Opinion
July 20, 1970
In a proceeding pursuant to article 78 of the CPLR to prohibit the respondent City Justice of the City of Rye from determining the issues pending before him upon a summons served upon appellant Armin Erbsland and to prohibit the respondent Building Inspector of the City of Rye from enforcing and prosecuting violations of the Building Zone Ordinances of the City of Rye with respect to appellants' boatyard in Milton Harbor, the appeal is from a judgment of the Supreme Court, Westchester County, dated June 19, 1969, which dismissed the petition. Judgment reversed, on the law, with $10 costs and disbursements, and matter remitted to Special Term for a hearing and determination on the issue of the adequacy of parking facilities as well as any other questions which pertain to the upland area surrounding petitioners' property. It was error for the Special Term to find that the zoning power of the City of Rye extended into the navigable waters of Milton Harbor. Navigable waters are within the sole jurisdiction and control of the State of New York, except to the extent of any delegation of power to the United States (63 N.Y. Jur., Waters and Watercourses, § 5), with the State of New York having title to the land thereunder (State Law, § 7-a). Further, the Commissioner of General Services is empowered to grant rights and easements to the State lands under navigable bodies of water (Public Lands Law, § 3). By way of contrast, the statutory authorities cited by respondents only indicate that the respondent city's zoning jurisdiction extends only to the control of land structures and uses that pertain to navigation, such as piers and wharves, and not to the area beyond the foreshore where appellants' floats are located. Accordingly, the paramount authority of the State to control uses upon a navigable body of water prevents the City of Rye from exercising jurisdiction. Any other result would have the effect of nullifying rights which the State has the authority to grant (Public Lands Law, § 3; cf. Jewish Consumptives' Relief Soc. v. Town of Woodbury, 230 App. Div. 228, affd. 256 N.Y. 619). In view of the foregoing, the dismissal of the petition was improper and it would appear petitioners are entitled to the relief they seek. However, we are not granting that relief because the criminal proceeding related not merely to the uses in Milton Harbor but also to other claimed violations of the zoning ordinance with relation to upland uses. In addition, a court of equity will not ordinarily restrain a pending criminal proceeding (20 N.Y. Jur., Equity, § 48). For these reasons, and as the record fails to fully disclose the upland zoning violations which petitioners are allegedly guilty of violating, the matter should be remitted to Special Term for a hearing and determination as herein directed. Christ, P.J., Rabin, Hopkins, Munder and Benjamin, JJ., concur. [ 59 Misc.2d 965.]