Opinion
No. 64200.
09-01-2017
TOWN OF QUEENSBURY, Plaintiff, v. Timothy COUGHTRY, Kimberly Mariani and Jo Ann Coughtry, Defendants.
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Michael Crowe of counsel), for plaintiff. Whiteman Osterman & Hanna LLP, Albany (Javid Afzali of counsel), for defendants.
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Michael Crowe of counsel), for plaintiff.
Whiteman Osterman & Hanna LLP, Albany (Javid Afzali of counsel), for defendants.
ROBERT J. MULLER, J.
Defendants Timothy Coughtry, Jo Ann Coughtry and Kimberly Mariani own real property located along the shores of Lake George in the Town of Queensbury, Warren County. On February 28, 2017, David Hatin—the Director of the Building and Code Enforcement Department for plaintiff—received a complaint relative to ongoing construction at the property. Finding no building permits or applications on file, Hatin visited the property on March 1, 2017 and "noticed what appeared to be the on-going construction of a permanent structure." Upon further examination, he "noticed that while the framing represented what appeared to be a permanent structure, it was lacking a proper foundation and had actually been built on top of what appeared to be a boat trailer with 4x4 posts supporting both the trailer and the over-hanging structure."
On March 2, 2017, Hatin sent correspondence to defendants advising that they may be in violation of, inter alia, plaintiff's Zoning Code. He requested that they contact him immediately. Jo Ann Coughtry (hereinafter Coughtry) then called Hatin on March 9, 2017, indicating that defendants planned to relocate the structure to the Village of Altamont, Albany County. She requested some time to coordinate the move and—while Hatin "told [her] that [he] did not believe ... she would be able to move the [s]tructure [because] it [was] too high and too wide to be on the road"—he nonetheless gave her until May 1, 2017 to do so. Coughtry then requested an extension to June 1, 2017, which request was granted. On May 30, 2017, Coughtry called Hatin to request a second extension, but this request was denied.
Defendants reside in Altamont and appear to use this property on a seasonal basis.
Hatin visited the property again on May 31, 2017 and discovered that the structure had been virtually completed. He then visited the property a third time on July 13, 2017 and observed a potable water delivery system located outside the structure, which system is comprised of a large holding tank and a compression tank. He also observed "what appears to be plumbing for sewage disposal running out of the [s]tructure and into the ground," with the sewage "deposited via lateral connection [to] the existing system providing sewage disposal for [d]efendants' home." Plaintiff subsequently commenced this enforcement action by the filing of a summons and complaint on July 25, 2017. At oral argument on August 23, 2017 defendants admitted service, confirming jurisdiction on the Court to proceed.
Simultaneous with commencement of the action, plaintiff filed a motion by Order to Show Cause for a preliminary injunction restraining defendants from continuing any construction or otherwise allowing any occupancy or use of the structure pending the conclusion of the action. Plaintiff also sought a Temporary Restraining Order (TRO) pending the return date of the motion. The Court heard oral argument relative to the TRO on July 31, 2017 (see Uniform Rules for Trial Courts [ 22 NYCRR] § 202.7 [f] ), following which the Order to Show Cause was issued with the TRO included. Presently before the Court is the motion for a preliminary injunction.
"On application for a preliminary injunction, a municipality seeking to enforce its zoning ordinances is not subjected to the traditional three-pronged test for temporary injunctive relief" ( Town of Thompson v. Braunstein, 247 A.D.2d 753, 754 [1998] ; see Town Law § 268[2] ; Incorporated Vil. of Plandome Manor v. Ioannou, 54 AD3d 364, 365 [2008] ; City of Albany v. Feigenbaum, 204 A.D.2d 842 [1994], lv dismissed 84 N.Y.2d 850 [1994] ; Town of Lake George v. Dehaan, 192 A.D.2d 820, 821 [1993] ). "Rather, in such a case, Supreme Court has discretion to grant a preliminary injunction if the evidence supports findings that the municipality is likely to succeed on the merits of its case and that the balancing of the equities weighs in the municipality's favor" ( Town of Thompson v. Braunstein, 247 A.D.2d at 754 ; see Town of Esopus v. Fausto Simoes & Assocs., 145 A.D.2d 840, 841–842 [1988] ).
Typically, "[t]o establish entitlement to a preliminary injunction, plaintiff is required to demonstrate a likelihood of success on the merits, irreparable harm if the injunction is not granted and that the balance of the equities is in its favor" (Sync Realty Group, Inc. v. Rotterdam Ventures, Inc., 63 AD3d 1429, 1430 [2009] ; see CPLR 6301 ; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005] ; Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC, 63 AD3d 1396, 1397 [2009] ).
With respect to the likelihood of success on the merits, § 179–2–010(C) of plaintiff's Zoning Code defines "structure" as "[a]ny object constructed, installed or permanently placed on land." "Building" is similarly defined as "[a]ny structure which is permanently affixed to the land, is covered by a roof supported by columns or by walls and is intended for shelter, housing or enclosure of persons, animals or chattels." Section 88–12(A) of plaintiff's Building Code then provides that "[n]o person ... shall commence the erection, construction, enlargement, alteration, removal, improvement, demolition, conversion or installation ... of any building or structure ... without first obtaining appropriate required permits from the Director of Building and Code Enforcement ..." Finally, § 179–4–010(G)(1)(e)(2) of the Zoning Law provides that "[s]eptic system plans shall be submitted as part of the ... site plan review process, and be fully designed and approved prior to any construction or site preparation ..." [Chapter 179, Article 4 of the Zoning Code].
Here, plaintiff contends that defendants have constructed a structure—as that term is defined under the Zoning Code—because the dwelling is permanent in nature. In this regard, Hatin opines that "the [s]tructure was designed to rest on support posts stationed every few feet on either side of the trailer" and cannot be moved because "the [s]tructure drastically overhangs both sides of the trailer." Hatin further opines "that the [s]tructure was designed and intended to be a permanent dwelling by the size and manner of the potable water system as well as the permanent nature of the sewage and graywater disposal system." Plaintiff further contends that defendants have violated both the Zoning and Building Codes by failing to obtain a building permit for the structure and failing to obtain permission for the lateral connection to the existing sewage system.
Defendants in fact readily admit that they did not obtain a building permit or any other authorizations from plaintiff. With that said, however, defendants contend that a building permit was unnecessary. According to defendants, the dwelling is not a "structure" or "building" under § 179–2–010(C) of the Zoning Code but, rather, is a "travel trailer." Section 179–2–010(C) of the Zoning Code defines "travel trailer" as follows:
"Any portable vehicle, including a tent camper or motor home, which is designed to be transported on its own wheels, which is designed and intended to be used for temporary living quarters for travel, recreational or vacation purposes and which may or may not include one or all of the accommodations customarily included in a mobile home" [Chapter 179, Article 2 of the Zoning Code, at p. 31].
Defendants contend that the dwelling is a "custom built recreational vehicle" that was "professionally designed and built on a 2005 Haul Rite trailer." Coughtry, herself an attorney, also submits an affirmation stating that the recreational vehicle "was engineered to move on its own wheels and is intended to be used for ... vacation purposes" and further states that "while the [recreational vehicle] has leveling posts on each corner, those posts are not fixed to the ground and can be removed if the [recreational vehicle] were in transit." Insofar as the potable water system is concerned, Coughtry states that the "external water tank does not interfere with [the recreational vehicle's] design to be transported on its own wheels [and] can be quickly disconnected and stored inside the [recreational vehicle] while it is in transit." Finally, Coughtry states that "the connection to the [septic] system is by no means permanent,' rather that the "wastewater output pipe is connected to the approved septic by means of a rubber coupler which can be disconnected by loosening one screw on a worm and gear clamp." In any event, defendants are apparently willing "to keep the septic system ... disconnected pending the resolution of [this] action, and install a temporary external holding tank to be drained by a commercial septic company."
Defendants' contentions notwithstanding, the dwelling they constructed on their property is far more akin to a permanent structure or building than it is to a travel trailer. Initially, while defendants indicate that the "recreational vehicle" was professionally designed and engineered to travel, they failed to submit any reliable evidence to establish that the dwelling is in fact portable and able to travel. Furthermore, they have yet to actually move the dwelling from its current location, notwithstanding their apparent ability to do so. The Court also notes that defendants essentially concede their violation of the Zoning Code insofar as the dwelling's lateral connection to the existing sewer system is concerned. Under these circumstances plaintiff has demonstrated a likelihood of success on the merits (see Town of Thompson v. Braunstein, 247 A.D.2d at 754 ).
Briefly, defendants also contended that plaintiff cannot succeed on the merits because it has failed to exhaust its administrative remedies. More specifically, defendants contend that Hatin should have served them with a notice of violation, thus enabling them to file an appeal with plaintiff's Zoning Board of Appeals. This contention is without merit. Town Law § 268(2) expressly provides as follows:
"In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is used, or any land is divided into lots, blocks, or sites in violation of [Town Law] article [16] or of any local law, ordinance or other regulation made under authority conferred thereby, the proper local authorities of Plaintiff, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use or division of land, to restrain, correct or abate such violation...."
Plaintiff was therefore well within its discretion in commencing the instant action.
Insofar as a balance of the equities is concerned, plaintiff contends that defendants have made no effort whatsoever to comply with the Zoning and Building Codes. According to plaintiff, defendants initially requested time to move the structure but, rather than move it, they finished building it. They then asserted that the dwelling is a "travel trailer" within the meaning of the Zoning Code, even though § 179–2–010(C) of the Zoning Code expressly defines a "travel trailer" as a "portable vehicle" and defendants have yet to demonstrate that the structure is in fact portable [Chapter 179, Article 2 of the Zoning Code]. Plaintiff contends that it has an inherent right to enforce its Zoning and Building Codes and, as such, the balance of the equities tips in its favor.
In opposition, defendants contend that plaintiff seeks the preliminary injunction to maintain the status quo—and "the status quo here is to allow [them] to use the [dwelling] as their use will be no different than the type and intensity of use that has been present at the [p]roperty for the last 16 years when [their] prior motorhome was parked on the concrete slab." In this regard, defendants state that the dwelling was constructed to replace the 42–foot 1997 Dynasty Motorhome that they previously owned. Based upon this, defendants contend that the balance of the equities tips in their favor.
Aside from being in the same location the 42–foot Dynasty Motorhome bears no other similarities to the dwelling they have now constructed. Again, notwithstanding their insistence that the dwelling is portable and designed for travel, defendants have yet to move it. Perhaps it is most telling that, although invited during oral argument to bring the trailer to the courthouse, the Court's suggestion did not inspire much enthusiasm from the defendants when doing so would have most demonstrably informed the Court that the relief requested by the plaintiff was entirely unwarranted. Under the circumstances the balance of the equities is in plaintiff's favor (see Town of Thompson v. Braunstein, 247 A.D.2d at 754 ).
Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter and oral argument, it is
ORDERED that plaintiff's motion for a preliminary injunction is granted in its entirety; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
ORDERED that counsel for the parties shall appear for a preliminary conference on September 29, 2017 at 10:30 A.M. at the Warren County Courthouse in Lake George, New York or, in lieu of so appearing, counsel may execute a Preliminary Conference Stipulation and Order and submit the same to the Court for consideration at least 48 hours prior to the conference.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Order to Show Cause dated July 31, 2017. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the other parties in accordance with CPLR 5513.
Papers reviewed:
1. Affidavit of David Hatin sworn to July 19, 2017 together with Exhibits "A" through "G" and supporting Memorandum of Law of John D. Aspland, Jr., Esq. dated July 24, 2017 with Exhibits "A" through "C";
2. Summons and Complaint filed on July 25, 2017;
3. Opposing Affirmation of Javid Afzali, Esq. dated August 17, 2017;
4. Opposing Affirmation of Jo Ann Coughtry, Esq. dated August 17, 2017 together with Exhibits "1" through "5";
5. Reply Affirmation of John D. Aspland, Jr, Esq., dated August 21, 2017 together with Exhibits "A" through "C"; and oral argument held before the Court on August 23, 2017, with Michael Crowe, Esq. appearing in support of the motion and Javid Afzali, Esq. appearing in opposition thereto.