If a New York village regulates anchoring, mooring, and dock construction in waters off its shoreline, but the town owns the underwater land, can the town also require its consent before someone builds a dock or drops an anchor?

Plain-English summary

The Town of Huntington on Long Island owns underwater lands inside its boundaries by colonial patent, an ownership that traces back to the colonial-era grants that predate the State of New York. Some villages within the Town have regulatory authority over the same waters under state law: they regulate anchoring, mooring, and dock construction within 1,500 feet of their shoreline. The Town wanted to know what rights it still had as the owner of the underwater lands when the village, not the Town, did the day-to-day regulating. The Town Attorney was building on a 2004 AG opinion that had previously sorted out the village/town regulatory relationship in Huntington's harbors and asked the AG to address the property side of the question.

The AG separated two different kinds of authority: regulatory (the police power, exercised here by the village) and proprietary (the property rights of the underwater-land owner, the Town). Regulatory authority does not extinguish proprietary rights. Even when a village has the right to permit dock construction or place mooring buoys, the underlying use of the underwater land is still the use of someone's property. If that land is the Town's, the Town can require its own consent before allowing the use.

The AG gave the analogy that probably resonates most: state-owned underwater lands. When DEC or another state agency owns the underwater land and a town regulates dock construction in the same area, both consents are required. Matter of Haher's Sodus Point Bait Shop v. Wigle, 139 A.D.2d 950 (4th Dep't 1988), illustrates exactly that. The Town stands in the same position as the State in Huntington's case.

There are important limits, though, because the Town doesn't own the underwater land outright. Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d 566 (2001), confirms that a town's title under colonial patents is subject to two constraints. First, the public's right of navigation: the Town can't lock up the underwater land in a way that interferes with navigable waters. Second, the riparian owner's right of access: an upland owner has a common-law right to "wharf out" (build a dock from his shore to reach navigable water), and the Town can't unreasonably block that. The right of access, however, is qualified, not absolute. If a proposed dock would unreasonably interfere with public navigation, or is for an impermissible purpose, the Town can object. And in situations where no riparian-access claim is in play, the Town has flexibility to lease or permit use, as long as the public-trust limits are respected.

The public-trust doctrine is doing a lot of work here. Coxe v. State, 144 N.Y. 396 (1895), and Matter of Long Sault Dev. Co. v. Kennedy, 212 N.Y. 1 (1914), describe a public owner of underwater lands as holding them in a sovereign-type, trust-protected capacity. A grant of underwater lands must benefit the public or at least not injure the public's use. The Town's licensing or permitting regime is the mechanism by which the Town discharges that trust: making sure that private docks and moorings don't deplete the public's navigational rights.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Coastal regulation has continued to evolve since 2005, particularly through the Department of Environmental Conservation's tidal wetlands program, the Department of State's coastal management program, and various federal Clean Water Act developments. Anyone advising a waterfront landowner today should check the current state regulatory framework, the specific patents and chain of title for the underwater land at issue, and any DEC tidal wetlands permits that may now apply.

Common questions

Q: How can a town own underwater land?
A: In Long Island and other parts of New York settled in the colonial period, the English Crown granted underwater lands to specific towns by patent. Those grants survived the American Revolution and the formation of New York State, so towns like Huntington, Oyster Bay, and Brookhaven hold underwater lands today under those historical patents.

Q: What can I do as a riparian (waterfront) landowner?
A: At the time of this 2005 opinion, you have a common-law right of access to navigable water, including the right to build a pier or dock ("wharf out") from your upland to the navigable channel. That right is qualified, not absolute. If you want to build on town-owned underwater land, you may need both regulatory permits (from whoever regulates docks in your area, including possibly DEC, the village or town as regulators, and the U.S. Army Corps of Engineers) and the owner's consent (the town as proprietor of the land).

Q: Can the town just refuse to consent?
A: Not unreasonably. The Town's rights as owner are subject to riparian rights and to the public trust. A refusal to allow a reasonable dock for a permissible purpose would likely violate the riparian owner's qualified right of access. The Town can object when the proposed structure unreasonably intrudes on navigation or serves an impermissible purpose.

Q: What about moorings (anchoring a boat offshore)?
A: Same analysis. If the mooring sits on town-owned underwater land, the Town can require consent. The village's regulatory authority over anchoring (state law gives the village exclusive regulation within 1,500 feet of its shoreline) governs the regulatory side of the question, but the village doesn't own the land, so it doesn't replace the Town's property-owner consent.

Q: How does the Town actually exercise this consent?
A: Through licensing, permitting, or lease procedures. The Town adopts an application process, sets fair criteria (consistent with the public trust and riparian rights), reviews each application on its merits, and grants or conditions the consent. The Town's terms can include fees, durations, location restrictions, and conditions designed to protect navigation and public access.

Q: What does the "public trust doctrine" mean for the Town?
A: The classic statement is in Coxe v. State: a public owner of underwater lands used for navigation holds them as "a sovereign right, and . . . a trust is engrafted upon this title for the benefit of the public of which the [public owner] is powerless to divest itself." The Town can't sell, lease, or permit uses that injure the public's right to use the waters. Permits are fine; locking up the waters for private use is not.

Q: Are state agency approvals also needed?
A: The AG opinion explicitly did not address state-agency approvals. DEC and other state agencies have their own regulatory programs for tidal wetlands, fill, water quality, and Article 25 (tidal wetlands) protections. A dock builder typically needs town consent (when town owns underwater land), village regulatory approval (when the village has marine jurisdiction), and DEC permits. The Army Corps of Engineers may also have federal Clean Water Act and Rivers and Harbors Act review.

Background and statutory framework

The Town of Huntington's underwater-lands ownership rests on colonial patents granted by the British Crown before the American Revolution. New York's 1777 Constitution and subsequent state law preserved those patents, so the Town's title traces back to the colonial grants. Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d 566 (2001), is the leading modern case explaining the resulting framework for the towns on the north shore of Long Island. Tiffany v. Town of Oyster Bay, 234 N.Y. 15 (1922), is the earlier foundational case.

The recurring tension in these cases is between the town as owner of the underwater land and the upland owner as holder of riparian rights. The Court of Appeals has settled the rule: the town's ownership "is at all times subject to the public rights and to the right of the riparian owner to access to the water." Oyster Bay v. Commander Oil, 96 N.Y.2d at 572 (quoting Tiffany). But the riparian owner's right of access is "not absolute, but qualified by other rights in the owner of the submerged land." Id. So both the town and the riparian owner have rights; neither set is absolute.

The dock-construction analogy to state-owned land sits at Matter of Haher's Sodus Point Bait Shop v. Wigle, 139 A.D.2d 950 (4th Dep't 1988). There, the court treated dock construction on state-owned underwater land as requiring both local-zoning compliance and state-owner consent. Matter of Rottenberg v. Edwards, 103 A.D.2d 138 (2d Dep't 1984), is a parallel case in which both town and DEC permits were required.

The 2004 AG opinion that this 2005 opinion builds on (Op. Att'y Gen. (Inf.) No. 2004-5) had concluded that villages exercising state-law authority within 1,500 feet of their shoreline have exclusive regulatory jurisdiction over anchoring and mooring in that band. The 2005 opinion accepts that as a starting point and addresses the separate proprietary question: what rights does the Town keep as owner of the underwater lands, given that the village is the regulator?

The public-trust doctrine is the gravity that pulls everything back to public access. Coxe v. State, 144 N.Y. 396, 406 (1895), describes the public owner's title to navigable underwater lands as held in trust: "a sovereign right, and it has been frequently said that a trust is engrafted upon this title for the benefit of the public of which the [public owner] is powerless to divest itself." Matter of Long Sault Dev. Co. v. Kennedy, 212 N.Y. 1, 8-9 (1914), develops the doctrine further: a grant of underwater lands must benefit the public or at least not injure the public's use of the waters.

The AG's bottom line synthesized all of this: the Town can use licensing, permitting, or lease procedures to require its consent to private use of its underwater lands; that consent is in addition to whatever regulatory consents the village or state may require; the Town's terms must respect riparian rights and the public trust; and within those limits, the Town can charge fees, set conditions, and deny applications that injure public navigation.

Citations and references

Cases:

• Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d 566 (2001)
• Tiffany v. Town of Oyster Bay, 234 N.Y. 15 (1922)
• Coxe v. State, 144 N.Y. 396 (1895)
• Matter of Long Sault Dev. Co. v. Kennedy, 212 N.Y. 1 (1914)
• Matter of Haher's Sodus Point Bait Shop v. Wigle, 139 A.D.2d 950 (4th Dep't 1988)
• Matter of Rottenberg v. Edwards, 103 A.D.2d 138 (2d Dep't 1984)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 2004-5 (village/town regulatory relationship over Huntington waters)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-11_pw.pdf

Original opinion text

Where the Town of Huntington owns underwater lands based upon colonial patents, it may require its consent to the use of these underwater lands for dock construction and the anchoring and mooring of vessels, even where such activities are subject to a village's regulatory control.

April 12, 2005

John J. Leo
Town Attorney
Town of Huntington
100 Main Street
Huntington, NY 11743-6991

Informal Opinion
No. 2005-11

Dear Mr. Leo:

Your inquiry concerns a situation in which a village that lies within the boundaries of the Town of Huntington has authority to regulate the anchoring and mooring of vessels, and the construction and installation of docks, wharves, pilings and other structures in certain waters, but the Town of Huntington owns the underwater lands upon which the anchors may be placed or to which the docks will attach. You ask what rights the Town may assert as owner of the underwater lands when it has no regulatory authority over these activities. We conclude that under such circumstances, the Town may require that consent to the use of its underwater lands be obtained.

ANALYSIS

Your present inquiry is based upon a previous opinion of this office in which we addressed certain issues concerning the respective rights of the Town of Huntington and the villages within the Town's boundaries to regulate various activities on navigable waters within the boundaries of the Town. See Op. Att'y Gen. (Inf.) No. 2004-5.

Your current question is whether the Town can assert any rights as the owner of the underwater lands, where a village, and not the Town, has authority to regulate the anchoring and mooring of vessels and the construction of private docks, but the anchors will be placed upon or the docks attached to underwater lands owned by the Town.

There are important restrictions upon the Town's rights as owner of the underwater lands. The Town's ownership of the underwater lands stems from a colonial patent. Because the Town holds these underwater lands in trust for the public good, the Town's rights as owner of the underwater lands "'are at all times subject to the public rights and to the right of the riparian owner to access to the water.'" Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d 566, 572 (2001) (quoting Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 21 (1922)). Decisional law has recognized the right of a riparian owner (the owner of land bounding a river or seashore) to access the water for navigation, including the right to build a pier or dock, i.e., to "wharf out" in order to access the navigable waters. See, e.g., id. at 571. Thus, the Town's rights as owner of the underwater lands must yield to the reasonable uses of riparian landowners. See id.

The Court of Appeals has held however that "the riparian owner's right of access is not absolute, but qualified by other rights in the owner of the submerged land." See id. at 572. Therefore, we believe the Town can object when a riparian owner seeks to construct a dock or similar structure that unreasonably intrudes upon the right of public navigation or is not for a permissible purpose. We also believe the Town may assert its rights as owner of the underwater lands in situations in which riparian rights are not at issue. That is, we see no reason why the Town cannot lease or permit the use of its underwater lands as long as doing so does not unreasonably interfere with the public's rights and those of riparian owners.

Moreover, we do not believe a village's authority to regulate dock construction negates the rights of the Town as owner of the underwater lands. An analogous situation exists with respect to activities subject to municipal regulation but involving underwater lands owned by the State. In this situation, dock construction requires both compliance with local zoning laws and permission of the State as owner of the underwater lands. See, e.g., Matter of Haher's Sodus Point Bait Shop v. Wigle, 139 A.D.2d 950, 950-51 (4th Dep't 1988); cf. Matter of Rottenberg v. Edwards, 103 A.D.2d 138, 142 (2d Dep't 1984) (permits required from town and DEC as to waters controlled by town).

This reasoning logically applies to the use of the Town's underwater lands for anchoring and mooring. Although anchoring and mooring in waters within 1500 feet of a village's shoreline are subject to exclusive village regulation pursuant to state law, see Op. Att'y Gen. (Inf.) No. 2004-5, we believe the Town may require its reasonable consent if anchoring and mooring in those waters will involve the use of its underwater lands. This opinion does not address other types of regulatory approvals, if any, that might be necessary from a state agency in connection with anchoring or mooring activities.

Any other result would be inconsistent with the Town's responsibility under the public trust doctrine to ensure that private use of its lands does not interfere with the rights of the public. See Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d at 571. A public owner of underwater lands used for navigation does not hold the lands in a proprietary capacity, but as "a sovereign right, and it has been frequently said that a trust is engrafted upon this title for the benefit of the public of which the [public owner] is powerless to divest itself." Coxe v. State, 144 N.Y. 396, 406 (1895). Thus, it has been held that a grant of underwater lands must be for a use that either benefits the public or at least is not injurious to the public's use of the waters. See Matter of Long Sault Dev. Co. v. Kennedy, 212 N.Y. 1, 8-9 (1914). Allowing the Town to require, through licensing, permitting and similar procedures, that users of underwater lands obtain the Town's consent, will best ensure that these lands are not used in derogation of the trust imposed upon them.

CONCLUSION

The Town of Huntington may use licensing, permitting and similar procedures to require its consent to the use of its underwater lands for dock construction and the anchoring and mooring of vessels, even when such activities are subject to a village's regulatory control.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Attorney General
In Charge of Opinions