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Feb 3, 2010 11:29 AMPublication: The Southampton Press

Suffolk County judge overturns East Quogue marina application approval

Feb 3, 2010 11:29 AM

A Suffolk County Court judge has reversed a Southampton Town Trustees’ decision that granted the owner of Dockers Waterside Restaurant in East Quogue permission to install 16 boat slips along his Dune Road property’s bulkhead, ruling that the Trustees did not follow the guidelines of a state-mandated review.

In his ruling on a lawsuit filed by Peconic Baykeeper Kevin McAllister challenging the 2008 decision, Judge John J.J. Jones Jr. declared that the Town Trustees are a regulatory agency operating within New York State and therefore must comply with the requirements of the State Environmental Quality Review Act, or SEQRA. He annulled the Trustees’ earlier decision, though he did not address the merits of the proposed project, leaving the application open to be reviewed again by the Trustees.

Larry Hoffman, the owner of Dockers, said the ruling, handed down on January 22, has little bearing on his marina plans, because he expected to have to prepare an environmental report for the New York State Department of Environmental Conservation. He said he can simply apply it to a new application that he must file with the Trustees.

“It’s meaningless to me,” Mr. Hoffman said of the court ruling. “This fight is between Kevin and the Trustees. I’m not going to appeal—it doesn’t really affect me.”

But the decision could weigh on other applications before the Trustees in the future. Neither the Southampton Town nor East Hampton Town Trustees typically follow the guidelines of SEQRA, since they derive their authority from colonial-era patents that predate the formation of the state but are recognized in the State Constitution.

Southampton Town Assistant Town Attorney Joseph Lombardo, who represents the Trustees, said he plans to appeal the ruling.

Town Trustee Eric Shultz said the Trustees have never used those state guidelines in any application reviews in the 14 years that he has served on the board.

“It’s always been our policy that the Trustees don’t follow SEQRA,” he said. “We have our own review process, and the state has their own review process. If the DEC wants to do it, they can do it. They have SEQRA, we have the patents. When the State Constitution was ratified, the power of the Trustees was recognized, and that’s what we go by.”

Judge Jones disagreed with that opinion in his ruling. “While it is not disputed that the Trustees is a propriety entity ... derived from the Dongan Patent of 1686, it also serves as a body politic,” Judge Jones wrote in his decision, citing a 1984 court case between the Southampton Town Trustees and the state that focused on the colonial-era patent creating the Board of Trustees. “[The] Trustees execute their authority as an agency of the Town of Southampton ... by maintaining offices and holding meetings in Southampton Town Hall, being funded through taxes collected by the town and being represented by the Southampton Town Attorney on legal matters.”

Mr. McAllister, the president of Peconic Baykeeper Inc., said that while the Trustees tend to conduct thorough environmental reviews of most projects, adhering to the detailed state guidelines which require interaction between all regulatory agencies that are reviewing a substantial project can only serve to heighten protection of sensitive environments. “I have the utmost respect for their authority and their wisdom, but it behooves the board to coordinate through the process,” he said. “There’s full disclosure and transparency. If it’s done unilaterally, it diminishes the comprehensiveness of the oversight.”

Mr. McAllister has opposed Mr. Hoffman’s marina vision at Dockers since the day the application was filed more than six years ago. The original proposal called for nearly 60 boat slips on four piers that would have extended from the restaurant’s current bulkhead and marina services, such as gasoline sales. Following objections from the community and a clear message from the Trustees that the plan would not receive approval, Mr. Hoffman withdrew that proposal.

More than a year later, he returned with a vastly pared-down plan calling for just 16 slips on one dock that would be installed along the existing bulkhead. Public opposition largely faded and the Trustees approved the application, with the caveat that the permit would be revoked if the presence of boats in Dockers’ boat basin caused state scientists to close nearby sand flats to shellfishing because of septic contamination—as sometimes happens near large marinas.

This week, Mr. McAllister renewed his criticisms of the revised application. “Sanctioning a marina use at this property will put the Trustees in a difficult position when there are navigational issues, which I assert there will be, and Mr. Hoffman comes looking to dredge a channel to his basin,” he said.

Part of the original application called for the proposed dredging of a channel from Shinnecock Bay to Mr. Hoffman’s restaurant along Dune Road. That proposal was not included in the revised application.

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sadly the greed of the docker's ownership now will cost the town to spend money on this. i've watched dockers turn from small bar and grill with live music on the weekends to a heavily developed restaurant complex with jetski rentals and heavy usage by hundreds of people. where do you think the effuent goes? it's in the middle of shinecock bay far from ocean inlets that would sweep the trash away. and then people wonder why the brown tide returns year after year. for shame, sell the restaurant ...more
By davidf (325), hampton bays on Feb 3, 10 10:14 AM
Nothing exceeds like excess....
By ride the truth wave (125), southampton on Feb 3, 10 10:51 AM
Actually, davidf, Kevin is the one who sued the trustees on the basis that they are required to perform SEQRA on commercial applications that deem review. So it was Kevin who is spending the taxpayer funds. Dockers has to do SEQRA anyway with the town and DEC before it does anything, so it didn't really make a lot of sense why Kevin would sue and alienate the trustees they way he did. I am sure that the trustees did their own environmental review and I know that Kevin did not submit any scientific ...more
By BIGjimbo12 (201), East Quogue on Feb 3, 10 11:53 AM
1 member liked this comment
I totally agree with this comment !
By fix-it-now (216), sag harbor on Feb 3, 10 4:42 PM
Kevin says in the article ...."Mr. McAllister, the president of Peconic Baykeeper Inc., said that while the Trustees tend to conduct thorough environmental reviews of most projects, adhering to the detailed state guidelines which require interaction between all regulatory agencies that are reviewing a substantial project can only serve to heighten protection of sensitive environments. “I have the utmost respect for their authority and their wisdom, but it behooves the board to coordinate through ...more
By BIGjimbo12 (201), East Quogue on Feb 3, 10 11:58 AM
What a foolish waste of Town resources to appeal. There is an environmental review process that must be undertaken no matter what, the judge said do it in the first instance, not later down the line.

That is good for everybody. Now there is in effect a do over because it wasn't done up front. If the SEQRA review says it can't be done, then isn't it better to know that sooner rather than later ?

The property owner's quote "It’s meaningless to me" is very telling. I am in favor ...more
By Publius (358), Westhampton Beach on Feb 3, 10 12:03 PM
1 member liked this comment
Publius - SEQRA gets done no matter what, through the other agencies and those other agencies coordinate with the trustees anyway. I think it is a legal matter for the Trustees to consider what power they have and does their authority overrule the state which is unrelated to the Dockers thing - it has nothing to do with Dockers. This is really Kevin's fault, he knew that SEQRA was going to be done and the trustees did their own version or its equivalent of it - he just didn't like the outcome, ...more
By BIGjimbo12 (201), East Quogue on Feb 3, 10 12:36 PM
I disagree with the assessment of "fault." The SEQRA process as enacted by the State Legislature has determined that environmental considerations must be part of out decision making process. What happened here was that the Trustees went through its own environmental style process, as you point out Mr. McAllister didn't like the conclusion.

Dockers was going to have to do the SEQRA process, so isn't it better to have one, unified, process with one set of rules rather than two - the Trustees ...more
By Publius (358), Westhampton Beach on Feb 3, 10 12:48 PM
1 member liked this comment
That is precisely why this is a fight between Kevin and the Trustees and not Dockers - it's a legal battle of the ultimate thing, power.
By BIGjimbo12 (201), East Quogue on Feb 3, 10 1:25 PM
The Trustees should have settled the case in the first instance and accepted the position as lead agency to do the SEQRA process, being the entity responsible for that determination is to be the entity with the power.

Instead, by divesting themselves of that authority the Trustees LOSE power. It means another Town agency will visit the question of environmental impacts, and may that other agency may reach a conclusion that disapproves what the Trustees approved.

So now, the ...more
By Publius (358), Westhampton Beach on Feb 3, 10 1:48 PM
1 member liked this comment
That last sentence hits the nail on the head --- just read the article " Trustees cry foul after DEC relaxes restrictions along Peconic River " --- an other example of Trustee stumble & mumble ----
By fix-it-now (216), sag harbor on Feb 3, 10 5:13 PM
It appears that Mr. McAllister wants veto power over any projects involving the bays and wetlands. While recognized by an organization called the Waterkeeper Alliance, Mr. McAllister is basically a self-appointed overseer of our bays. While the "organization" has a Board of Directors, Mr. McAllister is both the "Baykeeper" and the President of the Board, meaning his own interests/opinions are the only ones that matter. He has absolutely no statutory authority and this lawsuit to require redundant ...more
By Native Westhamptonite (14), Westhampton on Feb 3, 10 1:37 PM
1 member liked this comment
The waste has been occasioned by the refusal of the Board of Trustees to take on status of lead agency and do the review from the outset.

A legal action based upon SEQRA does not grant Mr. McAllister veto power, it is a legal action that requires boards with decision making authority to consider the wider impacts of such a project. The authority still rests with the Board, they just have to do their job and SEQRA is a comprehensive process that helps boards to make better decision based ...more
By Publius (358), Westhampton Beach on Feb 3, 10 1:52 PM
1 member liked this comment
The Trustees didn't refuse to do SEQRA, their history for 300 years dictated that they were not obligated to do SEQRA under the state requirements given that they are not regulated under state law. Publius, you're missing the point that do you just throw away the Dognan Patent and the authority vested thereunder?
By BIGjimbo12 (201), East Quogue on Feb 3, 10 2:05 PM
1 member liked this comment
Your contention boils down to a Trustees' position of "I don't have to, and you can't make me."

But somebody else will have to, so why pass the buck, particularly when the cost of rendering the SEQRA decision is the developer's ?

Yes, throw away the Dongan Patent, and I won't be paying taxes to England either.
By Publius (358), Westhampton Beach on Feb 3, 10 3:14 PM
1 member liked this comment
Maybe Dockers needs to host an even bigger fundraiser for the Republicans than the one held in June of 2007.
By SHNative (554), Southampton on Feb 3, 10 5:44 PM
I went to a fundraiser at Dockers years ago for Carolyn Zenk and Tim Bishop ... Republican or democrat is not the issue, it's whether or not the Trustees are required to follow State SEQRA procedures or can they develop their own form of environmental review. The project MUST be evaluated for SEQRA with all of the other agencies and the DEC and Town will coordinate with the trustees anyway and get their feedback on the project.
By BIGjimbo12 (201), East Quogue on Feb 3, 10 5:57 PM
The big question is: Why would the trustees object to conducting a SEQRA
review? If they are truly committed to protecting the public interest for the freeholders who own the bays and bottomlands, they would welcome the opportunity to conduct the most thorough environmental review possible. They are our trustees and have a fiduciary responsibility to all our citizens. We should sue them for making such a bad decision.

The trustees first priority seems to be the power they love ...more
By Phaedrus (8), Southampton on Feb 3, 10 7:34 PM
1 member liked this comment
OH Kevin, my hero! Do you even understand what SEQRA is, it's a New York State Standard. The trustees did hold their own environmental review - as for your 1,000 signatures, that may have been for the original application. But again folks, this legal lawsuit was and is between the trustees and Kevin and not Dockers. If the trustees do SEQRA, all that happens is that they would report to the lead agency, which, by the way could be the trustees if they wish it so, all agencies get to comment and ...more
By BIGjimbo12 (201), East Quogue on Feb 3, 10 7:46 PM
A lot of you people have come late to the party. Do you really not remember that before Dockers fixed up the property there was a long standing (barely) marina at that location with a (no doubt leaky) gas pump and all? Pristine? Hah!
By VOS (1241), WHB on Feb 3, 10 10:30 PM
That dog won't hunt BigJimbo. I was there when it was a small bar/restaurant. There was no marina. Maybe a small fishing boat with an outboard motor once in a while. Here's what happened: pre-existing non conforming liquor licensed local spot gets turned into high priced, high volume catering facility. 60 boat slips requested, now we're supposed to be happy its only 16. As if anything more than zero makes sense. It was also interesting when the owners of Dockers bought Hot Dog Beach, tried ...more
By davidf (325), hampton bays on Feb 3, 10 11:14 PM
2 members liked this comment
I meant to address that reply to VOS.
By davidf (325), hampton bays on Feb 3, 10 11:21 PM
Before it became Dockers it was a place called Pat Baxter's Tequila Flats. I know because I used to clam over there.
By PrivateerMatt (390), Weesuck Creek , EQ on Feb 4, 10 10:52 AM
DAVIDF - "....It was also interesting when the owners of Dockers bought Hot Dog Beach, tried ... more to do the same thing, failed and then that mysterious fire, the collection of insurance and then the acquisition by the preservation fund, the same fund that acquired the adjacent property on the bay side next to Dockers for many millions....." is not a true statement. Dockers provided the management of the restaurant at Hot Dog Beach and was paid a management fee to operate it - Charles Parlato, ...more
By BIGjimbo12 (201), East Quogue on Feb 4, 10 4:25 PM
Shame? Not a bit, the truth is on my side. There are all kinds of laws regarding boats dumping their tanks, why would it matter where the boats tie up? It seems like you're living in a prime red herring habitat.

I never said it was a big marina, but the ramble-down docks accomodated more than the 16 boats in today's plan. I take it you don't like boats? Too bad for you - you shouldn't have become involved in a boating area. I suppose the gas tanks and pump that were right next to ...more
By VOS (1241), WHB on Feb 4, 10 11:13 PM
One old pump servicing small fishing boats with 24 hp outboards is vastly different from 100 boats a day going in and out of a highly developed restaurant and catering marina facility located in an interior shallow cove on Shinecock Bay.

By davidf (325), hampton bays on Feb 5, 10 2:17 AM
what about the two houseboats that those pesky Trustees had Bill Swan remove. One ended up in Smith Creek
By clammer (23), hampton bays on Feb 3, 10 11:35 PM
lol - how funny is that - I remember those! Too funny.......didn't do that with the barge night club too? he was a funny guy that Bill Swan.
By BIGjimbo12 (201), East Quogue on Feb 4, 10 4:27 PM
A yes a very funny guy. The guy who dredged all those wetlands and dumped the sand on even more, gets a beach named after him. Thank you town board for honoring such an environmentally conscience person. Ha.
By clammer (23), hampton bays on Feb 4, 10 8:57 PM
The Trustees should take the position that no more docks can be erected on the waters under their supervision, for any purpose.

The South Shore bays are dying because of pollution. It gets worse ever year. Even considering the erection of new commercial docks is insane.

Perhaps if the Trustees prohibit new dock construction, the ST Council will seriously address the much greater problem of the leaching of sewage from cesspools into bay waters. Some sewage treatment program has ...more
By highhatsize (4217), East Quogue on Feb 5, 10 1:14 PM
Its not the docks that kill the bay , its the bulkheading. No new bulkheading ! I'm pretty sure you can't put a new bulkhead in and just maintain/repair a pre existing one.
By PrivateerMatt (390), Weesuck Creek , EQ on Feb 6, 10 8:56 AM
The trustees have been trying to get all of the CCA and creosote bulkheads and pilings replaced with newer eco-friendly materials (ACQ or Plastics). Any new dock, pier or bulkhead approved must adhere to the new policy. And by the way, the commercial fisherman are killing the bays - put a 2 year ban on fishing and shell-fishing (except for recreational) and you will see the bays bounce right back. Clamming (whether for steamers or hard clams) rips up the eel grass, steamers they use power rakes ...more
By BIGjimbo12 (201), East Quogue on Feb 6, 10 6:16 PM
Commercial fisherman? What commercial fisherman? How many do you see on a given day... five? Even if we stop them, all of a sudden, a clam's spawn will finally reproduce? Scallops will magically reappear? Eelgrass will start to grow again? The bays have been dying for years. Who can put a finger on what is causing it? Millions of dollars have been spent on studying Brown Tide. Warm summer, cold summer, too much rain, too little rain, whatever it is, it still comes back. I wish someone could come ...more
By HBNative (15), Hampton Bays on Feb 7, 10 12:14 PM
Storm-water runoff of septic systems as well as the fertilizers are contributing to the overall welfare of the bays but there are certainly many fisherman and shell-fisherman around - don't kid yourself. It all has an effect no doubt. Also, remember that mother nature has a way of correcting itself and we seem to get in her way when she wants to fix something - like ocean breaches - that could have been her way of cleaning the bays. You have jetties, inlets, etc.. that are unnatural for commercial ...more
By BIGjimbo12 (201), East Quogue on Feb 7, 10 2:13 PM
And as time ticks away-- the trustees & the baykeeper will do their appeal dance and maybe beyond -- to find who is really the most right -- while we all pay -- one way or the other .....
By fix-it-now (216), sag harbor on Feb 7, 10 11:19 PM