Posted by: Patricia Salkin | November 6, 2013

NY Appellate Court Holds Planning Board Lacked Jurisdiction over Site Plan to Build a Dock

Hart Family, LLC (“Petitioner”), the owner of lakefront property in the Town of Lake George, New York (“Town”), applied for site plan approval from the Lake George Town Planning Board (“Board”) to build a dock on its property. When the Board denied the application for health and safety concerns, Petitioner filed a CPLR article 78 proceeding with the trial court. The trial court held in favor of Petitioner, accepting its argument that the Board lacked jurisdiction to approve or deny the proposed site plan. The Board appealed.

The court affirmed the trial court decision, finding that (1) Petitioner did not waive its jurisdictional challenge and (2) the Board lacked jurisdiction to decide Petitioner’s application. The Board argued that Petitioner failed to preserve the issue regarding lack of jurisdiction and thus waived the challenge. The appellate court found, however, that Petitioner did in fact raise the issue in correspondence exchanged between the Petitioner and the Board. Furthermore, subject matter jurisdiction is an issue that can be raised at any time. Thus, even if the issue had not been raised early on in litigation, the issue could not have been waived anyway.

With respect to the Board’s jurisdiction, the court explained that a state has exclusive authority over land it owns under navigable waters. This authority preempts any local land use laws, unless the state has delegated authority to the local government. Here, New York State owns the land under Lake George, which is a navigable water. Navigation Law § 46-a delegates authority to certain local governments, but the Town of Lake George is not among those enumerated. As a result, the State has “sole jurisdiction” over construction in the lake, and the Board did not have the authority to deny Petitioner’s application.

Hart Family, LLC v. Town of Lake George, 2013 WL 5745757 (NY AD 3 Dept 10/24/2013)

The opinion can be accessed at:

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