New York Zoning and Municipal Law Blog
The Appellate Division held a town planning board has no jurisdiction to review a site plan for construction of a dock in a state owned navigable waterway, unless such authority is specifically delegated by the State pursuant to Navigation Law section 46-a. In Matter of Hart Family, LLC. V. Town of Lake George, the Court first addressed the issue of whether the question of the planning board’s jurisdiction had been preserved. The Court noted that while the issue was not discussed at the hearings, counsel for the Petitioner had questioned the authority of the planning board in a letter to the planning board’s attorney. Moreover, the Court held:
” even assuming that the issue had not been thus preserved, ‘a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches or consent…'”
Then turning to the issue of jurisdiction, the Court noted that the proposed dock was to be constructed in the waters of Lake George and the state “holds title to the lands under Lake George in its sovereign capacity (see People v System Props., 2 NY2d 330, 344 [1957]) and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government…the Town is not included among the local governments enumerated in Navigation Law § 46-a (2), and we find no such delegation in any other source. Contrary to respondents’ claim, Town Law § 130 (17) (1) (b) pertains to “the anchoring or mooring of vessels” and does not address the construction of docks, boathouses or other structures covered by Navigation Law § 46-a. ”