Trustees Lose a Battle, Not the War

Though the larger issue of ownership of the beach remains, the East Hampton Town Trustees have lost a battle in their lawsuit against a West End Road property owner who constructed a rock revetment in 2013 and ’14.

On April 4, State Supreme Court Justice Andrew Tarantino denied the trustees’ petition to annul the East Hampton Village Zoning Board of Appeals adoption, in January 2015, of a negative declaration under the State Environmental Quality Review Act. A negative declaration means that an environmental impact study will not be required of the applicant.

The Z.B.A.’s 2015 ruling revisited an application by Mollie Zweig of 11 West End Road, whose property was damaged during Hurricanes Irene in 2011 and Sandy the following year. In 2013, the board granted Ms. Zweig approval to construct the revetment on the ocean beach in front of her house over the strong objections of the trustees, who not only asserted their jurisdiction over the beach but charged that the Z.B.A. had not properly assessed the project’s environmental impact. Construction of the revetment began that year on Veterans Day, when the courts were closed, and the trustees filed an Article 78 court challenge to the determination.

Three days after construction began, the trustees won a temporary restraining order to stop the project, which involved removing a rock groin, building a dune with 4,000 cubic yards of sand, planting beach grass, and installing sand-fencing.

In February 2014, Ms. Zweig applied for a permit from the trustees, as that board had insisted she was required to do. The following month, Diane McNally, who was then the trustees’ presiding officer, said the application was incomplete; it was later withdrawn.

Nonetheless, Judge Tarantino lifted the restraining order and the revetment was completed. At that time, Brian Matthews, an attorney representing the trustees, said that the lifting of the restraining order should not be seen as a resolution in Ms. Zweig’s favor. The court had acted entirely on the grounds of finding “no irreparable harm,” Mr. Matthews said.

In November 2014, Judge Tarantino ruled that the zoning board’s SEQRA determination had been incorrectly categorized as a Type 2 action, meaning the project had been found not to have significant adverse environmental impact. Instead, it should have been categorized as an unlisted action, requiring further review.

That led to the Z.B.A.’s 2015 vote on a new environmental assessment form prepared by the applicant and Gene Cross, a consultant to the village. The Z.B.A reached the same conclusion it had in 2013, that the revetment “will not result in any moderate-to-large impacts, and therefore will not have a significant adverse impact on the environment,” Frank Newbold, the board’s chairman, said at the time. The board again adopted a negative declaration pursuant to SEQRA, ending its review process.

The trustees then filed a new Article 78 challenge and continued to seek an annulment of the negative declaration on the grounds that the Z.B.A.’s review was improper and failed to involve other agencies, and that the environmental assessment form contained inaccuracies.

Judge Tarantino’s ruling this month stated that the Z.B.A. had followed proper procedure, and noted that the trustees had not contradicted Ms. Zweig’s assertion that “the vast majority of the properties abutting the Atlantic Ocean for a distance of 2,000 feet abutting Ms. Zweig’s property . . . are protected by seawalls and other such improvements.”

The issue of the trustees’ jurisdiction is the subject of separate litigation, the ruling concludes, and the question of Ms. Zweig’s need to apply to the trustees for permission to construct the revetment depends upon that outcome.

“It is undisputed that the trustees own and govern the ‘commonlands’ running from the western border of the Town of East Hampton to the eastern edge of Napeague pursuant to the Dongan Patent” of 1686, the ruling states. This, said Francis Bock, the trustees’ clerk, remains the paramount concern. “This is basically a nonissue at this point,” he said of the April 4 ruling, “because all they’re doing is affirming that the village Z.B.A. did their job. They still have to decide ownership of the beach, which is what the real case is about.”