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Defendants Ordered to Dismantle and Remove Boathouses Built Without Permits/Immediate Neighbors Had Standing to Bring an Action to Enjoin the Zoning Violations

The Third Department, in a full-fledged opinion by Justice Egan, determined that boathouses constructed without permits (required by the New York State Uniform Fire Prevention and Building Code [SBC] and the Village of Lake Placid/Town of North Elba Land Use Code [LUC]) must be completely dismantled and removed.  The defendants were aware from the start that proceeding with the building of the boathouses without permits would be at their own risk. The permits were ultimately denied. The opinion is extensive and much of it is devoted to explaining the litigation/appeal history and refuting defendants’ arguments (not addressed here).  With respect to the finding that the neighbors had standing to bring an action to enjoin the asserted zoning violations re: one of the parcels (referred to as the “children’s parcel”), the court wrote:

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]” … . 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 … .

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” … . 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 … . 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” … . Town of N. Elba v Grimditch, 2015 NY Slip Op 05740, 3rd Dept 7-2-15

 

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