                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      520007
________________________________

TOWN OF NORTH ELBA et al.,
                    Respondents-
                    Appellants,
      v

CAROLYN W. GRIMDITCH, as
   Personal Representative and
   Executor of the Estate of
   WILLIAM H. GRIMDITCH JR.,
   Deceased, et al.,
                    Appellants-
                    Respondents.

(Action No. 1.)                             OPINION AND ORDER
________________________________

JOHN M. McMILLIN III et al.,
                    Respondents-
                    Appellants,
      v

WAYNE H. GRIMDITCH et al.,
                    Appellants-
                    Respondents.

(Action No. 2.)
________________________________


Calendar Date:   June 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


      Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry of
counsel) and James M. Brooks, Lake Placid, for appellants-
respondents.
                              -2-                520007

      Powers & Santola, LLP, Albany (Michael Hutter of counsel)
and Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of
counsel), for Town of North Elba and another, respondents-
appellants.

      McNamee, Lochner, Titus & Williams, PC, Albany (John J.
Privitera of counsel), for John M. McMillin III and others,
respondents-appellants.

                           __________


Egan Jr., J.

      Cross appeals from an order of the Supreme Court (Buchanan,
J.), entered October 6, 2014 in Essex County, which, among other
things, granted plaintiffs' motions for summary judgment.

      The underlying facts and related procedural history –
detailing the numerous prior motions and various requests for
injunctive relief between the parties – are fully set forth in
our most recent decision in this matter (98 AD3d 183 [2012]) and
need not be repeated here. In a nutshell, these actions concern
two boathouses that were constructed without building permits on
the shoreline and in the waters of Lake Placid in the Town of
North Elba, Essex County. As is relevant here, William H.
Grimditch Jr. (hereinafter Grimditch)1 began construction of a
three-slip boathouse on his unimproved lakefront property on Lake
Placid in September 2010, and his children, defendants Wayne H.
Grimditch and Carol Lynn Grimditch Roda (hereinafter collectively
referred to as the children) undertook similar construction of a
one-slip boathouse on their nearby vacant lakefront property. In
response, plaintiff James E. Morganson, the Code Enforcement
Officer for the Village of Lake Placid/Town of North Elba,
immediately issued the first of three stop work orders, and


    1
        Grimditch, originally a defendant in this action, died in
2013 and his spouse, Carolyn W. Grimditch, in her capacity as his
personal representative and executor of his estate, was
substituted as a party defendant.
                              -3-                520007

Morganson and plaintiff Town of North Elba (hereinafter
collectively referred to as the Town) moved for a preliminary
injunction to halt construction by Grimditch and the children
(hereinafter collectively referred to as defendants).

      Supreme Court (Meyer, J.) initially allowed construction of
both boathouses to continue to the extent of permitting the
installation of the caissons and decking, but issued a limited
preliminary injunction requiring defendants to apply for building
permits pursuant to the New York State Uniform Fire Prevention
and Building Code Act (hereinafter SBC) and to comply with the
provisions of the Village of Lake Placid/Town of North Elba Land
Use Code (hereinafter LUC). In so doing, the court warned
defendants that, if they proceeded with construction, including
the installation of the caissons and decking, they did so "at
[their] own peril and on notice that [they] may be required, at
[their] sole cost and expense, to remove all such improvements
. . . in the event that the [Town] finally prevail[ed] . . . on
the merits." The Town then commenced two actions against
defendants, later consolidated (action No. 1), and plaintiffs
John M. McMillin III, Ellen M. McMillin, Richard Moccia and
Leslie Moccia (hereinafter collectively referred to as the
neighbors), who own land adjacent to the children's parcel,
commenced a separate action (action No. 2) seeking, among other
things, removal of the children's boathouse.

      During the course of the litigation that followed, and
while the parties' motions and cross motions for, among other
things, summary judgment were pending, defendants substantially
completed construction of both boathouses – without successfully
obtaining the required building permits or administratively
challenging the Town's denial thereof. In August 2011, Supreme
Court (Meyer, J.), relying upon our prior decision in Higgins v
Douglas (304 AD2d 1051 [2003]), granted summary judgment to
defendants dismissing both actions. In so doing, the court
found, among other things, that the LUC did not apply to the
construction of defendants' boathouses; accordingly, the court
ordered the Town to issue the requested building permits. Upon
appeal, this Court reversed the award of summary judgment to
defendants, holding – insofar as is relevant here – that because
"Lake Placid is not owned by the State in its sovereign capacity
                              -4-                520007

and most of the lake is within the Town's boundaries, the Town's
zoning authority includes that portion of the lake, making the
LUC applicable to structures constructed therein," including
defendants' boathouses (98 AD3d at 195).

      Following our remittal for further proceedings, additional
motion practice ensued. Ultimately, Supreme Court (Buchanan, J.)
issued two well-reasoned decisions2 that, among other things,
awarded summary judgment to the Town and the neighbors
(hereinafter collectively referred to as plaintiffs), ordered
defendants to "abate their violation of the [SBC and LUC] . . .
by dismantling the two boathouses . . . to the point where all
that remains are the caissons and decking initially authorized"
and denied the Town's request that civil penalties be imposed.
Defendants now appeal, and plaintiffs cross-appeal from that part
of the order that spared the caissons and decking. The Town also
seeks the imposition of civil penalties against defendants.3

      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]"
(Nemeth v K-Tooling, 100 AD3d 1271, 1273 [2012] [internal
quotation marks and citations omitted]). To establish standing
to maintain a private common-law action to enjoin zoning


    2
        The first decision extensively recounted the history of
these actions, but held resolution of the respective motions in
abeyance pending the completion of certain specified discovery;
the second decision addressed the merits of the parties' motions
and cross motions.
    3
        This Court granted defendants' motion for a stay of
Supreme Court's order pending appeal (2014 NY Slip Op 91928[U]
[2014]).
                              -5-                520007

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
(Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town
of N. Hempstead, 69 NY2d 406, 413, 414 [1987]).

      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" (Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 844
[2005]; see Matter of Sun-Brite Car Wash v Board of Zoning &
Appeals of Town of N. Hempstead, 69 NY2d at 414-415; Citizens for
St. Patrick's v City of Watervliet City Council, 126 AD3d 1159,
1160 [2015]). 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 (see Nemeth v K-Tooling, 100 AD3d at 1273-1274; Zupa v
Paradise Point Assn., Inc., 22 AD3d at 844). 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" (96 AD3d 1305, 1306 [2012]).

      Next, we reject as meritless defendants' contention that,
because the construction of the boathouses is now complete,
plaintiffs' claims are either moot or barred by the doctrine of
                              -6-                520007

laches. While "the doctrine of mootness [may be] invoked where a
change in circumstances prevents a court from rendering a
decision that would effectively determine an actual controversy"
(Matter of Dreikausen v Zoning Bd. of Appeals of City of Long
Beach, 98 NY2d 165, 172 [2002]), where the change concerns the
completion of construction, courts must consider several factors,
including whether the challengers sought "preliminary injunctive
relief or otherwise [attempted to] preserve the status quo to
prevent construction from commencing or continuing during the
pendency of the litigation" (id. at 173; accord Matter of
Citineighbors Coalition of Historic Carnegie Hill v New York City
Landmarks Preserv. Commn., 2 NY3d 727, 729 [2004]; Matter of
Kowalczyk v Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d
1475, 1477 [2012]). Notably, completion of a project does not
preclude injunctive relief because offending structures
ordinarily can be dismantled (see Matter of Dreikausen v Zoning
Bd. of Appeals of City of Long Beach, 98 NY2d at 172).

      Here, defendants – proceeding without authority, approval
or the required permits and in utter disregard of stop work
orders – engaged in what can only be described as an unseemly
"race to completion" (id.; compare Matter of Kowalczyk v Town of
Amsterdam Zoning Bd. of Appeals, 95 AD3d at 1477-1478). In
response, the Town took immediate and repeated action to halt
construction and preserve the status quo, including issuing stop
work orders, denying permit applications, repeatedly seeking
injunctive relief, expeditiously commencing legal actions and
moving for summary judgment (compare Matter of Citineighbors
Coalition of Historic Carnegie Hill v New York City Landmarks
Preserv. Commn., 2 NY3d at 729-730; Matter of Dreikausen v Zoning
Bd. of Appeals of City of Long Beach, 98 NY2d at 174; Matter of
Kowalczyk v Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d at
1477-1478; Matter of Riverkeeper, Inc. v Johnson, 52 AD3d 1072,
1073-1074 [2008], lv denied 11 NY3d 716 [2009]). The neighbors
also commenced their own action and moved for a preliminary
injunction. Additionally, as noted previously, defendants were
expressly warned as early as September 2010 that, while they
would be allowed to install the caissons and decking, they were
required to obtain the necessary permits and any construction,
including the installation of the caissons and decking, would be
"at [their] own peril." As such, defendants were placed on
                              -7-                520007

notice at a very early stage that "completion was undertaken at
[their] own risk" (Matter of Hart Family, LLC v Town of Lake
George, 110 AD3d 1278, 1279 n 1 [2013]; see Matter of Schupak v
Zoning Bd. of Appeals of Town of Marbletown, 31 AD3d 1018, 1020
[2006], lv dismissed 8 NY3d 842 [2007]). Under these
circumstances, we conclude that these actions are not moot.

      As to the doctrine of laches, it is settled law that a
municipality may not, except in "the rarest cases," be estopped
from enforcing its zoning laws or otherwise prevented from
discharging its statutory duties in this regard (Matter of
Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988],
appeal dismissed and cert denied 488 US 801 [1988]; see Matter of
Berchielli v Zoning Bd. of Appeals of Town of Westerlo, 202 AD2d
733, 735 [1994], lv denied 83 NY2d 757 [1994]). The neighbors,
in turn, were entitled to reasonably rely both upon the LUC
itself and the fact that the Town would seek to enforce the
provisions thereof, "thereby protecting against diminution in the
value of the[ir] property by nonpermitted uses" (Matter of Sun-
Brite Car Wash v Board of Zoning & Appeals of Town of N.
Hempstead, 69 NY2d at 412). In addition to relying upon the
Town's numerous enforcement efforts, the neighbors sought to
intervene in the Town's action against the children and
thereafter commenced their own action seeking injunctive relief.
Under these circumstances, it cannot be said that the neighbors
unreasonably delayed in protecting their interests (see Matter of
Letourneau v Town of Berne, 89 AD3d 1202, 1203 [2011]; compare
Matter of Miner v Town of Duanesburg Planning Bd., 98 AD3d 812,
813-814 [2012], lv denied 20 NY3d 853 [2012]).

      Turning to the merits, we find that Supreme Court correctly
granted plaintiffs' motions for summary judgment and denied
defendants' cross motions for summary judgment. There no longer
is any dispute that the SBC and LUC apply to the construction of
defendants' boathouses (98 AD3d at 187). The boathouses, in
turn, qualify as buildings for which permits were required under
the Executive Law, its implementing regulations and the LUC (see
Executive Law §§ 372 [3]; 378 [1]; 19 NYCRR 1203.3 [a]; Joint
Village of Lake Placid/Town of North Elba Land Use Code part III,
art II, § 12 [A]), and there is no question that the Town has the
authority to administer and enforce the provisions thereof (see
                               -8-                520007

Executive Law §§ 371 [2] [d]; 381 [2]). Additionally, the LUC
specifies a review process to be followed in order to obtain the
required permits (see Joint Village of Lake Placid/Town of North
Elba Land Use Code arts II, § 12 [A]; III; part V, appendices C,
§ II [B]; D, § I; F). No permits (save the initial conditional
permit for the caissons and decking) were ever obtained for the
boathouses – in fact, the permit applications were denied for
noncompliance with the LUC – and the review process outlined
therein was not followed. Thus, plaintiffs' proof was sufficient
to discharge their initial burden on their summary judgment
motions – namely, establishing that the boathouses were not
lawfully constructed.

      In opposition to plaintiffs' motions and in support of
their cross motions, defendants argued – and continue to assert
on appeal – that our most recent decision in this matter, wherein
we held that the LUC indeed applied to the construction of
defendants' boathouses (98 AD3d at 187), effectively changed the
law as it existed under Higgins, thereby (1) depriving defendants
of their vested rights to maintain the boathouses and (2)
allowing such structures to remain as prior nonconforming uses.4
These arguments fail for a number of reasons.

      "Nonconforming uses or structures, in existence when a
zoning ordinance is enacted, are, as a general rule,
constitutionally protected and will be permitted to continue,
notwithstanding the contrary provisions of the ordinance"
(Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127, 135
[2010] [internal quotation marks, brackets and citation omitted];
see Jones v Town of Carroll, 15 NY3d 139, 143 [2010]; Buffalo
Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88, 97 [2009];
Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 95
AD3d 1636, 1637 [2012]). While a permit is not a prerequisite to
establishing a prior nonconforming use (see Buffalo Crushed


     4
        To the extent that defendants have not briefed any issues
with respect to their remaining affirmative defenses and
counterclaims, we deem any arguments related thereto to be
abandoned (see Borst v International Paper Co., 121 AD3d 1343,
1345 n 2 [2014]).
                               -9-                520007

Stone, Inc. v Town of Cheektowaga, 13 NY3d at 101-102; Matter of
Cobleskill Stone Prods., Inc. v Town of Schoharie, 126 AD3d 1094,
1095 [2015]), the nonconforming use doctrine has no application
here because the boathouses were not constructed prior to the
enactment of, or any relevant amendment to, either the LUC or
SBC. 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 this Court's most recent
decision in this matter (98 AD3d at 187).5

      Defendants' vested rights claim is similarly unavailing.
Defendants' argument on this point is again premised upon the
claim that, at the time that construction began, the provisions
of the LUC did not – as per our prior decision in Higgins – apply
to the subject boathouses. According to defendants, they were
entitled to rely upon Higgins, and such reliance, together with
the considerable funds expended in the construction effort,
affords them certain vested rights relative to the boathouses in
question. There are several flaws in this argument – most
notably, that, prior to construction, defendants did not obtain
the required permit from the Town pursuant to the SBC. Nothing
in any of the prior judicial or administrative decisions
suggested that an SBC permit and/or compliance therewith was not
required; indeed, when this matter was last before us, we
expressly noted that "defendants' boathouses are structures
subject to the SBC" (98 AD3d at 187).6 Thus, the provisions of
the LUC notwithstanding, defendants – in violation of stop work
orders – undertook and completed construction without obtaining


     5
        Notably, prior nonconforming use principles are grounded
upon an actual change in a zoning ordinance, as opposed to a
judicial interpretation thereof (see e.g. Matter of Cinelli
Family Ltd. Partnership v Scheyer, 50 AD3d 1136, 1137-1138
[2008], lv denied 11 NY3d 707 [2008]; Costa v Callahan, 41 AD3d
1111, 1113-1115 [2007]).
     6
        The Town's September 2010 stop work orders and October
2010 complaint likewise put defendants on notice that compliance
with the SBC and its permit requirements was required.
                              -10-               520007

the required SBC permits or securing and/or complying with Town
approvals. Under these circumstances, defendants' vested rights
argument must fail.

      Finally, as alluded to previously, our most recent decision
in this matter – wherein we clarified that the Navigation Law
preempts local land use laws and confers upon the state exclusive
jurisdiction only where the state owns the navigable waters in
its sovereign capacity – did not constitute a change in a zoning
law or ordinance so as to give rise to a prior nonconforming use
or vested rights claim relative to defendants' unpermitted
construction of the subject boathouses (98 AD3d at 187, 195).
Under these circumstances, limiting this Court's holding
regarding the applicability of the LUC to a prospective
application only is not warranted, nor do we discern any basis
upon which to depart from the rule that "cases should be decided
on the basis of the law as it exists at the time of decision"
(People v Favor, 82 NY2d 254, 263 [1993]; accord Windsearch, Inc.
v Delafrange, 90 AD3d 1223, 1224 [2011]). To the extent that
defendants seek to revisit our prior holding as to the
applicability of the LUC, they are precluded from doing so under
the law of the case doctrine (see Briggs v Chapman, 53 AD3d 900,
901 [2008]; Beneke v Town of Santa Clara, 45 AD3d 1164, 1165
[2007], lv denied 10 NY3d 706 [2008]).

      We turn next to defendants' selective enforcement claim,
which is premised upon instances in which the Town has not
enforced the LUC against other property owners in similar
situations – namely, where the Town has allowed accessory uses
(primarily docks and boathouses) on lakefront property despite
the lack of the required principal structures or where there were
other violations of the LUC, or where the Town did not commence
enforcement actions despite the property owner's failure to
obtain a permit in advance. A selective enforcement claim – if
proven – amounts to an equal protection violation, which, in
turn, "arises where first, a person (compared with others
similarly situated) is selectively treated and second, such
treatment is based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person" (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 631
                              -11-               520007

[2004]; see Matter of Loudon House LLC v Town of Colonie, 123
AD3d 1406, 1409 [2014]). Even assuming that the other property
owners identified by defendants were similarly situated, a
finding that the Town does not challenge on appeal, defendants
failed to submit proof from which it can be inferred that the
Town singled them out with "malevolent intent" or "intent to
injure" – the sole impermissible motives upon which defendants
rely (Bower Assoc. v Town of Pleasant Val., 2 NY3d at 631; see
Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693-695
[1979]).

      The record, including Morganson's testimony and affidavit,
supports Supreme Court's conclusion that "it was defendants' own
actions that precipitated their treatment by the Town" – namely,
in completing construction without obtaining the required
building permits and, following the denial thereof, ignoring an
initial stop work request and order, pursuing construction in
violation of a conditional permit to erect only the caissons and
decking, subsequently ignoring further stop work orders and
preventing Morganson from coming onto their properties to
inspect. In short, defendants' actions provided a rational basis
for the Town's disparate treatment of them, and their reliance
upon speculation to demonstrate the Town's malevolent intent is
insufficient to overcome the presumption that the Town's
enforcement of its laws was "undertaken in good faith and without
[impermissible] discrimination" (Matter of 303 W. 42nd St. Corp.
v Klein, 46 NY2d at 694). Accordingly, this claim was properly
dismissed.7

      As to the issue of remedy, given the circumstances under
which these unpermitted boathouses were built, we deem the
equitable remedy fashioned by Supreme Court – requiring that
defendants abate their violations of the SBC and LUC by


    7
        Supreme Court's finding that the motive behind "the
Town's actions toward [d]efendants has been to uphold the law and
the authority of Town . . ., not vendetta or other improper
animus toward [d]efendants," is fully supported by the record and
is consistent with our prior finding that "the Town's . . .
actions were designed to enforce the LUC" (98 AD3d at 196).
                              -12-               520007

dismantling and removing the boathouses (see Executive Law § 382
[3]; Town Law § 268 [2]) – to be a provident exercise of the
court's discretion (see CPLR 3017 [a]; Town of Caroga v Herms, 62
AD3d 1121, 1126 [2009], lv denied 13 NY3d 708 [2009]).
"Injunctive relief . . ., including the removal of []
unauthorized structure[s]," is an appropriate remedy (Beneke v
Town of Santa Clara, 45 AD3d at 1164; see Town of Caroga v Herms,
62 AD3d at 1126). Such relief is particularly warranted where,
as here, the record contains abundant support for the finding
that the offending structures were built in a persistent and
"calculated" effort to circumvent and defy the Town's authority
and efforts to enforce its zoning laws and procedures (see Town
of Copake v 13 Lackawanna Props., LLC, 99 AD3d 1061, 1064 [2012],
lv denied 20 NY3d 857 [2013]; Matter of Massa v City of Kingston,
284 AD2d 836, 838-839 [2001], lvs denied 97 NY2d 603 [2001]). As
such, the "drastic remedy of demolition . . . is justifiable"
(Matter of Massa v City of Kingston, 284 AD2d at 840).

      That said, we agree with plaintiffs that the caissons and
decking should be removed as well. In balancing the equities,
Supreme Court noted defendants' early reliance upon our decision
in Higgins v Douglas (304 AD2d 1051 [2003], supra), as well as
the order authorizing a conditional permit to erect the caissons
and decking to accommodate defendants' desire to complete such
work before certain Adirondack Park Agency regulations went into
effect. Defendants, however, were warned that if they proceeded
with construction, they would do so at their own peril and could
ultimately be required to remove "all such improvements,"
including the caissons and decking, if plaintiffs prevailed.
Despite that warning, defendants, among other things, ignored
stop work orders, proceeded with construction of the boathouses
without the required permits and generally flouted both the
Town's authority and persistent efforts to enforce its zoning
requirements. We therefore conclude that plaintiffs are entitled
to the removal of the caissons and decking, and Supreme Court's
order must be modified to that extent.

      Finally, while the imposition of significant civil
penalties would not be unreasonable given defendants' actions, we
will defer to Supreme Court's exercise of discretion in declining
to impose such penalties (cf. Town of Caroga v Herms, 62 AD3d at
                              -13-                 520007

1126). The parties' remaining contentions, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.


     McCarthy, J.P., Lynch and Devine, JJ., concur.



      ORDERED that the order is modified, on the law, with costs
to plaintiffs, by reversing so much thereof as denied that part
of plaintiffs' motions for summary judgment requesting that the
caissons and decking for the boathouses be removed and as
established a time line for the dismantling of the boathouses and
the removal of all contents and materials related thereto; motion
granted in its entirety; defendants shall commence the
dismantling of the subject boathouses, caissons and decking
within 30 days of the date of this Court's decision and shall
complete the dismantling of the boathouses, caissons and decking
within 90 days of the date of this Court's decision; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
