In Town of Brookhaven v Golemi, 2019 NY Slip Op 51477(U) [Sup Ct, Suffolk County 2019], the Town of Brookhaven (“Brookhaven”) successfully sought and obtained injunctive relief to remove a structure that violated Brookhaven’s Town Code (“Code”). This case reminds landowners to be responsive to local governments in their enforcement of zoning ordinance. It is also a simple and helpful illustration of how municipalities can pursue a violator through to a remedy – even Court sanctioned self-help.
The defendant is a Brooklyn resident who owns the subject premises, which are located in Mastic Beach, New York, and zoned within the “A-Residence-1” District. In February 2018, a complaint was filed with the Brookhaven Law Department stating that the premises were occupied by a storage trailer – without a valid building permit. The following month, a Brookhaven town investigator issued an appearance ticket to the defendant by “nail and mail” service. The ticket charged the defendant with violating Town Code Section 85-197(A) and required his appearance before the Suffolk County Sixth District Court. (Photographs filed by the Town show the “trailer” looks like a shipping container.)
After failing to appear at his first scheduled appearance, the defendant appeared on the adjourn date and pleaded guilty to the charge. The District Court fined the defendant $500, and sentenced him to a conditional discharge requiring either (i) an application for the necessary permit or (ii) removal of the trailer, within 30 days.
Three months later, in September 2018, the defendant had neither applied for the permit nor removed the trailer. In November 2018, the District Court issued a Declaration of Delinquency and Notice of Appearance, ordering the defendant to appear because he violated the conditions of discharge. The District Court also warned the defendant that his failure to appear may result in the issuance of a bench warrant for his arrest. The defendant failed to appear and the District Court issued the bench warrant.
In May 2019, Brookhaven commenced an action in the Supreme Court, Suffolk County, based upon the same facts and issues, and applied for an order (i) declaring the defendant breached the terms of conditional discharge, (ii) ordering defendant remove the trailer, (iii) granting Brookhaven authority to enter upon the defendant’s premises to remove the trailer – if necessary, (iv) if removal is necessary, charging the costs to the defendant and adding them to the subsequent assessment, and (v) ordering the defendant to maintain the premises in conformance with the Town Code. The defendant failed to oppose Brookhaven’s application, and the Supreme Court granted its motion.
N.Y. Town Law Section 268(2) authorizes towns to provide for enforcement of their local zoning ordinance, e.g. by commencing an action to prevent, restrain, correct or abate the unlawful construction of a building in violation of the local zoning ordinance. Removal is an appropriate method by which a town may abate such violations. Brookhaven has also enacted Town Code Section 85-157, authorizing it to commence actions or proceedings to prevent, restrain, correct or abate violations. Here, Brookhaven brought this action – within its powers – to remedy the defendant’s violation of Town Code Section 85-197(A), and met its burden of proof. The defendant did not oppose the application, and he did not refute the fact that the premises were in violation of the Town Code or that removing the offending storage trailer was not a remedy available to Brookhaven.
The Supreme Court issued an order granting Brookhaven’s application, ordering removal of the storage trailer, granting Brookhaven the authority to enter onto the defendant’s premises to remove the trailer, mandating that – if removal is necessary – costs incurred by Brookhaven shall be paid by the defendant added to the subsequent assessment, and requiring the defendant to maintain the premises in conformance with the Town Code. (The Court did not decide the issue of whether the defendant failed to comply with the conditions of discharge because such a finding was unnecessary.)
Virtually all municipal ordinance violations are charged, arraigned, cured and/or disposed without resorting to measures such as these, where the government obtains the power to enter onto a private citizen’s land and extract an improvement. This case, however, reminds landowners that municipalities can – and will – enforce their local zoning ordinance to the fullest extent.