Posted by: Patricia Salkin | August 20, 2013

NY Appellate Court Finds Town Has No Authority to Regulate Docks

Defendants, Charles and Lillian Melchner, owned Mahopac Marina (“Marina”) on Lake Mahopac (“Lake”) in the Town of Carmel, New York (“Town”).  Defendants and the Town have been involved in a long history of civil and criminal disputes with regard to the Marina.  In one particular criminal action in April 2007, Charles Melchner agreed to plead guilty to a Town Code violation in return for a conditional discharge.  In addition to paying a $35,000 fine, Melchner agreed to cease all commercial use on certain lakefront parcels of their property known as Lots 39, 40, 41, and 42.  According to the settlement agreement, Defendants were also to remove the boat slips extending from Lots 41 and 42.  Defendants ultimately reconfigured the docks and created boat slips further into the lake near Lot 43.  In the parties’ most recent dispute, the Town brought civil action against Defendants in June of 2009 to enjoin their commercial use of the reconfigured docks and of Lots 39, 40, 41, and 42.  The first cause of action alleged that the new docks violated the Town Code, and the second cause of action alleged that the new docks violated the April 2007 settlement agreement.  The complaint did not allege violation of the Uniform Building Code Act (“UBCA”).

Defendants moved to dismiss for failure to state a cause of action, claiming that the Town lacked authority to enforce its zoning laws since the State had exclusive jurisdiction over the property at issue.  Defendants also denied that their docks violated the Town Code or the April 2007 settlement.  They argued that the Town failed to seek authorization from the Navigation Law, which is the “sole avenue for the enforcement of local laws concerning the construction of moorings and docks in State-owned navigable waters.”  In opposition to Defendants’ motion, the Town raised the argument that its authority to regulate the docks derived from the UBCA, which authorizes municipalities to regulate building construction and safety.

The trial court granted the Town’s motion for a preliminary injunction and denied Defendants’ motion to dismiss.  The court determined that the Town had no jurisdiction here under the Navigation Law, which only governs the navigation of vessels and waterways.  Instead, the trial court found that the Town’s authority to regulate Defendants’ construction of their docks was granted by the UBCA.  Defendants appealed .

According to the appellate court, a preliminary injunction may only be granted in the context of zoning law violations if the moving party has established “a likelihood of ultimate success on the merits and that the equities are balanced in its favor.”  Here, the Town needed to satisfy these elements for at least one of its two causes of action, which it failed to do.

The appellate court described the Navigation Law, which governs the use of “navigable waters of the state” and authorizes the State’s jurisdiction over same.  The parties agreed that the Lake at issue is a “navigable water of the state” and that the submerged land below the Lake is State-owned.  The State may issue permits to adjacent landowners for the use of the State’s land if it would serve the public interest.  Additionally, the Navigation Law grants authority to specific municipalities “to regulate certain activities on State-owned navigable waters.”  Here, it is undisputed that the Town is not among the specifically authorized municipalities under the Navigation Law, nor did it ever seek authorization for same.  After a thorough analysis of the relevant case law, the appellate court determined that where the State owns the submerged land, it has exclusive jurisdiction over the navigable waters above it.  As such, the State law preempts any municipal or local laws.  In the present case, the State owned the submerged land below the navigable waters where Defendants’ docks were placed.  Since the Town was not among the municipalities with delegated authority under the Navigation Law, the Second Department concluded that the Town had no authority to regulate Defendants’ reconfigured docks on the Lake and that it failed to establish a likelihood of ultimate success of its claim.

With regard to Defendants’ motion to dismiss for failure to state a cause of action, the appellate court held that the trial court should have granted this motion.  The Town’s lack of authority to regulate Defendants’ conduct left it with no valid cause of action with regard to Defendants’ violation of the Town Code.

The Second Department then addressed the Town’s second cause of action, the Defendants’ alleged violation of the April 2007 settlement.  The court found that the record provided insufficient evidence of Defendants’ violation of the settlement.  The Town submitted “only an incomplete transcript of the agreement and an aerial photograph of the reconfigured docks” and failed to submit a full record of the previous criminal actions that were resolved in said settlement.  Furthermore, the court reasoned that when the parties entered into the settlement agreement, they waived any claims or defenses related to same.  As a result of the lack of evidence and waiver of claims and defenses, the appellate court concluded that the Town failed to establish a likelihood of success on the merits of its second cause of action.  However, with regard to Defendants’ motion to dismiss for failure to state a claim, the court found that the Town’s complaint adequately pled a cause of action.  Accepting the facts in the complaint as true, the court found that they appropriately fit within a cognizable legal theory.  Thus, the trial court properly denied Defendants’ motion on this particular claim.

Finally, the court evaluated the Town’s assertion that the UBCA authorized it to regulate Defendants’ activities on the Lake.  The UBCA, which every local government is required to administer, regulates “building construction and fire prevention in order to provide a basic minimum level of protection to all people of the state from hazards of fire and inadequate building construction.”  The Town did not raise this issue in its complaint but instead raised it for the first time in its opposition to Defendants’ motion to dismiss, with no specific factual backup.  Since the Town did not properly raise the UBCA issue in its complaint, the court held that the Town failed to establish a likelihood of ultimate success on this issue as well.

The Second Department determined that overall, the Town was not entitled to a preliminary injunction because it failed to establish a likelihood of ultimate success on the merits of all of its causes of action.  Furthermore, Defendants’ motion to dismiss for failure to state a claim should have been granted with regard to the Town’s first cause of action.

Town of Carmel v. Melchner, 105 A.D.3d 82 (2 Dept. 2/27/2013)

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