Opinion
43233/2010.
Decided June 27, 2011.
BRIAN D. MURPHY, ESQ., City of New Rochelle, New Rochelle, NY, for the People.
THEODORE J. BRUNDAGE, ESQ., Harrison, NY, Attorney(s) for Defendant.
Papers Read on Motion:
Notice of Motion to Dismiss Tickets Numbered:
42867, 42868, 43233, 43234, 43237and Affirmations in Support and Exhibits 1-2, 3-4; 5-6, 8; 9-10, 11; 12-13; 14-15, 16
Affirmation in Opposition and Exhibits 7, 18-25
Reply Affirmation 26
The motion to dismiss is denied.
BACKGROUND
Defendant is charged with violations of § 331-11-A [two counts] of the New Rochelle Zoning Code, as well as violations of § 111-8 of the New Rochelle City Code [two counts]. Specifically, the defendant is charged with "causing and permitting the land . . . to be used as a three-family dwelling in an R1-20 Zoning District, a "purpose not in conformity with the 2000 Zoning Ordinance of the City of New Rochelle." In addition, it is alleged that the defendant failed to obtain building permits for use as a three-family dwelling, in an R 1-20 District, in addition to two sheds and a rear deck
Defendant moves to dismiss for facial insufficiency on the basis that the informations fail to support the charges cited therein. In addition, defendant raises the defense that the building as presently built constitutes a "legal pre-existing non-conforming use."
Facial Insufficiency
With respect to the issue of facial insufficiency, the court notes first that personal jurisdiction is not acquired unless an accusatory instrument is filed on or prior to the return date. In this case, when the defendant appeared in court pursuant to the appearance tickets and was arraigned on the various informations, he was brought within the jurisdiction of this court.
"Criminal Procedure Law § 100.40(1) provides that an information is sufficient on its face when it substantially conforms to the requirements set forth in CPL § 100.15; when the factual allegations thereof (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and when the non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor, be sufficiently alleged that a defendant may prepare for trial and avoid retrial for the same offense". ( People v. Sylla, 7 Misc 3d 8 citing People v. Konieczny , 2 NY3d 569 , 575; People v. Zambounis, 251 NY 94).
The defendant is charged with violating New Rochelle Zoning Code, § 331-11(A) and § 111-8 of the New Rochelle City Code. Section 331-11(A) of the New Rochelle Zoning Code states, "Conformity required. No building shall be erected, constructed, moved, altered, rebuilt, or enlarged, nor shall any land, water or building be used, designed or arranged to be used for any purpose except in conformity with this chapter." Section 111-8 of the New Rochelle City Code provides, "No person, firm or corporation shall commence the erection, construction, enlargement, alteration, removal, improvement, demolition, excavation or conversion of any building or structure or part thereof, or change the occupancy or use of any building or structure or part thereof, or perform any work which must conform to the State Code, or cause the same to be done, without first filing with the Building Official an application and obtaining a permit therefor, except as otherwise exempted under the provisions of this code".[Emphasis added].
In the case at bar, the People have set forth the factual allegations of all elements supported by non-hearsay allegations of fact, which, if true, would establish every element of the offenses charged. Defendant's claims that the information and supporting deposition fail to state a cause of action because it "fails to allege that Mr. DeRaffele did any building" of anything [Brundage Affirmation, p1] is a misinterpretation of the statutory language. New Rochelle City Code § 111-8 prohibits, inter alia, the change of occupancy or use of any building or structure or part thereof or performance of any work not in conformance with the State Code. New Rochelle Zoning Code § 331-11(A) also provides, in pertinent part, that "[n]o building shall be erected . . ., nor shall any land, water or building be used for any purpose except in conformity with this chapter". [Emphasis added]. The allegations in the informations pertaining to violations of New Rochelle Municipal Code § 111-8 set forth the following factual allegations of William Giraldi, building official: he observed two sheds and a deck situated on defendant's property. A review of the records indicated that a building permit for the work had never been issued. With respect to the allegations in the informations pertaining to violations of New Rochelle Zoning Code § 331-11A, the informations of Paul Vacca, Building Official stated that he observed the second and third floors being used as discrete dwelling units separate and distinct from the defendant's unit located on the first floor. He spoke with the tenants; he observed the separate kitchen and sanitary facilities on the second floor; he observed the separate dwelling unit on the third floor and indicated that the third floor "appeared" to contain two separate units. His complaint is based upon direct knowledge. The court also notes that Mr. Vacca provided a very lengthy and detailed 3 page supporting deposition for each count of § 331-11A zoning violation charged.
To read the New Rochelle Code § 111-8 and Zoning Code § 331-11(A) as defendant suggests, would require that defendant or its agents be observed in the "process of actually building," which is contrary to the plain language of the statute, which provides for "change in the occupancy or use." Where the statutory language is plain and unambiguous, there is no need to search elsewhere for its meaning. ( Adirondack Park Agency v Lewis Family Farm, Inc. , 22 Misc 3d 568 [Sup Ct, Essex County 2008]).
The court finds that the infomations are facially sufficient: the factual allegations and supporting depositions provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information and that the non-hearsay allegations and supporting depositions establish, if true, every element charged and the defendant's guilt thereof.
Defense of Legal Pre-Existing Non-Conforming Use
Defendant also raises the defense of a "legal pre-existing non-conforming use," averring that the residence was "one of five or six buildings that were part of the Cherry Lawn Farm/Driving Range dating back to the early 1900's." (Brundage Affirmation, p. 1). Defendant further alleges that he purchased the house in 1982 as a legal pre-existing, non-conforming multi-family house with four (4) kitchens and 5 ½ baths. ( Id., p. 2). It is further alleged that no Certificate of Occupancy existed at the time defendant purchased the property in 1982 and that the defendant has refinanced the residence twice: in 1984 and in 1992; and that each re-financing was approved based upon the premises' status as a legal pre-existing non-conforming multi-family dwelling in reliance upon the New Rochelle Building Department records, or lack thereof.
Section 331-11(C)(1) of the New Rochelle Zoning Code provides two enumerated exceptions which provide for maintenance of a non-conforming use. "Contravention. Any building or parcel of land found at any time to contravene the specific provisions of this chapter shall be deemed to be in violation thereof, except in cases where such contravention is justified either: (1) By reason of conditions found to have existed prior to the effective date of this chapter . . ." or (2)by granting of a variance by the New Rochelle Board of Appeals on Zoning. The People specifically alleged that the use was not a prior non-conforming use.
This court is mindful of the important issues implicated in this case. Interpretations of zoning law and municipal codes bear directly on critical public safety issues and constitutional concerns involving potential taking of private property without just compensation, versus valid land-use and safety regulation. The People aver that they only became aware of the present situation after the New Rochelle Fire Department responded to a carbon monoxide emergency at the subject premises. It was alleged that the vent for the hot water heater was obstructed by exterior siding, causing dangerous carbon monoxide build-up in the subject building's interior.
A prior non-conforming use is an affirmative defense which must be raised by the defendant charged with violating the ordinance. ( Village of Valley Stream v Braun Brothers Brushes, 15 Misc 3d 1030 [Just Ct, Nassau County 2007]). The Braun court found that a municipal permit issued prior to the enactment of the zoning code, confirming the non-conforming use and a subsequent renewal of the permit was sufficient to dismiss the summons and information as a matter of law. In the case at bar, the defendant has demonstrated some degree of evidence that a prior non-conforming use may have existed on the subject property. Defendant alleges that the subject premises was one of several buildings constituting a part of the Cherry Lawn Farm/Driving Range, dating back to the early 1900's, which was originally one lot. It is further alleged that "[d]uring the 1950's, one of the residences "was purchased and converted to full year use with the installation of a heating system". (Brundage Affirmation, p. 1-2).
The factual issues in this matter are complex, with the potential to extend in time beyond April 18, 1955, the date of the enactment of the original zoning code. The constitutional interests and public safety concerns call for nothing short of a full evidentiary hearing. ( People v Dinome, 21 Misc 3d 1128A [Nassau Dist Ct2008]). The Dinome court, dealing with facts similar to those presented here, refused to extend the holding of Braun Brothers Brushes, supra, where the evidence presented was by affidavit and there was no municipal validation. In the case at bar, defendant failed to offer any tangible evidence of municipal approval or any other evidence to substantiate its claim other than the affirmation of the defendant's attorney.
Additionally, the factual allegations and affirmations presented by defendant do not establish a legal impediment required by CPL § 170.30 necessitating dismissal. ( People v Amerada Hess Corp., 3 Misc 3d 134A [App Term, 1st Dept 2004]).
Accordingly, the court finds that the issue of whether the premises as currently built constitute a legal pre-existing non-conforming use is a matter better suited to be determined after a full evidentiary hearing. The People have the burden to prove beyond a reasonable doubt that the non-conforming use did not exist at the time of the issuance of the summonses in this case or that a non-conforming use existed and had been extinguished.
The People's Failure to Challenge the Issue of a Pre-Existing Non-Conforming Use
The court rejects defendant's argument in its Reply Affirmation that the matter must be dismissed because "[t]he People have failed to challenge, controvert or even address the assertion of a pre-existing non-conforming use". (Brundage Reply Affirmation, p. 2). Unlike CPLR § 3212, Criminal Procedure Law § 170.30 does not contain a provision for summary judgment. As pointed out in Dinome, supra, there are both civil and criminal remedies to enforce building and zoning codes. Election of one form of enforcement does not act as a bar to any other. "However, election of one remedy for the enforcement requires adherence to the procedural and statutory formalities of that forum." Id.
Accordingly, based on the foregoing, the motion is denied.
The foregoing constitutes the Decision and Order of this Court.