What The Trustees Want: Part Two
When Kevin Murphy wanted to replace his fixed dock on Three Mile Harbor in East Hampton with a floating one three years ago, the East Hampton Town Trustees, who own most of the land below the high water mark except in Montauk, said okay. The Town Zoning Board of Appeals, however, which reviews all applications for construction or changes in terrain that affect natural resources, said no.
An expensive lawsuit followed, with the court finding in favor of the Trustees because they owned the property involved.
The Trustees point to the Murphy dock case as a reason why they should be given sole authority over properties they own, even in the realm of zoning. Trustees say that needless confusion and lawsuits would cease if the Z.B.A. were left out of the picture.
The Z.B.A.
Zoning boards of appeal were established by the state to provide a check on the way municipal zoning laws affect individual applicants. In East Hampton, the panel also reviews those applications for natural resources permits about which questions arise, such as applications for bulkheads.
Ever since a court ruling that said the Town Board could not enact laws affecting Trustee property without their concurrence, the Trustees have argued that the board must follow their dictates.
Critics of the Trustees' proposal to end Z.B.A. review where Trustee property is involved fear that the Trustees, having gained de facto legislative power, would also become their own appeals board.
Legal Background
The Trustees own most of the land below the high water mark as well as many underwater lands by royal patent granted before the American Revolution, on behalf of "the commonalty." To what extent, therefore, the panel must comply with the laws of the State of New York is arguable.
In order to be able to consider whether projects on their property should be permitted, the Trustees want to replace the town natural resources permit process with their own permit system. They have dubbed it TWERP, for Trustee waterfront environmental review permit.
Some observers of local government have questioned the Trustees' ability to handle such review. They argue that, as landowners, Trustees should be subject to the same checks and balances provided by the Zoning Board of Appeals.
TWERP Hearing
James McCaffrey, however, a longtime Trustee, countercharges that the Z.B.A. is not subject to review when it makes its decisions, except through the courts.
John Courtney, the Trustees' attorney, supports the Trustees' extension of authority, noting that they have the right to regulate certain activities, such as shellfishing, on the common land already.
The Trustees held a public hearing on the permit process in December. At it, Carolyn Zenk, an attorney for the environmental Group for the South Fork, opposed the system, saying it could actually diminish the Trustees' authority. She said the regulatory authority they were seeking would be subject to interpretation and lawsuits, while their proprietary authority was absolute.
But the Trustees argue that while they now have an uncontested proprietary right to deny any project on their property, it is not balanced by the right to approve projects.
Several Hats
Mr. Courtney agrees that the Trustees would, with their own permit system, wear several hats. In addition to being able to tell the Town Board what regulations to enact and to acting as a review board, they also could make decisions simply as property owners. Mr. Courtney added that the Trustees would use town zoning and environmental laws and the State Environmental Quality Review Act as guides.
Among those who are studying the Trustees' request for regulatory authority through their own permit system is Richard Whalen, a deputy town attorney.
"My review has two purposes. One is to make sure the Trustees have the full panoply of powers over land use, that is, zoning. The second part is to eliminate any gap that may exist when a project is only partially on their land," Mr. Whalen said.
Legal Review
He said he was not advocating for or against the Trustees' proposal, but thought that if it did go through it should cover the land adjacent to the shorelines in addition to bottomlands.
"This would cover the loopholes. My job is to write it [the Trustees' permit law] so that if it is adopted, it will function," Mr. Whalen said on April 1.
He said his work probably would be the subject of discussion at the May 6 Town Board work session. Eliminating the Z.B.A.'s jurisdiction over Trustee lands would involve changes in the Town Code, following a public hearing.
So far, opinion among Town Board members follows political party lines. Town Supervisor Cathy Lester, a Democrat, said she wouldn't go for it.
Opposition
"The main reason is that right now we have an extra little bit of environmental protection by having both boards review applications. This process has worked very well in the past, and I don't see any reason to change it. As time goes on, there'll be more and more pressure on elected bodies to allow certain actions to take place that might not be put on an appointed board."
Ms. Lester was referring to the fact that the full nine-member Trustee panel is elected together every two years. Z.B.A. members are appointed by the Town Board for five-year terms, with one seat up for appointment every year.
Ms. Lester, who once was a Trustee herself, wondered whether the Trustees had thought the plan all the way through. She said the records were not entirely clear on which lands Trustees own, and boundaries were not clearly described. She added the opinion that giving the panel regulatory authority could result in an applicant's making a legal challenge to Trustee ownership and winning.
"That could end up diminishing their authority, when it turns out they don't actually own the property they're trying to regulate," she said. She noted that historically the Trustees had sold off great tracts of common land, such as the beach on Napeague.
Past History
Peter Hammerle, the only other Democrat on the Town Board, said he would await the public hearing before deciding how to vote.
"No one has shown what's broken," he said, adding, "I have a lot of questions."
Republican Town Councilman Len Bernard said he supported the idea and agreed with most of the people who spoke at the Trustees' hearing on it in December. "I feel the Trustees are in a good position to review and approve applications for their properties," he said.
Knobel's Effort
Councilwoman Nancy McCaffrey, who also is a Republican and whose husband is a Trustee, said, "It's not really expanding their jurisdiction; it's more like regaining what they had, from what I've been told."
"In areas of public domain the owners should determine how regulations are implemented," said Councilman Thomas Knobel. He began talking about expanding the Trustees' jurisdiction while serving on their board in 1993 and helping to draft the proposed permit procedure as well as the Trustees' policy statement, which they called a "manifesto."
"To those who say the system is not broken, there are glitches," he said, citing the example of how the Town Board and Planning Department last year applied to the county to have Three Mile Harbor dredged without asking the owners of its bottomland, the Trustees, for advice.
Enforcement Issues
Mr. McCaffrey sees the thrust of the Trustees' manifesto, described in part one of this article, and the proposed permit system as ending confusion. Enforcement suffers because of confusion over jurisdiction, he said.
Although harbormasters routinely enforce town shellfishing regulations, which the Trustees take the lead in creating, there are other cases where enforcement has faltered, he said.
In February, he reported, the Trustees discovered a bulkhead had been constructed on Georgica Pond out of wood treated with C.C.A., chromated copper arsenate, which the Trustees ban on nontidal waters, and without a Trustee permit.
Soak Hides, Too
Sent to investigate, James Cavanagh, the deputy natural resources director, left the scene when his authority was challenged by an agent of W. Clifford Klenk, who leases the property. The incident spawned a meeting among town officials and an agreement that the town attorney, Robert Savage, should codify the understanding that town officials would enforce Trustee regulations.
Another enforcement question was raised over the state-authorized cleanup of gasoline-contaminated groundwater near Three Mile Harbor. Millions of gallons of water are to flow into the Trustee-managed harbor via Soak Hides Dreen, but the dreen itself was not in their domain. The result is another proposed change in the Town Code, giving the Trustees jurisdiction over "tributaries" and their wetlands, as well as bottomlands and adjacent property.
Mr. McCaffrey reasoned that by reclaiming tributaries and their wetlands which had not already fallen into private hands, the Trustees could better protect the common resources that are left.
"All this," said Mr. Knobel, "is about respect for the abilities and proprietary protections offered by the Trustees."