In Akeson v Inc. Vil. of Asharoken, 2019 NY Slip Op 32756(U), Index No. 57/2018 (Sup Ct, Suffolk County 2019), the Supreme Court dismissed a petition challenging the Incorporated Village of Asharoken’s (“Asharoken”) decisions to deny permits for the construction of seasonal and removable docks at two residential properties along Northport Bay. The two properties lie situated within the “Ida Smith Property,” which runs lengthwise approximately three-quarters of one mile along a crescent beach (“Ida Smith”). The facts of this case are particularly unique because the underwater land is physically within Asharoken’s boundaries, and its direct land regulations clash with private property owners’ riparian rights.
A. Regulation of Underwater Land
Typically, the State of New York retains jurisdiction over navigable waters. The Navigation Law, however, provides an express carve-out for Nassau and Suffolk Counties. This carve-out recognizes colonial land grants vested Long Island’s underwater land to townships, which regulate the tidewaters bordering on and lying within their boundaries. While the Navigation Law authorizes villages to regulate vessels operated upon or anchored within bordering waters, villages are powerless to regulate the underwater land without express Legislation. Here, though, the underwater land is physically located within Asharoken – giving it traditional regulatory power.
B. Asharoken’s Village Code
The Asharoken Village Code (“Village Code”) specifically regulates docks within Ida Smith. The Village Code created an Environmental Review Board (“ERB”) to review applications for the construction or alteration of docks within Ida Smith, and to recommend approval or disapproval to the Asharoken Board of Trustees. Significantly, the ERB may recommend approval only when it determines that the proposed dock will provide none of the adverse consequence regarding the environment, pollution, swimming, navigation, aesthetics or generally, as specifically set forth in the Village Code. In addition, docks are subject to various enumerated conditions and rules.
C. The Petitioners’ Dock Proposals and Asharoken’s Denials
The petitioners, who are effectively neighbors with only two homes between them, respectively sought to construct removable docks extending over the beach and foreshore and into Northport Bay. The proposed docks would extend 130 feet seaward, parallel to one another and separated by 300 feet. Prior to filing their dock applications with Asharoken, the petitioners sought approval from the New York State Department of Environmental Conservation (“NYSDEC”), the New York State Department of State (“NYSDOS”) and the United States Army Corps of Engineers (“USACE”). The NYSDEC reviewed the applications because Northport Bay’s shoreline is a tidal wetland, and it classified the dock proposals as Type II actions under the State Environmental Quality Review Act and issued permits. The NYSDOS reviewed the applications because Northport Bay is a Significant Coastal Fish and Wildlife Habitat, which requires consistency with New York’s Coastal Management Programs, and determined that the proposals met the criteria. The USACE reviewed the applications because a dock cannot be built in navigable water outside of a harbor without approval from the federal government, and issued permits.
Therafter, on September 25, 2015, the petitioners filed their dock applications with Asharoken. The ERB held seven public hearings over the course of the next two years, during which it received reports and testimony in favor of and against the applications from various environmental, ecology and land use experts. The petitioners revised their dock proposals in response to objections and comments at the hearings. After the fifth hearing in October 2016, the ERB recommended that the Asharoken Board of Trustees hire an independent environmental consultant to shed light on the conflicting expert opinions. Asharoken’s consultant submitted its final report in July 2017. On September 25, 2017, the ERB voted 3-2 to recommend disapproving the applications.
On October 30, 2017, the ERB issued identical written decisions, one for each application, setting forth its findings vis-à-vis the Village Code’s environmental consequences. The ERB found that the petitioners failed to demonstrate that the docks would not provide any of the adverse consequences. Among other things, the ERB concluded that the petitioners failed to show that the docks would not: significantly impede tidal flow; result in accretion of sand and seaweed; result in increased pollution from boats running or idling; and, interfere with the navigation of sailboats tacking to and from the beach, as well as rowboats, canoes and small boats along the shore. The ERB also found that the length of the docks would be an obstacle to lateral swimming, and that the location of the docks in the center of the beach would significantly impact the unobstructed vista of Northport Bay.
On November 30, 2017, the petitioners submitted additional revisions in response to Asharoken’s consultant’s report. Despite this, on December 5, 2017, the Asharoken Board of Trustees voted to adopt the ERB’s findings and disapproved the applications (“Dock Denials”). The petitioners commenced this Article 78 proceeding to challenge the Dock Denials on the grounds that the Asharoken Board of Trustees’ findings were arbitrary and capricious, an abuse of discretion and affected by an error of law because these determinations disregarded the petitioners’ riparian rights.
D. The Article 78 Challenge and Decision
Article 78 judicial review of municipal agency decision is limited. Because the Asharoken Board of Trustees made the Dock Denials after informal public hearings, the Court noted its role is only to determine whether the Dock Denials are affected by an error of law, or are arbitrary and capricious or an abuse of discretion, or irrational. If the Dock Denials have a rational basis, i.e. “a reasonable fulcrum of support in the record,” then the Court cannot substitute its judgment for that of the Asharoken Board of Trustees.
In discussing the contents of the record in detail, the Court held that the ERB had discretion to choose to credit some experts over others, and that the ERB’s and the Asharoken Board of Trustees decisions to rely upon particular expert opinions and testimony does not render the Dock Denials arbitrary, capricious or lacking in rational basis.
More importantly, the Court rejected the petitioners’ argument that the Dock Denials deprive them of their riparian rights. The Court recognized riparian rights include reasonable, safe and convenient access to navigable water, including the right to build a pier or wharf out. These rights, however, are not unfettered and must yield to the legitimate exercise of municipal police powers, i.e. the protection of the rights of the public. The Court held that the Asharoken Board of Trustees and the ERB appropriately applied the Village Code to protect the rights and interests of the public.
The Court relied upon a Village Code provision expressly noting alternative access to navigable water: “various means already exist for owners to access their boats, including private rowboats, membership in various nearby yacht clubs, public mooring facilities in Northport, Centerport and Huntington Harbors, commercial marine supply companies providing launch service and moorings and the Village of Northport dock.” Based upon this provision, the Court concluded the Dock Denials did not deny the petitioners’ riparian rights of access to the navigable waters of Northport Bay, but merely limited their modes of access to the other, existing means. The petitioners have appealed.
It is worth noting that the alternative means of access cited in the Village Code are not directly related or attached to the upland (e.g. petitioners’ riparian properties). Instead, these means require riparian landowners to access navigable water without utilizing their own waterfronts.
-END NOTE(S) BELOW-
 By definition, “littoral” rights concern the coast or shore of an ocean, sea or lake, whereas “riparian” rights concern rivers, lakes and streams. For convenience, and as is the colloquial custom, the use of the term “riparian rights” here encompasses all waters rights as appropriate in the context.