On June 28, 2017, the Appellate Division, Second Department, held that a tenant has standing to challenge the definition of “Family” as set forth in the Freeport Village Code.

In Tomasulo v. Village of Freeport, ___A.D.3d___, the Village commenced a criminal proceeding against non-party property owner, William Goodhue, Jr. (owner), alleging that the tenancy between Tomasulo (tenant) and the owner violated sections 171-1 and 210-3 of the Freeport Village Code. The tenant had resided in a single family home with the owner of the home and two other non-related persons. This arrangement violated the definition of “Family” in the Village Code. As a result of the criminal proceeding, the owner commenced an eviction proceeding against Tomasulo.

In response to the eviction proceeding, Tomasulo commenced an Article 78 proceeding against the Village challenging the constitutionality of the definition of “Family” contained in Village Code sections 171-1 and 210-3.  The trial court converted the Article 78 proceeding to a complaint and granted the Village’s motion for summary judgment holding that Tomasulo lacked standing to seek a declaration as to the “constitutionality of the disputed portions of the Village Code” because Tomasulo had “not been injured or threatened with injury as a result of those provisions . . . and [Tomasulo] failed to adequately allege the existence of a justiciable controversy.”

In reversing the trial court, the Second Department stated that Tomasulo “demonstrated a ‘threatened injury to [his] protected right’ to his tenancy in the owner’s house . . . such that he has adequately shown ‘an interest sufficient to constitute standing to maintain the action.'”

Finding that Tomasulo’s pending eviction proceeding demonstrated a “present, rather than hypothetical, contingent or remote, prejudice to [him] . . . [the Court declared that the] Village did not establish, prima facie, its entitlement to judgment as a matter of law.”

 

Who says, “You can’t fight City Hall”?  In New York, a “stop work order” or a temporary restraining order can be issued by a municipality upon a person or company who is in violation of a zoning ordinance.  Both of these are severe in nature, placing an immediate halt on any work or construction.  The pause (or more likely, termination) can cause major disturbances in the completion of a project and/or a client’s “good will,” as well as the potential loss of massive amounts of capital.

Often overlooked by the practitioner, however, is the strategic power of the automatic stay provisions of Town Law §267-a(6) and Village Law §7-712-a(6).  These statutes provide for an automatic stay of “all proceedings” upon the mere filing of an appeal to the appropriate Zoning Board of Appeals (“ZBA”).  This stay is automatic and remains in effect until the ZBA makes a determination, or the appropriate enforcement official certifies to the ZBA that a stay would cause imminent peril to life or property.  In those limited situations, proceedings are not stayed unless a restraining order is granted by a court of competent jurisdiction.

The key to evoking the automatic stay provision is the ZBA’s power to review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance.  In order to obtain an automatic stay, the practitioner must be able to appeal some type of administrative determination by the municipality.

Case Law

A plain reading of the statutory language is supported by limited case law.  For example, in Linder v. Inc. Village of Freeport, 61 Misc. 2d 667 (Sup. Ct., Nassau Co. 1969) a property owner had been issued a building permit.  After construction began, the permit was withdrawn.  The property owner immediately appealed the determination to the Village Zoning Board of Appeals and advised the building inspector that further action by him was stayed by the appeal.  Despite the invocation of the automatic stay, the building inspector, among other things, proceeded to issue a stop work order.  The property owner then commenced an action against the building inspector seeking a preliminary injunction enjoining him from interfering with the construction of the project based on the automatic stay.  The court held in favor of the property owner and granted the requested injunction.  Thus, pursuant to the reasoning of the court in Lindner v. Inc. Village of Freeport, it is clear that the automatic stay applies to administrative actions taken in furtherance of the matter appealed, e. g., the issuance of a stop work order.

In People v. Barris Show Company, 174 Misc.2d 529 (Dist. Ct., Nassau Co. 1997) the Court clarified that a municipality and trial court are both stayed from any enforcement of a criminal proceeding when the defendant files an “interpretation” of the zoning law under Town Law §267-a(4) with the ZBA after prosecution had begun.  In Barris, the tenant was entitled to a stay of the criminal enforcement action against the tenant relating to legality of tenant’s retail use of property pending tenant’s appeal of town planning department’s ruling that retail use was not permitted on property.  Id.  The Court declared that the purpose for the automatic stay provision was that the Legislature did not want a court substituting its opinion for that of the ZBA prior to the Board’s hearing and determination.  The court simplified the reason for having the automatic stay provision in place by stating that to permit any criminal proceeding to go forward would “put the cart before the horse.” Id. at pp. 533-534.

More recently, the Justice Court of the Village of Tuckahoe in People v. Bell Atlantic, 183 Misc.2d 61 (Just. Ct., Village of Tuckahoe 2000), held that the automatic stay also applies to appearance tickets.  In Bell Atlantic, the defendant in a criminal proceeding filed an appeal to the ZBA the day before a trial was scheduled on appearance tickets.  The defendant claimed that the trial was stayed pursuant to Village Law §712-a(6).  The village asserted that the stay provision was only applicable to decisions dealing with non-judicial actions of a building inspector in denying an application or in issuing a notice of violation, not to an appearance ticket, which is a judicial enforcement proceeding pursued by a municipality.

The Court found the factual distinction irrelevant, stating that the statute mandates a “stay” when the issue before a court and a zoning board of appeals are the same. The purpose of the stay is “to obtain a definitive ruling from the ZBA before moving to a judicial determination.” Id.  Otherwise, the possibility would exist that a defendant could be convicted in a Court prosecution while a ZBA might subsequently find that the applicant was not in violation of a zoning law.  As a result, the Court found that the stay was applicable to an appeal from the issuance of appearance tickets and that the village should first await the exhaustion of the ZBA interpretations “before proceeding with the prosecution”.  Id.

Conclusion

Since the automatic stay provisions of Town Law §267-a(6) and Village Law §7-712-a(6) apply to both judicial and administrative proceedings, the automatic stay should be implemented early when defending a client being impacted by a stop work order or temporary restraining order for a zoning code violation.