VILLAGE OF NORTH HAVEN PLANNING BOARD’S DENIAL OF ROCK REVETMENT UPHELD

October 14, 2019

 

The Village of North Haven is a peninsula of land located on Noyac Bay in the Town of Southampton near Sag Harbor. Pursuant to Village Code §163-48(A), site plan review shall be required for “any proposed construction of a single family residence or accessory structure which is on land with a waterfront…” In November of 2012, Jeffrey Friedman submitted an application for site plan review to construct a rock revetment to alleviate erosion on the bluff on his property located at 44 On the Bluff, North Haven. On October 15, 2018, the Planning Board denied the site plan application. Mr. Friedman (hereinafter “Petitioner”) appealed, bringing an Article 78 Proceeding in New York State Supreme Court. Petitioner argued that the Planning Board should have approved its proposed rock revetment because a majority of bluff-front parcels in the Village are protected by similar structures, the property is similarly situated to another property with a rock revetment located at 4 On the Bluff which the Planning Board approved, and Petitioner responded to all of the Planning Board’s concerns and submitted substantial evidence including expert reports evidencing that the rock revetment was warranted.

In its denial, the Planning Board distinguished the rock revetment at 4 On the Bluff because the property is located on the northwest point of the Village which suffers worse storm impacts due to its location and has less protective beach elevations.  Petitioner’s property is located in the center along a “long stretch of unarmored coastal bank and the construction of a rock revetment along this section of coastline would result in erosion at the ends of the revetment which would be difficult to control.” Additionally, the Planning Board found that construction of hard structures, like revetments, reduce the resiliency of the coast and  adversely impact the shoreline resulting in increased erosion.  The Planning Board further found that nearby properties had success in preventing erosion using soft solutions such as vegetation and coir mats.

The Supreme Court, Suffolk County by Vincent J. Martorana, J.S.C., in its decision dated July 11, 2019, reviewed the standard of review in an Article 78 Proceeding as limiting the court review to whether the Planning Board decision was “arbitrary and capricious, or an abuse of discretion and further, whether or not it was rationally made based upon the facts before it.” The Court further noted the broad discretion afforded to Planning Board determinations. Since the Village of North Haven requires site plan approval for the revetment, even though its accessory to a single family residence, the Court relied on New York State Village Law §7-725-a authorizing the Planning Board to consider the impact of the proposed project on adjacent land uses (among others).  The Court’s reliance on New York State Village Law for its site plan standards in determining the authority of the Planning Board’s review in this matter is significant because the Village Code lacks specific standards for coastal structures such as revetments intended to alleviate erosion. Ultimately, the Court denied the Petition “in all respects” finding that the approval of the revetment at 4 On the Bluff was sufficiently distinguished and that “although differing expert opinions as to the necessity and possible deleterious effect of the proposed revetment were presented, ample evidence is contained in the record which supports the Board’s decision.” Petitioner is appealing the Court’s determination to the Appellate Division.