Southold's 'Andros hoax'

By Denise Civiletti

The jurisdiction of the Town Trustees to regulate activities in and adjacent to the bays and L.I. Sound is being called into question by a retired state coastal resources official who says he's been telling Southold officials for years that the town's regulatory scheme has serious, even fatal, defects.

"The Trustees are limited in their authority to the grant contained in the state legislation that created them," according to Steven Resler, a recently retired deputy bureau chief in the N.Y. State Department's Division of Coastal Resources. "The trustees do not have a broad range of authority. They have one function: to manage and control the lands owned by the town," Mr. Resler said in an interview this week.

Those lands are limited to the underwater lands of the town's inland waterways -- its creeks, streams, ponds and lakes.

Mr. Resler says the Trustees lack the legal authority to do everything else they do -- from issuing shellfish, dock and mooring permits in the bay to enforcing wetlands and bluff-line setbacks required by town code -- or waiving those requirements, as they see fit.

A popular local legend -- a myth even advanced by the Trustees themselves on the town's Web site -- holds that the Southold Trustees were created by the Andros Patent, a colonial land grant issued in 1676 by the English colonial governor, and are vested with broad, independent authority granted by the King of England to act as stewards of the waterways and wetlands in and around the Southold Town.

But it's something of an open secret in Town Hall that the Andros Patent did not create the Board of Trustees and that they have no inherent authority. This fact is plainly stated in the town's Local Waterfront Revitalization Plan, and is referenced in internal reports and memoranda prepared by town planning staff and circulated among town officials.

And Trustees president Jim King freely admits it.

"Over time, I think it's just gotten kind of muddled," he said.

Mr. King said he has no idea why the Trustees' Web page says the Andros Patent created the Town Trustees. "I don't even own a computer," the lifelong fisherman said.

The English colonial governor, Edmund Andros, to secure the loyalty of local settlers to the British crown, issued "letters patent" in 1676 to seven men -- the "freeholders and inhabitants" of the "Towne of South Hold" -- giving them the legal right to own, use and dispose of all the land and waterways of the town, as described in the patent.

But the Andros Patent excluded lands seaward of the mean high-water mark along the bays, as well as the waters of the bays and the Sound. The State of New York owns those lands, not the town. The highest court in the state settled the question of the true extent of the town's "patent lands" in 1905.

The town -- which is, like the Trustees, a creation of the state -- is granted jurisdiction by various state statutes to regulate activities in the surrounding waterways and wetlands. But the jurisdiction to regulate those areas is, in each instance, granted by the state to the Town Board, not the Town Trustees.

And the Town Board cannot lawfully delegate those powers to the Town Trustees, Mr. Resler argues.

Town Attorney Patricia Finnegan disputes his point of view. "They [the Town Board] can delegate," she said at Town Hall Monday, but declined to elaborate.

"The Town Board delegated wetlands jurisdiction to the Trustees in the 1980s," Mr. King said. "It also delegated to us jurisdiction over the state waters of the bays in the early 1990s, I think 1992," Mr. King said yesterday. "A lot of what we're doing today came from the Town Board. It's all kind of evolved over time, and it's gotten more and more complicated."

State law appears to support Mr. Resler's argument about the Town Board's delegation of duties to the Trustees. Municipal Home Rule Law requires that "a local law shall be subject to mandatory referendum if it ... abolishes, transfers or curtails any power of an elective officer."

Beyond that, Mr. Resler argues, the Trustees exist only by virtue of the state law that created them, a statute enacted in 1893, and their authority, duties, and scope of responsibility are limited to the things spelled out in that statute, unless and until the State Legislature amends it. "The Town Board can't amend state law," he said.

The 1893 statute that created the Trustees authorizes them "to manage, lease, convey or otherwise dispose of ... common lands, waters and lands under water ... as the town of Southold acquired and now holds by virtue of any colonial patent or charter." Those areas are limited to inland creeks, streams, inlets, lakes and ponds.

The retired state official, who left the state department this summer after more than 30 years in coastal resources management, said he's reviewed these issues repeatedly with Southold Town officials over the years, but his pleas to change the town's regulatory structure have fallen on deaf ears. It's only a matter of time, Mr. Resler says, before a court recognizes that the Trustees have no authority to issue shellfish, mooring dock and bulkhead permits for activities on the bay.

"But not many people really understand these issues," Mr. Resler says. "Even the courts have misunderstood these things, and misinterpreted authorities in case law, making more mistakes based on those misinterpretations."

Thomas Rozakis, who owns a home in the Kenney's Beach area of Southold, brought an Article 78 petition for review of the Trustees' 2006 approval of a permit issued to neighboring property owner, Julie Tsai. In its ruling dismissing Mr. Rozakis' petition, the court wrote, "The Board of Trustees of the Town of Southold ... hold title to upland and underwater lands throughout the town by virtue of a colonial patent known as the Andros Patent of 1676."

That's just flat-out wrong, Mr. Rozakis says, and Mr. Resler concurs. "You can read the patent," Mr. Rozakis said. "It doesn't mention the Trustees at all. They didn't even exist until almost 220 years later. And when they came into existence, they were never given title to any lands," he said. He and his wife could not afford more legal fees to appeal what they believe is a bad decision. "The standards of review on an Article 78 [petition to review an administrative decision by a municipality] are very narrow and tough, and it's even harder to have an Article 78 decision overturned, so we gave up," he said.

He may have thrown in the towel on his legal battle after the March 2007 ruling upholding the Trustees' Tsai permit, but Mr. Rozakis' journey into local history was just beginning. He has, he admits, become obsessed with his research into the town's past. A land surveyor and engineer, Mr. Rozakis is fascinated by the history of the town's settlement and how the early settlers used and divided their lands. He is especially intrigued by what he calls "the Andros Patent hoax" as it concerns the Trustees. He questions whether the Trustees even have jurisdiction over inland waters and underwater lands, because, he says, most of the original patent lands and adjoining water courses were deeded by the original freeholders to third parties.

"If it's deeded to another, is it still a patent land?" he asks. "If that were so, the entire town would still be patent lands, and that obviously isn't the case."

Mr. Rozakis has spent the last year locating and reading old statutes and cases, obtaining copies of old town records through the Freedom of Information Law, and reading books and research papers on local history.

He believes that irregularities concerning the Town Trustees go beyond questions of authority and jurisdiction. The statute that created the board in 1893 fixed their wages at $3 per day. It was amended by the State Legislature in 1952 to extend their term of office from one year to two and increase their wages to $10 per day. In 1983, their term was extended to four years. But he's found no state law changing their wages from $10 to their current annual salary of $15,000 per year. The salary has been established by Town Board resolution.

"When did the Trustees go from earning $10 a day for days actually worked to earning an annual salary?" Mr. Rozakis asks. He has yet to receive a response to FOIL requests he has submitted for this information, he said. And the town clerk told him his request seeking information on Trustees' health benefits paid by the town would take six months to obtain from the comptroller.

"All elected officials get full health coverage," Supervisor Scott Russell told The Suffolk Times Tuesday.

Mr. King said, "The trustees are "very underpaid for the responsibilities they have. But you run for office to serve your community. It's not about the money. You do it because you care about the environment and you want to do good for the town.

The five-member Board of Trustees has an operating budget of just under $230,000 for 2008, a sum which includes the operation of a pump-out boat used to prevent boaters from disposing their vessels' sanitary wastes in the Peconic Estuary, a no-discharge zone. The sum does not include health insurance or legal fees for outside counsel to defend their decisions if challenged in court. (Those costs appear elsewhere in the town budget.)

Legal challenges are occurring with greater frequency, Mr. King said.

"It's difficult with all the lawsuits and neighborhood disputes. It's becoming very contentious," Mr. King said. "You have the least desirable lot in the neighborhood, vacant for years, that kids used as a playground and no one ever thought anyone would want to build on. Someone buys it and wants to build a house, and all of a sudden it's the most environmentally sensitive lot in the world and you can't build a house there," he said, describing the "neighborhood disputes" he's seeing. "You should buy it if you want to extinguish building rights," he said.

Overall, Mr. King said, "the taxpayers are getting a bargain" in the amount of work they get from the Trustees, relative to money expended.

He said he does not support creating the natural resources division recommended to the board last year by town planners and Mr. Resler. "A new town agency will cost more," Mr. King said. "It might just be another layer of bureaucracy."

Proponents of a natural resources division say professionals will bring more technical expertise to the task of wetland management than the five citizen members of the Board of Trustees.

"I may not have the educational background, but after 45 years of commercial fishing, I know what's going on," Mr. King responded. "A lot of it is just good old common sense."