Khal Charidim Kiryas Joel V. The Village Of Kiryas Joel

The New York Law Journal
(p. 34, col. 6)
January 25, 1996

ORANGE COUNTY SUPREME COURT

Justice J. Owen

MATTER OF KHAL CHARIDIM KIRYAS JOEL
v.
THE VILLAGE OF KIRYAS JOEL

-- The following papers have been read on (1) plaintiffs motion, pursuant to CPLR 3212, for an order granting summary judgment in their favor; and (2) defendants' cross motion (a) pursuant to CPLR 3212, for an order granting summary judgment in their favor; and (b) pursuant to Village Law Sec.7-714 and Executive Law Sec.382(3). for a permanent injunction:

Notice of Motion--Affirmation of Benjamin Ostrer, Esq.. dated October 26. 1995-- Plaintiffs' Memorandum of Law.

Notice of Cross Motion--Affirmation of J. Benjamin Gailey. Esq., dated November 10. 1995--Exhibit.

Defendants' Memorandum of Law--Affirmation of Donald G. Nichol. Esq., dated November 14, 1995--Exhibits.

Affirmation of Benjamin Ostrer, Esq., dated November 20, 1995.

Upon the foregoing, it is hereby ORDERED that (l) plaintiffs' motion is granted to the extent that so much of Village of Kiryas Joel Local Law #2 of 1993 as establishes an administrative proceeding before the Board of Trustees to adjudicate alleged violations of the local law and to impose civil penalties, fines and costs is declared unconstitutional and invalid, and is otherwise denied; and (2) defendants' cross motion is granted to the extent that plaintiffs are permanently enjoined from the construction. use and occupancy of the addition on the subject premises pending application for and procurement of all required municipal approvals, permits and/or certificates and is otherwise denied; and it is further

ORDERED that, pending execution of judgment, the preliminary injunction imposed by the Court's September 22, 1995 order remains in full force and effect.

Settle judgment (see, 22 NYCRR 202.48[c][1], without costs to either party.

This action, originally commenced as a combined CPLR article 78 proceeding action, has experienced a rather tortured history since its inception in April 1995. By short form order dated June 27. 1995, the Court, inter alia, dismissed that portion of the matter constituting a CPLR article 78 proceeding and has since adhered to that holding. Accordingly, the Court shall, within this determination, refer to the parties solely as "plaintiff' and "defendant." The instant applications stem from the Court's September 22, 1995 order granting plaintiffs' motion for reconsideration, in part, although maintaining a preliminary injunction in effect.

Underlying Facts

While the underlying facts have been set forth in prior determinations, the Court feels it necessary to review these facts to put the instant decision in perspective.

At the heart of the parties controversies is certain improved real property, ostensibly owned by plaintiff Khal Charidim Kiryas Joel and located at 3 Van Buren Drive. Village of Kiryas Joel, Town of Monroe, County of Orange and State of New York (the "subject premises"). In October 1989, the former fee owners of the property (Weinstock) procured a building permit to construct an addition to the existing residence for family occupation purposes. This addition was under construction prior to the issuance of a preliminary injunction by this Court, and

Subsequent to the June 27. 1995 determination, and by short form order dated September 22. 1995, the Court granted plaintiffs' motion to renew and reargue to the extent of reinstating the declaratory judgment portion of their complaint in its entirety. The instant applications followed.

For reasons stated in prior determinations, the Court rejects defendant's arguments that the declaratory judgment portion of plaintiffs' complaint is barred by the statute of limitations and that the entire matter is moot due to defendant's rescission of penalties. Plaintiffs attack the constitutionality of the local law itself, which local law is likely to have recurring effects.

The Court believes, upon reconsideration, that those portions of Local Law #2 of 1993 as established an "administrative proceeding" before the Board of Trustees, resulting in a determination by the Board and the possible imposition of fines, costs and penalties, must be declared invalid. It is true, as defendant argues, that the local law in issue is entitled to a strong presumption of constitutionality, and should only be struck down if proven unconstitutional beyond a reasonable doubt (see Lighthouse Shores, Inc. v. Town of Islip, 41 NY2d 7, 11). Plaintiffs have, however, met their burden.

A legislative body cannot improperly usurp the function of the judiciary (see, People v. Smith, 160 Misc. 2d 1070, 1072; Angela G. v. Roberto G., 98 Misc. 2d 172, 177-178; Choice Messenger Service, Inc. v. Hennessey. 97 Misc. 2d 80. 93). In order to obtain compliance with its zoning laws, 4 a village possesses only two options. "That is, an injunctive action in Supreme Court pursuant to Village Law section 7-714 or a prosecution in the local justice court in accordance with the provisions of Village Law section 20-2006 "(Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 63. Village Law Sec.7-714. at 7).5 Both of these options are exclusively judicial in nature, and by establishing a Board of Trustees "administrative proceeding" commenced by "order to show cause," defendant has improperly encroached upon the jurisdiction of the courts.

The Court does not hold that administrative agencies or local boards may never be accorded adjudicatory functions (see, e.g.. Sohn v. Calderon, 78 NY2d 755, 766-767; Matter of Children of Bedford. Inc. v. Petromelis, 77 NY2d 713, 723, vac. on other grounds 502 US 1025. on remand 79 NY2d 972). Rather, the Court holds that under the existing legislative scheme. the Board of Trustees cannot be given such functions with respect to zoning ordinance and building code violations. In enacting Local Law #2, defendant not only usurped the function of the judiciary, but attempted to supersede general law, 6.

This holding does not impair the ability of a code enforcement officer to issue a notice of violation, or the ability of a municipality to authorize proper civil penalties in an appropriate fashion (see. e.g., Solon v. Clark, 97 AD2d 602, 603). However, the procedure established by defendant in this instance cannot stand.

The separate remedies afforded by Village Law Secs.7-714 and 20-2006 are not, however, mutually exclusive (see. Rice. Practice Commentaries, McKinney) Cons Laws of NY. Book 63, Village Law Sec.7-714, at 7), and the former provision creates an independent basis to invoke this Court's injunctive powers. Defendant herein counterclaims for an injunction restraining plaintiffs from the continued construction, use and occupancy of the addition to the subject premises and cross-moves for summary judgment on this issue.

Throughout the proceedings in this manner, at least two uncontested facts have evolved: (l)that the original building permit for the addition to the subject premises was issued for residential family occupation purposes only; and (2) that prior to imposition of the Court's preliminary injunction, plaintiffs were utilizing the addition not for residential purposes, but for the purpose of group religious services. It has also become evident that plaintiffs intend, in the future, to continue using the addition to hold such services.

The Court cannot, on this set of uncontested facts, relieve plaintiffs of the terms of the previously imposed preliminary injunction. Plaintiffs must make appropriate good faith applications to procure the approvals, permits and certificates necessary to utilize the premises for its intended purpose, and prosecute them diligently. In accordance with the above, that portion of defendant's cross motion seeking a permanent injunction is granted (see, Village of Hempstead v. Roman Catholic Church of Our Lady of Lorreno at Hempstead, 198 AD2d 409, 410-411; the propriety of such construction, as well as the use of the addition, is at the core of this matter.

On or about March 1. 1993, the Village adopted Local Law #2, which established a building department to administer and enforce the New York State Uniform Fire Prevention and Building Code, as well as local building codes. This department is headed by a code enforcement officer, appointed by the Board of Trustees, who has the authority under the local law, inter alia, to issue written orders to remedy violations. In addition. Local Law #2 provides, in pertinent parts:

Sec.7. Violations; remedies.

A. Any violation of the New York State Uniform Fire Prevention and Building Code ("Uniform Code"). this local law, any term or condition of a building permit or certificate of occupancy or the plans and specifications upon which the building permit or certificate of occupancy were issued, or any lawful order of the Code Enforcement Officer shall be deemed a violation of this local law.

B. Upon determination that a violation exist in, on, or about any building, premises or property, the Code Enforcement Officer shall serve a written notice of violation which orders the remedying of the violation. Such order shall state the nature of the violation and the provision or term violated, and shall set a date as may be reasonably necessary for achieving compliance before proceedings to compel compliance or assess penalties shall be instituted.

C. In addition to those penalties prescribed for violations under State law, any person, firm or corporation who violates this local law shall be liable to the Village for a civil penalty of not more than $200.00 for each day or part thereof during which such violation continues. Said civil penalties shall be recoverable in an administrative proceeding held by and before the Board of Trustees pursuant to the following procedure:

(1) Whenever a violation has not been remedied within the time specified in the notice of violation. the Code Enforcement Officer may issue an order to show cause before the Board of Trustees why such penalties should not be imposed.

(2) Content of order. Said order to show cause shall state the nature of the violation; the provision or term violated; and the date, time, and place for a hearing before the Board of Trustees. The hearing shall be set for a date not less than seven (7) days after the date the order to show cause is mailed.

(3) Conduct of hearing.

(a) The Board of Trustees shall conduct a hearing at the date. time and place specified in the order to show cause...

(b) After the hearing is closed, the Board of trustees shall make findings and make a determination. Such determination shall indicate the basis and reason for the decision, shall state the dollar amount of and fine(s) imposed and shall be supported by substantial evidence.

(c) Any fines imposed plus. if any fine is imposed, the costs to the Village of the proceeding, including but not limited to attorneys fees and administrative costs, shall be immediately due and payable. Administrative costs shall be determined from time to time by resolution of the Board of Trustees.

(d) The determination of the Board of Trustees may be reviewed in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided that such proceeding is commenced within thirty (30) days of such determination. Judicial review shall not stay any stop work order or stay payment of any fine and costs imposed.

(e) Assessment of fines and costs. All fines and all costs incurred by the Village in connection with the administrative proceeding, if unpaid, shall be a lien on the real property and shall be assessed against such property, together with 9% interest per annum, and shall be levied and collected in the same manner as real property taxes.

Pursuant to the provisions of this local law, the Village building inspector issued an order to remedy violation dated August 29, 1994, with respect to the subject property. In the violation notice, the building inspector stated that the owner must apply for a building permit, the previous permit having expired on November 15, 1990. Thereafter, the attorney for Weinstock appealed to the Village Zoning Board. claiming that construction was continuing under a valid building permit and that an interpretation of the Village Zoning Code was necessary. The Zoning Board apparently failed to act upon this application.2

According to the record, three (3) more orders to remedy violations were served on September 9. 1994, notifying the property owners of several Village building code and local sewer use law violations, including, without limitation, occupying me addition under construction without a certificate of occupancy; using the addition for public assembly religious services without a certificate of occupancy authorizing such use; failing to construct the addition in compliance with the filed building plans and specifications; and installing two outside toilets in contravention of the toilet use law. The property owners were given until September 13. 1994, according to the notices, to correct the claimed violations.

On September 13, 1994, pursuant to the above-quoted local law, several orders to show cause were issued by the Village building inspector, returnable before the Board of Trustees. on September 30. 1994. A hearing was held before the Board of Trustees, following which a November 4, 1994 written determination issued finding that the property owners and the builder, Moses Indig. had violated certain provisions of the Village building code and sewer use local law, including those set forth above. Civil penalties of$19,200.00 [Weinstock] and $9,600.00 [Indig] were imposed for the building code violations ($200.00 for each claimed day of the continuing violations) and $6,000.00 [Weinstock] for the sewer use law violations ($250.00 for each claimed day of the continuing violations). In addition, a $425.00 fine was assessed against the owners and the builder respectively for the costs of the proceeding, including attorneys' fees.

The Board of Trustees authorized the Village Clerk, if these penalties and fines were not paid, "to include the amount of the fine against ... [the property owner] as an 'other charge' on Weinstock's water/sewer/garbage bill and, if said amount remains unpaid, to assess and levy the amount on the property owner's tax bill" (November 4, 1994 Determination of the Board of Trustees [annexed as Exhibit "C" to Defendant/Respondent's Order to Show Cause]). By further written determination dated December 2, 1994, however, the Board of Trustees "suspended" $15,625.00 of Weinstock's civil penalty, provided that he remedied all violations by December 23, 1994.3

Subsequent to this determination. the Village issued to the Weinstocks a February 5. 1995 "water service" bill, containing a "penalty" in the amount of $25,625.00, the sum claimed due by the Weinstocks for the aforementioned original fines and penalties.

Procedural History

By short form order dated June 27, 1995. the Court resolved all issues in the combined CPLR article 78 proceeding/action by dismissing that portion of the matter constituting a proceeding, declaring void only those portions of Local Law #2 as permitted the imposition of civil fines and/or penalties, and granting an injunction in favor of defendant. As to the dismissal of the CPLR article 78 proceeding, the Court reaffirms its original holding. Although the Court has reconsidered its initial determination, its opinion that the CPLR article 78 claims are time barred (see, CPLR 217) has not changed.

Copyright 1996 The New York Law Publishing Company. All rights reserved.

Incorporated Village of Freeport v. Jefferson Indoor Marina, Inc.,
162 AD2d 434, 436; Village Law Sec.7-714;
Executive Law Sec.382[3]).

This holding is not, of course, designed to preclude further proper judicial proceedings in the event defendant Village of Kiryas Joel is purposely dilatory or otherwise fails to comply with its duties regarding plaintiffs' applications (cf. Village of Sands Point v. Sands Point Country Day School, 2 Misc. 2d 885, 887-888, aff'd 2 AD2d 769).7.

So ordered.

Notes

Defendant Village of Kiryas Joel is the only active defendant herein.
Although plaintiffs raised an issue in this regard within their original petition, that claim has been dismissed as barred by the applicable statute of limitations (CPLR 217).

The civil penalties were subsequently rescinded in their entireties by a July 7, 1995 resolution of the Board of Trustees.
While defendant argues that plaintiffs' underlying violations relate to building code provisions and not the zoning law, clearly the authority for the code provisions at issue is found in Village Law article 7 (see, Village Law Sec.7-700). Accordingly, the remedies provisions discussed herein are applicable.

The Court disagrees with defendant that Village Law Sec.2006 applies only to ordinances adopted prior to September 1. 1974. The related provision in that statutory section (see, Village Law Sec.2006 [1]) refers to the removal of ordinance authority from village in 1974 (see, Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 63, Village Law Sec.7-714, at 7), but Village Law Sec.2006 also contemplates enforcement of local laws through judicial proceedings (Id.; see, Village Law Sec.2006 [2]).
Accordingly, defendants' citations to various provisions of the Municipal Home Rule Law (e.g. MHRL Sec. l0 [1][i], which presume consistency with the general law, are inapposite.

In fact, plaintiff Khal Charidim Kiryas Joel and certain individuals have apparently commenced a federal action in the United States District Court, Southern District of New York, alleging violations of their constitutional rights to freely exercise the religion and to peaceably assemble.