On May 1, 2024, the Appellate Division, Second Department unanimously affirmed the dismissal of an Article 78 Petition filed by two homeowners whose applications for seasonal floating docks were denied by the village board of the Village of Asharoken. The Village Code, adopted in 1992, originally banned all docks along a ¾ mile stretch of pristine beach known as the Ida Smith Beach, named after the person who took title to the beach following a grant in 1880 from the Town of Huntington. For more than 100 years, no docks were built along this area of the village.

In 1992, the village enacted a local law which expressly banned docks along the Ida Smith Beach, citing a number of justifications, including environmental, pollution, swimming, navigation, and aesthetics. This law was struck down because of a procedural defect in its adoption having nothing to do with the merits of the ordinance. In 1994, the village adopted a new dock ordinance which, although theoretically allowing dock permits to issue, placed the burden on applicants to show that their dock would not cause any of the harms cited in the 1992 ordinance. In addition, the ordinance made all dock applications along the Ida Smith Beach Type I actions for purposes of SEQRA, meaning that it was likely the docks would cause significant adverse impacts to the environment, and a Draft Environmental Impact Statement would more than likely be required.

The 1994 ordinance created an Environmental Review Board to hold hearings on dock applications and to make recommendations to the Board of Trustees. When someone who had been on the committee that recommended the ordinance adopted in 1994 was asked why the village did not simply ban all docks again, he responded that they did not think anyone would try and get a dock permit.

That held true until 2015 when two property owners along the beach submitted dock permit applications. The Environmental Review Board held five public hearings over the course of two years. The Asharoken Bayside Association (“ABA”), consisting of almost all the other property owners along Ida Smith Beach, was formed to intervene in the hearings to oppose the applications. They retained Frederick Eisenbud, Chair of the Environmental and Land Use practice group at CMM, and Ron Abrams, Ph.D., a wetlands expert, to represent them. As a result, a complete record was created which essentially showed that it was impossible for the applicants to prove that none of the six express factors that had to be considered by the ERB and Board of Trustees would arise from approval of the dock permit applications. If the applicant for a dock permit could show the proposed dock would not cause any of the harms set out in the ordinance, the permit still had to satisfy objective criteria for the docks themselves.

The applicants argued that their applications met the objective criteria for docks, and their common law riparian rights mandated that they be granted permits, even if some of the adverse impacts set out in the ordinance would be created. A riparian owner has the right of reasonable, safe and convenient access to navigable water, and this right ordinarily includes the right to make this access a practical reality by building a pier or wharfing out. The applicants in this case assumed their riparian rights were absolute. In 2017, however, the Board of Trustees unanimously adopted the recommendation of the ERB, which voted, 4-3, against approving the docks, and thus denied the permit applications.

The applicants then filed an Article 78 Petition to challenge the denial of their permits. The ABA, concerned that only they, and not the village, had argued that riparian rights were not absolute, again retained Eisenbud to intervene in the Article 78 Petition to support the dismissal of the challenges to the denial of their permits. Eisenbud prepared the ABA’s opposition, and in 2019, the Supreme Court, Suffolk County, dismissed the challenge to the dock permit denials. In part, the lower court found that “Riparian rights are not unfettered and must yield to the legitimate governmental exercise of police power. Specifically, the right of access for navigation and the right to make a landing, wharf or pier for one’s own use or for the use of the public, are subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be.”

The Appellate Division affirmed. Eisenbud, with the assistance of CMM Senior Associate Richard DeMaio, were retained by the ABA to represent their interests as intervenors on appeal to make certain all arguments which would support the lower court’s dismissal would be raised. First, the Appellate Division held that the ERB’s recommendation and the Board of Trustees denial of the permits were not arbitrary or capricious because they were supported by express criteria in the ordinance. Then, they rejected the applicants’ riparian rights argument, finding that “The board’s determinations also did not violate the petitioners’ riparian rights, as the board’s determinations enforced the Village Code, which constituted a reasonable restriction of those rights.” The ordinance expressly found there were reasonable alternatives to building docks which would permit property owners along Ida Smith Beach to access navigable waters, such as using row boats to access boats that are moored off-shore, or taking advantage of the many marinas nearby.

Important Take-Aways from the Akeson v. Village of Asharoken Case

  1. Opposition to applications can be very expensive and time consuming. As soon as an application one finds objectionable becomes known, a homeowner impacted by the application should contact as many neighbors as possible who also may be adversely impacted to determine whether they would be willing to form a group to oppose the application, and share the costs. That will require a hard look at whether the impact granting the permit will have on neighbors is severe enough that the expense of opposition is warranted. In this case, not only was an environmental attorney needed, but an expert on wetlands was required as well to oppose the arguments raised by the applicants’ attorney and expert. Hearings before the ERB went on for two years (2015-2017); it took another two years for the legal challenge to the denial of the permits to be determined (2017-2019); oral argument on the appeal from the lower court’s determination was not heard until Nov. 2023; and the appeal was not decided until May 2024 (almost five years after the lower court decision was appealed). Hopefully, the applicants will not ask New York’s highest court to accept the case for review, but if they do and the Court accepts the case, yet more time and money will be required before a final decision is reached.

  2. Not every case is worth the time and expense assumed by the ABA to oppose the dock permit applications here. Approval of the dock permits would have created a precedent that ultimately would have destroyed the pristine beach to the detriment of the people who had the absolute right to traverse the shore between low and high tide, as well as the aesthetic value of the view of the beach not only from the homes of residents on the beach, but for all those who drive by the beach along an elevated roadway looking down on the beach as well. 

  3. Critical to the success of CMM’s representation of the ABA was their retention at the outset of the ERB’s public hearings. Article 78 Petitions challenging administrative decisions can only be based on the record before the agency. If arguments are not made, or documents or photographs are not presented, they may not be considered by the Court. The rationale is that the agency making the determination must be given the opportunity to consider all arguments for and against the application before a court may consider a legal challenge to the determination.  Give your legal representative the opportunity to make a record that will support the outcome you want to achieve.

  4. With the lower court’s decision in this case, and the Appellate Division’s decision affirming the dismissal of the challenge to the denial of the dock permits, the Village of Asharoken should consider amending its dock ordinance to once again ban all docks between the docks that pre-existed the ordinance which are located at the ends of the crescent of beach. All the reasons set out in the ordinance for regulating dock applications along the Ida Smith Beach would also support an ordinance that bars new docks altogether. The time and enormous expense incurred by the two applicants here very likely will deter anyone else from applying for a dock permit along the Ida Smith Beach.  But why take the chance – change the ordinance and ban new docks outright so Ida Smith Beach will be forever preserved.