Facts of the Case.

The defendant was charged with violating Webster Town Code Section 225.48.1(A),

to wit: illegally maintaining a Portable Storage Container, in this case

an A-Verdi Storage Container.^[FN1] The defendant is the owner of property located at 1813 Ridge

Road in the Town of Webster. She was issued an appearance ticket on July 13, 2010 by Gary

Kleist, Commissioner of the Department of Public Works, alleging a violation of said statute. A

supporting deposition signed by Rodney T. Potter, Town of Webster Building Inspector,

accompanied said appearance ticket. The defendant maintains she owned the property since [*2]

April 7, 2009. She does not contest that an A-Verdi Storage Container was placed on her

property on June 17, 2009. It is not contested by the parties that the Webster Town Code was

amended to require permits for Portable Storage Containers on January 7, 2010.The defense

maintains since the portable storage unit was placed on her property prior to the enactment of

Webster Town Code Section 225.48.1(A), it is a protected preexisting use. The defendant relies

on Webster Town Code [hereinafter referred to as WTC] Section 225-96 which states as follows:

"It is the intent of this article to carefully restrict nonconforming uses and structures and the expansion or alteration of nonconforming uses and structures. An essential element of this article is to preclude any change of use unless it is a continuation of the use and substantially the same character of use which legally existed at the date the original use commenced. Nothing herein contained shall be deemed to permit the continuation of a use that was not a permitted use according to the zoning district dimensional regulations at the time it was commenced or the continuation of any structure that was not constructed according to the zoning district requirements at the time it was constructed. Further, nothing herein contained shall be deemed to diminish or negate any variances that have been granted to any property."

The defendant submitted a summary judgment motion, pursuant to CPLR 3212, to

dismiss the charge herein. Although the matter before the court is an alleged violation of the

Webster Town Code and not the New York State Penal Law, a violation of the WTC Section

225.48.1(A) can result in a fine not to exceed Three Hundred Fifty Dollars ($350.00) or

incarceration not to exceed six (6) months or both. In addition WTC Section 225-113(A)(1)

requires that any violations of Article XIV of the Webster Town Code, wherein WTC Section

225.48 can be found, "shall be deemed misdemeanors". Therefore the New York State

Criminal Procedure Law governs this matter and not the Civil Practice Law and Rules. As a

result, the court will consider the defendant's motion to be one for dismissal pursuant to C.P.L.

Sections 170.30(f), i.e. "That there exists some other jurisdictional or legal impediment to

conviction of the defendant for the offense charged." The People maintain that the presence of [*3]

the portable storage container on the defendant's property was not a lawful preexisting use, since

no building permit was ever obtained to allow the erection of same on the defendant's property

as required by WTC 86-13(A).^[FN2]

Question Presented.

Is the existence of a portable storage container on the premises of the defendant a

protected pre-existing use?

Legal Analysis.

A. Substantial Preexisting Use.

Not all preexisting uses are treated equally. In order to be a protected preexisting use it

must be a use that has substantially affected the usage of the property prior to the enactment of

the town code ordinance. Salkin, New York Zoning Law and Practice, Section 10:14. "It is the

law of this state that nonconforming uses or structures, in existence when a zoning ordinance is

enacted, are, as a general rule, constitutionally protected and will be permitted to continue,

notwithstanding the contrary provisions of the ordinance." People v. Miller (1952) 304 NY 105,

107, 106 NE2d 34,35. However, that general rule is subject to an exception. In fact the

Court of Appeals has held "... that the enforcement of a zoning regulation against a prior [*4]

nonconforming use will be sustained where the resulting loss to the owner is relatively slight and

insubstantial."^[FN3] Again, the Court of Appeals analysis is quite instructive in this regard. In People

v. Miller the court stated that

"In this state, then, existing non-conforming uses will be permitted to continue, despite the enactment of a prohibitory zoning ordinance, if, and only if, enforcement of the ordinance would, by rendereing (sic) valueless substantial improvements or businesses built up over the years, cause serious financial harm to the property owner. This rule, with its emphasis upon pecuniary and economic loss, is clearly inapplicable to a purely incidental use of property for recreational or amusement purposes only."

"Our analysis begins with the premise that a zoning ordinance enjoys a strong presumption of constitutionality ( see, de St. Aubin v. Flacke, 68 NY2d 66, 76, 505 NYS2d 859, 496 NE2d 879). The fact that an ordinance effectively reduces the value of a parcel does not render it confiscatory ( id., at 77, 505 NYS2d 859, 496 NE2d 879; Seawall Assocs. v. City of New York, 142 AD2d 72, 84-86, 534 NYS2d 958). Moreover, local governments enjoy broad police powers to advance the public health, safety and welfare ( see, Matter of Town of Islip v. Caviglia, 73 NY2d 544, 550- 51, 542 NYS2d 139, 540 NE2d 215 [1989] )."

In the case of Watral v. Scheyer, 223 AD2d 711, 712, 637 NYS2d 431,432 (2nd Dept.

1996) the local Zoning Board of Appeals refused the petitioner's application to establish a legal

non-conforming use for an outdoor storage facility. The Supreme Court, Suffolk County

dismissed the petitioner's Article 78 Proceeding. The Appellate Division, in affirming the

decision of the Supreme Court, stated

"In this case, the petitioners failed to establish that their present use of the property to store raw materials, equipment, and vehicles related to their construction business was a substantial use of the property prior to enactment of the 1937 ordinance ( see, People v. [*5]Miller, 304 NY 105, 107, 106 NE2d 34), as opposed to a mere incidental use associated with the property's prior use as a dairy farm ( see, Incorporated Vil. of Old Westbury v. Alljay Farms, 100 AD2d 574, 473 NYS2d 505, mod. 64 NY2d 798, 486 NYS2d 916, 476 NE2d 315; Matter of Winter v. Guenther, 24 Misc 2d 537, 192 NYS2d 892; Town of Mount Pleasant v. Van Tassell, 7 Misc 2d 643, 166 NYS2d 458, affd 6 AD2d 880, 177 NYS2d 1010). Moreover, substantial evidence was presented that the use of the property associated with the petitioners' construction business is of more recent vintage ( see, Town of Ithaca v. Hull, 174 AD2d 911, 571 NYS2d 609; Matter of Eger v. Levine, 153 AD2d 998, 545 NYS2d 618)."

In the instant case, this court holds that the existence of a portable storage container on the premises of the defendant amounts to an incidental and not substantial use of the defendant's

property. This is based on the affidavit of the defendant submitted with her motion that states

that the portable storage unit is "8 feet in height, 8 feet in width, and 40 feet in length, for an

overall square footage of 320 square feet" and that the unit "is used, incidental to my ownership

of the property, for the storage of lawn and garden tools, equipment, snow blowers and other

snow-removal equipment, bicycles, and other tools, equipment and materials which are used in

maintaining the lot or parcel on which it is constructed as a residence." As a result, defendant's

reliance on the defense of a preexisting use is misplaced.

B. Legal Preexisting Use.

The defendant correctly argues in her motion papers that the portable storage unit in

question fits all the criterion of a building as set out in WTC Section 225-3, which defines a

building as "Any structure or series of connected structures having a roof or roof supported by

columns or by walls and intended for the shelter, housing or enclosure of persons, animals or

chattel." However, as previously stated WTC 86-13(A) requires the issuance of a permit before

the erection of any building.^[FN4]No such building permit was ever obtained by the defendant prior

to the placing of the portable storage unit on the premises of the defendant. Thus, the placement

of the portable storage container on defendant's property was never a legal preexisting use. Thus, the defense of a preexisting use is not available to the defendant herein. See Salkin, New York [*6]Zoning Law and Practice, Section 10.14.

Conclusion of Law.

The motion to dismiss the accusatory instrument accusing the defendant of erecting a

portable storage container on her property without a permit, in violation of Webster Town Code

Violation Section 225-48.1 is hereby denied. The case is hereby set down for trial at a time to

be set by the Court in accordance with the schedules of counsel. This constitutes the decision

and order of the court.

Dated: Webster, New York

December 1, 2010

________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice