Agenda - Planning Commission - 10/15/2015

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Zoning Bulletin September 10, 2015 1 Volume 9 1 Issue 17 Neighbors were moot; (3) the boathouses were legally constructed; and (4) the boathouses were legal nonconforming structures in light of their construction prior to the Appellate Division's finding that the LUC applied to them; and (5) the remedy requiring dismantling and removal of the boathouses was unequitable. DECISION: Judgment of Supreme Court affirmed as modified. The Supreme Court, Appellate Division, Third Department, New York, first held that the Neighbors had standing. The court explained that al- though municipal officials are tasked with enforcing zoning ordinances within their boundaries, that "does not prevent . . . private property own- er[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]." Here, the Neighbors established standing, found the court, in that they made specific allegations of close proximity to the Children's parcel, which gave rise to an inference of damage and injury. Next, the court rejected the argument of Grimditch and the Children that the claims of the Town and Neighbors were moot given the completed construction of the boathouses. The court explained that "completion of a project does not preclude injunctive relief because offending structures ordinarily can be dismantled." Under the circumstances here -where multiple actions for preliminary injunction were brought by the Town and the Neighbors to prevent construction of the boathouses, and where Grimditch and the Children were warned that they continued construction at their own peril while litigation proceedings continued, the court concluded that the actions were not moot. The court noted that there was "no longer any dispute" that the SBC and LUC applied to the construction of the boathouses and that no permits were ever obtained under the SBC or LUC for the boathouses. Accord- ingly, the court affirmed that the boathouses were not lawfully constructed. Moreover, the court rejected the argument that the boathouses were legal nonconforrning structures in light of their construction prior to the Appel- late Division's finding that the Navigable Water Law .did not preempt Town jurisdiction and that the LUC applied to them. The court held that the nonconforming use doctrine had no application here because the boathouses were not constructed prior to the enactment of, or any relevant amendment to, either the LUC or SBC. The court's decision did not con- stitute a change in a zoning law or ordinance so as to give rise to a prior nonconforming use. That is, the boathouses were—subject to certain specific requirements a permitted use under the LUC when they were constructed, and those structures did not become nonconforming by virtue of either a zoning change or the Appellate Division's recent decision in the matter. Finally, the court concluded that the remedy of requiring the boathouses be dismantled and removed was equitable. The court found that such relief was "particularly warranted" where, as here, the record contains abundant © 2015 Thomson Reuters 11