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In the Matter of the Application/Action of 89 Jps, L.L.C v. Joint Village of Lake Placid and Town of North Elba Review Board

September 14, 2011


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

For an Order and Judgment Under CPLR Article 78 and CPLR 3001



Plaintiff-Petitioner ("plaintiff") filed the instant proceeding in New York State Supreme Court for Essex County alleging inter alia deprivation of his due process rights under the Fourteenth Amendment to the United States Constitution. The action also sought an order vacating an administrative determination of the Respondent-Defendant review board under N.Y. C.P.L.R. Article 78 and further relief under New York state law. Respondents-Defendants ("defendants") removed the action to this Court and immediately moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12 (b) (6).

Thereafter, plaintiff's counsel advised counsel for defendants that this Court lacked subject matter jurisdiction to entertain plaintiff's claims pursuant to N.Y. C.P.L.R. Article 78.

Counsel for defendants contended that this Court does have appropriate jurisdiction over such claims and requested a conference with the assigned magistrate judge to resolve the issue. Magistrate Judge David R. Homer concluded that whether the Notice of Removal deprived the state court of jurisdiction to proceed on plaintiff's Article 78 claims was a matter for determination in the first instance by the state court. Defendants filed an appeal of Magistrate

Judge Homer's Order arguing it is erroneous and contrary to law. Defendants requested entry of an Order stating that the state court is devoid of jurisdiction over any of plaintiff's claims and an injunction against Essex County Supreme Court prohibiting review of plaintiff's claims. Defendants further sought an order directing plaintiff not to proceed in state court on any of its claims.

Plaintiff then filed a cross-motion for remand of the first four causes of action to Essex County Supreme Court for lack of subject matter jurisdiction.


A. History of Proceedings before the Administrative Review Board This case involves plaintiff's application for a permitted accessory use building permit for a boathouse on Mirror Lake in Lake Placid, New York. The property in question is a vacant commercial parcel that sits on Main Street in the Village of Lake Placid with unfinished apartments above. Plaintiff, who apparently is a developer and boat collector, submitted his application for a permit to construct a boathouse on the shoreline of the property on September 24, 2010 and presented it to the Joint Village of Lake Placid and Town of North Elba Review Board ("JRB") on October 6, 2010. Plaintiff's architect, William Kaufmann, offered testimony to the JRB concerning the proposed project which he estimated would cost $450,000. The proposed structure was a one story, 1050 square foot log faced boat house which was 20 feet wide, 32 feet deep with a maximum height of 13.75 feet, all dimensions which were expressly permitted by the then existing Land Use Code.*fn1 Mr. Kaufmann explained that plaintiff had presented the plans for the project to the Adirondack Park Agency ("APA") for required approval. Plaintiff had made modifications to the original plans - which called for a pitched roof - to provide for a flat roof in compliance with APA rules and was awaiting APA approval of the plans.

Mr. Kaufmann testified that the purpose of the boathouse was for dry boat slip and storage with a rear slip for an electric boat, also permitted by the pertinent Land Use Code. In particular, Mr. Kaufmann explained that one use for the structure was for the storage of two Maas single skulls, each 27 feet in length. At one point in the October 6, 2010, hearing, one of the Board members, Horst Weber, elected to recuse himself from further participation in determination of plaintiff's permit. Specifically, Mr. Weber indicated he had strong personal feelings against the construction of boathouses on Mirror Lake and was therefore apparently not in a position to judge the case fairly:

If everyone has a boathouse on Mirror Lake you won't see much of the shoreline anymore. I mean going all the way around the lake. Fundamentally I'm against boathouses. I do not (in audible)[sic] so and then 32 feet into the lake for kayaks, I don't think is something that should be done to store a few kayaks. So I, out of principle, have to abstain out of that project. We shouldn't have any boathouses on Mirror Lake.

Subsequent to the initial hearing, plaintiff provided the JRB with the APA permit granted on November 1, 2010, samples of all materials to be used in construction of the boathouse and a color rendering of the proposed structure.

On November 3, 2010, the JRB convened and advised plaintiff that he was to proceed with notifying neighbors within 200 feet of the proposed project so they could voice their objections, if any. Plaintiff was directed to mail 18 "Notices to Neighbors" as required by the JRB procedure. On November 8, 2010, three members of the JRB appeared at plaintiff's property for a site inspection, including Mr. Weber who had previously recused himself. The proposed boathouse was staked out on shore and there was a buoy in the water representing the 32' length that the boathouse would sit out into the lake. The JRB members stood on the neighbor's dock to see how their view would be affected. They observed that the plaintiff's backyard was 69' wide by 56' deep.

On November 17, 2010, the JRB met and allowed comment from the neighbors who elected to appear and voice concerns over the proposed project. 16 of the 18 notices mailed had been returned signed to the JRB. Sarah and Mark Galvin, absentee owners of a neighboring business, Bookstore Plus, and their tenant who rented the apartment above the commercial space, appeared to voice their concern that the view of Whiteface Mountain, visible in the distance from the backyard of the bookstore, might be impacted by the construction of the boathouse. The Galvins, however, did not present studies or comparisons of the relative heights of the proposed structure, shoreline, and backyard of the bookstore. William Hurley, Chairman of the JRB, noted in the minutes of the November 17, 2010, meeting that the Board had received a letter from Robert Evans who was "concerned" that the proposed boathouse would "affect the neighbor's views" although the neighbor in question was not identified. Hurley also acknowledged that the Board received two letters from the attorney for NBT Bank referencing the proposed changes to the Town and Village code which would prohibit boathouses on Mirror Lake and urged the JRB to deny plaintiff's application because the new code was scheduled to take effect in a little over forty days.

While he had recused himself at the initial hearing, Mr. Weber elected to make a statement on the record at the November 17, 2010, hearing which prompted an exchange between he and plaintiff's attorney, Mr. Brooks:

Weber: It would be an obstruction basically looking from the bookstore across Whiteface yes, that's what it would be. Jim I did say at the last meeting I would abstain but I changed by mind I will vote on this. So I'm allowed to make my comment right.

Brooks: Well you abstained because you'd already previously expressed your opinion.

Weber: Yeah.

Brooks: And you candidly and honestly said you'd already formed your opinion and you couldn't be fair and imparital.

Weber: Yeah.

Brooks: ... participate your [sic] not supposed to. I didn't make the rules those are rules that had been expressed before

by courts.

Weber: Yeah.

Brooks: And if I can I'm not going to withdraw or allow you to withdraw your disqualification you already disqualified yourself and you should have.

Weber: Can I change my mind?

Brooks: No.

Weber: I mean it's I can make a comment on it, it's

Brooks: You shouldn't be because you're a member of the board

Weber: Yes.

Brooks: You shouldn't be commenting on it.

Hurley: Is it true Mr. Brooks that the only person that can recuse themselves or make that determination is the person themselves?

Brooks: No I wouldn't go that far a Court can do that also and you did it yourself and I admired you for it of course as a matter of fact it was the right thing to do.

Weber: Okay but I still will make a comment.

Brooks: Well I do object to it because you shouldn't. Weber: Yeah okay because it

Weber: It affects our whole community and I'm here on this board to adhere to the code because the code says we are in charge of making sure our community grows

properly. And we are taking care of our scenic resource. So unless I would step off the board today I think boat houses in my book are visual pollution and that is general. We have a lake shore that has been damaged already but with a project like this on Main Street we're going ever more in that direction. So that is my last comment.

Following the exchange between Weber and Brooks, JRB Chairman Hurley stated on the record that although plaintiff had the right to have a boat house, Hurley "personally" thought the proposed structure was "too big for what he wants to do." Although Hurley said what plaintiff had tried to do so far was "nice," is was "out of scale" with what "we should be looking at here on that part of the lake." In response, Mr. Brooks argued that he did not believe that the Town and Village Code entitled the JRB to make that kind of determination "based on those standards." Indeed, Mr. Brooks contended "[t]he fact that it interferes purportedly with one commercial property, you that's it." JRB member Chip Bissell stated that the project would interfere with "more than one" property. When asked by Mr. Brooks to explain himself he said "I'm sure the next one down too. This is sticking out a long way Jim. ... " Brooks countered that the next property down from plaintiff's was another commercial property and then Hurley piped in with "No, the Shahaddy's is a residence right on the lake."

Mr. Hurley then continued with a long narrative concerning the JRB's purpose in examining the need for plaintiff's proposed project:

The question is do we have a right to look at need. That is in the book under general development criteria. The first one in the need of the proposed thing. And I think that there are other solutions that this

property, due to its configuration, due to its size of unused land space, can store boats in. As I said you have a grass area so the upper deck here, if it was the only place they could use for sunning and laying out and or barbequing or enjoying the lake, I'd say ok. But they have a seventy by fifty-five section of land that they can do all stuff on. So do they have an explicit right. They have a right. But we do have other parcels of the code to consider and I just think this boat house in this location is too large for the general area. And that is a consideration that we have to take into effect. You have 300 feet of shoreline you can go out thirty-two feet. With seventy feet of

shoreline this will affect the neighbors not only their view but their enjoyment of their property also.

In response to Mr. Hurley's comments Mr. Brooks argued that his client "fully compli[ed] with all the requirements and standards of the code and he is entitled to his permit." Mr. Brooks contended that "what [the JRB was] interposing on [plaintiff] or subjecting [him] to are personal opinion type determinations that are not recognized in [the] code and are not lawfully imposed on

... [plaintiff's] project." When asked if plaintiff would consider making the boat house a little smaller, Mr. Brooks replied that plaintiff stated "No, that's what I need for what I intend to use it for."

Mr. Hurly then proposed closing the hearing and moving for a decision on the application, but at this point in the hearing, board member Mike Orticelle stated he would like to consult with the JRB counsel:

I'd like to talk to our attorney to find out exactly what it is, what our authority is, to get a legal opinion. I have a hard time telling people what their needs are, how to use their property in accordance with the law. I feel everybody's paying. I understand you know the site and the view are valuable around here but you cannot regulate community efficacy and good neighborliness. Those other boat houses you mentioned, those people drew those to that size for their purpose, to be good neighbors. This individual decided this is what he needs, this is what he wants, it's within the law. I have a hard time telling him otherwise unless there's something major about the way it's built, architecturally to control over it.

Based on Mr. Orticello's suggestion, Chairman Hurley's motion was tabled and consideration of the matter was adjourned.

When the JRB reconvened on December 1, 2010, its attorney, William Kissel, was present. He stated that there were three provisions of the Town and Village code which he relied on in advising the JRB in reviewing plaintiff's permit application. Kissel noted that despite the angst of the various board members who felt that they were required to either approve or deny the application as submitted, he advised that the code gave them the discretion and authority to

approve the permit application with modification. Indeed, Kissel stated that the JRB would have to "set for the basis" for needing to modify the application and the "precise manner" in which the JRB would want to modify it. He then walked the board through the specific provisions of the code that he believed were applicable to review of plaintiff's ...

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