Who Should Govern

The East Hampton Town Trustees, Town Councilman Thomas Knobel, who is their advocate, and John M. Courtney, their attorney, have given the public and the politicians plenty of time to ruminate over a proposal that the Trustees assume regulatory power over most of the town's waterfront lands.

The proposal is revolutionary, in that the Trustees would, for the first time, have authority over private property as well as the land they own on behalf of the public. It also could be considered counterrevolutionary, in that the Trustees predate the Revolution, having been established by a patent from the royal governor of New York, Thomas Dongan, when James II was King of England, in 1686.

Although a good turnout and impassioned discourse are expected tonight when the Town Board holds a hearing on the delegation of some of the Zoning Board of Appeals' authority to the Trustees, it appears that what is said may wind up as little more than a formality. The board's three-member Republican majority appears behind the change. That would be unfortunate.

The proposal has gone through several incarnations, beginning with Councilman Knobel's "Trustee Manifesto." Each version has brought up new questions. The fact that the proposal would streamline the Town Code so that applicants would no longer have to apply to the Z.B.A. as well as the Trustees for certain shoreline projects is not enough reason for its adoption.

After a long period of disregard for their responsibility, it has only been in the latter half of this century that the Trustees have become rigorous in pursuing their rights as proprietors. Even so, their accomplishments have been limited by their inability to plot swift and effective action and by the fact that they can neither raise funds by taxes nor enforce their own regulations, except by bringing suit or convincing the Town Board to pay their bills.

The amendment to the Town Code being heard tonight delegates to the Trustees the authority to act either as a regulatory agency or as proprietors, at their own discretion. At the same time, it reauthorizes the Zoning Board of Appeals to act in those parts of town where the Trustees make no claim to ownership, particularly at Lake Montauk. This could lead to an untenable disparity in decisions for similar applications.

In addition, the amendment includes no guarantee that the Trustees will follow the regulatory procedures now in effect, such as having the town's expert planners, biologists, and marine biologists review applications and make recommendations before decisions are made. Nor does it guarantee that the Trustees will comply with the State Environmental Quality Review Act.

Since the Trustees predate the creation of state government, they have claimed, and the courts have agreed, that they are not required to comply with state law. Although John Courtney, who has been the Trustees' attorney for 12 years, has urged them to do so in the past and says they will do so in the future, there is no guarantee they will.

In this regard, it is noteworthy that the Trustees now comply with the State Open Meetings Law and Freedom of Information Act on a voluntary basis. These laws help the public watch their elected officials and insure access to all manner of government records. Who is to say that will continue to be the case?

The most compelling argument for giving the Trustees the authority they seek is, to our way of thinking, that as a whole the Trustees panel has tended to be a more reliable advocate for environmental preservation and less influenced by the power of wealthy landowners than the Town Board. These have been men and women who fit the Bonac profile - persons of broad local experience whose knowledge of the ways of tides and the sea, of fish and wildlife, was impeccable.

More recently, however, the composition of the Trustees has changed. The board now includes a carpenter, a homemaker, a landscaper, a highway worker, a retired accountant, a car mechanic, a pool cleaner and assessor's assistant, and a fuel delivery man. Only one is a full-time bayman. Are there then any characteristics of the Trustees significant enough to persuade the public to give them sole authority for so much of the town's most valuable land? It is a long time since Stuart Vorpahl Jr. enlivened and educated the Trustees with his knowledge of the historical record and hands-on fishing experience. And even he couldn't get elected the last two times he tried.

The way in which the Trustees propose to comply with the State Environmental Quality Review Act also is troubling. Neither town nor state law are without flaws. But they are the best mechanism government has evolved to balance the rights and desires of individuals and corporations against the public good.

The Trustees, with the Republican majority on the Town Board behind them, say they will not need to comply with SEQRA when they are considering lands they own but that they will do so when considering applications for private property. This is less than promising, especially given the fact that upland boundaries of many of the lands the Trustees claim and, in some cases, even the title to those lands are unclear.

The Trustees are well aware that a litigious public could challenge their authority and their decisions and that the number of such suits could escalate if the authority they seek is granted. Here the question arises of who will pay to defend them. The Republicans on the Town Board had each campaigned for office in part by criticizing the Democrats for what they said was an inordinate number of lawsuits against the town. Will they wind up having to create a legal defense fund for the Trustees?

Traditionally, the Trustees have done business in a rather informal manner. They recognize that this will have to change if they are given the authority they seek. Although their lawyer would undoubtedly serve them well in establishing a more structured system, it undoubtedly will take time before applicants will be able to count on even-handed and efficient responses, no matter what the Trustees' intent.

The Star has long fought for the Town Trustees and encouraged them to fight state agencies such as the Department of Environmental Conservation when it seemed appropriate. But we fear the consequences of this proposal. Isn't there some other way to acknowledge the traditional role of the Trustees and bow to their rights? What about seeking enabling state legislation to establish a mixed panel, representative of both the Zoning Board and the Trustees, to rule on those applications that involve Town Trustee lands?

The movement to strengthen the Trustees' centuries-old sovereignty is appealing. But we fear it is an exercise in which nostalgia has gotten in the way of common sense.