Posted by: Patricia Salkin | June 5, 2009

Appeals Court Upholds Order Requiring Removal of Residential Camp Constructed in Violation of Zoning Regulations and Civil Penalty of $50,000

After the Town determined that the property owner constructed a residential camp on his property in violation of the local zoning regulations, the Town commenced an enforcement action, and following a three week bench trial, the court found for the Town and ordered the property owner to remove the structure and pay a $50,000 civil penalty. The property owner appealed.

The appellate court first noted that although the Town Board did not pass a resolution specifically authorizing the commencement of the lawsuit, the Board had passed a resolution enabling the Town to hire an attorney to represent them in relation to the current action, and that the requirement for a resolution authorizing litigation is not interpreted rigidly by the courts. The Court was satisfied that several resolutions exist demonstrating the Board’s ratification of the lawsuit, and that testimony of several Board members indicate that the Board authorized the action prior to its commencement. Further, since under the zoning ordinance, every day the violation exists it accrues anew, no prejudice would result from reliance on a resolution passed subsequent to the commencement of the lawsuit to ratify the decision to sue.

Turning to the merits, the Court agreed that the structure built on the subject property was not a boathouse (as was the subject of the issued permit), but rather a residential camp, which violates the zoning regulations. Under the application zoning definition, a boathouse was defined as “a structure with direct access to a navigable body of water (1) which is used for the storage of boats and associated equipment and (2) which does not have bathroom or kitchen facilities and is not designed or used to lodging or residency.” The Court found that the structure built did not comply with this definition, first and foremost, it did not have direct access to the Lake. Further, the Court noted testimony at trial indicating that had the Town not issued a stop work order, the structure likely would have had a kitchen and/or bathroom. Further, the Court said, “That the structure was intended for residential use is also demonstrated by the structure’s various amenities, including sheet-rocked interior partition walls forming interior rooms, mattresses in the uppermost level of the structure, a chest of drawers, an entertainment center with a television and video player, a microwave oven, extensive electrical wiring, casement windows, glass doors, a gas stove and telephone service.” Further, the Court noted that the size of the structure was beyond what had been authorized by the building permit.

With respect to the penalty, the Court acknowledged that removal of offending structures is among the most appropriate remedies. In this case, the Court said that the property owner was well aware, after three unsuccessful applications, that the Town would not permit him to build a camp residence on the property because of setback requirements. However, while his third application was pending, he commenced construction without a permit. Subsequently, he applied for permission to build a single-story one-room boathouse – yet he continued to construct the existing structure with no provision for the storage of a boat. Further, when the building permit expired, the property owner did not apply for an extension, he simply continued building what he had initially desired. The Court further took note of testimony from an acquaintance of the property owner who said that the owner “intended to use his extensive real estate and political experience to outmatch the “local yokels” who were trying to prevent him from building a residence on the property.” Since the Court was persuaded that the property owner intended to disregard the applicable regulations, the Court concluded that the penalty imposed was not an abuse of the trial court’s discretion. With respect to the civil penalty, the Court noted that under state statute (Town Law 135), civil liability can be imposed for each week the structure is in violation of the zoning regulations.

Town of Caroga v. Herms, 2009 WL 1323610 (N.Y.A.D. 3 Dept. 5/14/2009).

The opinion can be accessed at:
http://decisions.courts.state.ny.us/ad3/decisions/2009/505430.pdf


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