2009-03-27 / Letters

Coastal Zone Management Act Program

Dear Editor,

Thank you for the publicity on the Coastal Zone Management Act of 1972 enacted by Congress Section 1452 (1) "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations; and (2) to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development, which programs should at least provide for- (A) through (E)- Section 1452 (E) includes public access to the coast for recreational purposes and Section 1452 (F) assistance in the redevelopment of deteriorating urban waterfronts and ports, and sensitive preservation and restoration of historic, cultural, and esthetic coastal features.

This case by John Baxter and myself represents a landmark decision that the Second Circuit Court of Appeals has provided " a private right of action to enforce the CZMA against the federal government through the Administrative Procedures Act. We will be able to go back to court under the APA to have the Department of Commerce enforce and monitor the state and city coastal management programs and public access to the waterfront with development in Rockaway and New York.

The Second Circuit Court of Appeals ruling that plaintiff's challenge Rockaway development that "cannot" have been certified by the Department of Commerce was not part of our case. The Second Circuit confused our case with another.

The substance of our complaint is that federal government under the Department of Commerce (DOC) has NOT administered, monitored and enforced New York State Coastal Management Program and New York City Waterfront Revitalization Program annual award contract. The annual award contracts total over 4.5 billion dollars CZMA and Environmental Protection Fund taxpayers money which is explicitly for preserving and increasing public access to the waterfront within new development. Rockaway has not received a dime of this money.

We have won most of the things listed in our complaint outside the court. The complaint required preserving and increasing "existing" public access to the waterfront provided by public streets and easements on private property. The public street curb cuts and signs were put back in Arverne's 46 streets which the city and state intended to eliminate to build Arverne by the Sea in violation of the CZMA. Jacobs Javits Center that would obstruct several public streets and the visual corridors was halted by NYC Economic Development Corporation.

The Rockaway Peninsula was rezoned to the neighborhood characterpart of our lawsuit. NYC approval of its Waterfront Revitalization Program were required to revise the zoning to concur with the CZMA 16 U.S.C. 1452 (1) (2) (F) above.

The State Supreme Court ruled that the houses encroach on my 17 foot wide easement to the Atlantic Ocean that is granted "forever." I can seek damages from the developer. I also have to amend my complaint to include the current owners.

This case of the 17-foot-wide easement was originally filed in Federal Court which declined to exercise supplemental jurisdiction of what they said was a state law claim. The Second Circuit Court of Appeals wanted case law that I gave to them in writing and at the oral argument. The case law Penn Central Transp. Co. v. Pirate Canoe Club, Inc., 436 F. 2d 127 (Court of Appeals 2d. Cir.); The Second Circuit Court of Appeals ruled in favor of easement by express grant. They basically stated that New York does not favor forfeiture of easement by express grant.

The Second Circuit Court of Appeals Article II Judges should have ruled accordingly on my cases that attached exhibits of the deeds expressly granting the subject easement (s) "forever" on Beach 25 and 26 Streets. The cases and decisions are public record and the deeds do not express any intention for the distinguished panel of Judges the Honorable Jacobs, Sack, Owen (Case 05- 0886-CV) and Pooler, Hall, Meskill (05-1784-CV) and this last case Raggi, Hall and Walters (07-1874-CV) to form an opinion contrary to New York law that favors easement by express grant.

The easement (s) to access the Atlantic Ocean are also protected by the CZMA program requirements §1452 (1) (2) (E) Public access to the coasts for recreational purposes must be preserved and increased required by the DOC approval of New York State and City management program as pleaded by plaintiff throughout his papers supported by exhibits.

The Second Circuit claims that my cases are frivolous are unfounded. I have a right to my easement by express grant as stated above in their decision. There is a private right of action explicit under the CZMA which requires full participation by individuals, public and private. The CZMA regulations provide for a citizen even a state or local to take action which is a judicial proceeding to ensure compliance of networked agencies with the program [See 15 C.F.R. 923.43(i)].

The Second Circuit with its decision provide for us to file a complaint against federal government under the APA which would be to enforce and monitor the state and local government to ensure compliance of all development with the CZMA program. This to me leaves the door open to the court and is a victory.


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