People v. Fanto

Facts of the Case.   The defendant is operating a landscape business at 504 Whiting Road in the Town of Webster. That property is in a “Large-Lot Single-Family Residential District.” Neither landscape businesses nor major home occupations are designated permitted uses in that district. As a result, the defendant was charged with a violation of Webster Town Code §225- 37 (2) which states as follows: “No person shall commence a major home occupation without first obtaining a special use permit from the Zoning Board of Appeals in accordance with §225-110.” It is un-controverted that the defendant never obtained a special use permit to conduct the business on his property. The information, sworn to by Nicholas Mooney, Code Enforcement Officer of the Town of Webster, alleges by personal observation that the entire rear of the property was dedicated to the business. He went on to allege that “This included multiple front end loaders, pick-up truck plows, trucks, multiple trailers, large piles of construction material (top soil, stone, etc.) above ground 500 gallon fuel tank, a commercial size garbage container, and a dump truck in the process of working.” The penalty for a violation of Webster Town Code §225-37 (2) is set out as follows: “Any violation of this chapter, or of any order, requirement, decision or determination issued by the Commissioner of Public Works, his agent or designee, hereinafter called the “Zoning Official,” pursuant to this chapter, is hereby declared to be an offense punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both, upon conviction for a first offense.” (WTC §225-113 [A] [1]) The penalty section of the code goes on to say that “Each week’s continued violation shall constitute a separate additional violation.” That would imply that the court, upon conviction of a section of Article 225 violation would be able to impose a fine for each week the situation complained of is in existence between the date of the accusatory instrument through the week of conviction. I note that the accusatory instrument herein does not, as required, state that each week that the situation complained of is in existence will constitute a separate count. “Absent an allegation that each week would constitute a separate count, the accusatory instrument should be treated as charging only one violation as to each count (People v. Fremd, 41 NY2d 372 [1977]).” (People v. Melchner, 4 Misc 3d 132 (A), 2004 Slip Op. 50727 (U), *2)¹ Legal Analysis. Defense counsel moved to dismiss the information herein presumably pursuant to CPL §170.30 (1) (f), to wit: “There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.” In this case the defendant’s main contention is that the home occupation in question represents a prior non-conforming use, which would render the current use lawful, despite the ordinance proscribing same. “A nonconforming use has been defined as a use of land which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although does not comply with the use restrictions applicable to the area in which it was situated.” People v. Braun Brothers Brushes, 15 Misc 3d 1030, 1035, 838 N.Y.S.2d 408,412 [Justice Ct.. Village of Valley Stream, Bogle J., 2007]) In any event, the defense counsel sets forth four separate theories as to why his client’s use of the property should be permitted or considered a valid prior non-conforming use, which would require the dismissal of the information. First, defense counsel alleges that his client is operating a minor home occupation, which would not require a permit for a special use permit.² The Webster Town Code describes a minor home occupation as follows: “Any home occupation which: A. Involves no persons other than persons residing in the premises; B. Shows no visible evidence from the exterior of the dwelling unit of the conduct of the occupation; C. Generates no additional traffic nor the need for off-street parking beyond the customary needs of the dwelling unit; D. Uses no equipment which would not customarily be used by the occupants of a dwelling unit; E. Is not advertised by address; and F. Is conducted entirely inside of the principal dwelling unit or other structure on the premises.” (WTC §225-3) Even a cursory review of the accusatory instrument will reveal that the business in question is alleged to maintain large vehicles and other machinery parked outside on the property. None of such equipment would be customarily used by occupants of a dwelling unit. Second, defense counsel maintains that his client purchased the property one year ago and that the prior owner maintained a plumbing business on the premises. The defendant’s motion papers do not provide any specific information as to when the prior business began. They do not describe the extent of the use of the property by the prior owner. Nor do the motion papers indicate if the prior business was operated on the property at the time it was purchased by the defendant. The defense counsel’s third argument was that his client had a vested right to use the property as a prior non-conforming use. That cannot be established from the dearth of information alleged in his motion papers. Whether the defendant has a vested right to any prior non-conforming use depends on the facts of the case. That issue cannot be gleaned from the defendant’s motion papers, but would have to be determined at a trial. In that regard “A prior non-conforming use is an affirmative defense to be proved by the defendant charged with violating the zoning ordinance. People v. Waring, 110 Misc 2d 392, 441 N.Y.S.2d 872 (Oswego City Court 1981). For evidence to be sufficient to raise the defense of a prior non-conforming use, the defendant’s evidence is required to be not iron clad but of a substantial nature. [internal citations omitted]. Once this defense has been successfully raised, it is the burden of the prosecutor to disprove the defense beyond a reasonable doubt.”³ Nevertheless, defense counsel maintains in his motion papers that his client has a vested interest in the prior non-conforming use, because “…his use forms an integral part of the original contemplation of the entire parcel.” However, it has been held that “Landowners do, however, have a vested right where the subject property was ‘used for the nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective….’” (Matter of Cobleskill Stone Products, Inc. V. Town of Schoharie, 95 A.D. 1636, 1637, 945 N.Y.S.2d 793, 794-795 [2012]) Again, the defendant provided no specific documentation as to the extent of business performed by the prior owner of the land. Fourth, the defense counsel argues that his client should be able to continue his current use of the property, even if the defendant’s use of the property amounts to an expansion of the prior use, because the entire parcel’s character and adaptability manifests the specific use of a home business. Defense counsel cites In the Matter of Syracuse Aggregate Corporation v. Weise, 51 NY2d 278, 434 N.Y.S.2d 150 [1980] in support of that claim. However, reliance on that case is misplaced. That case involved the expansion of a quarrying enterprise. However, the Court of Appeals distinguished that prior decision in the subsequent case of Steiner v. Fellowship Foundation v. De Luccia, 90 NY2d 453, 662 N.Y.S.2d 411 [1997] wherein the court refused to expand a pre-existing non-conforming use. The court indicated that the quarrying operation in Syracuse Aggregate was a unique non-conforming use and that “limiting quarrying to the land actually excavated at the time of enactment of the restrictive ordinance ‘would, in effect, deprive the land owner of his use of the property as a quarry….’”⁴ No argument has been made or established that the land at 504 Whiting Road had been used in any particularly unique activity, the limiting of which would deprive the owner of its principal use, which is actually residential in nature. “While nonconforming uses are generally permitted to continue, they may not be enlarged as a matter of right….”⁵ The deputy town attorney, in his response affirmation, raised certain procedural concerns relative to the motions filed by the defense attorney. However, when put on notice of said issues defense counsel promptly filed a new set of motions addressing the issues in question. Thus the those procedural issues raised by the deputy town attorney need not be addressed. Conclusion. The motion to dismiss the information herein pursuant to CPL §170.30 (1) (f) failed to establish that there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged. In other words the defendant failed to demonstrate the existence of a prior non-conforming use, which would be a defense to the charge of operating a major home occupation without a special use permit. Therefore the defendant’s motion to dismiss the accusatory herein is denied. This constitutes the decision and order of this court. Dated: August 5, 2019 Webster New York