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