Brookhaven Baymen's Assn., Inc. v Town of Southampton

[*1] Brookhaven Baymen's Assn., Inc. v Town of Southampton 2009 NY Slip Op 51816(U) [24 Misc 3d 1239(A)] Decided on August 21, 2009 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2009
Supreme Court, Suffolk County

Brookhaven Baymen's Association, Inc., Florence Sharkey, Paul Sharkey, Frank Urban, and Charles Prott, Plaintiffs,

against

Town of Southampton; Linda A. Kabot, Supervisor; Nancy S. Graboski; Christopher R. Nuzzi, Anna Throne-Holst and Sally G. Pope collectively, comprising the Town Board of The Town of Southampton; and Fred Havemeyer, Jon S. Semlear, Eric Shultz, Brian Tymann and Edward J. Warner, Jr., collectively, comprising the Trustees of the Freeholders and Commonalty of the Town of Southampton, Defendants.



09-4244



J. Lee Snead, Esq.

Attorney for Plaintiffs

155-C South Country Road, 2nd Floor

P.O. Box 489

Bellport, New York 11713

Daniel L. Adams, Town Attorney

By: Joseph Lombardo, Esq.

Attorneys for Defendants

116 Hampton Road Southampton, New York 11968

Peter H. Mayer, J.

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that plaintiffs' motion for a preliminary injunction is denied; and it is further

ORDERED that defendants' cross- motion is granted.

Plaintiffs Brookhaven Baymen's Association, Inc. ("the Association"), Florence Sharkey, Paul Sharkey, Frank Urban, and Charles Prott have moved, by order to show cause, for a preliminary injunction enjoining the enforcement of certain local laws and regulations enacted, respectively, by defendants, the Town of Southampton ("the Town" or "Southampton"), the Town Board of Southampton ("the Town Board"), and the Trustees of the Freeholders of the Commonalty of the Town of Southampton ("the Trustees"). The individual plaintiffs have each supplied an affidavit in support of the request for injunctive relief. Defendants oppose the motion and have cross-moved, pursuant to CPLR 3211(a)(7), for an order dismissing plaintiffs' underlying complaint. Plaintiffs have submitted an affirmation in opposition to the cross- motion and defendants have replied and, with permission of the court, also submitted a supplemental reply affirmation. Both sides have provided memoranda of law.

Plaintiffs seek, by their underlying action, an order declaring Southampton Local Law No. 21-2008 unconstitutional, void, and unenforceable inasmuch as it purports to render the Rules and Regulations for the Management and Products of the Waters of the Town of Southampton ("Rules and Regulations") enforceable and enjoining the Town from enforcing Town Code §111-37 as it relates to persons engaged in fishing, crabbing or conching pursuant to the Environmental Conservation Law ("ECL") Articles 11 and 13; declaring Southampton Local Law No. 21-2008 unconstitutional, void and unenforceable against persons engaged in commercial marine fishery pursuant to ECL Articles 11 and 13 due to alleged preemption by said articles; declaring Town Code Chapter A340 void and unenforceable inasmuch as it was not promulgated by the Town Board in violation of the New York State Constitution, Municipal Home Rule Sections 10 and 20, Town Law Section 130 or Town Code Section 36-1 and permanently enjoining the Town from enforcing Town Code Chapter A340 as it relates to persons engaged in fishing, crabbing or conching pursuant to ECL Articles 11 and 13; declaring Town Code Chapter A340 void and unenforceable against persons engaged in commercial fishery pursuant to ECL Articles 11 and 13 due to alleged preemption of the Rules and Regulations by said articles and permanently enjoining the Town from enforcing Town Code Chapter A340 as it relates to persons fishing, crabbing, or conching pursuant to ECL Articles 11 and 13; declaring Town Code Chapter 278 as it relates to the licensure, method of taking, [*2]certification of lands for the taking, management zones, limits, penalties and enforcement thereof void and unenforceable against persons engaged in marine fishery for crabs, shrimp, conches or whelks pursuant to ECL Articles 11 and 13 due to alleged preemption by said articles and permanently enjoining the Town from enforcing Town Code Chapter 278; and declaring the entirety of the Rules and Regulations void and unenforceable in criminal court.

The individual plaintiffs are commercial fishermen: Florence Sharkey is president of the Association and Paul Sharkey is a member of the Association; Frank Urban and Charles Prott are not members of the Association. All plaintiffs, by their affidavits, allege, among other things, that their efforts to ply their trade have been severely restricted by the aforementioned regulations and laws enacted by the Trustees and the Town. They contend that their purpose in fishing in the Town is to obtain finfish, crabs and conchs, not shellfish. None of the plaintiffs are residents of the Town.

The Town Board is comprised of five members, four councilpersons and a supervisor. The Trustees are comprised of five members whose authority derives, according to defendants' submissions, from a charter or patent known as the Dongan Patent granted by the King of England in the seventeenth century. Among the rights accorded the Trustees was title and interest over the waters of the Town. Later, sole control over the management of the fisheries, water and production of the waters was deemed to lie with the Trustees (see Town of Southampton v Mecox Bay Oyster Co., 71 Sickels 1, 14, 22 NE 387 [1889]). On October 6, 2008, the Trustees adopted a resolution amending the Rules and Regulations by, among other things, allowing only residents of the Town to be eligible to be issued a shellfish permit. Plaintiffs claim this denial is unconstitutional, that they have been denied the right to engage in commercial fishing by virtue of their status as nonresidents, and that they face the specter of criminal prosecution should they disobey the Rules and Regulations. Article X of the Rules and Regulations, titled "Penalties and Violations," articulates the fines which may be recovered in a civil action for violation of the provisions of the regulations. The Rules and Regulations were annexed as an appendix to the Town Code and titled Chapter A340. The Town thereafter adopted an amendment to Town Code Section 111-37 by Local Law No. 21-2008 which states that: "Every person shall comply with the regulations as provided in the Rules and Regulations for the Management and Products of the Waters of the Town of Southampton promulgated by the Board of Trustees of the Freeholders and Commonalty of the Town in all respects." Town Code §111-30 (C) prohibits digging, dredging or otherwise changing the bottom of any waters in the Town without first obtaining a permit from the Trustees. Town Code §111-39 (2) makes a second violation of §111-30, titled "Construction in and Adjacent to Town Waters and Beach Areas," an unclassified misdemeanor.

Plaintiffs assert that the Town, as a municipal corporation, derives its authority to make law from the New York Constitution Article IX § 2( c)(I), which permits local governments to adopt and amend local laws which are not inconsistent with the general law. ECL articles 11 and 13, plaintiffs contend, are "general laws" which preempt the challenged local legislation. [*3]

Defendants contend, as a threshold matter, that the re-publication of the Rules and Regulations as an appendix Chapter A340 to the Town Code was never intended to be an enactment by the Town of those regulations as claimed by plaintiffs. Defendants also argue that neither the Town Law nor the Municipal Home Law are applicable to the process by which the Trustees adopt the Rules and Regulations and point to the express language of each. The Town Law defines a "town" as "a municipal corporation comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been, or may have be conferred or imposed by Law" (Town Law § 2), and the Municipal Home Rule Law in defining a "local law" specifically excludes from such definition ". . . an ordinance, resolution or other similar act of the legislative body or any other board or body" (Municipal Home Rule Law § 9). Further, as to the enactments themselves, it is argued that the Trustees were acting within the scope of their authority as the titled owner of the waters in regulating its use including denying permits to those not living within the Town to fish for clams and other shellfish.

Plaintiffs claim, nevertheless, that the Town Local Law No. 21-2008 cannot be used to enforce the Rules and Regulations, because the Town did not adopt the Rules and Regulations in the first instance and that the Town has failed to provide any authority to show that it can pass local laws to enforce the Rules and Regulations through Town Code §111-37. Plaintiffs also contend that the Rules and Regulations are preempted by the ECL. Specifically, plaintiffs point to ECL §11-0303(1) which "vest[s] in the department . . . the efficient management of the fish and wildlife resources of thestate . . ." In support, plaintiffs point to State v Trustees of the Freeholders and Commonalty of the Town of Southampton, 144 Misc 2d 317 [1982]).

State v Trustees, however, was reversed by the Appellate Division, Second Department, which recognized that the ECL specifically exempted from State ownership shellfish which are legally acquired and held in private ownership and found, in pertinent part that ". . . absent some countervailing consideration, the State may not interpose legislation in issue here upon the Town of Southampton." (State v Trustees of the Freeholders and Commonalty of the Town of Southampton, 99 AD2d 804, 805 [1984]). Thus the State does not preempt the right of defendants, as trustees of certain lands and waters of the Town, with respect to their authority to regulate. Here defendants do not seek to prevent plaintiffs from capturing crabs and conch. Nor is it the intention of the Town to regulate migratory finfish. The problem, according to the Town, lies with efforts to capture such fish in a manner which would disturb the bay bottom. By their nature crab and conch tend to be bottom dwellers and the methods used to capture them generally involve mechanisms which drag upon the bottomland. The Trustees own the bottomland and, therefore, it is claimed, are entitled to regulate the manner in which it is used.

Both plaintiffs and defendants point to Hassen v Town of East Hampton, 500 F. Supp. 1034 (1980) in support of their respective positions concerning the constitutionality of a residential restriction on the taking of shellfish. However, as noted by defendants, the Hassen court found that a residency requirement of one year imposed by a shellfish ordinance promulgated by the Town of East Hampton impermissibly penalized the right to travel. The [*4]court specifically declined to address a "non-durational residency requirement" (Hassen at 1041), but nonetheless reiterated the long-held legislative posture which "has clearly and specifically delegated regulatory power over the taking of shellfish to towns which own the underwater land within their borders." (Hassen at 1037).

The Town notes that it is without authority to enact Rules and Regulations and the Trustees are without authority to enact local laws, but claims that it is empowered, by the provisions of Town Law 130, to assist the Trustees by ensuring their regulations are effectively enforced, which in this instance, was accomplished by enacting Local Law No. 21-2008. The Town also notes that the annexation of the Rules and Regulations to the Town Code as Chapter A340 is of no moment and, standing alone, is unenforceable by the Town. It is simply provided as a point of reference for the enforcement provisions actually enacted by the Town in the form of Local Law No. 21-2008. Plaintiffs, by their reply, point to what they allege is the logical inconstancy of defendants position: If the Town did not enact the Rules and Regulations at issue, how is possible then to enforce those Rules and Regulations? A review of the relevant statute is instructive.

Town Law 130(18)(a)(2) accords a town board authority with respect to "[r]egulating the taking and the manner of taking clams, oysters, scallops and other shellfish from the lands of or from waters over the lands of the trustees of the freeholders and commonalty of a town in which such trustees are vested with title to such lands and the right to fishing, provided that such trustees shall file with the town clerk an application in writing therefor." That is precisely the method employed by the respective defendants in this instance. Each acted in accordance with its authority and deferred to the other as to subjects beyond their purview in the manner prescribed by statute.

The Town enacted Town Code Chapter 278 titled "Shellfish" which regulates the cultivation and harvesting of shell in its navigable waters. Such authority derives from the Town's status as sovereign to exercise authority over the waterways within its territorial limits (see Incorporated Vil. of Manorhaven v Ventura Yacht Servs.,166 AD2d 685 [1990]). Although the State has, as plaintiffs note, the prerogative to regulate the right to fish for migratory marine fish, the Town retains the right to regulate, as it does by the challenged legislation here, the cultivation and harvesting of shellfish (see Melby v Duffy, 304 AD2d 33, 37 [2003]).

Plaintiffs also offer contradictory descriptions as to the Trustees, identifying them alternatively as a body politic and a private organization. The fact that the Trustees constitutes a body politic has long been established and bears no further discussion here (see People v Miller, 235 AD 226 [1932]).

CPLR § 3211(a)(7) states that "[defendants] may move to dismiss one or more of the causes of action asserted against [them] on the ground that the pleading fails to state a cause of action." Where evidence is submitted by movants in support of a motion pursuant to CPLR § [*5]3211(a)(7), the court must determine whether the proponents of the pleadings have a cause of action, not whether they have stated one (see Columbo v Chase Manhattan Automotive Fin. Corp. 297 AD2d 327 [2002]). On a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must determine whether, accepting as true the factual averments of the complaint, andaccording plaintiffs the benefit of all favorable inferences which may be drawn therefrom, the plaintiffs can succeed upon any reasonable vew of the facts stated (see Thoubboron v Convery, 306 AD2d 521 [2003]). Applying these principles to the matter at hand, as noted, infra, plaintiffs have failed to demonstrate that they can succeed as to their underlying complaint upon any reasonable view of the facts stated. Here, defendants have challenged the claims asserted by plaintiffs and effectively prevailed, as a matter of law, as to the overarching claim of unconstitutionality asserted. Accordingly, based upon the foregoing, plaintiffs request for relief is denied and defendants request for dismissal is granted.

Dated: August 21, 2009

PETER H. MAYER, J.S.C.