Town of N. Elba v. Grimditch

• Citation: 131 A.D.3d 150,2015 N.Y. Slip Op. 05740,13 N.Y.S.3d 601
• Decision Date: 02 July 2015
• Docket Number: 520007
• Parties: TOWN OF NORTH ELBA et al., Respondents–Appellants, v. Carolyn W. GRIMDITCH, as Personal Representative and Executor of the Estate of William H. Grimditch Jr., Deceased, et al., Appellants–Respondents. (Action No. 1.) John M. McMillin III et al., Respondents–Appellants, v. Wayne H. Grimditch et al., Appellants–Respondents. (Action No. 2.)
• Court: New York Supreme Court Appellate Division

131 A.D.3d 150

13 N.Y.S.3d 601

2015 N.Y. Slip Op. 05740

TOWN OF NORTH ELBA et al., Respondents–Appellants

v.Carolyn W. GRIMDITCH, as Personal Representative and Executor of the Estate of William H. Grimditch Jr., Deceased, et al., Appellants–Respondents. (Action No. 1.)

John M. McMillin III et al., Respondents–Appellants

v.Wayne H. Grimditch et al., Appellants–Respondents. (Action No. 2.)

520007

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

July 2, 2015.

Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry of counsel) and James M. Brooks, Lake Placid, for appellants-respondents.

Powers & Santola, LLP, Albany (Michael Hutter of counsel) and Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of counsel), for Town of North Elba and another, respondents-appellants.

McNamee, Lochner, Titus & Williams, PC, Albany (John J. Privitera of counsel), for John M. McMillin III and others, respondents-appellants.

Before: McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ.

Opinion

EGAN JR., J.

Cross appeals from an order of the Supreme Court (Buchanan, J.), entered October 6, 2014 in Essex County, which, among other things, granted plaintiffs' motions for summary judgment.

The underlying facts and related procedural history—detailing the numerous prior motions and various requests for injunctive relief between the parties—are fully set forth in our most recent decision in this matter (98 A.D.3d 183, 948 N.Y.S.2d 137 [2012] ) and need not be repeated here. In a nutshell, these actions concern two boathouses that 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. (hereinafter Grimditch)¹ began construction of a three-slip boathouse on his unimproved lakefront property on Lake Placid in September 2010, and his children, defendants Wayne H. Grimditch and Carol Lynn Grimditch Roda (hereinafter collectively referred to as the 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 (hereinafter collectively referred to as the Town) moved for a preliminary injunction to halt construction by Grimditch and the children (hereinafter collectively referred to as defendants).

Supreme Court (Meyer, J.) 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). In so doing, the court warned defendants that, if they proceeded with construction, including the installation of the caissons and decking, they did so “at [their] own peril and on notice that [they] may be required, at [their] sole cost and expense, to remove all such improvements ... in the event that the [Town] finally prevail[ed] ... on the merits.” The Town then commenced two actions against defendants, later consolidated (action No. 1), and plaintiffs John M. McMillin III, Ellen M. McMillin, Richard Moccia and Leslie Moccia (hereinafter collectively referred to as the neighbors), who own land adjacent to the children's parcel, commenced a separate action (action No. 2) seeking, among other things, removal of the children's boathouse.

During the course of the litigation that followed, and while the parties' motions and cross motions for, among other things, summary judgment were pending, defendants substantially completed construction of both boathouses—without successfully obtaining the required building permits or administratively challenging the Town's denial thereof. In August 2011, Supreme Court (Meyer, J.), relying upon our prior decision in Higgins v. Douglas, 304 A.D.2d 1051, 758 N.Y.S.2d 702 [2003], granted summary judgment to defendants dismissing both actions. In so doing, the court found, among other things, that the LUC did not apply to the construction of defendants' boathouses; accordingly, the court ordered the Town to issue the requested building permits. Upon appeal, this Court reversed the award of summary judgment to defendants, holding—insofar as is relevant here—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 (98 A.D.3d at 195, 948 N.Y.S.2d 137 ).

Following our remittal for further proceedings, additional motion practice ensued. Ultimately, Supreme Court (Buchanan, J.) issued two well-reasoned decisions² that, among other things, awarded summary judgment to the Town and the neighbors (hereinafter collectively referred to as plaintiffs), 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 now appeal, and plaintiffs cross-appeal from that part of the order that spared the caissons and decking. The Town also seeks the imposition of civil penalties against defendants.³

As a threshold matter, Supreme Court correctly concluded that the neighbors have standing to challenge the asserted zoning violations and to seek injunctive relief against the children. Although municipal officials indeed are tasked with enforcing zoning ordinances within their boundaries (see Town Law § 268[2] ), this “does not prevent ... private property owner[s] who suffer [ ] special damages from maintaining an action seeking to enjoin the continuance of the violation and obtain damages to vindicate [their] discrete, separate identifiable interest[s]” (Nemeth v. K–Tooling, 100 A.D.3d 1271, 1273, 955 N.Y.S.2d 419 [2012] [internal quotation marks and citations omitted] ). To establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that, due to the defendant's activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected” by the statute or ordinance at issue (Matter of Sun–Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 413, 414, 515 N.Y.S.2d 418, 508 N.E.2d 130 ).

To that end, the neighbors both alleged and submitted proof that they own land (improved with single-family homes) on either side of the children's parcel and that the children's boathouse was built without the permits required by the LUC and SBC. The neighbors also demonstrated that the children's boathouse violates various provisions of the LUC, including those governing set-backs and prohibiting accessory structures on land that lacks a principal building (see Joint Village of Lake Placid/Town of North Elba Land Use Code part IV, art III, § 4; art V, appendix F[II] ). Where, as here, the offending premises are 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” (Zupa v. Paradise Point Assn., Inc., 22 A.D.3d 843, 844, 803 N.Y.S.2d 179 [2005] ; see Matter of Sun–Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d at 414–415, 515 N.Y.S.2d 418, 508 N.E.2d 130 ; Citizens for St. Patrick's v. City of Watervliet City Council, 126 A.D.3d 1159, 1160, 5 N.Y.S.3d 582 [2015] ). We find that the neighbors' specific allegations of close proximity give rise to an inference of damage and injury, thereby permitting them to maintain action No. 2. Moreover, the neighbors have demonstrated that their interests fall within the “zone of interest” protected by the LUC, in that violations thereof adversely affect their privacy and property values (see Nemeth v. K–Tooling, 100 A.D.3d at 1273–1274, 955 N.Y.S.2d 419 ; Zupa v. Paradise Point Assn., Inc., 22 A.D.3d at 844, 803 N.Y.S.2d 179 ). Indeed, we recognized as much in our prior decision permitting the neighbors to intervene, concluding that they “have an interest in the litigation by virtue of their status as owners of adjoining premises” (96 A.D.3d 1305, 1306, 947 N.Y.S.2d 667 [2012] ).

Next, we reject as meritless defendants' contention that, because the construction of the boathouses is now complete, plaintiffs' claims are either moot or barred by the doctrine of laches. While “the doctrine of mootness [may be] invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” (Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ), where the change concerns the completion of construction, courts must consider several factors, including whether the challengers sought “preliminary injunctive relief or otherwise [attempted to] preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” (id. at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 ; accord Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ; Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d 1475, 1477, 944 N.Y.S.2d 660 [2012] ). Notably, completion of a project does not preclude...