[*1]
Town of Huntington v 1262 NY, LLC
2015 NY Slip Op 50376(U) [47 Misc 3d 1203(A)]
Decided on March 27, 2015
District Court Of Suffolk County, Third District
Hackeling, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 27, 2015
District Court of Suffolk County, Third District


The Town of Huntington, Plaintiff,

against

1262 NY, LLC, Defendant.




HUTO 707-12
C. Stephen Hackeling, J.

The Town of Huntington commenced the above captioned criminal action via three (3) informations dated July 30, 2012 asserting that the defendant corporation violated Sec. 160-3A and Sec. 198-120(a) of the Huntington Town Code. The charges consist of the Town's assertion that the defendant did not have certificates of occupancy and permitted use for the five apartments and the fire extinguisher business located in the building and did not register same by obtaining apartment rental permits.

Undisputed Facts

After a fire, the Town inspectors and fire marshals obtained access to the premises located at 1262 new York Ave., Huntington Station, New York. The defendant does not contest the existence of the apartments which were observed but asserts the affirmative defense that the structure and uses on the premises are "grandfathered" nonconforming uses and are legal pursuant to the provisions of Sec. 87-45.1 and Sec. 198-102 of the Town Code. The defendant also asserts that the Town should be equitably estopped from prosecuting this action and that the Sec. 160-3A rental registration charge is not prima facie established in the trial record.

The Law

Sec. 87-25(a) provides that "it shall be unlawful to maintain, occupy or use a building structure or land . . . for which a certificate of occupancy and/or certificate of permitted use has not been issued . . . "

Sec. 87-45.1 of the Huntington Town Code provides:

§ 87-45.1 Nonconforming use designated as an affirmative defense.

In any prosecution for a violation of the provisions of this chapter, it is an affirmative defense that the building, structure or use is a nonconforming use as defined in Sec. 198-2. A defendant who raises this affirmative defense must prove it by a preponderance of the evidence.

Sec. 198-2 defines a "nonconforming use" as follows:

Nonconforming Use.

Any building, structure or use of land lawfully existing at the time of enactment of this chapter or any amendment thereto which does not conform to the zoning regulations of the district in which it is located by reason of the enactment of this chapter . . Emphasis added.

Sec. 198-102 provides:

Continuation of existing uses.

The lawful use of any land, building or structure existing at time of passage of this chapter may be continued, and such may be extended throughout a building . . .

The legislative history of Chapter 198 of the Town "zoning" Code provides as follows on page 198.11:

"Adopted by the Town Board of the Town of Huntington, June 3, 1969 as Chapter 62 of the 1969 Code of the Town of Huntington"Emphasis added.

Discussion

It is the Town's assertion that it conducted a lawful search which revealed a fire extinguisher business and two residential apartments on the first floor and three apartments upstairs. The defendant asserts that it acquired the building in 1997 with the uses presently existing and does not have a certificate of occupancy or permitted use for the building but that it does have a "letter in lieu" which is a document given for structures which predate [*2]1934. It was issued in 2003. The town contends that any changes in the form of uses i.e adding apartments or changing businessess after 1934 would require certificates of occupancy and permitted use.

The trial record presented establishes a violation of the general application of the provisions of Sec. 87-25(a) and Sec.198-120(a) beyond a "reasonable doubt". However, the Town Board enacted an exception to its certificate of occupancy/permitted use law as detailed in Sec. 87-45.1 and Sec. 198-107.1. These statutes shift the burden of proof to the defendant to establish (via a preponderance of the evidence) that a nonconforming use predated enactment of Chapter 198 and its predecessor "zoning codes". See Straub v. Modelewski, 865 N.Y.S. 2d 920 (N.Y.A.D. 2nd Dept. 2008). The Town's building records establish the existence of the subject dwelling prior to 1947. See Exhibit 4.

It is the Town's argument that its original zoning code was enacted and became effective in December of 1934. See Longo v. Eilers, 93 NYS 2d 517 (Sup. Ct. Suffolk County 1949); State of New York v. Simpson, 5 Misc 3d 1029(A) (Suffolk Co. Dist. Ct. 2004). See also Huntington Town Code Sec. 165-1 "Legislative Intent". It argues that all nonconforming uses must predate this enactment. If this is the date contemplated by the "grandfather" provisions, the defendant cannot possibly meet its burden as there exists a 13 year gap. However, the language of the Town's statutes (Sec. 87-45.1 and Sec. 198.02) and the legislative history make express reference that the affirmative defense is available to nonconforming uses which predate adoption "of this chapter". That date is clearly identified as June 3, 1969. While the Town's first zoning code may have become effective in December 1934; it is irrelevant to the issue at hand. The Town fathers specifically designated June 3, 1969 by identifying Chapter 62 of the 1969 Code of the Town as the nonconforming use effective date.[FN1]

The Court declines to adopt the defendant's "collateral estoppel" affirmative defense. While this doctrine is available in limited criminal case contexts, it is not applicable in this instance as the defendants are not the same and as the prior proceeding was not litigated and determined on the merits. See, People v. Aquilera, 82 NY2d 23 (NY 1993). The Court does acknowledge the defendant's contention that an "in rem" preclusive estoppel is established for the existence of the second floor nonconforming use apartments.

Count 1

Count 1 alleges a violation of Sec. 198-120(a) asserting the defendant maintained five residential apartments (three upstairs and two on the ground floor) for which no certificate of occupancy or certificate of permitted use had been issued. Sec. 198-120(a) provides:

It shall be unlawful to maintain, occupy or use a building, structure or land, or any part thereof, for which a certificate of occupancy and/or certificate of permitted use has not been issued, or if such certificate has been revoked or suspended.

Sec. 198-107.1 provides:

In any prosecution for a violation of the provisions of this chapter, it is an affirmative defense that the building, structure or use is a nonconforming use as defined in § 198-2. A defendant who raises this affirmative defense must plead and prove it by a preponderance of the evidence.

The unrebutted trial testimony of retired police officer Alex Richardson established that he resided in Huntington, New York his entire life and his foot patrol sector included the premises located at 1262 New York Ave., Huntington, New York from 1954-1966. His affidavit (Exhibit B) supplements his testimony asserting that as of 1947, the subject premises was a butcher shop on the ground floor with residential apartments on the second floor. This fact is corroborated by the Town building records which indicate permit No.4340 was to alter an "existing store front" in 1949 and the Town Inspector Richard Vacchio's 2002 "letter in lieu" inspection report which states "these 2 structures appear to have been constructed prior to 1934 with no major changes". The 6-20-1968 permit #023959 also indicates that the building was a "multiple dwelling building". (Exhibit 4). Permit # 23959 also states that Northport bank owned the premises in 1968.

This record establishes by a preponderance of the evidence that the upper floor apartments predated 1969 and as such are "nonconforming uses" pursuant to Sec. 87-45.1 and Sec. 198-107.1. They are exempt from the provisions of Sec. 198-120(a) and Sec. 87.25(a). However, the record also establishes that no apartments existed on the ground floor in 1969. Accordingly the Town has established beyond a reasonable doubt that the defendant violated Sec. 198-120(a) as it does not have a certificate of occupancy or certificate of permitted use for the two downstairs apartments.

Accordingly, the Court finds the defendant "guilty" as to Count 1.

Count 2

Count 2 alleges another violation of Sec. 198-120 (a), asserting that the defendant "maintained a fire extinguisher business" at the premises for which no certificate of occupancy and/or certificate of permitted use was issued. The Town's witnesses testified that there were no people at the business premises during their inspection, nor were there any cash [*3]registers or books and records. A review of the pictures taken reveal no phones or computers and approximately a dozen fire extinguishers. In this action the Town is constrained to prove what it plead. The record presented does not prove that the defendant "maintained a fire extinguisher business" beyond a reasonable doubt. The Court finds the defendant "not guilty" of this charge.

Count 3

The Town alleges that the defendant violated Sec. 160-3(A) of its Code in that it utilized the subject premises for rental purposes without registering same with the Town. Sec. 160-3(A) provides:

The owner, managing agent and/or person-in-charge of rental property in any zoning district within the Town of Huntington shall register the property with the Department of Public Safety by February 1 of each year. In the event the property is not utilized as rental property until February 1 of a given year, the owner, managing agent and/or person-in-charge shall register the property within thirty (30) days of the date the property is first utilizedas rental property or February 1, whichever is sooner. Emphasis added.

The Court finds the defendant "not guilty" of this Count as the trial record is devoid of any proof that the defendant was not within its thirty (30) day grace period during which time a permit is not required.

The parties shall appear for sentencing on the date selected by the Court Clerk as indicated below.

J.D.C.

Dated: March 27, 2015

New Court Date: April 13, 2015 at 9:30a.m.

Footnotes


Footnote 1:The Court notes that the Town Board can change this date at its discretion.