Agenda - Planning Commission - 01/09/2014

Home

December 10, 2013 I Volume 7 Issue 23 Zoning Bulletin (the "Town"). Lot 9 had approximately 200 feet of shorefront on Lake George. When the subdivision was established in 1925, easements were granted to numerous other lot owners permitting them to launch and store boats and to swim on Lot No. 9's shorefront. Those easements were subject to the Harts' right to maintain and erect shorefront structures and docks that do not "occupy or obstruct more of the [shorefront] . . . than is occupied or obstructed by the present dock." The dock in existence when the easements were granted was approximately 75 feet wide and was later destroyed by stories. The Harts replaced that dock with two docks that extended from a concrete bulkhead on the shore into the lake in a "U" configuration about 21 feet wide. In October 2008, the Harts were granted a permit by the Lake George Park Cornmission to construct a new E-shaped dock with an open -sided boat cover and sundeck that incorporated the existing northernmost pier, replaced the southernmost pier and measured 31 feet wide. In relation to the planned construction of the new dock, the Harts applied for site plan approval from the Town Planning Board (the "Board"). The Board ultimately denied the application, citing health and safety concerns, among other things. Thereafter, the Harts brought a legal action in court. They sought to annul the Board's determination on the sole ground that it lacked jurisdiction to review or deny the proposed site plan. The Harts contended that because the state owned land under navigable waters, including Lake George, the state's exclusive authority preempted the Town's local land use laws governing construction in the lake's navigable waters —including construction of the proposed dock. The supreme court agreed with the Harts, and ruled in their favor. The Town appealed. The Town first argued that the Harts had waived their jurisdictional challenge by not raising it during the administrative process. The Town also maintained that the state had delegated authority to regulate docks in Lake George to the_Town pursuant to state Navigation Law § 46-a. In the alternative, the Town argued that it had authority to regulate construction of the dock pursuant to the State Uniform Fire Prevention and Building Code, which includes structures in navigable waters. DECISION: Judgment of supreme court affirmed. The Supreme Court, Appellate Division, Third Department, New York, first held that the Harts had not waived their jurisdictional challenge to the Board's authority. Although the issue of jurisdiction had not been discussed during the Board meetings and public hearing related to the Hart's site plan approval application, the court found that the issue of the Hart's site plan be- ing beyond the Town's authority was "actually raised" in correspondence be- tween the parties attorneys. In any case, the court explained that "a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches or consent." Accordingly, the court concluded that the Harts had not waived their jurisdictional challenge by submitting their site plan to the Board for review. Next, the court agreed with the Harts that the Board lacked jurisdiction to 10 16 2013 Thomson Reuters