Landmark Colony at Oyster Bay v. Board of Sup'rs, Nassau County

• Decision Date: 28 September 1983
• Parties: LANDMARK COLONY AT OYSTER BAY, a copartnership, with offices at 15 Remsen Avenue, Roslyn, New York, Plaintiff, v. BOARD OF SUPERVISORS, COUNTY OF NASSAU, and Nassau County Planning Commission, Defendants. -C
• Court: New York Supreme Court

Page 170

467 N.Y.S.2d 170

121 Misc.2d 23

LANDMARK COLONY AT OYSTER BAY, a copartnership, with offices at 15 Remsen Avenue, Roslyn, New York, Plaintiff, v. BOARD OF SUPERVISORS, COUNTY OF NASSAU, and Nassau County Planning Commission, Defendants.

Supreme Court, Special Term Nassau County, Part 5-C.

Sept. 28, 1983.

Robinson & Cincotta, Oyster Bay, for plaintiff.

Edward G. McCabe, County Atty. by Edward Groarke, Asst. County Atty., Mineola, for defendants.

MEMORANDUM

GEORGE A. MURPHY, Justice.

This is an action for declaratory judgment wherein the plaintiff Landmark Colony at Oyster Bay seeks inter alia a determination that Nassau County Ordinance # 229-80, enacted May 19, 1980, is unconstitutional, illegal and void. Plaintiff also seeks to recoup from the County of Nassau a $15,000 penalty imposed on December 18, 1980 by the Nassau Planning Commission pursuant to this Ordinance and thereupon paid under protest by the plaintiff. Plaintiff contends that the subject matter of the Ordinance has been pre-empted by State legislation applicable only to Nassau County and that the Ordinance insofar as it is inconsistent with such special legislative enactment, must be held to be void. The defendants, on the other hand, argue that the Ordinance is consistent with the State legislation and is a permissible separate exercise of County jurisdiction over land development as authorized in the County Charter.

The subject litigation results from the action by the Nassau County Planning Commission on December 18, 1980 in exacting a payment of $15,000 from the plaintiff as a condition to Commission approval of plaintiff's filed map of Landmark Colony of Oyster Bay. The specific authority for the Commission's action, according to the County, is Subdivision 2 of Ordinance # 229-80 which provides as follows:

"Whoever, being the owner or agent of the owner of any land located within a subdivision, commences construction of any non-public improvements without the approval of the Nassau County Planning Commission, or transfers, sells, agrees to sell, negotiates, offers or advertises for sale any unit of or interest in land by reference to or exhibition of, or by other use of a plat of a subdivision, before such plat has been approved, as provided in Section 1610 of the County Government Law of Nassau County and Section 334a of the Real Property Law, and filed in the office of the County Clerk, shall forfeit and pay a penalty of FIVE HUNDRED ($500.00) DOLLARS for each unit so constructed and/or each lot, parcel or unit transferred, sold, agreed to be sold, negotiated, offered or advertised for sale to be recovered by the County and paid to the County Treasurer. The description of such lot or parcel by metes and bounds in the instrument of transfer or other document used in the instrument of transfer or other document used in the process of selling or transferring shall not except the transaction from such penalty."

The evidence on the trial firmly established that the plaintiff did, in fact, advertise for sale, contract to sell and commence construction of a number of units at Landmark Colony at Oyster Bay without the final approval of the Commission and prior to the due filing of its map in the office of the County Clerk.

Section 334-a, Subdivision 13 of the Real Property Law provides as follows:

"13. Failure to file said map or maps as required by the provisions of this section, shall subject the owner of such lands shown upon such maps, or of unsold lots or plots thereon, to a penalty to the people of the state of New York of one hundred dollars for each and every lot or plot thereon sold or conveyed by or for such owner prior to the due filing of such map or maps."

It is the opinion of the Court that the aforesaid Subdivision 13 of Section 334-a of the Real Property Law specifically and entirely addresses the matter of a developer selling or conveying plots or units before or without due filing of his map. It is clear that unless there is either a sale or a conveyance of a plot or a unit, there exists no basis on which to exact the $100 penalty per plot or unit allegedly sold or conveyed. The violation of the statute, then, is found not in the failure to file the map, but rather is found in the premature sale or conveyance of plots or units. Thus, the Court concludes that Section 334-a exclusively covers the exaction of a specific fine for such premature sale or conveyance. It is apparent also that the provisions of County Ordinance # 229-80 conflict with the State's statutory effort to establish a fair and reasonable standard of punishment for selling or conveying such plots or units prematurely and is therefore void (see, People v. Blue Ribbon Ice Cream, 1 Misc.2d 453, 148 N.Y.S.2d 408; S.H. Kress & Co. v. Department of Health, 283 N.Y. 55, 27 N.E.2d 431).

A reading of the two legislative enactments shows that the words used in Ordinance # 229-80, to wit: commences construction without approval, transfers, sells, agrees to sell, negotiates, offers or advertises for sale, are really no more than different (as well as redundant) ways of describing the ultimate overt conduct explicitly prohibited in Section 334-a. For example, a developer who has negotiated or signed a binding contract for the sale of a plot or unit unquestionably has "sold" that property within a fair interpretation of Section 334-a. The effort to expand the violative conduct in this area to include "advertising" is at best innocuous and meaningless surplusage and is probably deficient as too vague to be enforceable. This is best illustrated by the case at bar where the County early on in the history of this matter actually authorized the erection of three "models" on the site. It is well known that the use of models is probably the most common way for a developer to "advertise" what he is "offering" to the buying public.

It appears to the Court that the most glaring conflict between Ordinance # 229-80 and Section 334-a is the provision in the County Ordinance of a $500 fine for a violation, instead of the $100 fine provided in the State statute. Here, it need only be noted that by Chapter 315 of the Laws of 1983, Subdivision 13 of Section 334-a has been amended so as to provide the $500 penalty that the County Ordinance contains. The amendment, however, of the State statute is not effective until January 1, 1984 and it would appear then (to borrow a phrase used in the County brief), that the County by enacting its Ordinance has a "watch which must be running fast!"

In its brief on the law, the County states that it relies on both Section 1610 of the County Charter and Section 334-a as its authority for collecting the $500 fine. Section 334-a, in its entirety, permits, however, no more than a $100 fine per illegal plot or unit. Thus, the County obviously has exceeded its right to fine the plaintiff and its action is consequently void. Moreover, there is no authority in the County Charter for the County to collect the subject fine other than by a Civil action (Section 1610(6)). In this regard, the Court notes that an administrative officer or board does not possess the power to impose a penalty in the absence of specific statutory authority to do so (New Jersey Fidelity & Plate Glass Ins. Co. v. Van Schaick, 236 App.Div. 223, 259 N.Y.S. 108, aff'd. 261 N.Y. 521, 185 N.E. 721). Certainly, the modus operandi utilized on December 18, 1980 had no authority in law and requires restitution to the plaintiff of this large sum extracted at a critical moment, under great pressure of circumstances and without appropriate due process for the plaintiff.

The plaintiff has argued additionally that Ordinance # 229-80 is unconstitutional as vague. It is well settled that an ordinance will not be set down as unconstitutionally vague merely because there may be some marginal cases where doubts may arise ( Matter of Patricia A. v. City of New York, 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432; Levitt v. Inc. Village of Sands Point, 6 N.Y.2d 269, 189 N.Y.S.2d 212, 160 N.E.2d 501; Flemming v. Nestor, 363 U.S 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, reh. den. 364 U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77). The unconstitutionality of a statute must be proven beyond a reasonable doubt (Sawyer v. Southport, 6 A.D.2d 553, 179 N.Y.S.2d 897; 20 NY Jur. Constitutional Law § 80, pp. 157-158).

Here, it has already been demonstrated that the verbiage of Ordinance # 229-80 (except perhaps for the reference to advertising), is little more than a different and redundant way of describing a prohibition against selling or conveying prematurely the units or plots on the map and it is therefore, in that respect, as constitutional as Section 334-a of the Real Property Law. Considering the evidence of premature construction and contracts to sell, which evidence the plaintiff has not disputed, it is clear that the plaintiff has failed to demonstrate, at least in this case, that the challenged ordinance is beyond a reasonable doubt unconstitutionally vague as applied to the plaintiff.

The plaintiff asks the Court to prevent the County from enforcing its ordinance for the added reason that the County allegedly changed the applicable law at a time when it was in fact involved with plaintiff's application. The plaintiff contends that, at the time the law was changed and thereafter it was subjected to unreasonable obstacles to a timely completion of its requirements pursuant to applicable rules, regulations and procedures. More particularly, plaintiff indicated that it was originally misled into believing that the County Planning Commission's approval was not a factor. Plaintiff has offered proof that the County Health Department "processing" in mid-1980 was replete with administrative delays. Despite the fact that this department "had only one...