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Tryniszewski v. Agius (Brown's Beach Marina) - Ruling, May 19, 1999

Ruling, May 19, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
on behalf of the
STATE OF NEW YORK : OFFICE OF GENERAL SERVICES

In the Matter of:

Tryniszewski v. Agius
Brown's Beach Marina, Saratoga Lake
Town of Stillwater, Saratoga County, New York

Case No. 491-97-017

Pursuant to Article 3, Section 32 of the Navigation Law
of the State of New York and of Part 274 of Title 9 of the Official Compilation of
Codes, Rules and Regulations of the State of New York ("9 NYCRR")

RULINGS
OF THE
ADMINISTRATIVE
LAW JUDGE

Background

This action began with a Complaint in the summer of 1997 to the State of New York Office of General Services ("OGS") by David J. Tryniszewski ("Complainant") regarding the alleged placement of docks in the navigable waters of the State so as to interfere with his free and direct access to such waters.

Pursuant to Navigation Law, Article 3, Section 32 (Location of structures in or on navigable waters) and 9 NYCRR Part 274 (Interference with Riparian Rights), no person may install or place either a temporary or permanent dock or other similar structure built on floats, columns, or other openwork supports in navigable waters of the State which interferes with the free and direct access of any other person without such person's written permission.

In this case, David J. Tryniszewski alleges that docks placed by James C. Agius ("Respondent"), owner of Brown's Beach Marina, at the southeastern corner of Saratoga Lake in the Town of Stillwater, Saratoga County, New York, interfere with the free and direct access to the navigable waters of Saratoga Lake from the Tryniszewski property located some 39 feet easterly of the Agius property and the Tryniszewski dock which is located with its shoreward base approximately 18 feet easterly of the Agius property.

At the request of the Office of General Services, I (Administrative Law Judge Robert P. O'Connor) held an adjudicatory hearing in this matter in the offices of the New York State Department of Environmental Conservation at 50 Wolf Road, in Colonie, New York on March 15, 1999. At the conclusion of the hearing session, there were discussions between Mr. and Mrs. Agius and me regarding the placement of docks at Brown's Beach Marina for the 1999 boating season on Saratoga Lake, as well as the submission of additional information by Mr. Agius relating to a proposed method of determining the outshore lateral lines between the riparian/littoral zones which differs from the method ("Long Lake Method") used by the surveyor retained by Mr. Tryniszewski. The pertinent sections of the stenographic transcript memorializing the agreements made at the hearing are appended to this Ruling.

As a follow-up to the hearing, on March 18, 1999, I sent the parties a letter which summarized the agreements made at the conclusion of the hearing session. The letter reiterated the limitations imposed regarding the placement of the Brown's Beach Marina docks pending the issuance of the OGS Commissioner's Order. A copy of this letter is also appended to this Ruling.

The Agreements Made at the Hearing and the Current Status

At the conclusion of the March 15, 1999 hearing session, I granted Mr. and Mrs. Agius' request for the opportunity to submit a survey with a depiction of the "Perpendicular Method" of determining the outshore lateral lines between the riparian/littoral zones, pursuant to 9 NYCRR §274.5. Following the submission of such survey to all the participants in the hearing, I would then schedule a session to conclude the formal hearing. It was my understanding that Mr. and Mrs. Agius would pursue the survey and depiction of the "Perpendicular Method" in a timely manner, so that the hearing could be concluded within the span of a few weeks following the March 15 session. Currently, two months have passed, and I have not heard anything from Mr. and Mrs. Agius regarding this additional information which they sought to enter into the record.

Furthermore, my ruling at the conclusion of the hearing and in my summary letter was that the Brown's Beach Marina "gas dock" and any of the docks on the west side of the "gas dock" could be installed for the 1999 boating season on Saratoga Lake. However, I ruled that no dock sections could be installed on the east side of the "gas dock," pending a decision and Order in this matter by the Commissioner of the Office of General Services.

While I was out of the office during the last week in April and first week in May, Mr. Tryniszewski sent me a letter and photographic documentation (a copy of which is appended to this Ruling) that, as of April 25, 1999, one or more sections of dock have been installed on the east side of the Brown's Beach Marina "gas dock." This action appears to be in direct contradiction of the agreements made at the hearing and in violation of my March 18, 1999 letter directive that no docks were to be installed on the east side of the "gas dock" until after the Commissioner of the Office of General Services issues the Order deciding this case.

The Ruling

On the basis of the above, I will allow two weeks for Mr. and Mrs. Agius to submit any additional information regarding the determination of riparian/littoral zone boundaries which they desire to be placed in the hearing record, and also, for them to provide me with an explanation of why docks have apparently been installed on the east side of the "gas dock," contrary to the March 15, 1999 hearing record agreement and my March 18, 1999 letter directive. This information shall be transmitted simultaneously to all the people on the attached Service List.

If I have not received any response by June 4, 1999, I will close the hearing record and prepare my Hearing Report based upon the information which is presently in the record and then submit my recommendations for disposition of this matter to the OGS Commissioner for further action, as provided in 9 NYCRR §274.8.

I must also remind the parties that if the OGS Commissioner determines that a dock structure encroaches upon and interferes with the riparian/littoral zone rights of an adjacent property owner, he may order the removal, moving and/or modification of such structure so as to eliminate the interference. Article 3, Section 32 of the Navigation Law provides that any person found to be in violation of the Commissioner's Order is subject to a civil penalty of not more than $100 for such violation and an additional civil penalty of not more than $100 for each day during which such violation continues, to be assessed by the OGS Commissioner.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE
on behalf of the
STATE OF NEW YORK
OFFICE OF GENERAL SERVICES

Dated: Albany, New York
May 19, 1999

Portions of Pages 141 - 145 of the Stenographic Transcript of the March 15, 1999 Hearing

MRS. AGIUS: Are you going to allow us to just put a section in, not this disputed area? What -- I mean, what -- we cannot survive without this income. That will be -- you know, a "for sale" sign will definitely go up if that happens.

MR. AGIUS: Well, I mean, we should be able to put in the gas dock and these; correct?

THE HEARING OFFICER: Well, at -- at -- at this point I don't see any -- any reason why you would not be able to put in the main stem of the gas dock and -- and all the westerly docks.

MRS. AGIUS: Okay.

MR. AGIUS: Okay.

THE HEARING OFFICER: But I -- I would --.

MR. AGIUS: Well, we wouldn't even go over that way until we -- you know, you --.

THE HEARING OFFICER: Yeah. I don't think it would be appropriate under the circumstances --

MR. AGIUS: Because we may end up taking them out, maybe.

THE HEARING OFFICER: -- to put in the -- what is now the sixty feet that extends easterly from the gas dock, until there's a resolution one way or another here.

MR. AGIUS: Okay.

- and -

THE HEARING OFFICER: Okay. I'm going to adjourn the hearing at this point. The record of the hearing will remain open for -- well, the -- the record of the hearing will remain open until I get a response from Mr. and Mrs. Agius concerning whether they wish to pursue the -- an alternative method of determining littoral zones. At which time, that should be submitted to the Tryniszewskis, to the Office of General Services and to me. And I will set a time -- if -- if you chose to do that, I would set a time and date to resume the hearing to consider that. I wouldn't think that it would take more than an hour or so to -- to do that.

MR. AGIUS: Well, I'm going to do it. And we have a surveyor that did our wetlands determination; I would imagine that he'd be the one to use. MRS. AGIUS: Or is it proper to ask who are the experts in this area, to ask you? THE HEARING OFFICER: No. If you have -- if you have somebody that you've worked with before, and you are comfortable with --

MR. AGIUS: Yeah.

THE HEARING OFFICER: -- it's an appropriate question to put to him as to whether he can accept this kind of a job --

MR. AGIUS: And how long do I have --

THE HEARING OFFICER: -- and how long. Well, I'm going to leave it open-ended, with the provision that if it -- if this matter extends beyond the time when you would normally start installing your docks, that you not install that easterly sixty -- sixty-foot section --

MR. AGIUS: Uh-huh.

THE HEARING OFFICER: -- until there's a final resolution.

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