Posted by: Patricia Salkin | July 24, 2015

NY Appellate Court Reverses Decision to Permit the Construction of Boathouses Absent the Issuance of a Building Permit

Two boathouses were constructed without building permits on the shoreline and in the waters of Lake Placid in the Town of North Elba, Essex County. As is relevant here, William H. Grimditch Jr. began construction of a three-slip boathouse on his unimproved lakefront property on Lake Placid in September 2010, and his children undertook similar construction of a one-slip boathouse on their nearby vacant lakefront property. In response, plaintiff James E. Morganson, the Code Enforcement Officer for the Village of Lake Placid/Town of North Elba, immediately issued the first of three stop work orders, and Morganson and plaintiff Town of North Elba moved for a preliminary injunction to halt construction by Grimditch and the children. The supreme court initially allowed construction of both boathouses to continue to the extent of permitting the installation of the caissons and decking, but issued a limited preliminary injunction requiring defendants to apply for building permits pursuant to the New York State Uniform Fire Prevention and Building Code Act (hereinafter SBC) and to comply with the provisions of the Village of Lake Placid/Town of North Elba Land Use Code (hereinafter LUC). On appeal, the court reversed the award of summary judgment to defendants, holding that because “Lake Placid is not owned by the State in its sovereign capacity and most of the lake is within the Town’s boundaries, the Town’s zoning authority includes that portion of the lake, making the LUC applicable to structures constructed therein,” including defendants’ boathouses.

On remand the court ordered defendants to “abate their violation of the [SBC and LUC] … by dismantling the two boathouses … to the point where all that remains are the caissons and decking initially authorized” and denied the Town’s request that civil penalties be imposed. Defendants appealed, and plaintiffs cross-appealed from that part of the order that spared the caissons and decking. Because the offending premises were immediately adjacent to the neighbors’ property, “a loss of value may be presumed from the depreciation of the character of the immediate neighborhood, and the [neighbors] need not allege specific injury” Here, the neighbors demonstrated that the children’s boathouse violated various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building. The neighbors were therefore found to have standing to maintain a private common-law action to enjoin zoning violations.

Defendants next alleged a vested rights claim, which argued that at the time that construction began, the provisions of the LUC did not apply to the boathouses. According to defendants, due to their expended construction costs they were afforded certain vested rights relative to the boathouses in question. This argument failed, however, because prior to construction defendants did not obtain the required permit from the Town pursuant to the SBC. Nothing in any of the prior judicial or administrative decisions suggested that an SBC permit and/or compliance therewith was not required; moreover, the court noted that “defendants’ boathouses are structures subject to the SBC”. LUC provisions notwithstanding, the defendants undertook and completed construction without obtaining the required SBC permits or securing and/or complying with Town approvals, in violation of stop work orders. Because of this, the court found that the defendants’ vested rights argument failed.

The court found that “it was defendants’ own actions that precipitated their treatment by the Town”—namely, in completing construction without obtaining the required building permits and, following the denial thereof, ignoring an initial stop work request and order, pursuing construction in violation of a conditional permit to erect only the caissons and decking, subsequently ignoring further stop work orders and preventing Town agents from coming onto their properties to inspect. Therefore, the defendants’ actions provided a rational basis for the Town’s disparate treatment of them, and their reliance upon speculation to demonstrate the Town’s malevolent intent is insufficient to overcome the presumption that the Town’s enforcement of its laws was “undertaken in good faith and without [impermissible] discrimination” Accordingly, the court reversed the order denying the plaintiffs’ motion for summary judgement, and ordered the removal of the caissons and decking.

Town of North Elba v Grimditch, 2015 WL 39998898 (NYAD 3 Dept. 7/2/2015)

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