Is it fair for the Village of Massapequa to issue a permit and then issue a summons for the work done in accordance with the permit after the permit and work is paid for?
How would you like to pay for a permit and get the work done according to the permit and then have the Village of Massapequa issue a summons for violation of the right and privilege afforded by the permit?
The middle class cannot afford to pay the legal fees to fight injustice.
People v Cerasoli
Decided on October 21, 2016
Justice Court of the Village of Massapequa Park, Nassau County
The People of the State of New York, Plaintiff,
against
William Cerasoli and MARY CERASOLI, Defendants.
3096
The People were represented by John R. Yetman, Esq. of Walsh Markus McDougal & DeBellis LLP, 229 Seventh Street, Suite 200, Garden City, New York 11530. The defendants were represented by Mildred J. Michalczyk, Esq., 16 Walnut Avenue East, E. Farmingdale, New York 11736.
Steven Leventhal, J.In appearance summons number 3096 dated May 12, 2014, and in an information of the same date, it was charged that on October 2, 2012, the defendants violated Section 345-30 (Front yards), Subsection E (Vision Clearance) of the Code of the Incorporated Village of Massapequa Park (the “Village Code”), and Section 345-40 (Fences and similar obstructions), Subsection B(2) (Obstruction of view prohibited) of the Village Code by failing, after service of a notice to cure, to remove a fence measuring 48 inches in height, situated in an area described as a thirty five foot triangle, located at 51 Roosevelt Avenue in the Village of Massapequa Park (the “Premises”), thus causing the view at a certain traffic intersection to be obstructed.
The defendants move to dismiss appearance summons number 3096 on the grounds that: (i) the Village should be estopped from enforcing the applicable sections of the Village Code because the Village Building Department issued a permit for the fence here, and issued permits for other fences that exceed the height restriction imposed by the Village Code; and (ii) dismissal of the appearance summons would further the interests of justice because the defendants relied in good faith upon the fence permit issued by the Building Department, and the fence does not imperil traffic safety by obstructing the view at the intersection.The Court has considered the supporting affidavit of defendant William Cerasoli dated October 15, 2015, the supporting affirmations of defendant’s counsel Mildred J. Michalczyk, Esq., dated August 28, 2015 and March 8, 2016, the Affirmation in Opposition of Village Prosecutor John R. Yetman, Esq., dated April 15, 2016, and the Reply Affirmation of Ms. Michalczyk, dated June 17, 2016.
I. FACTS
The Premises is a residential property situated at the corner of Roosevelt Avenue and Clark Boulevard in the Village of Massapequa Park. Mr. Cerasoli has resided at the Premises for approximately 44 years.
In or about the year 2010, having observed fences in the Village that measured 48 inches in height and believing that the height restrictions in the Village Code had been changed, Mr. Cerasoli inquired at Village Hall. He was informed that the height restrictions had been changed, and that a fence measuring 48 inches in height would be permitted under the Village Code. There was no discussion of any restrictions applicable in front yard setbacks or on corner lots.
On or about January 28, 2010, Mrs. Cerasoli submitted a permit application for a fence measuring 48 inches in height, together with the payment of an application fee of $55.00. Thereafter, the Village Building Department approved the application and issued a permit for construction of a fence measuring 48 inches in height. The fence was erected at a cost to the defendants of $7,000.
In letters dated January 7, 2014 and April 1, 2014, and at a meeting with the Village Code Enforcement Officer, the defendants were informed that the height of the fence exceeded the maximum height allowed by the Village Code and that a variance would be required. Despite having been advised of the option of seeking a variance, Mr. Cerasoli chose not to do so, based on his opinion that “if you do not know someone in the Village the application will not be approved.”
In support of defendants’ motion, defendants submit that several other corner properties in the Village, specifically identified by their locations, have similar fences, and that the Village has issued permits for other nonconforming fences (one of which bears a Village sign).
Mr. Cerasoli argues that traffic safety at the intersection of Roosevelt Avenue and Clark Boulevard is protected by a traffic light, and that his fence does not imperil traffic safety by obstructing the view at the intersection.
The People argue that estoppel is not available against the Village in the enforcement of its zoning code, and that the defendants have not established that the interests of justice would be furthered by dismissal of the appearance summons. The People allege, on information and belief, that accidents have occurred at the intersection notwithstanding the presence of a traffic light.
2. THE VILLAGE CODE
Village Code Section 345-30E (Vision clearance), last amended on September 18, 2006, states that:
On any corner lot on which a front yard is required by this chapter,[FN1]it shall be unlawful to construct or maintain or permit to remain any fence or any other structure, whether temporary or permanent, within 35 feet of the curbline which obstructs a view of more than 30 inches above the level of the sidewalk of the adjacent street pavement.Village Code Section 345-40B(2) (Obstruction of view prohibited), last amended on or before June 12, 2000), states that:
On any corner plot, on which a front or side yard is required, no wall, fence or structure [*2]shall be erected and no hedge, tree, shrub or other growth shall be maintained in such location within such required front or side yard space [FN2]as to cause danger to traffic by obstruction of the view.3. ESTOPPEL
The erroneous issuance of a building permit is insufficient to estop a municipality from enforcing its zoning code, even when the results are harsh. Parkview Associates v. City of New York, et al., 71 NY2d 274 (1988).
In E.F.S. Ventures Corp. v. Foster et al., 71 NY2d 359 at 370 (1988), the Court explained that:
Generally, governmental agencies are not subject to the defense of estoppel for two reasons. First, the doctrine is not applied against the government, as a matter of policy, because to do so could easily result in large scale public fraud. As stated long ago by the United States Supreme Court, It is better that an individual should now and then suffer by [governmental] mistakes, than to introduce a rule against an abuse, of which , by improper collusions, it would be very difficult for the public to protect itself.’ The second, and more fundamental, reason why estoppel is not generally permitted against the government is that to do so may violate the doctrine of separation of powers .
(Internal Citations omitted) In Foster, the Court concluded that a judicial estoppel preventing respondents from implementing statutory SEQRA requirements would place the court in opposition to the elected branches of government and override legislative mandates establishing environmental review procedures. Similarly here, a judicial estoppel preventing the Building Department from implementing the zoning chapter of the Village Code would place the court in opposition to the elected Board of Trustees and override its legislative mandate.In Parkview Associates, supra, the height of a building on Park Avenue in Manhattan exceeded the limitation imposed by the applicable zoning provision. The Court concluded that reasonable diligence by the defendant would have disclosed the bureaucratic error and, therefore, the defendant could not invoke estoppel against the City of New York. Similarly here, the regrettable hardship to the defendants would have been avoided had they consulted the Village Code, or had their fence contractor done so.
Defendants argue that they should not be held to the same standard as the sophisticated developer in Parkview Associates. While defendants’ level of sophistication may reasonably be distinguished from that of the developer in Parkview Associates, so too, their financial hardship pales in comparison. Moreover, the same obligation of reasonable diligence and good faith inquiry apply in both cases. While Mr. Cerasoli made a good faith inquiry before submitting his permit application and erecting the fence, apparently neither he nor his contractor consulted the Village Code, as was their obligation to do.
The Village Building Department here, like the New York City Department of Buildings in Parkview Associates, had no discretion to issue a building permit that failed to conform to the applicable law. The defendants here, like the developer in Parkview Associates, failed to apply to the Zoning Board of Appeals for an area variance. The Village personnel here had no power to bind the Zoning Board of Appeals, and the erroneous advice received by the defendants was no [*3]substitute for a variance. See, Carmelo Carbone v. Town of Bedford, 144 AD2d 420 (2d Dept. 1988).
Neither estoppel nor laches are available to the defendants as a defense to the charges set forth in the appearance summons.
4. THE INTEREST OF JUSTICE
Criminal Procedure Law Section 170.40(1) provides, in pertinent part, that:
An information may be dismissed in the interest of justice when, even though there may be no basis for dismissal as a matter of law , such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:(a) the seriousness and circumstances of the offense;(b) the extent of harm caused by the offense;(c) the evidence of guilt, whether admissible or inadmissible at trial;(d) the history, character and condition of the defendant;(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;(g) the impact of a dismissal on the safety or welfare of the community;(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.The discretion of the court to dismiss an accusatory instrument in the interest of justice is neither absolute nor uncontrolled. People v. Kelley, 141 AD2d 764 (2nd Dept. 1988). It is well settled that the discretion to dismiss an accusatory instrument in the interest of justice should be exercised sparingly and “only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice”. People v. Hunter Sports Shooting Grounds, Inc., 47 Misc 3d 139(A) (Appellate Term, 2d Dept. 2015), quoting People v. Candelaria, 50 AD3d 913, 913 (2d Dept. 2008). In the absence of such a compelling factor, the court should not circumvent the prosecutorial discretion granted to the People. See People v. Richman, 44 Misc 3d 34 (Appellate Term, 2d Dept. 2015). In evaluating the statutory criteria to determine whether the circumstance compel dismissal in the interests of justice, the court “must maintain a sensitive balance between the interests of the individual and of the State. People v. Kelley, supra, citing People v. Clayton, 41 AD2d 204, 208 (2d Dept. 1973).
Here, the offense implicates the legitimate and substantial state interest in protecting motorists and pedestrians from death, injury and property damage. The defendant argues that the presence of a traffic control device minimizes the likelihood of an automobile accident occurring [*4]at the intersection. However, it is for the legislature, and not this Court, to determine what regulations will best advance the state interest in ensuring traffic safety. The People allege, on information and belief, that accidents have occurred at the intersection. However, without competent evidence, the Court is unable to determine, as a matter of fact, whether those accidents occurred and, if so, whether they were caused by the existence of defendants’ fence.While the ultimate question of defendants’ guilt must be reserved for trial, the defendants do not dispute that the fence exceeds the maximum height permitted by the Village Code nor that, despite notice of the violation, they neither removed the fence nor applied to the Zoning Board of Appeals for a variance.
No evidence of the history, character and condition of the defendants was presented by either side, except that the defendants have resided at the Premises for approximately 44 years. The Court assumes that Mr. and Mrs. Cerasoli are respected, law abiding members of the community. While it is regrettable that an error by the Building Department in issuing the fence permit caused them to incur unnecessary cost, there is no evidence of misconduct on the part of the Code Enforcement Officer in issuing the appearance summons.
Before the appearance summons was issued, the defendants were afforded the opportunity to remedy the Code violation or to seek administrative relief in the form of a variance issued by the Zoning Board of Appeals. They declined to do either. The imposition of a fine in the event of a conviction will likely have the effect of compelling compliance by the defendants. Dismissal of the appearance summons would frustrate the legitimate state interest in promoting traffic safety, might encourage others to commit similar Code violations, and could undermine public confidence in the administration and enforcement of the Village Code.Dismissal here would not further the interests of justice.
For the foregoing reasons, defendants’ motion to dismiss the appearance summons is denied in its entirety. This constitutes the decision and order of the Court.
SO ORDERED:
Steven G. Leventhal, J.Footnotes
Footnote 1:Village Code Section 345-30 (Front yards), Subsection B (Corner lots) provides, in pertinent part, that “[a] lot shall have a front yard along its principal frontage . A corner lot shall also have a front yard along its side street frontage .”
Footnote 2:Village Code Section 345-30B provides that the front yard of a corner lot in any residential district shall have minimum depth of 25 feet.
mildredmichalczyk 