Town of Nassau v. Nalley

212 N.Y.S.3d 222

227 A.D.3d 1138

TOWN OF NASSAU, Respondent,

v.Stephen B. NALLEY, Individually and as Executor of the Estate of Barbara Secor, Deceased, Appellant

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 26, 2024

Decided and Entered: May 2, 2024

Frank T. Mahady, Albany, for appellant.

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Brian Reichenbach of counsel), for respondent.

Before: Clark, J.P., Aarons, Reynolds Fitzgerald, McShan and Mackey, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the Supreme Court (Patrick J. McGrath, J.), entered June 13, 2022 in Rensselaer County, upon a decision of the court in favor of plaintiff.

Defendant is the owner, occupant and manager of four parcels of property located at 2788 U.S. Route 20, 3036 U.S. Route 20, Lords Hill Road and Mead Road in the Town of Nassau, Rensselaer County.¹ All four parcels of property are zoned rural residential under plaintiff's 2011 zoning law. In 1989, plaintiff enacted Local Law No. 1, entitled "the Junk Yard Ordinance," declaring junkyards to be a menace to the health, safety and general welfare of the community and prohibiting any person, partnership or corporation from conducting a junkyard business without first obtaining a license. In 2011, plaintiff adopted a zoning law which prohibited junkyards² in rural residential zones. In 2018, plaintiff's code enforcement officer began documenting defendant’s use of the four properties as junkyards and served several³ notices of violation upon defendant.

When defendant did not cease operation of the junkyards, plaintiff commenced this action⁴ seeking to permanently enjoin him from doing so. Defendant answered, asserting various affirmative defenses, including, among other things, preexisting nonconforming use and selective enforcement. Following a nonjury trial,⁵ Supreme Court permanently enjoined the continued use of the properties as junkyards and imposed monetary penalties. Defendant appeals.

[1, 2] "In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony" (Matter of Jewett, 145 A.D.3d 1114, 1116, 42 N.Y.S.3d 443 [3d Dept. 2016] [internal quotation marks, ellipsis and citations omitted]; see Baba–Ali v. State of New York, 19 N.Y.3d 627, 640, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012]). Defendant contends that Supreme Court erred in rejecting his claim that the prior nonconforming use of the properties allowed his continued operation of the properties as junkyards, notwithstanding the 2011 prohibitive zoning ordinance. "It is the law of this state that nonconforming uses …, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance. However, the owner must establish that the allegedly pre-existing use … was legal prior to the enactment of the prohibitive zoning ordinance which purportedly rendered it nonconforming" (Matter of East End Holdings, LLC v. Village of Southampton Zoning Bd. of Appeals, 135 A.D.3d 860, 861, 24 N.Y.S.3d 140 [2d Dept. 2016] [internal quotation marks and citations omitted]; see Town of Virgil v. Ford, 160 A.D.2d 1073, 1074, 553 N.Y.S.2d 554 [3d Dept. 1990]).

Pursuant to plaintiff's 1989 Local Law No. 1, an owner or occupant of property could not conduct a junkyard business without first obtaining a license from plaintiff. In 2011, plaintiff's zoning law prohibited junkyards in rural residential zones. Section 4.1 of plaintiff's zoning law pertains to a nonconforming use of property and its continuation. Section 4.1 D, the so called "grandfather" clause, allows the continuation of lawfully established (all approvals and permits obtained) existing nonconforming uses. Testimony at trial by plaintiff's code enforcement officer, defendant and defendant’s witnesses, as well as numerous photographs admitted into evidence, established that all four properties are located in a rural residential zone; and that the properties located at 3036 U.S. Route 20, Mead Road and Lords Hill Road were littered with hundreds of aban- doned and unregistered vehicles, equipment, household appliances and other refuse and were operating as junkyards.⁶ As such, the issue here distills to whether defendant established a legal preexisting nonconforming use.

[3–5] With respect to 3036 U.S. Route 20 and Mead Road, defendant failed to produce a license or permit allowing him or any previous owner to operate a junkyard. Nor did defendant seek to grandfather his allegedly legal preexisting nonconforming use of these properties prior to this action. As to the Lords Hill Road property, defendant provided, as purported proof of the lawful use of this property, a 1987 license to dismantle vehicles issued by plaintiff and Department of Motor Vehicles permits to dismantle vehicles valid through 2005. These documents were issued to defendant’s father as the prior owner of the property. However, plaintiff's father was subsequently permanently enjoined from operating a junkyard on this property in 2007, well before the enactment of the 2011 zoning law (see Town of Nassau v. Nalley, 52 A.D.3d 1013, 1015, 862 N.Y.S.2d 115 [3d Dept. 2008], lv dismissed 11 N.Y.3d 771, 866 N.Y.S.2d 598, 896 N.E.2d 82 [2008]). Moreover, because a Department of Motor Vehicles dismantler’s license may be issued to an entity who does not comply with local laws related to zoning, the issuance of such license "shall not be a defense to any action brought as a result of [a] violation of local law" (15 NYCRR 81.2[d]). As a legal nonconforming use "may not be established where, as here, the existing use of the land was commenced or maintained in violation of a zoning ordinance" (Matter of Marino v. Town of Smithtown, 61 A.D.3d 761, 762, 877 N.Y.S.2d 183 [2d Dept. 2009]; see Town of Virgil v. Ford, 160 A.D.2d at 1074, 553 N.Y.S.2d 554), we find no basis to reverse Supreme Court’s factual findings that defendant did not have a legal preexisting nonconforming use (see Town of Kinderhook v. Slovak, 72 A.D.3d 1240, 1241, 898 N.Y.S.2d 345 [3d Dept. 2010]; Chase Manhattan Bank v. Douglas, 61 A.D.3d 1135, 1137, 877 N.Y.S.2d 488 [3d Dept. 2009]).

[6, 7] Defendant next asserts that plaintiff engaged in selective enforcement of the zoning law, claiming that plaintiff did not enforce the zoning law against other similarly situated property owners who were also accumulating vehicles and other debris on their property. "To establish a claim for a violation of equal protection in the context of selective enforcement, a [defendant] must demonstrate that (1) he or she, compared with others similarly situated, was selectively treated, and (2) such selective enforcement was based upon impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure him or her" (Pirro v. Board of Trustees of the Vil. of Groton, 203 A.D.3d 1263, 1268–1269, 164 N.Y.S.3d 699 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Town of N. Elba. v. Grimditch, 131 A.D.3d 150, 160–161, 13 N.Y.S.3d 601 [3d Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5150754 [2015]). There is nothing in the record from which it can be inferred that plaintiff singled defendant out with a malicious or bad faith intent to injure him. Undermining defendant’s claim is plaintiff's code enforcement officer’s testimony that he works part time, does not have any staff and has a limited budget to enforce the code; that he served notices of violations on other property owners; and that he proceeded against defendant because he was the Town’s most egregious violator (see Matter of Karakash v. Del Valle, 194 A.D.3d 54, 67, 144 N.Y.S.3d 31 [1st Dept. 2021]). Accordingly, defendant’s selective enforcement claim fails (see Pirro v. Board of Trustees of the Vil. of Groton, 203 A.D.3d at 1269, 164 N.Y.S.3d 699; Town of N. Elba v. Grimditch, 131 A.D.3d at 161, 13 N.Y.S.3d 601).

[8–10] We are unpersuaded by defendant’s contention that Supreme Court abused its discretion in granting plaintiff's request for a permanent injunction. "The law is by now well settled that an injunction is an appropriate remedy to prevent continuing violations of zoning laws" (Town of Solon v. Clark, 97 A.D.2d 602, 602, 468 N.Y.S.2d 201 [3d Dept. 1983] [citation omitted]; see Matter of 1640 State Rte. 104, LLC v. Town of Ontario Planning Bd., 207 A.D.3d 1101, 1105, 172 N.Y.S.3d 292 [4th Dept. 2022]). "Where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law" (...