Appellate Court Reverses Decision To Allow Construction of Boathouses Absent Building Permit

Defendants constructed two boathouses without building permits on the shoreline of Lake Placid in the Town of North Elba, Essex County (“Town”). William H. Grimditch Jr. (deceased and represented by his estate) began construction of a three-slip boathouse on his unimproved lakefront property in September 2010.  His children began similar construction of a one-slip boathouse on their nearby lakefront property. Plaintiff James E. Morganson, the Code Enforcement Officer for the Village of Lake Placid (“Village”) and Town, immediately issued the first of three stop work orders, and Morganson and the Town sought a preliminary injunction to halt construction on both properties. The Supreme Court initially permitted construction of both boathouses to continue to the extent of allowing installation of the caissons and decking, but issued a limited preliminary injunction requiring Defendants apply for building permits pursuant to the New York State Uniform Fire Prevention and Building Code Act (“SBC”) and comply with the provisions of the Village/Town Land Use Code (“Code”). On appeal, the Third Department reversed the grant of summary judgment to Defendants, holding 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 [Code] applicable to structures constructed therein,” including the boathouses, and remanded to the lower court.

On remand, the Supreme Court ordered Defendants “abate their violation of the [SBC and Code] ... 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 to impose civil penalties. Defendants appealed, and plaintiffs cross-appealed from the part of the order sparing the caissons and decking.

With respect to standing, the Third Department rejected Defendants claim, noting that as 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 the Code, including the provisions on set-backs and prohibiting accessory structures lacking a principal building. Thus, the neighbors were found to have standing to maintain an action to enjoin zoning violations.

Defendants next alleged a vested rights claim, arguing that when construction began, the Code did not apply to the boathouses. Defendants claimed that due to their expended construction costs, they were entitled to certain vested rights. The Court rejected this argument, however, as prior to construction Defendants failed to obtain the required permit from the Town. The Court found no precedent that an SBC permit and/or compliance therewith was not required, and noted that “defendants' boathouses are structures subject to the SBC.” Regardless of the applicability of the Code, Defendants undertook and finished construction absent required SBC permits and Town approvals, in violation of stop work orders.

Finally, the Court found that “it was defendants' own actions that precipitated their treatment by the Town”—namely, by completing construction without the required building permits, ignoring the initial stop work order, pursuing construction in violation of a conditional permit to erect only the caissons and decking, and then ignoring further stop work orders and preventing Town representatives from entering the properties to inspect to conditions thereon.  Accordingly, there was a rational basis for the Town's disparate treatment of Defendants, and Defendants speculation as to 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.

The case was Town of North Elba v Grimditch, 131 A.D.3d 150 (3d Dep’t 2015).

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