| Town of Caroga v Herms |
| 2009 NY Slip Op 03810 [62 AD3d 1121] |
| May 14, 2009 |
| Appellate Division, Third Department |
| Town of Caroga, Respondent, v Joseph Herms,Appellant. |
—[*1] Girvin & Ferlazzo, P.C., Albany (Salvatore D. Ferlazzo of counsel), forrespondent.
Spain, J. Appeal from an order and judgment of the Supreme Court (Giardino, J.), enteredJuly 22, 2008 in Fulton County, upon a decision of the court in favor of plaintiff.
Defendant owns a parcel of real property along the shore of Canada Lake, within the Townof Caroga, Fulton County. Plaintiff, the Town of Caroga, commenced the instant action allegingthat defendant had constructed a structure on his property in violation of zoning regulations.After a three-week bench trial, Supreme Court found for plaintiff and ordered defendant toremove the structure and pay a $50,000 civil penalty. On defendant's appeal, we now affirm.
Initially, we reject defendant's contention that the action must be dismissed because theTown Board did not authorize the action prior to its commencement in plaintiff's name and, thus,plaintiff lacked capacity to sue (see Town of Claverack v Brew, 277 AD2d 807, 809[2000]; see also Town Law §§ 65, 268 [2]). Defendant points out that theonly relevant Board resolution that preceded commencement of the action resolved that plaintiffhad decided to contract with a law firm to represent plaintiff in connection with its dispute withdefendant, but did not expressly state that plaintiff had resolved to commence an action. Whilepreviously we have held that town board authorization requires a resolution (see Town ofThompson v Alleva, 76 AD2d 1022, 1022 [1980], appeal dismissed 53 NY2d 839[1981]), we have not interpreted the rule rigidly and have allowed a resolution to effectuate townauthorization nunc pro tunc (see Town of Blooming Grove v Blooming Farms JointVenture, 128 AD2d 772, 773 [1987]).[*2]
Here, several resolutions exist demonstrating the Board'sratification of the suit after it had been commenced. Defendant argues, however, that ratificationis only possible to save an action where a vote authorizing the action actually had beentaken—but perhaps not recorded—prior to the commencement of the action. First,we note that testimony from several Board members supports plaintiff's position that the Boardauthorized the action prior to its commencement. One member affirmatively stated that theBoard voted to commence the action and two others confirmed that the Board had decided totake action against defendant, but did not give specifics as to whether or when a vote was taken.
Second, we are unpersuaded by defendant's assertion that our decision in Matter ofGersen v Mills (290 AD2d 839 [2002]) compels the conclusion that a resolution can neversave a suit nunc pro tunc unless evidence exists that an official vote was taken prior to thecommencement of the lawsuit. Gersen arose in the context of the Education Law and,more significantly, involved an asserted violation of the Open Meetings Law (see PublicOfficers Law § 106; Matter of Gersen v Mills, 290 AD2d at 841). There, themissing record of an official vote required dismissal despite a subsequent resolution becauseprejudice to the respondent was clear in that the applicable period of limitations had run prior tothe board's resolution. Here, no such prejudice would result because the zoning violation accrueseach day anew, rendering it possible for plaintiff to commence a new action at any time (see Beneke v Town of Santa Clara, 45AD3d 1164, 1164-1165 [2007], lv denied 10 NY3d 706 [2008]). Where, as here, noprejudice would result from reliance on a resolution passed subsequent to the commencement ofa lawsuit to ratify the decision to sue, we have declined to dismiss an action for a violation of theOpen Meetings Law (see Town of Moriah v Cole-Layer-Trumble Co., 200 AD2d 879,881 [1994]; see generally Public Officers Law art 7). In sum, because the record amplysupports Supreme Court's determination that the Board did discuss and intend to officiallyauthorize the lawsuit prior to its commencement—albeit not by a vote during opensession—and thereafter ratified the action by a formal resolution, we find that plaintiff hadcapacity to commence the action (see Town of Moriah v Cole-Layer-Trumble Co., 200AD2d at 881; cf. Town of Claverack v Brew, 277 AD2d at 809 [no evidence of "aresolution or other official (t)own (b)oard action"]; see also Matter of New York Univ. vWhalen, 46 NY2d 734, 735 [1978]).
Next, defendant contends that plaintiff should be judicially estopped from asserting that thestructure that defendant is building is anything but the boathouse as authorized by his buildingpermit. Specifically, defendant argues that plaintiff should be bound by the position it took in1999, when defendant's neighbors commenced a CPLR article 78 proceeding seeking toinvalidate defendant's building permit. In that proceeding, plaintiff's code enforcement officerasserted in an affidavit that, at that time, the structure appeared to be a boathouse, having directaccess to the water and no kitchen or bathroom facilities. Supreme Court dismissed the petition,concluding that the structure was a boathouse. Thereafter, this Court affirmed, but on differentgrounds. On appeal, we held that the petitioners had failed to exhaust their administrativeremedies, thus the proceeding should have been dismissed without reaching the merits(Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]).
Defendant's judicial estoppel argument must fail for two reasons. First, because the prioraction was dismissed for failure to exhaust administrative remedies, it cannot be said thatplaintiff succeeded on the merits, rendering the doctrine inapplicable (see id. at 745;Northern Metro. Residential Health Care Facility v Ledri Realty Assoc., 179 AD2d 133,137 [1992]). Second, plaintiff's position in this action is not inconsistent with that which itespoused in the prior proceeding. There, plaintiff maintained that the structure was a boathouseas it existed in [*3]1999, but tempered that opinion with the factthat the structure was still under construction and by explicitly reserving the right to take actionagainst defendant should the structure fall out of compliance with zoning regulations. Plaintiff'sposition in this action can fairly be characterized as based on changes in the structure madesubsequent to the prior proceeding. Accordingly, we do not find plaintiff's position herenecessarily to be inconsistent with the position it took in the 1999 proceeding.
Turning to the merits, we conclude that Supreme Court's determination that the structure isnot a boathouse, but a residential camp in violation of plaintiff's zoning regulations, is supportedby the record. In 1999, when plaintiff issued defendant's permit to construct a boathouse, aboathouse was defined as " 'a structure with direct access to a navigable body of water (1) whichis used for the storage of boats and associated equipment and (2) which does not have bathroomor kitchen facilities and is not designed or used for lodging or residency' " (Matter of Otto vNew York State Adirondack Park Agency, 252 AD2d 898, 899 [1998], quoting 9 NYCRRformer 575.4 [c]).[FN*]The structure built by defendant falls short of this definition. Our review of the record supportsSupreme Court's finding that the structure lacks direct access to Canada Lake; photographs anddrawings of the structure reveal no means of passing from the structure to the water, withouthaving to first pass over land. Supreme Court was free to disregard defendant's testimony that heplanned on building a staircase directly to the water where the only manner of ingress and egressfrom the structure indicated on the plans is a short stairway from the south exposure to theground. Moreover, no drawing makes any reference at all to, nor does any picture reveal, anysort of slip, dock or other mooring apparatus for a boat—whether existing orplanned—beneath the structure.
Further, testimony was adduced at trial supporting the conclusion that, had defendant'sconstruction activities not been halted by a stop work order, the structure likely would havecontained a kitchen and/or a bathroom. Witnesses testified to seeing plumbing fixtures on thepremises, as well as sealed boxes labeled as containing kitchen cabinets. That the structure wasintended for residential use is also demonstrated by the structure's various amenities, includingsheet-rocked interior partition walls forming interior rooms, mattresses in the uppermost level ofthe structure, a chest of drawers, an entertainment center with a television and video player, amicrowave oven, extensive electrical wiring, casement windows, glass doors, a gas stove andtelephone service (cf. Matter of Otto v New York State Adirondack Park Agency, 252AD2d at 899). Although defendant offered many creative explanations for much of thisevidence, we defer to Supreme Court's decision not to credit his testimony (see Charles T. Driscoll MasonryReconstruction Co., Inc. v County of Ulster, 40 AD3d 1289, 1291 [2007]).
Finally, even crediting defendant's claim that the uppermost level of the structure was to beunavailable for use, the structure's size is beyond what was authorized in the building permit.Defendant was authorized to build a boathouse with dimensions of 30 feet by 41 feet.Subsequent to the issuance of the permit, defendant added decking to the structure, increasing itsfootprint to 34 feet, 8 inches by 49 feet. This increased the area of the structure to approximately1,700 square feet, well in excess of the 1,250 square feet afforded to boathouses. Accordingly,we agree with Supreme Court's determination that a preponderance of the evidence demonstratesthat the structure was designed and being constructed as a residence, rather than a boathouse.[*4]
We turn last to defendant's challenge to the penaltyimposed by Supreme Court as excessive. Supreme Court has discretion to fashion a suitableequitable remedy (see e.g. Matter of Gerges v Koch, 62 NY2d 84, 95-96 [1984]) and,with reference to zoning regulations, removal of offending structures is among the appropriateremedies (see Beneke v Town of Santa Clara, 45 AD3d at 1164; see also TownLaw § 268 [2]). Here, defendant was well aware that plaintiff would not permit him tobuild a camp residence on the property due to plaintiff's setback requirements; he unsuccessfullysought permission to build a camp on three separate occasions. Nevertheless, while his thirdapplication was pending, he commenced construction without a permit. He then successfullyapplied for permission to build a single-story, one-room boathouse, while he continued to build astructure with several partitioned rooms and with no provision for the storage of a boat. Afterdefendant's building permit expired by its own terms in July 2000, defendant did not apply for anew permit, but unsuccessfully asserted his right to complete the structure in the context ofseveral other litigations. Testimony was proffered at trial that defendant approached a Boardmember—a local contractor—and offered to send work his way if he could helpdefendant gain approval to build a camp. A social acquaintance of defendant also testified thatdefendant said that he intended to use his extensive real estate and political experience tooutmatch the "local yokels" who were trying to prevent him from building a residence on theproperty. Accordingly, we are persuaded that defendant designed and built the structure forresidential use with the express intent to circumvent plaintiff's regulations.
Under these circumstances, we find that the penalty imposed was not an abuse of SupremeCourt's broad discretion (see CPLR 3017 [a]; State of New York v Barone, 74NY2d 332, 336 [1989]; Beneke v Town of Santa Clara, 45 AD3d at 1165; Matter ofMassa v City of Kingston, 284 AD2d 836, 838-839 [2001], lv denied 97 NY2d 603[2001]). Defendant's persistent attempts to circumvent the law justifies Supreme Court's decisionto order removal of the structure, rather than modification. Further, the civil penalty imposed isauthorized by the Town Law, which gives rise to civil liability in defendant for each week thatthe structure violated zoning regulations (see Town Law § 135; Beneke vTown of Santa Clara, 45 AD3d at 1165). Notably, Supreme Court countenanced defendant'sclaim that plaintiff's delays in complying with disclosure orders may have contributed to theduration of defendant's violation and, accordingly, significantly reduced defendant's penalty.
Mercure, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order andjudgment is affirmed, without costs. [See 20 Misc 3d 1130(A), 2008 NY Slip Op51674(U).]
Footnote *: The definition of boathouse wasamended in 2002 and can now be found at 9 NYCRR 570.3 (c).