2009-03-06 / Front Page

Court Slams Waterfront Development Suit

By Howard Schwach

In what may spell the end of the community's battle against out-of-scale development along Rockaway's waterfronts, a three-judge federal court has ruled that individuals have no standing to sue either a political entity or an individual developer under the Coastal Zone Management Act (CZMA).

The five-story building that was put up in the middle of George's easement between his bungalow on Beach 24 Street and the beach, will remain thanks to a ruling in federal court. That ruling could also stop private citizens from suing under the federal CZMA.
"[The] only possible private right of action under the [CZMA] would be against the federal government through the Administrative Procedure Act," the United States Court of Appeals for the Second Circuit ruled on February 20. "{Plaintiffs have] launched a sweeping and illdefined challenge to development in the Rockaway area, providing only conclusury allegations that such development 'cannot' have been certified by the Department of Commerce. Plaintiff's general request that the court remedy their perceived injury by engaging in a review of all agency actions related to those projects is beyond the scope of judicial authority."

The case arose three years ago, when two Rockaway activists, Richard George of Far Rockaway and John Baxter of Rockaway Park, sued more than three dozen federal, city and state agencies and officials, arguing that specific developments in Rockaway, including the Duane Reade Pharmacy on Beach 116 Street, the Arverne By The Sea development and a multi-story building at Beach 22 Street, were built illegally in coastal areas in violation of the CZMA.

That law, passed by Congress in 1972, limits development of coastal areas such as Rockaway without government oversight and provides that such areas be maintained for public use.

When the new multi-story building was constructed between his bungalow and the oceanfront, George, whose property is at 170 Beach 24 Street, found himself staring not at the beautiful vistas of the Rockaway beachfront, but at a brick wall of a mid-rise building, after developers built on land that George contends is protected under the Coastal Zone Management Act, a federal act dedicated to preserving beachfront access for public use.

Experts say that the ruling may allow for a spurt of growth along both the ocean and bayfront areas.

"The government won't limit development in public areas, so it is up to private citizens to have a voice. The court has taken that voice away," said one local environmentalist who asked not to be identified. "Baxter and George were taking on Goliath and they got squashed like a bug."

"This case involved preserving public access to the waterfront, which is supposed to be protected under the CZMA." George told The Wave. "All agencies are supposed to comply at each level of government."

George says that he intends at some point to go back to court and sue the federal agencies to force the city and state agencies to comply with the act.

He may have a problem in doing that, however, because the three judges ruled that George's constant lawsuits are "frivolous."

"We caution George that, should he persist in pursing such frivolous claims, this court may resort to restrictive measures that except from normally available procedures litigants who have abused their litigation opportunities," the court said in its decision. "Those measures include barring a party from filing further appeals or motions without the leave of this court."

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