Development

Town Lacked Authority To Regulate Construction Under Navigable Body of Water

Town of Carmel v. Melcher

NYLJ 3/6/13, p. 21, col. 1

AppDiv, Second Dept.

(Opinion by Angiolillo, J.)

In the town's action to enjoin landowners from using docks on Lake Mahopac, landowners appealed from Supreme Court's grant of the town's motion for a preliminary injunction and Supreme Court's grant of landowner's motion to dismiss the complaint for failure to state a claim. The Appellate Division modified to deny the preliminary injunction and to dismiss the cause of action for violation of the town's zoning code, holding that the town lacked authority to regulate construction on land submerged under a navigable body of water owned by the state.

Landowner operates a commercial marina on the shore of Lake Mahopac, a body of water owned by the state. One of the lots owned by landowner had been used as a commercial marina before landowner purchased it, but landowner expanded the marina to several adjoining lots, all of which are located in a residential zoning district. The town made various efforts to require landowner to remove docks protruding from those parcels, resulting in criminal convictions of landowner on several
counts. The town later brought a civil action to enjoin landowner's commercial use of two of the parcels, and the parties entered into a 2007 stipulation of settlement by the terms of which landowner agreed to cease commercial use of four lots, and to remove boat slips protruding into the water from residential lots. Landowner then reconfigured the docks by moving them into the lake away from the shore, and connecting them to the one dock on the parcel that had been used as a marina before landowner's purchase.

In 2008, the town brought another criminal action against landowner, alleging an unlawful expansion of the marina, and unlawful expansion of dock structures and mooring facilities. That action was still pending when the town commenced the instant action to enjoin landowner from using reconfigured docks and from using the lots for commercial purposes. The town contended first that the reconfigured docks violate the zoning ordinance and second that they violate the terms of the 2007 settlement. Supreme Court granted a preliminary injunction and denied landowner's motion to dismiss the complaint.

In modifying, the Appellate Division noted that in this proceeding, landowner raised for the first time a challenge to the town's authority to enforce the code with respect to moorings and docks placed in a navigable lake. The court then held that section 30 of the Navigation Law gives the state exclusive jurisdiction to regulate structures in navigable waters above state-owned submerged land, except with respect to municipalities who have received authority to regulate moorings and docks pursuant to Navigation Law section 46-(a)(2). Because the town was not one of the municipalities, the town lacked authority to regulate structures in navigable waters, and the court dismissed the town's claim that the structures violated the local zoning code. But the court noted that the stipulation of settlement created a contract, and landowner waived any defense based on lack of authority with respect to matters covered by the stipulation. As a result, the court did not dismiss the claim based on violation of the stipulation.

COMMENT

Unless otherwise provided by statute, municipalities have authority to regulate land to the high-water mark and no authority to regulate structures in navigable waters over State-owned submerged land. For example, in Town of Alexandria v. MacKnight, 281 A.D.2d 945, the court held the Town of Alexandria could not regulate the construction of a floating dock in navigable waters because the state has exclusive authority to regulate structures in the navigable waters of the state. The Navigation Law section 2(4) defines “navigable waters of the state” as all “waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels are operated.”

The Navigation Law provides municipalities authority to regulate structures in navigable waters of the state in three circumstances. First, Navigation Law section 2(4) excludes from the proscription of municipal regulation municipalities with waters bordering on or lying within Nassau and Suffolk Counties. Second, Navigation Law section 46-a grants authority to dozens of municipalities to regulate the construction and location of boathouses, moorings and docks in waters within or bounding those municipalities to a distance of 1,500 feet from the shoreline. N.Y. Nav. ' 46-a(2)-(6). Third, Navigation Law sections 46 and 46-a(1) provide all municipalities with authority to designate vessel regulation zones and to regulate the speed, operation, and anchoring or mooring of vessels. When state law confers on a municipality authority to regulate structures in navigable waters of the state, the construction and location of structures in water must comply with both state and local laws, rules and regulations. See, e.g., N.Y. Nav. ' 32; see also N.Y. Pub. Lands ' 75(7)(b).

When water covers privately owned submerged land, municipalities have broad authority to regulate structures in both navigable and non-navigable waters. For example, in Town of North Elba v. Grimditch, 98 A.D.3d 183, the court reversed a grant of summary judgment to a landowner challenging municipal regulation, holding that local laws applied to the construction of a floating boathouse in navigable waters. The court reasoned that the Navigation Law does not displace local laws when submerged land under Lake Placid is privately owned.

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Town Lacked Authority To Regulate Construction Under Navigable Body of Water

Town of Carmel v. Melcher

NYLJ 3/6/13, p. 21, col. 1

AppDiv, Second Dept.

(Opinion by Angiolillo, J.)

In the town's action to enjoin landowners from using docks on Lake Mahopac, landowners appealed from Supreme Court's grant of the town's motion for a preliminary injunction and Supreme Court's grant of landowner's motion to dismiss the complaint for failure to state a claim. The Appellate Division modified to deny the preliminary injunction and to dismiss the cause of action for violation of the town's zoning code, holding that the town lacked authority to regulate construction on land submerged under a navigable body of water owned by the state.

Landowner operates a commercial marina on the shore of Lake Mahopac, a body of water owned by the state. One of the lots owned by landowner had been used as a commercial marina before landowner purchased it, but landowner expanded the marina to several adjoining lots, all of which are located in a residential zoning district. The town made various efforts to require landowner to remove docks protruding from those parcels, resulting in criminal convictions of landowner on several
counts. The town later brought a civil action to enjoin landowner's commercial use of two of the parcels, and the parties entered into a 2007 stipulation of settlement by the terms of which landowner agreed to cease commercial use of four lots, and to remove boat slips protruding into the water from residential lots. Landowner then reconfigured the docks by moving them into the lake away from the shore, and connecting them to the one dock on the parcel that had been used as a marina before landowner's purchase.

In 2008, the town brought another criminal action against landowner, alleging an unlawful expansion of the marina, and unlawful expansion of dock structures and mooring facilities. That action was still pending when the town commenced the instant action to enjoin landowner from using reconfigured docks and from using the lots for commercial purposes. The town contended first that the reconfigured docks violate the zoning ordinance and second that they violate the terms of the 2007 settlement. Supreme Court granted a preliminary injunction and denied landowner's motion to dismiss the complaint.

In modifying, the Appellate Division noted that in this proceeding, landowner raised for the first time a challenge to the town's authority to enforce the code with respect to moorings and docks placed in a navigable lake. The court then held that section 30 of the Navigation Law gives the state exclusive jurisdiction to regulate structures in navigable waters above state-owned submerged land, except with respect to municipalities who have received authority to regulate moorings and docks pursuant to Navigation Law section 46-(a)(2). Because the town was not one of the municipalities, the town lacked authority to regulate structures in navigable waters, and the court dismissed the town's claim that the structures violated the local zoning code. But the court noted that the stipulation of settlement created a contract, and landowner waived any defense based on lack of authority with respect to matters covered by the stipulation. As a result, the court did not dismiss the claim based on violation of the stipulation.

COMMENT

Unless otherwise provided by statute, municipalities have authority to regulate land to the high-water mark and no authority to regulate structures in navigable waters over State-owned submerged land. For example, in Town of Alexandria v. MacKnight, 281 A.D.2d 945, the court held the Town of Alexandria could not regulate the construction of a floating dock in navigable waters because the state has exclusive authority to regulate structures in the navigable waters of the state. The Navigation Law section 2(4) defines “navigable waters of the state” as all “waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels are operated.”

The Navigation Law provides municipalities authority to regulate structures in navigable waters of the state in three circumstances. First, Navigation Law section 2(4) excludes from the proscription of municipal regulation municipalities with waters bordering on or lying within Nassau and Suffolk Counties. Second, Navigation Law section 46-a grants authority to dozens of municipalities to regulate the construction and location of boathouses, moorings and docks in waters within or bounding those municipalities to a distance of 1,500 feet from the shoreline. N.Y. Nav. ' 46-a(2)-(6). Third, Navigation Law sections 46 and 46-a(1) provide all municipalities with authority to designate vessel regulation zones and to regulate the speed, operation, and anchoring or mooring of vessels. When state law confers on a municipality authority to regulate structures in navigable waters of the state, the construction and location of structures in water must comply with both state and local laws, rules and regulations. See, e.g., N.Y. Nav. ' 32; see also N.Y. Pub. Lands ' 75(7)(b).

When water covers privately owned submerged land, municipalities have broad authority to regulate structures in both navigable and non-navigable waters. For example, in Town of North Elba v. Grimditch, 98 A.D.3d 183, the court reversed a grant of summary judgment to a landowner challenging municipal regulation, holding that local laws applied to the construction of a floating boathouse in navigable waters. The court reasoned that the Navigation Law does not displace local laws when submerged land under Lake Placid is privately owned.

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