Opinion
64200 (Action No. 1) and EF2018-65851 (Action No. 2)
10-23-2018
TOWN OF QUEENSBURY, Plaintiff, v. Timothy COUGHTRY, Kimberly Mariani and Jo Ann Coughtry, Defendants. In the Matter of the Application of Jo Ann Coughtry, Timothy Coughtry, Kimberly Mariani, David Dufresne and Evelyn Dufresne, Plaintiffs-Petitioners, v. Town of Queensbury, Town of Queensbury Zoning Board of Appeals, Town of Queensbury Department of Buildings and Codes and David Hatin, Defendants-Respondents.
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Michael Crowe, Canton, of counsel), for plaintiff in action No. 1 and defendants-respondents in action No. 2. Whiteman Osterman & Hanna LLP, Albany (Javid Afzali and Gabriella Levine of counsel), for defendants in action No. 1 and plaintiffs-petitioners in action No. 2.
Fitzgerald Morris Baker Firth, P.C., Glens Falls (Michael Crowe, Canton, of counsel), for plaintiff in action No. 1 and defendants-respondents in action No. 2.
Whiteman Osterman & Hanna LLP, Albany (Javid Afzali and Gabriella Levine of counsel), for defendants in action No. 1 and plaintiffs-petitioners in action No. 2.
Robert J. Muller, J.
Jo Ann Coughtry, Timothy Coughtry and Kimberly Mariani (hereinafter collectively referred to as the Coughtrys) own property located at 32 Brayton Road in the Town of Queensbury, Warren County, which property is situated on the shore of Lake George. David Dufresne and Evelyn Dufresne own neighboring property located at 24 Brayton Road. Both the Coughtrys and the Dufresnes use their respective properties on a seasonal basis.
On February 28, 2017, David Hatin—the Director of the Town of Queensbury Department of Buildings and Codes—received a complaint relative to ongoing construction at the Coughtrys' 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 the Coughtrys advising that construction of the structure was in violation of the Town Code of the Town of Queensbury (hereinafter the Town). He requested that they contact him immediately. Jo Ann Coughtry then called Hatin on March 9, 2017, indicating that the structure was in fact a custom-built recreational vehicle (hereinafter Custom RV) and that she and Timothy Coughtry planned to relocate it to their property in 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. Jo Ann Coughtry then requested an extension to June 1, 2017, which request was granted. On May 30, 2017, Jo Ann Coughtry called Hatin to request a second extension, but this request was denied.
Jo Ann Coughtry and Timothy Coughtry are married and reside in Altamont. They contend that the Custom RV—which has the outward appearance of what is commonly known as a "tiny home"—was built to replace a 42-foot 1997 Dynasty motor home they previously kept on their property in Queensbury.
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 was comprised of a large holding tank and a compression tank. He also observed "what appear[ed] 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 [the] home." The Town subsequently commenced an enforcement action by the filing of a summons and complaint on July 25, 2017 (hereinafter action No. 1).
Simultaneous with the commencement of action No. 1, the Town filed a motion by Order to Show Cause for a preliminary injunction restraining the Coughtrys from continuing any construction or otherwise allowing any occupancy or use of the structure pending the conclusion of the action. By Decision and Order dated September 1, 2017, this preliminary injunction was granted and it remains in place to date. The Coughtrys subsequently filed an answer on September 20, 2017 and, on April 20, 2018, the Town moved for summary judgment declaring the Coughtrys in violation of both the Town Building Code and Zoning Code and directing the immediate abatement of such violation through removal of the structure.
The Town also sought a Temporary Restraining Order (TRO) pending the return date of the motion, which TRO was granted.
In support of this motion, the Town submitted (1) an affidavit from Hatin opining that the Coughtrys violated the Town Building Code by constructing the structure without obtaining the requisite permits; and (2) an affidavit from Craig Brown, the Town's Zoning Administrator, opining that the Coughtrys violated the Town Zoning Code by placing an additional "Principal Building" on their property without obtaining the requisite permits.
In opposition to the motion, the Coughtrys submitted an affirmation from Jo Ann Coughtry who stated as follows:
"The Custom RV was removed off of the [p]roperty on August 13, 2018.
"We intend to deconstruct the Custom RV in whole or in part and use the Custom RV in whole or in part as an addition to the existing camp and to renovate and add to an existing permitted structure on the [p]roperty.
"I have retained Architect Engineer David Winkler ... as a consultant to prepare the necessary plans for the renovation work and expedite the permitting ...
"By removing the Custom RV from the property, [p]laintiff has the ultimate relief it seeks in this action. As such, [the] case is now moot and the action should be dismissed."
The Town then submitted an affidavit from Hatin in reply, who indicated that he visited the Coughtrys' property on August 15, 2018 and observed that the structure had been moved across the street to the Dufresnes' property. According to the Town, the fact that the structure was now located on a neighboring property did not render the action moot. Specifically, the Town argued that the Coughtrys still violated the Town Building Code by constructing the structure without obtaining the requisite permits and the Town's Zoning Code was still being violated, albeit by the Dufresnes — who now have the unpermitted structure on their property.
On August 15, 2018, Hatin sent a notice of violation to the Dufresnes together with correspondence stating as follows:
"It has come to my attention that an illegal structure on a boat trailer has been moved to your property at 24 Brayton [Road].
"This constitutes a violation of [the Town Building Code] because you have not submitted for or obtained a building permit and continued a violation from the Coughtry[s'] property at 32 Brayton [Road].
"I would look for this violation to be corrected by August 22, 2018 with the structure removed from the property and the Town of Queensbury or a ... supreme court action will be started against you ... and fines of up to $950.00 per day can be assessed against you."
Brown then sent correspondence to the Dufresnes on August 16, 2018 advising them that the structure constitutes "a second [P]rincipal [B]uilding creat[ing] at least three violations" of the Town Zoning Code. Brown advised the Dufresnes that an enforcement action would be commenced against them if the structure was not removed from their property on or before August 22, 2018.
Oral argument was held relative to the Town's motion for summary judgment in action No. 1 on September 4, 2018 and counsel indicated the possibility of settlement. The Court thus agreed to reserve its decision pending the outcome of negotiations, which proved unsuccessful.
On September 14, 2018, the Coughtrys and the Dufresnes (hereinafter collectively referred to as plaintiffs) commenced a combined CPLR article 78 proceeding and declaratory judgment action (hereinafter action No. 2) seeking an Order and Judgment (1) annulling the determinations finding the Dufresnes in violation of both the Town Building Code and Zoning Code; (2) declaring the structure to be a Custom RV which does not require a building permit; and (3) awarding them counsel fees. Simultaneous with the commencement of action No. 2, plaintiffs filed a motion for a stay of enforcement of the determinations finding the Dufresnes in violation of both the Town Building Code and Zoning Code and the Town then cross-moved for summary judgment dismissing the verified petition and complaint in action No. 2 in its entirety.
The Court will now proceed with consideration of the pending motions and cross motion in action Nos. 1 and 2, beginning with the Town's motion for summary judgment in action No. 1 and cross motion for summary judgment in action No. 2.
Town's Motion for Summary Judgment in Action No. 1
Turning first to the Town's motion for summary judgment in action No. 1, a party seeking summary judgment must establish its entitlement to judgment as a matter of law by admissible proof (see Gilbert Frank Corp. v. Federal Ins. Co. , 70 NY2d 966, 967 [1988] ; Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York , 49 NY2d 557, 560 [1980] ).
Here, the Court finds that the Town has met its initial burden of establishing its entitlement to judgment as a matter of law. In addition to the affidavits of Hatin and Brown, the Town has submitted copies of both the Town Building Code and Zoning Code. As explained by Hatin in his affidavit, § 179-2-010 (C) of the Town Zoning Code defines "structure" as "[a]ny object constructed, installed or permanently placed on land." The Custom RV—which was undisputedly constructed on the Coughtrys' land—thus constitutes a structure under the Town Zoning Code. § 88-12 of the Town 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 ...."
The Coughtrys have argued from the outset that the Custom RV is a "travel trailer" and not a "structure," with § 179-2-010 (C) of the Town Zoning Code defining a "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."
In this regard, Hatin explains that—even if the Custom RV met the criteria of a travel trailer—"it would still be a structure ... constructed on land." Indeed, there is nothing in § 179-2-010 (C) of the Town Zoning Code to suggest that a travel trailer—when constructed on land—may nonetheless be considered a structure subject to the requirements of § 88-12 of the Town Building Code. As noted by Hatin, the Town Zoning Code does not use the word "structure" when defining a "fence, "storage shed" or "townhouse"—yet each of these is considered a "structure" under § 179-2-010 (C) of the Town Zoning Code.
Hatin further notes that a Custom RV may be considered a structure notwithstanding that it is portable, as § 179-2-010 (C) of the Town Zoning Code defines "mobile home" as
"[a]ny vehicle or similar portable structure or any part thereof or addition thereto, with our without foundation or wheels, jacks, skirting, wood or masonry block supports, designed or constructed to be towed on its own chassis (comprised of frame and wheels), driven or otherwise transported to a resting site and which is designed to permit occupancy for residential, business, commercial or office purposes. Such will include units that may contain parts that may be folded, collapsed, telescoped when being towed and expanded later, as well as two or more separate components designed to be joined into one integral unit, remains mobile, but excluding modular homes."
Finally, it is undisputed that the Custom RV does not fall within any of the exemptions to the general requirement of obtaining a building permit outlined in 19 NYCRR § 1203.3 (a) (1), which is expressly adopted in § 88-12 (a) of the Town Building Code. These exemptions include, for example, the construction of a storage shed that does not exceed 144 square feet and the installation of fences which are not part of an enclosure surrounding a swimming pool (see 19 NYCRR § 1203.3 [a] [1] [I], [iv] ).
While the Court could not locate the exact measurements of the Custom RV anywhere in the record, the several photographs included appear to depict a structure larger than 144 square feet.
Under the circumstances, the Court finds that the Town has established as a matter of law that the Coughtrys violated the Town Building Code by constructing the Custom RV without obtaining the requisite permits.
Insofar as the Coughtrys' alleged violation of the Town Zoning Code is concerned, Brown opines that the Coughtrys' property is located within the Adirondack Park in the Town's Waterfront Residential District and that, pursuant to § 179-4-010 (C) (6) of the Town Zoning Code, only one Principal Building is allowed per lot in this District. Under § 179-2-010 (C) of the Town Zoning Code, "[w]ithin the Adirondack Park [a] single-family dwelling or mobile home constitutes one [P]rincipal [B]uilding." According to Brown, because the Coughtrys "acknowledge that they have tied the Custom RV's wastewater into the [p]roperty's existing septic and have connected the Custom RV to the [p]roperty's existing electrical system[, and] further acknowledge that they intend to make use of the Custom RV as living quarters during the summer while vacationing at the [p]roperty[, the] Custom RV falls squarely in the Town Code's definition of a Mobile Home." Brown further states that, "[a]s a Mobile Home, the [Coughtrys'] Custom RV would constitute the third Principal Building on a lot in which only one is permitted."
Brown notes that the Coughtrys' "[p]roperty is currently non-conforming as it contains two Principal Buildings on a 0.44 acre lot."
Based upon the foregoing, the Court finds that the Town has also established as a matter of law that the Coughtrys violated the Town Zoning Code by placing an additional Principal Building on their property without obtaining the requisite permits.
Having found that the Town met its initial burden on its motion for summary judgment in action No. 1, the burden now shifts to the Coughtrys to raise a triable issue of fact.
With that said, the Court finds that the Coughtrys have failed to raise a question of fact on the issue of whether they violated the Town Building Code by constructing the Custom RV without obtaining the requisite permits. Indeed, the fact that they have now moved the Custom RV to a neighboring property and plan to deconstruct it does not negate the fact that it was initially constructed it on their property in violation of the Town Building Code.
The Court further finds that the Coughtrys have failed to raise a question of fact on the issue of whether they violated the Town Zoning Code by placing an additional Principal Building on their property without obtaining the requisite permits. While the Coughtrys have now disconnected the Custom RV from the existing septic and electrical systems on their property—and, as such, are no longer in violation of the Town Zoning Code—there is no question that they were in violation of the Town Zoning Code when action No. 1 was commenced. Further, absent an Order from this Court, there is nothing preventing the Coughtrys from moving the Custom RV back to their property and reconnecting it to the existing septic and electrical systems.
To that end, the Coughtrys' contentions notwithstanding, action No. 1 has not been rendered moot as a result of the relocation of the Custom RV to the Dufresnes' property. An action "will not be considered moot where ‘the rights of the parties will be directly affected by the determination of the [action] and the interest of the parties is an immediate consequence of the judgment’ " (Matter of City of Glens Falls v. Town of Queensbury , 90 AD3d 1119, 1120 [2011], quoting Matter of Hearst Corp. v. Clyne , 50 NY2d 707, 714 [1980] ; accord Wisholek v. Douglas , 97 NY2d 740, 742 [2002] ; Matter of King v. Jackson , 52 AD3d 974, 975 [2008] ). Here, there is no doubt that the rights of the parties will be directly affected by the determination of action No. 1.
Based upon the foregoing, the Court grants the Town's motion for summary judgment in action No. 1 in its entirety and directs the Coughtrys to either dismantle the Custom RV or remove it from the Town of Queensbury within forty-five (45) days of service of a copy of this Decision and Order with notice of entry thereon.
Town's Cross Motion for Summary Judgment in Action No. 2
Turning now to the Town's cross motion for summary judgment in action No. 2, the Dufresnes permitted the Custom RV to be moved to their property. With that said, the Custom RV is not occupied, nor is it connected to the Dufresnes' septic, water or electric systems. Under these circumstances, it does not appear that the Dufresnes have violated § 88-12 of the Town Building Code as alleged by Hatin. They have not erected, constructed, enlarged, altered, removed, improved, demolished or converted a building or structure — nor have they installed one, as "install" means "to set up for use or service" (Merriam—Webster Online Dictionary, install, https://www.merriam-webster.com/dictionary/install) and the Custom RV is not in use or connected to anything on the Dufresnes' property.
It further does not appear that the Dufresnes have violated the Town Zoning Code. In his affidavit in support of the Town's motion for summary judgment in action No. 1, Brown states as follows:
"Whether [the Coughtrys' Custom RV] starts out as a Mobile Home or Travel Trailer is really of no consequence. The fact that the ... Custom RV has been brought to its resting site for its designed and intended purpose of allowing residential occupancy, qualifies it as a Mobile Home under the Town [Zoning] Code.
"A traditional/production style Travel Trailer such as a Jayco or an Airstream would be treated the same way. Once the Travel Trailer is brought to its resting site and used as a dwelling unit, allowing residential occupancy, it would be treated, for zoning purposes, as a Mobile Home.
"In other words, the type of construction and exterior appearance of the trailer have nothing to do with the Mobile Home designation. Rather, it is the intended use of the trailer that makes it a Mobile Home.
"For example, an Airstream trailer sitting vacant in a driveway in between camping trips would not result in a Mobile Home designation. However, the same trailer placed on a lot, connected to septic, water, and electric and occupied for residential, commercial or business purposes, would constitute a Mobile Home."
For all intents and purposes, the Custom RV on the Dufresnes' property is akin to the Airestream trailer sitting vacant in a driveway between camping trips. It therefore cannot be considered an additional Principal Building placed in violation of the Town Zoning Code.
Based upon the foregoing, the Court finds that the Town has failed to meet its initial burden and therefore denies its cross motion for summary judgment in action No. 2 in its entirety.
The Court notes that the Town served a verified answer in action No. 2 simultaneous with its motion to dismiss. With the proceeding returnable on October 30, 2018, the Court will await the receipt of reply papers—if any—before rendering a final determination.
While plaintiffs have not submitted any opposition to the cross motion — apparently relying on the Coughtrys' opposition to the motion for summary judgment in action No. 1, which was attached to the cross motion — the same need not be considered in any event (see Vogler v. Perrault , 149 AD3d 1298, 1299 [2017] ).
Plaintiffs' Motion for Stay in Action No. 2
CPLR 7805 provides that "[o]n the motion of any party or on its own initiative, the [C]ourt may stay further proceedings, or the enforcement of any determination under review" pending the outcome of the CPLR article 78 proceeding. As explained by Vincent C. Alexander in his Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR 7805 ), such a stay is intended to "maintain the status quo until the [a]rticle 78 proceeding is resolved."
Here, the issuance of a stay will serve to maintain the status quo pending the outcome of action No. 2. In view of the Court's determination in action No. 1, the Custom RV will be removed from the Dufresnes' property in the near future in any event.
Based upon the foregoing, plaintiffs' motion for a stay in action No. 2 is granted in its entirety.
Counsel for the parties are hereby directed to appear for a conference in action No. 2 on October 30, 2018 at 10:30 A.M. at the Warren County Courthouse in Lake George, New York.
Therefore, having considered the Affirmation of Michael Crowe, Esq. with exhibits attached thereto, dated April 16, 2018, submitted in support of the motion for summary judgment in action No. 1; Affidavit of David Hatin, sworn to April 10, 2018, submitted in support of the motion for summary judgment in action No. 1; Affidavit of Craig Brown, sworn to April 12, 2018, submitted in support of the motion for summary judgment in action No. 1; Affirmation of Javid Afzali, Esq., dated August 17, 2018, submitted in opposition to the motion for summary judgment in action No. 1; Affirmation of Jo Ann Coughtry, Esq., dated August 17, 2018, submitted in opposition to the motion for summary judgment in action No. 1; Reply Affirmation of Michael Crowe, Esq., dated August 22, 2018, submitted in further support of the motion for summary judgment in action No. 1; Affidavit of David Hatin with exhibit attached thereto, sworn to August 22, 2018, submitted in further support of the motion for summary judgment in action No. 1; Verified Petition and Complaint in action No. 2 with exhibits attached thereto, dated September 14, 2018; Affirmation of Michael Crowe, Esq. with exhibits attached thereto, dated October 1, 2018, submitted in support of the cross motion for summary judgment in action No. 2; Affidavit of David Hatin, dated October 1, 2018, submitted in support of the cross motion for summary judgment in action No. 2, and oral argument having been heard on September 4, 2018 relative to the motion for summary judgment in action No. 1 with Michael Crowe, Esq. appearing on behalf of the Town and Gabriella Levine, Esq. appearing on behalf of the Coughtrys, it is hereby
ORDERED that the Town's motion for summary judgment in action No. 1 is granted in its entirety and the Coughtrys shall either dismantle the Custom RV or remove it from the Town of Queensbury within forty-five (45) days of service of a copy of this Decision and Order with notice of entry thereon; and it is further
ORDERED that the Town's motion to dismiss in action No. 2 is denied; and it is further
ORDERED that plaintiffs-petitioners' motion for a stay in action No. 2 is granted in its entirety; and it is further
ORDERED that counsel for the parties are hereby directed to appear for a conference in action No. 2 on October 30, 2018 at 10:30 A.M. at the Warren County Courthouse in Lake George, New York.
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 Notice of Motion in action No. 1 dated April 16, 2018 and Notice of Cross Motion in action No. 2 dated October 1, 2018. Counsel for the Town 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.