Legal Hiccup Briefly Threatens 2 West Water Street Approvals

The waterfront at 2 West Water Street. Peter Boody photo

As recently as mid-July, a jurisdictional question threatened to impose one more regulatory hurdle on developer Jay Bialsky’s 2 West Water Street condo project just when it seemed he was ready to begin work after years of review by multiple government agencies.

In the end, some legal sleuthing provided a path around the surprise obstacle.

The attorney for the Southampton Town Trustees, who claim ownership of all the town’s ponds and bay bottoms on the basis of a colonial patents issued in the name of the King of England by the royal governor of New York, on July 9 wrote the attorney for the Harbor Committee of Sag Harbor — which in April had granted a wetlands permit the project’s bulkhead and its dock — to assert the Town Trustees’ authority over “any construction taking place within Sag Harbor Cove seaward of mean high water, including the proposed dock at 2 West Water Street.”

The dock by then had approvals from the state Department of Environmental Conservation, the Army Corps of Engineers, and the village Planning Board. The Trustee’s attorney, Assistant Southampton Town Attorney Martha Reichart, also by then had already written Mary Ann Eddy, chair of the Harbor Committee, to warn that the Town Trustees had authority over the cove.

Ms. Eddy passed that email on to Denise Schoen, the attorney for the Harbor Committee who now serves as village attorney for Sag Harbor. Ms. Schoen wrote Ms. Eddy that the committee had “reviewed this issue at least four or five times in the 10 years this has been pending and none of the title searches, surveys, or any documents ever submitted showed Trustee ownership.”

Ms. Eddy passed that reply to Ms. Reichart, who in response wrote a long email to Ms. Schoen on July 9 giving the history of the Town Trustees’ authority dating back to the Dongan Patent of 1686. “I’m not surprised title work did not reveal the Trustees’ ownership of the bottom lands located in the Southampton portion of Sag Harbor village, including Sag Harbor Cove,” she wrote. “Title work usually starts from the present and works its way backwards, whereas with the Trustees you have to start at the beginning with the colonial patents and move forward.”

She also asserted that the village of Sag Harbor’s jurisdiction “is limited to its territorial limits,” which she said did not include any underwater lands when it was determined in 1846 by the state. “That means anything seaward of mean high water is beyond the village’s regulatory authority,” she asserted.

On July 16, Ms. Schoen wrote back that it’s “simply not true” that Sag Harbor had no authority over its pond and bay bottoms. She noted that the village has a Harbor Management Plan and a Local Waterfront Revitalization Plan, approved by the state and giving the village jurisdiction out to 1,500 feet from shore.

“If this was not the case,” she wrote, “we would have wasted a lot of time over the last 15 years reviewing wetlands permits” for proposed waterfront houses with docks.

As for the Trustees’ claim of jurisdiction over the bottom of Sag Harbor Cove, Ms. Schoen wrote, the State of New York in the 19thcentury granted a patent for the bay bottom off 2 West Water Street to the Long Island Rail Road, whose Sag Harbor spur ran along the shoreline to its terminus at Long Wharf. The proposed condo dock, Ms. Schoen noted, will be built where the original wooden bridge to North Haven used to make its landfall in Sag Harbor.

In her reply, Ms. Reichert acknowledged she had been unaware of both Sag Harbor’s LWRP giving it jurisdiction to 1,500 from the shoreline and of the 1888 patent the state granted the LIRR. She noted that her research, following receipt of Ms. Schoen’s email, showed that the line of the original North Haven bridge still marks the shoreward limit of state jurisdiction over the bottom.

She asked that the Trustees be included in the conversation as the village updates its LWRP and its Harbor Management Plan. She also asked that Mr. Bialsky be required to grant a covenant promising that no chemically treated lumber will be used on the dock.

His attorney, Brian DeSesa, wrote Ms. Reichert that Mr. Bialsky agreed to add “this additional covenant if not already covered to the Trustees’ satisfaction in the previous approval”; and Ms. Schoen wrote that collaboration with the Trustees on the LWRP update and Harbor Management Plan “will be welcome.”