Not Just Any Old Landowner

Supreme Court judge affirms their ‘standing’
Joshua Young and Christine Lemieux's Mulford Lane house during a storm last winter. David E. Rattray

    The East Hampton Town Trustees had reason to smile on Tuesday evening. David Eagan, an attorney representing them in a suit against the town’s Zoning Board of Appeals, was bearing news that could have far-reaching import for the authority granted his clients by the Dongan Patent of 1686.

    The trustees had challenged a November 2012 zoning board determination granting variances and a natural resources permit to allow the construction of a 147-foot stone revetment at the end of Mulford Lane near Lazy Point in Amagansett. On Oct. 2, Mr. Eagan told them, Justice William Rebolini of Suffolk County Supreme Court denied the zoning board’s motion to dismiss their lawsuit.

    Because the proposed revetment would extend below the mean high water mark and onto land under their jurisdiction, the trustees argued, the application required their approval before the zoning board could consider it.

    It was the second application the property owners, Joshua Young and Christine Lemieux, had brought to the board: a determination in April 2012 denied the revetment but allowed the demolition of their existing house and construction of a new, 1,719-square-foot residence on pilings in a more landward location.

    The Dongan Patent gave the trustees jurisdiction over the bottomlands, beaches, and intertidal zones between the town’s western border and the eastern edge of Napeague, as well as the commonlands between the high water line and low water line along Gardiner’s Bay. The coastline adjacent to the Young-Lemieux property is eroding, but town code prohibits stone revetments in that part of Napeague, and Justice Rebolini ruled that as an adjacent property owner, the trustees had “standing” to enjoin a violation of the code.

    With the court’s decision, Mr. Eagan said, the trustees’ role in town government has been reinforced. “Standing is a fundamental concept for challenging in land-use, but is never used against boards with government authority,” he told the trustees, adding that the town and the zoning board had “adopted the view that you should be treated like any other landowner, which I think is a departure.” He called that view “clearly dismissive.”

    The judge, Mr. Eagan suggested, had gone out of his way to affirm the trustees’ standing. “This court rejected this notion that you’re just like any other landowner. . . . You have a judicial endorsement of the fact that your regulatory powers give you standing to participate in these decisions. When things go off-track, which this one did, you should be encouraged to challenge it.”

    A primary objection to revetments is their potential to damage adjacent shorelines. As reported here in November, Brian Frank, the town Planning Department’s chief environmental analyst, in reviewing the application in question wrote that “bulkheads and revetments frequently have unanticipated environmental impacts. These impacts frequently extend beyond the footprint of the structure, causing erosion and diminishing the quality of the natural resources on adjacent properties as well.”

    While the proposed revetment’s location and the question of jurisdiction had been at the heart of the dispute with the zoning board, Mr. Eagan told the trustees that the court ruling went beyond that. “You have standing, you’re right to bring these suits, because of the severe effect of these revetments on the common lands you own and regulate. That’s a strong message from a court, in my experience.”

    How does the decision reflect on the zoning board asked Lynn Mendelman, a trustee. “I think it reflects poorly on the Z.B.A.,” the lawyer replied. “I think it’s their responsibility to cooperate with you, their obligation to recognize your authority. I don’t think it’s a lot to ask, which you did, that they subject their approval to yours.”

    “They denied the revetment and made these findings about its adverse affect,” he said, but seven months later “adopted the opposite [determination] with no supporting conclusions. I think they were shocked that the trustees called them on it. . . . All the Z.B.A. had to do was condition authority on trustee approval. But they didn’t. I think the trustees should let it be known that the town, consciously or not, took a run at their authority.”

    Susanna Roxbury, the zoning board’s attorney, did not immediately return a call seeking comment.

    Diane McNally, the trustee clerk, said yesterday that she hoped the decision would mean that the town, the trustees, and the town’s and village’s zoning boards will function in a more cooperative manner. “We feel like we’re always the fish swimming upstream,” she said, adding that she also hopes the decision will give the East Hampton Village Zoning Board of Appeals pause as it considers allowing a rock revetment in front of a house on West End Road, about which it has held multiple hearings. That board may issue a determination at its meeting tomorrow.

    Justice Rebolini will next consider the trustees’ request to overturn the zoning board’s approval of the Mulford Lane revetment.