ANNULLING A permit issued to rebuild a house on a Fire Island dune
that had washed away in 1992, a state judge has ruled that the Islip
town board improperly delegated environmental and sanitation issues to
other agencies and said it must consider an environmental impact
statement before voting on the permit.
The decision is on page 34, column 5.
Justice Marquette L. Floyd last month in Feder v. McGowan,
filed in Supreme Court, Suffolk County, granted the Article 78
petition filed by Jerome Feder and remanded the request for a special
use permit from Mr. Feder's neighbor, Gary Dartnall, who wants to
build a new house on the dune in Fair Harbor, to the Town of Islip
Board for the preparation of an environmental impact statement (EIS)
and a complete review.
The proposed house is to be some 80 feet from the Atlantic Ocean
with a deck and walkway extending oceanward more than 25 feet. Mr.
Dartnall's residence was destroyed when the dune was eroded by storms
and flooding in late 1992.
Justice Floyd noted that the 1993 restoration of the dune was
projected to have a life expectancy of only 10 years before 95 percent
of the sand is expected to be lost through erosion.
The town, the lead agency for this application, had not required an
environmental impact statement, but it had considered information
submitted in a long-form environmental assessment form. The board had
not made a positive or negative determination of environmental effects
of the project. A positive declaration would have triggered the
requirement to prepare an EIS under the Environmental Quality Review (SEQRA)
provisions of New York's Environmental Conservation Law.
The board incorrectly reviewed Mr. Dartnall's request as simply a
zoning application, the judge said. The town supervisor commented at
the hearing before the permit was approved on Dec. 12, 1996, that the
county's Health Department and state Department of Environmental
Conservation had issued permits for the construction, and therefore,
"we're here just to see ... if this house can be fit on that plot of
land."
The board's reliance on the permits issued by other agencies to
determine the environmental issues was inconsistent with the lead
agency's obligations under SEQRA, Justice Floyd said. Furthermore, the
town board had proceeded as though it had declared that the project
would have no negative impact on the dune's environment but it had not
rendered a "reasoned elaboration" for such a determination, he said.
The town board had ignored "potential significant adverse impacts,
among these, in particular, the effect of the proposed septic system
in the site," the judge added. The proposed construction may have a
significant effect on the environment and thus an EIS was necessary,
he said.
Mr. Feder was represented by Jaspan Schlesinger Silverman & Hoffman
of Garden City. Mr. Dartnall, a Los Angeles resident, appeared pro se,
and Vincent J. Messina, the town attorney, represented the Town Board.
Source: The New York Law Journal
