Opinion
Argued February 15, 2000.
May 1, 2000.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Incorporated Village of Huntington Bay, dated October 22, 1998, which, after a hearing, issued a positive declaration of environmental significance with regard to the petitioner's application for a proposed dock expansion, the Incorporated Village of Huntington Bay and the Zoning Board of Appeals of the Incorporated Village of Huntington Bay appeal from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered April 28, 1999, which, inter alia, granted the petition and annulled the determination.
Lamb Barnosky, LLP, Melville, N.Y. (Robert H. Cohen and James F. Gesualdi of counsel), for appellants.
Rivkin, Radler Kremer, Uniondale, N.Y. (John L. Rivkin, Evan H. Krinick, and Merril S. Biscone of counsel), for petitioner-respondent.
DAVID S. RITTER, J.P., SONDRA MILLER, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The appellants lacked jurisdiction over the petitioner's proposed dock expansion and, accordingly, the positive declaration issued by the appellants is null and void (see, Navigation Law § 2 Nav.[4]; Lowndes v. Board of Trustees of Town of Huntington, 153 U.S. 1; Incorporated Vil. of Manorhaven v. Ventura Yacht Servs., 166 A.D.2d 685, 686). The appellants' reliance upon Matter of Essex County v. Zagata ( 91 N.Y.2d 447), in support of their contention that a determination of the issue of jurisdiction is premature, is misplaced. In Matter of Essex County v. Zagata (supra), the issue was which of two regulating agencies, both having jurisdiction, was the proper lead agency to determine entitlement to a solid waste permit. Here, the appellants never had any jurisdiction or authority over the tidewaters and underwater lands over which the petitioner sought to create additional boat slips (see, Municipal Home Rule Law § 10 Mun. Home Rule; Statute of Local Governments § 11 Mun. Home Rule[5], [6]; Incorporated Vil. of Manorhaven v. Ventura Yacht Servs., supra).
RITTER, J.P., S. MILLER, McGINITY and FEUERSTEIN, JJ., concur.