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Applicants Push Back After Dock Is Denied

Thu, 06/30/2022 - 10:53

Eight months after the East Hampton Town Trustees narrowly voted to approve construction of a dock on Three Mile Harbor — the first such approval in more than three decades — the town’s zoning board of appeals denied an application for the permit needed for the dock’s construction to proceed.

The board’s denial prompted a furious rebuttal from Richard Whalen, the attorney for John McGinn and Cary Davis, in the form of a June 9 petition to State Supreme Court seeking the determination’s annulment.

Mr. McGinn and Ms. Davis had long sought the trustees’ permission to build a dock at their bulkheaded property at 275 Three Mile Harbor. In October, when they received that approval, they had already obtained permits from the New York State Department of Environmental Conservation and federal Army Corps of Engineers, Mr. Whalen told the trustees in the fall.

The trustees banned applications for docks in most waterways under their jurisdiction in 1984, extending the prohibition to all but the eastern shore of Three Mile Harbor in 1987. During a contentious debate, some trustees raised a concern that allowing the dock would establish a precedent, leading to a flood of similar applications. Oysters seeded by the town’s shellfish hatchery are typically found there, raising additional unease about impacts to the bivalves’ habitat. Ultimately, the trustees approved the dock in a 5-to-3 vote.

In January, the Z.B.A. heard the application for a natural resources special permit to construct a fixed catwalk, aluminum ramp, and floating dock. “The proposed action may result in an adverse change to natural resources (e.g., wetlands, waterbodies, groundwater, air quality, flora and fauna),” the board wrote in its determination denying the application last month. “Docks can have both adverse short-term and chronic impacts upon the bottomlands and water quality of harbors,” including shading of benthic vegetation, alteration of patterns of sediment and water flow, introduction of chemicals, and impact to public access and navigation. The board also expressed concern about the use of high-pressure water jets to install dock piling, which they said “disrupt sediments and increase turbidity in the water column.”

The board noted that Three Mile Harbor is a designated State Significant Coastal Fish and Wildlife Habitat. “The wetlands and surface waters provide forage areas for a variety of waterfowl, shorebirds, and wading birds” and the harbor “also supports significant populations of commercially important fin fish and shellfish,” it wrote. Bay scallops are concentrated in the shallow shoreline waters. “Any activity that increases the turbidity or otherwise disturbs the bottomland of the harbor has the potential to adversely impact shellfish populations.”

In summarizing its rationale for denying the application, the board wrote that the dock “will not be in harmony with and promote the general purposes” of the town’s zoning code. The applicants’ lot area is “insufficient, inappropriate, and inadequate” for the proposed use, and the dock would “prevent the orderly and reasonable use of adjacent properties.” While the trustees’ prohibition on docks does not apply to the subject property, “no new docks have been constructed in this area in 35 years.”

The “natural characteristics of the site are such that the proposed use may not be introduced without undue disturbance or disruption to important natural features, systems, or processes and without significant negative impact to groundwater and surface waters on and off the site,” the board wrote. “Pilings are not a natural presence,” and 11 were proposed, they wrote.

Following the hearing, the applicants reduced the proposed dock’s length from 80 linear feet, the maximum allowed, to 70.6 feet, and reduced the length of a fixed catwalk from 40 feet to 30.6 feet.

The board’s analysis was faulty, Mr. Whalen wrote, and it made numerous assertions that are not supported by facts. Its finding that “a 70-foot-long dock here would somehow prevent the ‘orderly and reasonable use of adjacent properties,’ is utterly illogical and inexplicable,” he wrote. “Of course the Z.B.A. did not attempt to explain its conclusion.” The property immediately to the south also has a residential dock, one that is longer than that proposed by his clients. The applicants own the adjacent property to the north.

The Z.B.A.’s statement that no new docks have been constructed in the area in 35 years is irrelevant, Mr. Whalen wrote, and not a special permit standard. The proposed dock “has been designed to minimize shading of the bottomland,” would not use chemically treated materials, and would not interfere with public access or navigation, he wrote. “Its effect on water movement will obviously be minimal,” and it would be situated outside the dredged navigation channel.

Regarding the use of high-pressure water jets during installation, “petitioners’ representatives stated over and over that the dock pilings will be installed without the use of pressure-jetting or pre-drilling of the harbor bottom.” Mr. Whalen added that “it is incredibly frustrating” for the applicants, “who have put so much time, thought, energy, and money into their pursuit of what they believe will be a well-designed and environmentally benign dock, to see such carelessness” in the Z.B.A.’s determination.

The board’s findings, he wrote, “are based on little more than air — and an evident bias against docks.” The applicants ask that the court set aside and annul the determination and direct the board to issue the special permit.

“We think we can overturn the denial in court,” Mr. Whalen said this week.  


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