The New York State Supreme Court Appellate Division has rejected an appeal by the East Hampton Town Zoning Board of Appeals of a lower court ruling that overturned the Z.B.A.’s denial of a proposed dock on the east side of Three Mile Harbor.
The Appellate Division’s Sept. 10 decision is likely to conclude a yearslong effort by John McGinn and Cary Davis of 275 Three Mile Harbor Road to construct a 70-foot-6-inch dock at their bulkheaded property.
It may also result in the last residential dock constructed in Three Mile Harbor: The town trustees, who have jurisdiction over waterways and bottomlands west of Montauk, banned applications for docks in most waterways in 1984, extending the prohibition to all but the eastern shore of Three Mile Harbor in 1987. In an October 2021 split vote, the trustees agreed to allow the dock, which the applicants had long sought, having repeatedly tabled the application pending the formation of a policy on docks for all water bodies. It was the first such approval in more than three decades.
The trustees’ contentious debate before the vote prompted the formation of a committee to study the matter and issue a recommendation. It undertook an inventory of structures in trustee waters and enacted a lengthy moratorium on the construction of docks, catwalks, floating docks, floating structures, and floating platforms in their waters. In December 2023, the trustees codified new policies on docks and other floating structures in waters under their jurisdiction. That included a prohibition on the construction of any new residential piers or fixed or floating docks in the entirety of Three Mile Harbor.
The applicants had already obtained permits from the State Department of Environmental Conservation and the federal Army Corps of Engineers. The dock, the trustees were told, would require driving 13 pilings, each eight inches in diameter, into the bottomland.
Some trustees had 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 concern about impacts to the bivalves’ habitat. But in a 5-to-3 vote, the trustees agreed to allow the dock’s construction.
Eight months after the trustees’ vote, however, the Z.B.A. denied an application for a natural resources special permit needed for the construction of the dock to proceed. The Z.B.A. heard the application, for a fixed catwalk, aluminum ramp, and floating dock, in January 2022.
“The proposed action may result in an adverse change to natural resources (e.g., wetlands, water bodies, groundwater, air quality, flora and fauna),” the board wrote in its May 2022 determination denying the application. “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 would disrupt sediments and increase turbidity in the water column.
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, the board wrote, and the dock would “prevent the orderly and reasonable use of adjacent properties.”
The Z.B.A.’s denial prompted a rebuttal from Richard Whalen, an attorney representing the applicants, in the form of a June 2022 petition to the State Supreme Court seeking the determination’s annulment. He told The Star at that time that “we think we can overturn the denial in court.”
Mr. Whalen was proven correct when the State Supreme Court overturned the Z.B.A.’s determination in May 2023. The Z.B.A. then filed an appeal, and last week the Appellate Division rejected that appeal, holding that the applicants had demonstrated that their dock application complied with the town zoning code’s standards and conditions for residential docks.
Most of the dock’s 70-foot length will consist of a seasonally removable, fourfoot-wide floating dock, Mr. Whalen said. “Our dock, which is relatively short and small, has different mitigation measures involved,” he said this week. “From the beginning, I thought that the heart of this was going to be the trustees. They own the bottomland. If they deny us, that’s the end of it; if they approve it and we meet the dimensional parameters of the code, we figured the Z.B.A. was not going to be difficult. We were surprised the Z.B.A. acted as they did.”
“The Supreme Court properly concluded that the Z.B.A.’s determination was not supported by the evidence in the record and, therefore, lacked a rational basis,” the Appellate Division wrote in its decision. “The petitioners met their burden of demonstrating that their proposal complied with legislatively imposed conditions.”
Roy Dalene, chairman of the zoning board, did not reply to an email seeking comment.
