Town of Carmel v. Melchner

• Decision Date: 27 February 2013
• Citation: Town of Carmel v. Melchner, 105 AD3d 82, 962 N.Y.S.2d 205, 2013 N.Y. Slip Op. 1259 (N.Y. App. Div. 2013)
• Parties: TOWN OF CARMEL, respondent, v. Charles MELCHNER, et al., appellants.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 82

962 N.Y.S.2d 205

2013 N.Y. Slip Op. 01259

TOWN OF CARMEL, respondent,

v.Charles MELCHNER, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 27, 2013.

Andrew C. Quinn, White Plains, N.Y., for appellants.

Joseph A. Charbonneau, Brewster, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

ANGIOLILLO, J.P.

The parties have been involved in a longstanding dispute regarding the Town of Carmel's regulation of the defendants' commercial marina pursuant to the Town's zoning ordinance.The marina is located on Lake Mahopac, a navigable lake owned by the State of New York.In this, the latest chapter in the parties' dispute, the Town sought to enjoin the defendants' use of certain docks in the lake which are not attached to the shoreline.By order dated August 19, 2009, the Supreme Court granted the Town's motion for a preliminary injunction pursuant to the Town's authority to regulate construction under the New York State Uniform Fire Prevention and Building CodeAct(Executive Law § 370 et seq.[hereinafter the Uniform Building CodeAct] ).In the order appealed from, the Supreme Court, in effect, upon renewal, adhered to its determination granting the Town's motion for a preliminary injunction, and denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.We do not agree that the Town established its entitlement to a preliminary injunction and further conclude that the Town failed to state a cause of action pursuant to the Uniform Building CodeAct or the Town's zoning ordinance.Where, as here, the State owns a navigable body of water and the submerged land beneath that water, the State has exclusive authority to regulate construction on that submerged land absent a delegation of that authority to a municipality.

History of the Dispute

The defendants, Charles Melchner and Lillian Melchner, are the owners of Mahopac Marina(hereinafter the marina), which provides recreational boating access to Lake Mahopac in the Town of Carmel, Putnam County.They purchased the business in 1970, when it consisted of a boathouse and about 30 boat slips on two parallel piers that extended from a single lakefront parcel designated as Tax Lot 43.Although Lot 43 was located in a residential zoning district, the property had been used as a commercial marina before the Melchners purchased it.In 1971, the Town filed a civil action against the Melchners challenging their operation of a commercial marina in a residential district, but the Town failed to pursue that lawsuit to conclusion.

In subsequent years, the Melchners purchased the adjoining lakefront parcels designated as Tax Lots 39, 40, 41, and 42, all of which were zoned in a residential district.In the spring of 1998, the Melchners constructed a new pier with boat slips extending into the water from Lots 41 and 42 and a walkway along the shoreline which connected the piers on their properties.In response to this activity, in June 1998, the Town initiated a criminal action against the Melchners (hereinafter the first criminal action), charging them with 18 counts of violating various provisions of the Code of the Town of Carmel(hereinafter the Town Code), including provisions of the Town of Carmel Zoning Ordinance(chapter 156 of the Town Code).

In June 1999, during the pendency of the first criminal action, the Melchners applied to the Zoning Board of Appeals of the Town of Carmel(hereinafter the Zoning Board) for a determination that the commercial marina was a preexisting, nonconforming use or, alternatively, for use and area variances.After Zoning Board meetings, the Melchners withdrew their application prior to receiving a determination.

In July 2000, the Town commenced a second civil action to enjoin the Melchners from operating the marina or engaging in any other commercial use on lots they acquired subsequent to the original Lot 43.In January 2001, the Supreme Court granted preliminary injunctive relief and directed the Melchners to file applications for site plan approval and variances with the Zoning Board.After a hearing, the Zoning Board determined that the portion of the marina which had been expanded onto lots 39, 40, 41, and 42 was not a preexisting, nonconforming use, but granted use and area variances permitting the commercial expansion of the marina.After the variances were granted, the Supreme Court vacated the preliminary injunction in the second civil action.

In November 2002, an association of lake residents and individual residents commenced a proceeding pursuant to CPLR article 78, seeking to annul the Zoning Board's determination granting use and area variances.By judgment entered April 22, 2003, the Supreme Court granted the petition and annulled the Board's determination, finding that the Melchners failed to show that their alleged hardship was not self-created.On appeal to this Court, we affirmed the judgment ( seeMatter of Friends of Lake Mahopac v. Zoning Bd. of Appeals of Town of Carmel,15 A.D.3d 401, 790 N.Y.S.2d 470).The record established that the Melchners “were in fact aware prior to purchase that the lots were located in a residential zone, and that the operation of the adjoining marina and its expansion onto the subject lots was of questionable legality,” and thus, the Zoning Board's determination ran afoul of the rule that an “owner who knowingly acquires land for a use prohibited by zoning may not obtain a use variance on the ground of hardship”( id. at 402–403, 790 N.Y.S.2d 470;seeTown Law § 267–b[2][b] ).

Meanwhile, the charges in the first criminal action were tried before a jury in the Town Justice Court.Lillian Melchner was acquitted of all 18 counts, and Charles Melchner was convicted of three violations of the Town Code for (1) nonresidential use of Lot 40, (2) failure to obtain site plan approval for the walkway on Lot 41, and (3) failure to obtain a building permit for the walkway on Lot 41.By judgment rendered January 27, 2003, the court imposed fines in the sums of $52,000, $51,000, and $51,000, respectively, for these counts ( seePeople v. Melchner,4 Misc.3d 132[A], 2004 N.Y. Slip Op. 50727[U], 2004 WL 1563231[App. Term, 9th & 10th Jud. Dists.] ).On direct appeal, the Appellate Term vacated the conviction related to nonresidential use of Lot 40, affirmed the other two convictions, and reduced the fines on those convictions from the sums of $51,000 each to $250 each, on the ground that each of the two counts in the accusatory instrument charged a single violation, not a continuing violation ( seeid.).

In late 2003, the Town initiated a second criminal action against the Melchners, charging them with nine violations of the Town Code related to their use of Lots 41 and 42.In January 2006, the Town commenced a third civil action to enjoin the Melchners' commercial use of Lots 41 and 42.On April 20, 2007, the parties entered into a stipulation of settlement on the record resolving both the second criminal action and the third civil action (hereinafter the April 2007 settlement).Charles Melchner agreed to plead guilty to a single violation of the Town Code alleging his failure to seek site plan approval for a wood walkway on Lot 40, for which he would pay a fine in the sum of $35,000 and receive a conditional discharge.The Melchners also agreed to cease all commercial use of Lots 39, 40, 41, and 42, and to remove the walkway on those lots and the boat slips extending into the water from Lots 41 and 42.The second criminal action and the third civil action, which were discontinued and terminated by the April 2007 settlement, did not concern the Melchners' continued operation of the preexisting, nonconforming commercial use of the marina on the original property, Lot 43.

Immediately after the April 2007 settlement, the Melchners, among other things, removed the docks extending into the water from Lots 41 and 42, and reconfigured them in the lake more than 35 feet away from the shore.An aerial photograph taken on July 3, 2007, depicted the reconfigured docks to consist of a two-sided dock with boat slips placed parallel to a dock on Lot 43 and apparently attached to the dock on Lot 43 by means of a perpendicular pier, which also had boat slips, thus creating a “T” shaped pier and dock.However, Charles Melchner averred that he did not attach the reconfigured docks to the dock on Lot 43, and there is a gap between them which may be stepped over.

In late 2008, the Town commenced a third criminal action against the Melchners, which included allegations of an unlawful expansion of the marina without site plan approval or a building permit in violation of sections 156–61and156–72 of the zoning ordinance in the Town Code, respectively, and unlawful expansion of dock structures or mooring facilities beyond those that existed on September 1, 1962, in violation of Town Code § 55–5.The third criminal action was still pending at the time of the motion which is the subject of this appeal.

The Instant Action

By complaint dated June 30, 2009, the Town commenced this action (the fourth civil action), seeking to enjoin the Melchners from using the reconfigured docks and from using Lots 39, 40, 41, and 42 for commercial purposes.The Town did not seek to enjoin the commercial use of the docks extending into the water from the original marina property, Lot 43.The complaint, in effect, contains two causes of action: (1) that the reconfigured docks violate the zoning ordinance in the Town Code, which the Town may enforce by civil action pursuant to Town Law § 268(hereinafter the first cause of action), and (2) that the reconfigured docks violate the terms of the April 2007 settlement (hereinafterthe second cause of action).The complaint does not allege any violation of the Uniform Building CodeAct.

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