78 Misc. 2d 1007 | N.Y. Sup. Ct. | 1974
At issue on these motions by the Town of Islip (“Islip”) for a preliminary injunction and to strike defenses from the answer is the power of local government units in Nassau and ¡Suffolk Counties to zone their waterfront lands and issue permits for piers, wharves and docks. The relevant portion of the Islip zoning ordinance provides that “ underwater [land] shall be considered as being in the same district as the abutting upland ’ ’ for a distance of 100 feet unless otherwise classified (Islip Code, § 68-12). The town has instituted an action to enjoin the defendants from renting docking
The defendants own three contiguous parcels of land which front on the Connetquot River in Islip. One of the parcels is located in the Business I district where commercial marinas are a permitted use while the other two are located in the Residence A district where such uses are not permitted (Islip Code, §§ 68-45,68-46). On the business parcel, the individual defendants operate a commercial marina containing boat dockage, repair and fueling facilities. The second parcel is the site of the individual defendant’s home and the third is a vacant lot owned by the corporate defendant. The town asserts that the defendants store boats and boat trailers on the latter two parcels and have installed in the waters in front of the residence premises floating docks to increase the mooring capacity of their marina. One of the docks is attached to the commercial marina pier which' is built out from the business parcel and extends in a westerly direction parallel to and directly in front of the residentially zoned shore. The other dock is attached directly to the bulk-heading of the residential parcel and runs parallel with it. On March 21, 1972 the Board of Appeals of Islip denied defendants á special exception permit to utilize these docks on the ground that they had been built on town-owned underwater lands in violation of the zoning ordinance.
In opposition to the instant motion defendants assert, inter alia, that the State has pre-empted regulatory authority over navigable waterways and the town is without authority to control such waterfront uses.
The legislative power of a municipality stops at its boundary line (1 Rathkopf, Law of Zoning and Planning, p. 25-1) and albsent a restrictive statute it may zone underwater land within its borders (1 Anderson, American Law of Zoning § 8.13; 2 Anderson, New York Zoning Law and Practice, § 19.02; 1 Rathkopf, Law of Zoning and Planning, p. 25-1 [1973 Supp.]). Such zbning regulations exist in numerous municipal ordinances (see, e.g., Matter of Taxpayers’ Assn. of South East Oceanside v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 215; Huguenot Yacht Club v. Lion, 43 Misc 2d 141; Matter of Milton Point Assn. v. Clark, 14 Misc 2d 633; City of Rye v. Boardman, 11 Misc 2d 293; 71 Op. St. Comp., 684). The settled doctrine of local control of waterfront uses was seemingly shaken by the holding in Erbsland v. Vecchiolla (35 A D 2d 564, affd. after remand sub nom. Erbsland v. Rubin, 33 N Y 2d 787). There, in a case
The Navigation Law provides for State control of navigation and use of “ navigable waters of the state ” (Navigation Law, § 1). “Navigable waters of the state” are defined in subdivision 4 of section 2 as “ all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels' are operated, except all tidewaters bordermg on and lying within the boundaries of Nassau and Suffolk Counties.” [Emphasis supplied.] The word “tidewater” means waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt (65 C. J. S., Navigable Waters, § 1). It is usually not applicable to the open sea but to coves, bays and rivers (Black’s Law Dictionary [4th ed.]). The Connetquot is a tidal river bordering on and lying within the boundaries of Suffolk County and the Navigation Law definition would appear to exclude it from State control.
Section 32 of the Navigation Law (L. 1965, ch. 955, § 9) reads as follows: “ § 32. Construction of structures in or on navigable waters. It shall be unlawful to construct, in the navigable waters of the state, any wharf, dock, pier, jetty, or other type of structure without first obtaining a permit therefor in conformity with the provisions of section four hundred twenty-nine-c of the conservation law.”
Subdivision 1 of section 15-0503 of the Environmental Conservation Law, which is the identical successor to section 429-c of the Conservation Law states in part that no “ dock, pier, wharf or other structure, temporary or permanent, used as a landing place on ¡waters, shall be erected, reconstructed or repaired * * * without a permit ” [from the Department of Environmental Conservation].
The interaction of the two statutes has a lengthier history than their current language indicates. Prior to 1960, the Navigation Law was administered by the Superintendent of Public Works (Navigation Law, § 10) and. the related provisions in the Conservation Law were also administered by him rather than by the Conservation Commissioner (see, e.g., Conservation Law, § 948 which provided, inter alia, that the public works superintendent be afforded notice of construction or reconstruction of docks, wharves, jetties, piers or other structures “ used
Section 429-c of the Conservation Law (now Environmental Conservation Law, i§ 15-0503) does not, however, contain the restrictive phrase “navigable waters of the state,” referring instead to “waters.” The word “ waters ” is broadly defined in the statute and includes “ rivers ” (Environmental Conservation Law, § 15-0107). The Attorney-General has interpreted the omission of the term “navigable waters” to indicate a legislative intent that the permit requirement of section 15-0503 of the Environmental Conservation Law includes structures erected in tidewaters in Nassau and Suffolk. He is particularly impressed by the fact that section 429-b of the Conservation Law (now Environmental Conservation Law, § 15-0505) a companion statute which relates to permits for excavation or fill, contains the phrase “navigable waters of the state” (1966 Opns. Atty. Gen. 16). The latter section was recently interpreted by the Appellate Term, Ninth and Tenth Judicial Districts, in People v. Poveromo (79 Misc 2d 42, revg. People v. Poveromo, 71 Misc 2d 524) as not applying to tidewaters in Nassau and Suffolk so that the Town of Smithtown could require permits for the dumping of fill in the Nissequogue River (see, also, People v. Gibson & Cushman, 64 Misc 2d 138). The Attorney-General’s attempt to distinguish section 429-c of the Conservation Law from section 429-b is baseless. He reads section 429-b to allow without a permit the placing of fill, including
Because the cited sections of the Navigation Law and the ECL deal with the same subject matter (and indeed they both delegate authority, to the same public official to regulate that subject matter) they must be construed in pari materia (People ex rel. Doscher v. Sisson, 222 N. Y. 387; Matter of Farrell v. Board of Health of City of Oswego, 243 App. Div. 332). The rule that statutes dealing with the same subject matter should be read together as far as possible applies, with particular force where the two statutes are enacted at the same session of the Legislature (City Bank Farmers Trust Co. v. Ardlea Corp., 267 N. Y. 224). In 1965, section 32 of the Navigation Law was amended to transfer regulatory authority over piers, docks, wharves and other structures, in the navigable waters , of the State to the conservation commissioner and at the same session of the Legislature and in the very same enactment (L. 1965, ch. 955, | 7) the Conservation Law was amended by the adoption of section 429-c containing reference to “ waters ” only. Had the Legislature intended to abolish the longstanding exemption for tidewaters in Nassau and Suffolk Counties, by use of the term “ waters ” instead of “navigable waters ” in section 429-c of the Conservation Law, it could have removed the latter term from section 32 of the Navigation Law when it amended it. To disregard an exemption so clearly expressed and so long maintained by focusing on the word “ .waters ” would be to thwart the Legislature’s obvious intent. The tidewaters of Nassau, and Suffolk have been and continue to be exempted from the State’s jurisdiction over navigation. Any other “ waters ” in the two counties have not been exempt in the past and they are not now. That portion of defendants ’ dock which is attached directly to the residential bulkhead is beyond the. jurisdiction of the Department of Environmental Conservation by any interpretation because section 15-0503 of the Environmental Conservation Law excludes from its ambit docks less than 40 feet from the shore.
The Legislature has recently extended State regulatory authority in the Tidal Wetlands Act (L. 1973, ch. 790) but that statute expressly provides that the State’s regulation “ shall be
The defendants make a further assertion that the construction and use of the docks in issue is a normal exercise of their riparian rights which the town may not restrict by its zoning ordinance. It is elementary that riparian owners have the right of access to navigable waters including the right to construct a dock (Crance v. State of New York, 284 App. Div. 750, revd. on other grounds 309 N. Y. 680). These rights have been defined to include: 1) use of water for general purposes as bathing and domestic use; 2) wharfing out to navigability; 3) access to navigable waters (Hilt v. Weber, 252 Mich. 198) and it is the latter two uses which are relevant to the issues at hand. If the wharf and the access to navigable water are commercial in nature, then use of the residential upland as accessory to such uses would constitute a violation of residential restrictions (1 Rathkopf, Law of Zoning and Planning, p. 25-1 [Supp.]; cf. City of Yonkers v. Rentways, 280 App. Div. 821, affd. 304 N. Y. 499). Riparian rights are an extension of the rights of abutting upland ownership and they are subject to the same limitations. The defendants’ use of commercial docks strung out in front of residentiajly zoned property is not an extension of the riparian rights of their residential ownership and it achieves no exemption from residential zoning restrictions.
As a separate defense the defendants assert that the instant issues have already been determined in criminal proceedings instituted by the town and are therefore res judicata. It is true that such proceedings were decided in defendants’ favor on the ground that the zoning power was pre-empted by the State. Nevertheless, the defense of res judicata is without merit. Neither a conviction (Dalton v. VanDien, 72 Misc 2d 287) nor an acquittal (Reilly Constr. Corp. v. City of New York, 70 Misc 2d 651, affd. 25 A D 2d 953) of a criminal charge is a bar to a civil action by the government, arising out of the same facts on which the criminal action was based. The town is empowered by section 135 of the Town Law to enforce its ordinances by both a criminal action and an action for an injunction (Incorporated Vil. of .Westbury v. Samuels, 46 Misc 2d 633).
The town has demonstrated a clear legal right to injunctive relief and is entitled to a preliminary injunction (Town of South
The motion for a preliminary injunction is granted and the motion to strike the affirmative defenses is granted to the extent indicated.