People v Lagana

[*1] People v Lagana 2005 NY Slip Op 50095(U) Decided on January 14, 2005 Justice Court Of East Hampton, Suffolk County Rana, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 14, 2005
Justice Court of East Hampton, Suffolk County

PEOPLE OF THE STATE OF NEW YORK, TOWN OF EAST HAMPTON, Plaintiff,

against

JOHN R. LAGANA, Defendant



M1724

Lisa R. Rana, J.

Defendant John Lagana has been charged with two violations of Section 246-12B of the Code of the Town of East Hampton ("Town Code") for unlawfully operating a water scooter within the waters of Three Mile Harbor and Hog Creek Harbor in the Town of East Hampton. Section 246-12B of the Town Code, enacted by the Town Board of the Town of East Hampton (hereinafter "Town Board"), on October 7, 1988, provides in relevant part that "[n]o person shall operate a water scooter in any harbor or designated bathing beach located within the Town of East Hampton."[FN1] There have been a series of four motions filed on behalf of the Defendant to dismiss the summonses that were originally issued against him on June 26, 2000 and August 19, 2001. The latest motion, now before me, was originally filed on August 4, 2003. Said motion was denied by former Town Justice Walker on September 19, 2003 as untimely. On March 26, 2004, defendant filed a motion to reargue the dismissal. Permission to reargue has been granted by this Court.

Defendant argues in the instant motion that the Town Board lacked the authority to enact section 246-12B of the Town Code because the authority to regulate the use of certain waters located within the Town of East Hampton lies exclusively with the Trustees of the Town of East Hampton (hereinafter the "Town Trustees") pursuant to the authority granted by the Dongan Patent. The Town of East Hampton has argued that while the Dongan Patent conferred proprietary rights upon the Town Trustees, the Town Board has the sole authority pursuant to Section 130 of the New York State Town Law to exercise general police powers. The Town Trustees filed an amicus curae brief wherein they have argued that the Town Board could not have enacted Section 246-12B of the Town Code without the prior consent of the Town Trustees. It is conceded by all parties that such consent was not obtained prior to the enactment of the water scooter prohibition by the Town Board.

The Dongan Patent and Town Trustees

The Dongan Patent was executed by Governor Thomas Dongan of the Colony of New [*2]York, under authority conferred upon him by King James II of England, on December 9, 1686. This Patent ratified a 1666 grant of lands forming the easternmost part of Long Island, generally equivalent to the lands and interior waterways now within the Town of East Hampton, to the Town Trustees. The Dongan Patent granted to the Town Trustees "all privileges belonging to a Town within this Government", including the right to maintain a seal, and the right to commence and/or defend actions in a court of law. The Dongan Patent also provided for electing successors to the then existing Trustees, and authorized the Trustees to meet "for the more orderly doing of the premises of the said trustees . . . so always as the said acts and orders being no ways repugnant to the Laws of England and this Province." Trustees are elected to two year terms by the voters of the Town of East Hampton pursuant to State Law.

The rights established pursuant to the Dongan Patent was affirmed in the first Constitution of the State of New York enacted in 1777, which adopted and accepted Charters executed by the various Kings of England prior to independence. Later courts have recognized the rights and powers of the Town Trustees to hold certain lands, including lands and waters within the Town of East Hampton, "in trust for the people of East Hampton" pursuant to these Patents. See Hassan v. Town of East Hampton, 500 F. Supp. 1034, 1036 (E.D.NY 1980). Indeed, for more than three hundred years the proprietary rights granted by the Dongan and other patents to trustees in various towns to "legislate and control as a body politic" have been repeatedly affirmed. See, e.g., State v. Trustees of the Town of Southampton, 99 AD2d 804, 472 NYS2d 394 (2d Dep't 1984). These Patents conferred more than mere property rights upon the trustees; they vested upon the trustees the authority to do that which a government may do for its people. See People ex rel. Howell v. Jessup, 160 NY 249, 259 (1899).

The lands and waters under the jurisdiction of the Town Trustees generally include the lands under various harbors within the Town, including Three Mile Harbor and Hog Harbor. A review of the various minutes of the Town Trustee proceedings indicate that actions taken by the Town Trustees include establishment of criteria for removing shellfish (See Minutes of Town Trustees, at 262 ff, August 4, 1936); recommending ordinances for obtaining shellfish permits, such as residency requirements, on advice and consent to the Town Board (See Hassan, supra ); and approving permits for docks within the harbors under the Trustees' jurisdiction (See Trustees v. Bienstock, (unreported), Sup. Ct. Suffolk County (1985), aff'd, 507 NYS2d 834 (2d Dep't 1986)).



The Town Board

The Town Trustees, who have received their authority through the Dongan Patent, exist separately from the Town Board, which was created by the New York State legislature under constitutional authority. In 1909, the legislature enacted the Town Law, as authorized pursuant to Article IX of the New York State constitution, to confer upon local governments powers with respect to the regulation of the health, safety and well-being of its citizens. Section 130 of the New York State Town Law cedes certain rights and responsibilities to Town governments, including rights that may generally be characterized as police and other regulatory powers. Within the Town of East Hampton, these powers have been granted to the Town Board. Such powers are delineated in the Town Law and include the powers to protect public safety through [*3]the enactment of building, plumbing, electrical and housing codes, fire prevention measures, and the regulation of construction. N.Y.S. Town L. Sec. 130. In one specific instance, the regulation of the taking of shellfish from certain waters, the Town Law acknowledges the role of Town Trustees to provide advice and consent to the Town Board.[FN2] Where Town Boards and Town Trustees exist side by side, as they do in the Town of East Hampton, the courts have recognized that these independent bodies have a unique relationship, which may be defined in a very limited extent by statute, but which also have been defined by the courts. See Hassan, supra . The Town Board and Town Trustees have also operated pursuant to an "advice and consent" relationship over the years in matters relating to access and use of Trustee managed lands and waters. This relationship has extended beyond the limited matters specified in Section 130(18) of the Town Law. See, e.g., Town of East Hampton v. Miller and Saskas (East Hampton Justice Court, 1990) ("The 'advice and consent' relationship employed successfully with respect to . . . harvesting of shellfish . . . must also be utilized to legally enact access and use restrictions for preservation of beaches"). This relationship has been described as one in which the Town Board has "general authority" within its geographic borders while the Town Trustees have "specific authority" within the lands and waters that have been entrusted to it pursuant to the original Patents. It is nonetheless evident from the memoranda filed in this action, the matters within the jurisdiction of the Town Trustees and Town Board, respectively, has been less than unambiguous.

Interrelationship Between the Town Board and the Town Trustees



According to the attorney for the Town of East Hampton, The Town Board enacted the subject ban on the use of water scooters within in waterways pursuant to its authority to regulate public health and safety. In particular, the Town articulated a concern that the use of such devices, particularly in shallow waters or where there are bathers present, could create a potential danger to scooter users and swimmers. As such, the Town Board was led to enact the legislation "to protect the health, safety and welfare of the East Hampton community." Affirmation of Gary N. Weintraub, Special Town Attorney, at para. 2. In addition, the Town also noted that these vessels created an additional hazard since they were often operated in shallow waters, posing a threat to shellfish and finfish.

The Town Trustees do not dispute the rationale proffered by the Town Board as a legitimate regulatory purpose, but rather, rely upon the authority set forth in the Dongan Patent and cases interpreting this grant of power to the Town Trustees, to submit that their consent was required prior to enactment of the legislation. Indeed, it appears that subsequent to the enactment of this ordinance, the Town Trustees were presented with a restated series of ordinances that included this ordinance, for ratification (Resolution No. 750, dated June 5, 2003). This action, the Trustees and Defendant argue, demonstrates that the Town Board acknowledged that the advice and consent of the Trustees was required prior to enactment of the ordinance.

The lawfulness of an ordinance enacted by the Town Board, restricting activities within lands under the jurisdiction of the Town Trustees, has been addressed in 1990 by the East Hampton Village Court in Town of East Hampton v. Miller and Town of East Hampton v. Saskas. Defendants in these cases were charged with operating a vehicle on a beach without a proper permit in violation of a provision of the Town Code, enacted by the Town Board without the advice and consent of the Town Trustees. The court declared the ordinance unlawful. In its decision, the court acknowledged that the Town Board is the governmental body with the authority to enact local laws and ordinances. The court also acknowledged that the Trustees have "proprietary rights" over certain lands pursuant to the Dongan Patent. The court agreed with the Trustees that the rights granted under the patents "far exceeds the limited rights of a private individual", and it is the Trustees, and not the Town Board that may limit access and use of Trustee lands. Any ordinance limiting such access or use, without the consent of the Trustees, is not enforceable within Trustee lands.

While the Town Attorney argues that the rights of the Trustees are limited to those enumerated in State law, such as providing advice and consent on the collection of shellfish [NY Town L. Sec. 130(18)], the courts have gone further in acknowledging that the Dongan Patent confers additional common law rights upon the Town Trustees. For example, the Miller and Saskas decision is consistent with the Town Trustees' and Defendant's position that Trustee rights are not merely proprietary; nonetheless, even in this action the court recognized that these rights are not absolute. The court noted that there is no such thing as a "'no man's land' . . . where duly enacted laws designed to protect life and property are not enforceable." The court further noted that an ordinance that "prohibits 'malum in se' activity" would be a legitimate exercise of police powers by the Town Board. It is the Town Board, not the Trustees, that "exercises the police powers of government". Id. It is evident that the Dongan Patent, as applied today, cannot be used by the Town Trustees to supplant general powers that are held by the Town Board, even within lands that are the subject of the Patent.

Accepting the Town Board's articulated rationale for the enactment of the ordinance, it is clear that the watercraft restriction ordinance was intended to protect public health and safety, as well as the environment, as an ordinance of general applicability, and was not an ordinance designed to limit access to, or use of Trustee lands. It is undisputed that the Town Board has general police powers throughout the Town, including the lands administered by the Trustees, to protect the public welfare. The instant ordinance, as a regulation designed to promote public safety, is a proper exercise of police powers conferred upon the Town Board.

The holding in this case is not inconsistent with any of the authorities cited by the Defendant or the Town Trustees. Cases such as State v. Freeholders of the Town of Southampton, 99 AD2d 804, 472 NYS2d 394 (2d Dep't 1984), and Howell, supra , deal with the relationship between State and local governments. Bienstock, supra , and Town of Southampton, supra , hold that local town boards could enact ordinances regulating the use of lands and facilities within areas under the jurisdiction of Town Trustees. None of these cases limit the powers of a Town Board to exercise its police powers within its jurisdiction. Likewise, cases cited by defendant and the Trustees affirm the rights of Trustees to regulate use and access [*4]within the trust lands; however, none of these decisions can be construed to hold that the Trustees have been given the authority to exercise general police powers. In People v. Levy (unreported decision) (Appellate Term 1991), which the Defendant relies upon to support its notion that the Town Trustees possessed regulatory powers, the court upheld the Town Trustees authority to regulate land use on trust property, through restricting the construction of a dock. This case did not hold that Town Code provisions of general applicability do not apply to trust lands. Indeed in Miller and Saskas, the court noted that the ordinance which it invalidated was in essence a "licensing statute that purports to control vehicle access" on Trustee managed lands. In the instant matter, the ordinance does not purport to license water scooters, but rather, to limit their use for the purpose of protecting public safety, consistent with the general police powers held by the Town Board.

Inasmuch as the Town Board has articulated a purpose for the enactment of this ordinance, which is consistent with the general public safety purposes authorized pursuant to Section 130 of the Town Law, it is the opinion of this court that such an ordinance is applicable in lands and waters under the property obtained by the Town Trustees pursuant to the Dongan Patent. The Defendant's motion to dismiss two summonses is DENIED.

This is the Decision and Order of the Court. Dated: January 14, 2005 East Hampton, NY ________________________ Lisa R. Rana East Hampton Town Justice

Footnotes

Footnote 1: A water scooter is defined in part as a "vessel which . . . is designed to be operated by a person sitting, standing, kneeling on or being towed behind the vessel rather than in the conventional manner of sitting or standing inside the vessel." Town Code Sec. 246-1. Defendant has not argued that the vessel he was operating when issued the instance summonses does not fall within the definition of a water scooter.

Footnote 2: N.Y.S. Town L. Sec. 130(18) provides that a Town Code shall be enacted only after the trustees have filed an application for such regulation.