Opinion
November 13, 1995
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Ordered that the judgment is affirmed, with costs.
Contrary to the petitioners' contention, the respondent's imposition of a scenic-and-conservation easement, which bars development on part of the petitioners' property but does not grant public access thereto, is not arbitrary and capricious, nor is it an unconstitutional taking of a portion of the petitioners' property. Rather, the record demonstrates that there is an essential nexus between the easement and the legitimate governmental interest of protecting wetlands and environmentally significant areas. Indeed, the imposition of the easement substantially advances this legitimate governmental interest, which is one of the primary goals of the variance and permit provisions of the East Hampton Code (see generally, Rent Stabilization Assn. v Higgins, 83 N.Y.2d 156, cert denied ___ US ___, 114 S Ct 2693; cf., Nollan v California Coastal Commn., 483 U.S. 825; Manocherian v Lenox Hill Hosp., 84 N.Y.2d 385, cert denied ___ US ___, 115 S Ct 1961; Seawall Assocs. v City of New York, 74 N.Y.2d 92, cert denied sub nom. Wilkerson v Seawall Assocs., 493 U.S. 976).
The respondent has sustained its burden of demonstrating a rough proportionality between the easement and the projected environmental impacts of the petitioners' construction proposal (see generally, Dolan v City of Tigard, 512 US ___, 114 S Ct 2309). The respondent's determination, as well as, inter alia, the environmental assessment form prepared by the Town of East Hampton Planning Department, discusses the specific environmental impacts of the proposed construction and the best manner by which to ameliorate them. Upon reviewing the evidence, we are satisfied that the respondent has rendered a valid, individualized determination that the easement is an appropriate measure to address the specific environmental impacts of the petitioners' proposal. Moreover, the easement permissibly supplements and augments the respondent's ability, under other applicable legislation, to ensure preservation of the area in question.
We find unpersuasive the petitioners' contention that the respondent's affidavit in opposition to the petition should be disregarded. The affidavit was a proper and necessary response to the petition, and it did not inject any new or different evidence into the proceeding.
The petitioners contend that the determination should be annulled because the respondent has not imposed the same condition on several other similarly situated homeowners. This contention is improperly advanced for the first time on appeal (see, Orellano v Samples Tire Equip. Supply Corp., 110 A.D.2d 757) and is premised on material that is dehors the record; hence, we do not consider it. Likewise, the materials appended to the petitioners' appellate brief are outside the record and have not been considered on this appeal. Sullivan, J.P., Thompson, Hart and Goldstein, JJ., concur.