Haher's Sodus Point Bait Shop, Inc. v. Wigle , 139 A.D.2d 950 ( 1988 )

— Judgment affirmed without costs. Memorandum: The Zoning Board of Appeals of the Village of Sodus Point denied in part petitioner’s application for a special permit which would have allowed it to expand its commercial docking facilities and to continue certain uses of its present docking facilities. Special Term properly dismissed the petition seeking to annul that determination.

Petitioner’s argument that it had a preexisting nonconforming use of its docking facilities is without merit.

The zoning law concept of "nonconforming use” protects landowners who have vested rights to use their land in a fashion later prohibited by restrictive zoning regulations (1 Anderson, New York Zoning Law and Practice §§6.01, 6.02 [2d ed]). In this case, however, petitioner does not own the land upon which its docks are built; its deed recites that the boundary of its land is the shoreline. Its docks extend 1.6 acres over the water of Sodus Bay. The water belongs to the State of New York.

Petitioner could have acquired a proprietary interest in the land beneath the water if it had applied for and obtained an easement from the State Commissioner of General Services (see, Public Lands Law § 3 [2]). This it failed to do. In fact, petitioner was warned on several occasions by the Office of General Services that its existing dockage constituted an encroachment of approximately 1.6 acres on State-owned land underwater, and that its continued use would require an easement.

Nor did petitioner acquire any vested rights in the use of these docks because it and its predecessors in title obtained the necessary permits from the Army Corps of Engineers and the Department of Environmental Conservation. Each Federal permit specified that it "does not convey any property rights” and that the "permit does not obviate the requirement to obtain State or local assent required by law for the activity authorized herein”. The Department of Environmental Conservation permits allowing petitioner’s predecessor to build the first 150 feet of dockage provided that the granting of the permit "does not relieve the applicant from the responsibility of obtaining any grant or easement from the Bureau of Surplus Property of the Office of General Services which may be required for any encroachment on State owned lands underwater”. By their own terms, these permits did not convey any property interest and petitioner’s reliance upon them as an entitlement to an exemption from local regulation is misplaced (see, Matter of Rottenberg v Edwards, 103 AD2d 138).

Petitioner owns less than one-half acre of land adjoining Sodus Bay, with less than 75 feet of water frontage. Thus, petitioner is entitled to certain common-law riparian rights, including the right to construct a dock (Town of Islip v Powell, 78 Misc 2d 1007, 1013) and the right of "reasonable, safe and convenient access to the water for navigation, fishing and other uses as commonly belong to riparian ownership” (Tiffany v Town of Oyster Bay, 234 NY 15, 21). "The scope of what is a reasonable, safe and convenient use of the upland owner’s riparian rights has been gradually defined on a case-to-case foundation” (Town of Hempstead v Oceanside Yacht Harbor, 38 AD2d 263, 264, affd 32 NY2d 859).

Petitioner’s construction of commercial dockage over more than an acre and a half of public waters has exceeded the reasonable scope of the common-law rights it has acquired by virtue of its ownership of a small parcel of riparian land. The rights of riparian owners must yield to the State’s exercise of police power (New York State Water Resources Commn. v Liberman, 37 AD2d 484, 488, appeal dismissed 30 NY2d 516). In the case of underwater land bordering the Village of Sodus Point, the Legislature has seen fit to delegate its police power to the village by passing Navigation Law § 46-a (2).

In enacting the Dockings and Moorings Law, the Village of Sodus Point exercised its police power in a fair and reasonable manner. It was entirely reasonable for the village to identify the rapid and uncontrolled commercial development of waterfront property as an area of local concern. The record establishes that many owners of waterfront property were building commercial docking facilities for profit to the detriment of the local residents. The marinas were making public access to the bay more difficult, and inadequate parking facilities caused boaters to fill the municipal parking lot with their cars and boat trailers.

In our view, the determination of the Board of Appeals is amply supported by substantial evidence and is not arbitrary. This court’s review of such a determination is limited. Where there exists in the record conflicting evidence concerning the impact of a certain use, this court should not lightly substitute its judgment for that of the Board (Matter of Rottenberg v Edwards, 103 AD2d 138, 142-143, supra).

There was some evidence at the hearing that petitioner’s dockage was beneficial to the area because it kept down weeds and caused boaters navigating through the channel to reduce their speed. However, there was also evidence that petitioner’s present docks, before any proposed further expansion, jutted out so far into the navigational channel that boats navigating through the area were required to make a wide sweep around them into shallow water, creating a hazardous condition. In addition, several owners of neighboring riparian parcels voiced their opposition to any proposed expansion of petitioner’s facility, because petitioner’s docks would extend into the waters in front of their properties and interfere with their riparian rights, making it difficult if not impossible for them to expand their existing dock facilities and also conform with local regulation.

The action taken by the Board of Appeals reflects an appropriate balancing of the commercial interests of one landowner with the rights of all citizens to have access to the water, and the rights of the adjoining landowners to develop and enjoy their own facilities. Petitioner’s application was not denied in its entirety. It may continue to maintain two 150-foot docks and several smaller ones, providing revenues from slip rental as well as access from the water to the bait shop and restaurant. Petitioner may continue to operate a boat launch. Requiring petitioner to reduce the magnitude of its operation is not unreasonable.

Finally, the village’s approval of petitioner’s parking lot plan on a one-year basis was not arbitrary and should be upheld. Petitioner’s proposed solution to the parking problem resulting from its having only one available on-site parking space allocated specifically to accommodate boaters’ vehicles was to rent a lot in another part of town and provide a shuttle van to transport boaters to their boats on an "as needed” basis. It was brought out at the public hearing on this special permit request that there could be no guarantees that the boaters would use this parking lot. but, rather, they might continue to use the municipal lot and sometimes solve their parking problems by trespassing on the property of the other adjoining landowners. The Board’s action, giving petitioner a year to demonstrate the feasibility of its parking plan, is reasonable and should be upheld.

All concur, except Balio, J., who dissents and votes to reverse and grant the petition, in the following memorandum.