Town of N. Elba v. Grimditch

• Decision Date: 28 June 2012
• Citation: 98 A.D.3d 183,948 N.Y.S.2d 137,2012 N.Y. Slip Op. 05215
• Parties: TOWN OF NORTH ELBA et al., Appellants, v. William H. GRIMDITCH Jr. et al., Respondents. (Action No. 1.) John M. McMillin III et al., Appellants, v. Wayne H. Grimditch et al., Respondents. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 183

948 N.Y.S.2d 137

2012 N.Y. Slip Op. 05215

TOWN OF NORTH ELBA et al., Appellants,

v.William H. GRIMDITCH Jr. et al., Respondents. (Action No. 1.)

John M. McMillin III et al., Appellants,

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

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

June 28, 2012.

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

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

James M. Brooks, Lake Placid, for respondents.

Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

ROSE, J.P.

Appeals (1) from an order and judgment of the Supreme Court (Meyer, J.), entered August 24, 2011 in Essex County, which, in action No. 1, among other things, granted defendants' cross motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered August 24, 2011, which, in action No. 2, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.

In a race to beat the impending effective date of regulations recently issued by the Adirondack Park Agency, defendant William H. Grimditch Jr. (hereinafter Grimditch) began construction of a boathouse in the waters of Lake Placid adjacent to his lakefront property without applying to plaintiff Town of North Elba for a building permit. As a consequence, plaintiff James E. Morganson, the Code Enforcement Officer for the Town of North Elba/Village of Lake Placid, issued a stop work order and the Town and Morganson (hereinafter collectively referred to as the Town) then moved for a preliminary injunction preventing further construction. After making the motion, the Town learned that Grimditch's children, defendants Wayne H. Grimditch and Carol Lynn Grimditch Roda (hereinafter collectively referred to as the children), had commenced construction of a second unpermitted boathouse adjacent to their nearby, separate parcel of lakefront property, and the parties agreed that both boathouses would be considered as part of the pending motion.

Supreme Court allowed construction of both boathouses to continue to the extent of installing piers and decking, but issued a limited preliminary injunction that required 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 applicable Village of Lake Placid/Town of North Elba Land Use Code (hereinafter LUC).¹ The Town then commenced action No. 1 against defendants seeking, among other things, a permanent injunction on the ground that the boathouses were in violation of the LUC. Defendants counterclaimed for a declaration that Navigation Law § 30 preempts the Town's enforcement of the LUC, making it inapplicable to any construction in the waters of Lake Placid. In support of their position, defendants relied upon Higgins v. Douglas, 304 A.D.2d 1051, 758 N.Y.S.2d 702 [2003], in which we held that Lake Placid, as navigable water, is not subject to the LUC. Defendants also claimed that they did not need a building permit because the boathouses were not buildings as defined by the SBC. Supreme Court later vacated the preliminary injunction,² defendants completed construction of the boathouses and the parties cross-moved for summary judgment.

While the cross motions for summary judgment were pending in action No. 1, plaintiffs John M. McMillin III, Ellen M. McMillin, Richard Moccia and Leslie Moccia (hereinafter collectively referred to as the neighbors) moved to intervene in that action on the ground that, as owners of property adjoining the children's parcel, they would be harmed by the allegedly illegal boathouse being constructed there. Supreme Court denied the motion to intervene, ³ and the neighbors commenced action No. 2 against the children seeking a permanent injunction and removal of their boathouse. After joinder of issue, the neighbors moved for a preliminary injunction and the children cross-moved for dismissal of the action against them.

Ultimately, Supreme Court granted summary judgment to defendants dismissing both actions. Based on our decisions in Higgins and Mohawk Val. Ski Club v. Town of Duanesburg, 304 A.D.2d 881, 757 N.Y.S.2d 357 [2003], the court reasoned that Lake Placid meets the definition of “navigable waters of the state” as set forth in Navigation Law § 2(4), which, in pertinent part, defines that phrase as “all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable in fact.” Based on the lack of any dispute as to whether Lake Placid is navigable in fact ( seeNavigation Law § 2[5] ), Supreme Court focused its analysis on whether the lake is privately owned. In doing so, it rejected the Town's argument that the State gave up ownership of the lake as part of the Macomb Patent and concluded that, despite the private ownership of almost 300 homes or camps on its shores, it need not determine whether title to the lake bed is in the riparian owners.⁴ Instead, the court held that the waters of the lake were “not privately owned” within the meaning of the statutory definition because of the State's ownership of a public boat launchingsite and the northeast portion of the lake. As a result, the court concluded that Lake Placid met the definition set forth in Navigation Law § 2(4) and, therefore, Navigation Law §§ 30 and 32 applied, conferring exclusive jurisdiction over structures in the lake upon the State. Accordingly, Supreme Court declared that the LUC did not apply to the construction of defendants' boathouses. Taking note, however, of our more recent decision in Beneke v. Town of Santa Clara, 36 A.D.3d 1195, 828 N.Y.S.2d 692 [2007],lv. dismissed8 N.Y.3d 938, 834 N.Y.S.2d 713, 866 N.E.2d 1041 [2007], the court also held that defendants' boathouses were buildings subject to the SBC ( see id. at 1198, 828 N.Y.S.2d 692). The court then separated the Town's administration and enforcement of the SBC from the LUC and found that Morganson's requirement that defendants comply with the LUC constituted a failure to perform his duties under the SBC. The court declared that the boathouses complied with the SBC and ordered the Town to issue building permits. The court also ordered a hearing on sanctions against the Town for, among other things, pursuing this action. The Town and the neighbors now appeal.

We agree with Supreme Court that Lake Placid was not part of the Macomb Patent and that the Navigation Law is applicable to the lake. We also agree that defendants' boathouses are structures subject to the SBC. Nevertheless, we cannot agree that the Navigation Law preempts the power of local municipalities to administer and enforce local land use laws by conferring upon the State exclusive jurisdiction over structures in the navigable waters of the state. Only when the State owns title to the land under the water in its sovereign capacity does it have exclusive jurisdiction preempting local land use laws. Based on development of English common-law principles regarding the ownership of submerged land in New York, we conclude that Lake Placid is not owned by the State in its sovereign capacity. In the absence of any such exclusive authority conferred by either the Navigation Law or sovereign title to Lake Placid, we now hold that the LUC is applicable to the construction of defendants' boathouses. Our conclusions require us to revisit our decisions in Higgins and Mohawk Val. Ski Club and, to the extent that they hold that the Navigation Law provides the State with exclusive jurisdiction over structures located in its navigable waters, no longer follow them.

I.

We begin with the rule that where the State holds title to the land under navigable water in its sovereign capacity, its paramount authority “is not limited to regulation in the interest of navigation but extends to every form of regulation in the public interest” ( People v. System Props., Inc., 281 App.Div. 433, 440, 120 N.Y.S.2d 269 [1953],mod. on other grounds2 N.Y.2d 330, 160 N.Y.S.2d 859, 141 N.E.2d 429 [1957];see Langdon v. Mayor of City of N.Y., 93 N.Y. 129, 155–156 [1883];Erbsland v. Vecchiolla, 35 A.D.2d 564, 565, 313 N.Y.S.2d 576 [1970],affd. sub nom. Erbsland v. Rubin 33 N.Y.2d 787, 350 N.Y.S.2d 653, 305 N.E.2d 775 [1973] ). The State's sovereign ownership of land under water has its origins in English common law, pursuant to which tidal waters were considered “navigable,” with the land under such waters owned by the Crown ( see PPL Montana, LLC v. Montana 565 U.S. ––––, ––––, 132 S.Ct. 1215, 1226–1227, 182 L.Ed.2d 77 [2012];Langdon v. City of New York, 93 N.Y. at 155–156). Under this framework, nontidal waters were considered “nonnavigable,” with title to the land under them being held by the adjacent riparian owners ( see PPL Montana, LLC v. Montana, 132 S.Ct. at 1227;Fulton Light, Heat & Power Co. v. State of New York, 200 N.Y. 400, 412, 94 N.E. 199 [1911] ). This distinction between tidal and nontidal waters was determined to be impractical in New York given the abundance of inland lakes and streams and, as a result, our common law has developed such that the State owns, in its sovereign capacity, the land under tidal waters, boundary waters, the Hudson and Mohawk Rivers and certain major inland lakes, based on their size, character and history ( see Illinois Cent. R. Co. v. Illinois, 146 U.S. 387, 435, 13 S.Ct. 110, 36 L.Ed. 1018 [1892];Hardin v. Jordan, 140 U.S. 371, 382–384, 393–394, 11 S.Ct. 808, 35 L.Ed. 428 [1891];Macrum v. Hawkins, 261 N.Y. 193, 203, 184 N.E. 817 [1933];Granger v. City of Canandaigua, 257 N.Y. 126, 131–132, 177 N.E. 394 [1931];Fulton Light, Heat & Power Co. v. State of New York, 200 N.Y. at 412–414, 94 N.E. 199;Saunders v. New York Cent. & Hudson Riv. R.R....