Development

Prohibition on Rentals Without a Permit Survives Constitutional Attack

People v. Laroche

NYLJ 5/5/10, p. 38, col. 3

AppTerm, 9th & 10th Districts

(memorandum opinion)

Landowner appealed from judgments of conviction on several counts of erecting, altering or maintaining a building or structure without permits. The Appellate Term reversed and vacated two counts for lack of evidence, but otherwise affirmed, rejecting landowner's jurisdictional, Fourth Amendment, and vagueness challenges.

Landowner was charged with several counts of erecting structures without the requisite permits on two separate parcels of land. After trial, landowner was convicted on all counts. Landowner's appeal raised a number of grounds. First, landowner contended that the information charging her with several of the offenses was jurisdictionally defective because the property address was improperly identified as Grayston Street instead of Grayston Avenue. The court rejected that contention, noting that landowner had adequate notice to prepare a defense to the charges.

The court also rejected landowner's claim that the town code, which makes it unlawful to permit occupancy as a rental without a valid permit, is unconstitutional because it requires landowner to submit to a warrantless search in violation of the Fourth Amendment. The court noted that the code does not require landowner to consent to a warrantless search; instead, it provides for inspection upon consent and pursuant to a warrant. Finally, the court rejected landowner's vagueness claims, noting that the ordinance placed landowners on adequate notice of prohibited activity.

The court did, however, overturn convictions of installing a basement bathroom and wall air conditioner units without permits, noting that the building inspector's testimony that he had seen a three-piece bathroom in the basement, without more, was insufficient to establish guilt beyond a reasonable doubt, and that the building inspector's testimony that the exterior walls had not been built to accommodate wall units was similarly insufficient.
As to the rest of the counts, the
court concluded that the people had submitted evidence sufficient to sustain the convictions.

Denial of Special Permit for Home Office Use Upheld

Matter of Navaretta v. Town of Oyster Bay

NYLJ 4/20/10, p. 33, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding, Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR 7804(g). Although the Appellate Division concluded that the case had been improperly transferred, the court nevertheless denied the petition and dismissed the proceeding, holding that landowner had not met the conditions necessary to obtain a special permit for use of a home as a professional office.

Landowner, a lawyer, applied to the town planning department for a permit to continue operating his practice on land zoned for residential use. The ordinance, however, required approval of a special permit from the zoning board of appeals (ZBA). When landowner applied to the ZBA, the board denied the application on the ground that his home business failed to comply with six of the conditions required by the ordinance for operation of a home business. Landowner then brought this article 78 proceeding.

In dismissing the proceeding, the Appellate Division first rejected landowner's argument that the ZBA should have applied the criteria applicable to variances. Because the ordinance make home business use a special permit use, the court held that the ZBA had properly applied the standards in the special permit provision. Here, the record supported the ZBA's findings that his proposed use exceeded the maximum square footage allowed, retained the services of more than one nonresident employee, failed to provide sufficient off-street parking, displayed an excessively large sign, and failed to maintain the character of the building as a residence. As a result, the ZBA's determination was not arbitrary or capricious.

Prohibition on Rentals Without a Permit Survives Constitutional Attack

People v. Laroche

NYLJ 5/5/10, p. 38, col. 3

AppTerm, 9th & 10th Districts

(memorandum opinion)

Landowner appealed from judgments of conviction on several counts of erecting, altering or maintaining a building or structure without permits. The Appellate Term reversed and vacated two counts for lack of evidence, but otherwise affirmed, rejecting landowner's jurisdictional, Fourth Amendment, and vagueness challenges.

Landowner was charged with several counts of erecting structures without the requisite permits on two separate parcels of land. After trial, landowner was convicted on all counts. Landowner's appeal raised a number of grounds. First, landowner contended that the information charging her with several of the offenses was jurisdictionally defective because the property address was improperly identified as Grayston Street instead of Grayston Avenue. The court rejected that contention, noting that landowner had adequate notice to prepare a defense to the charges.

The court also rejected landowner's claim that the town code, which makes it unlawful to permit occupancy as a rental without a valid permit, is unconstitutional because it requires landowner to submit to a warrantless search in violation of the Fourth Amendment. The court noted that the code does not require landowner to consent to a warrantless search; instead, it provides for inspection upon consent and pursuant to a warrant. Finally, the court rejected landowner's vagueness claims, noting that the ordinance placed landowners on adequate notice of prohibited activity.

The court did, however, overturn convictions of installing a basement bathroom and wall air conditioner units without permits, noting that the building inspector's testimony that he had seen a three-piece bathroom in the basement, without more, was insufficient to establish guilt beyond a reasonable doubt, and that the building inspector's testimony that the exterior walls had not been built to accommodate wall units was similarly insufficient.
As to the rest of the counts, the
court concluded that the people had submitted evidence sufficient to sustain the convictions.

Denial of Special Permit for Home Office Use Upheld

Matter of Navaretta v. Town of Oyster Bay

NYLJ 4/20/10, p. 33, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding, Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR 7804(g). Although the Appellate Division concluded that the case had been improperly transferred, the court nevertheless denied the petition and dismissed the proceeding, holding that landowner had not met the conditions necessary to obtain a special permit for use of a home as a professional office.

Landowner, a lawyer, applied to the town planning department for a permit to continue operating his practice on land zoned for residential use. The ordinance, however, required approval of a special permit from the zoning board of appeals (ZBA). When landowner applied to the ZBA, the board denied the application on the ground that his home business failed to comply with six of the conditions required by the ordinance for operation of a home business. Landowner then brought this article 78 proceeding.

In dismissing the proceeding, the Appellate Division first rejected landowner's argument that the ZBA should have applied the criteria applicable to variances. Because the ordinance make home business use a special permit use, the court held that the ZBA had properly applied the standards in the special permit provision. Here, the record supported the ZBA's findings that his proposed use exceeded the maximum square footage allowed, retained the services of more than one nonresident employee, failed to provide sufficient off-street parking, displayed an excessively large sign, and failed to maintain the character of the building as a residence. As a result, the ZBA's determination was not arbitrary or capricious.