennans also made written submissions and provided various documents to the Board in support of their claims. Although the Board was presented with conflicting evidence as to whether the petitioners or the Brennans owned the area that they sought to dredge, upon request, the Brennans submitted an updated land survey dated April 14, 2014, which showed that the Brennans' property extended halfway across the Channel.

         In a determination dated May 21, 2014, the Board approved the Brennans' application and issued them a permit to dredge part of the Channel, but the Board only authorized dredging on land owned by the Brennans and expressly asserted that it was not making "a representation or determination with respect to any purported ownership of lands." In its determination, the Board set forth five environmental reasons that dredging should be performed, which included preserving tidal flow into the Lagoon so as to protect wildlife and the ability to navigate coastal waterways.

         The petitioners commenced this CPLR article 78 proceeding to annul the Board's determination. They alleged that the Board exceeded its jurisdiction and acted arbitrarily by effectively determining that the Brennans owned part of the Channel and by giving them permission to dredge. The Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal. We affirm, albeit on grounds different than those relied upon by the Supreme Court (see generally Matter of Munroe v Ponte,148 A.D.3d 1025, 1026). We note that the Supreme Court improperly relied, in part, on a ground not invoked by the Board (see Matter of Scherbyn v Wayne-Finger Lakes Bd. ...


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