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Appeals panel briefed on LP boathouse case

January 14, 2012
By CHRIS MORRIS - Staff Writer ( , Adirondack Daily Enterprise

LAKE PLACID - The state Supreme Court Appellate Division is a step closer to ruling on a case involving a Lake Placid family targeted for building a pair of boathouses without permits from the town of North Elba.

Attorneys for the town, the Grimditch family and a pair of neighboring property owners appeared Monday in Albany before a panel of five judges in the Appellate Division's Third Judicial Department. Mike Hutter represented the town, James Brooks appeared for the Grimditches, and John Privitera was there on behalf of the McMillin and Moccia families.

The Grimditch family began building two boathouses on Lake Placid in 2010, without town permits. Town officials want to penalize the property owners and have the buildings removed. State Supreme Court Judge Richard Meyer ruled in favor of the Grimditch family last year, stating that because Lake Placid is a navigable waterway, the state holds jurisdiction, not the town. That ruling, if upheld, could eliminate municipal zoning control over boathouses statewide, shifting that authority to the state. It's unclear how that extra duty will burden agencies like the state Department of Environmental Conservation.

Under the town land-use code, a boathouse must be an ancillary structure, meaning it must accompany a primary structure. Neither boathouse on the Grimditch property meets that requirement. The smaller of the two structures also violates town setback rules because it's too close to neighboring properties owned by the McMillin and Moccia families.

The Grimditches belong to the Lake Placid Shore Owners Association, but that group has sided with the town. SOA President Mark Wilson was at Monday's hearing and said Justice Robert Rose referenced two prior court decisions there: Higgins v. Douglas in 2003 (also involving Lake Placid) and Beneke v. the Town of Santa Clara in 2006.

In Higgins v. Douglas, the Appellate Division ruled that North Elba did not have jurisdiction over the construction of a dock on Lake Placid. The court ruled the other way on Beneke v. the Town of Santa Clara, stating the town did have jurisdiction over a boathouse on Upper Saranac Lake.

"He said something to the effect of, 'I have participated in all of these cases; there is no doubt that one of these is wrong,'" Wilson said.

The Grimditch family filed for permits on the boathouse foundations on Sept. 20, 2010, and was granted permission days later, although construction was already under way. When the family filed for permits on the boathouses themselves, town Code Enforcement Officer Jim Morganson rejected them because they didn't meet town code.

According to Wilson, Justice Rose indicated that the case won't be decided on whether the town agreed to Judge Meyer's timeline for the permitting process.

"Judge Rose brought up the fact that this has to be settled (in a way) that really puts to rest these earlier, conflicting cases," Wilson said. "It suggested to me that whatever comes from this process will kind of put to rest all of the legalities of who has control, authority over shoreline development."

Brooks could not be reached for comment Friday.

Speaking during a North Elba town board meeting earlier this week, town Attorney Ron Briggs said Monday's hearing, which lasted about an hour, had a lot of sparring back and forth between the attorneys and that the questions asked by Justice Rose about navigable waters showed that he understands the legal issues.

"I was kind of pleased with how it turned out," Briggs said. "When you cut away all of the sparring and the procedural nonsense, what it comes down to is whether or not Lake Placid lake is public or private, and that's a very highly technical term.

"Our position is that in 1793 the state of New York in the Macomb patent conveyed out about 100,000 acres of land in the Adirondacks, including Upper Saranac Lake and Lake Placid lake. And the state has not reacquired the lake bottoms to the area in question."

Briggs said two lawyers from the state Office of General Services, which maps state lands and lakes, were at the hearing and that both took the legal position that Lake Placid is private.

"The significance of that is, if it's a public body - and that means the lake bottom - then the land-use code does not apply," Briggs said. "That's the legal issue. So this judge asked a lot of very pertinent questions about that issue, and at the end he said, 'Given the fact that we're all here today means that we made a mistake in our prior case law,' which shows an intention by the court to, once and for all, clarify this legal issue."

Briggs said the Grimditches have argued, using Higgins v. Douglas, that the town land-use code doesn't apply.

"Higgins v. Douglas only involved a floating boathouse in a private lawsuit between an owner of an easement and the owner of a land," Briggs said. "That case completely misunderstood the issue. Navigation law says that navigable waters in the state of New York are exempt from local zoning: only state control. The definition of navigable water of the state is that it's a body of water that is navigable in fact and not privately owned."

Publicly owned bodies of water, like the Hudson River, are exempt from local zoning, Briggs said.

"At the end of the day, that's going to be the issue by which we win or lose," he said, noting that OGS has mapped Lake Placid, tracked the Macomb patent and has "copious records and experts who are prepared to come testify that it is, in fact, a private lake."



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