Maytum v. Nelson

• Decision Date: 12 July 1976
• Citation: 385 N.Y.S.2d 654,53 A.D.2d 221
• Parties: Application of Roxanna MAYTUM, Appellant, v. Paul D. NELSON et al., Respondents, Paul Stage et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 654

385 N.Y.S.2d 654

53 A.D.2d 221

Application of Roxanna MAYTUM, Appellant, v. Paul D. NELSON et al., Respondents Paul Stage et al., Intervenors-Respondents.

Supreme Court, Appellate Division, Fourth Department.

July 12, 1976.

Walter M. Donovan, Jamestown, for appellant.

Seymour Rollman, Mayville, for respondents.

DeMambro, Donovan & Laurita, Mayville, for intervenors (Alan Laurita, Mayville, of counsel).

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DILLON, JJ.

MOULE, Justice Presiding.

The question presented by this appeal is whether the Town Board of the Town of Chautauqua properly denied petitioner's application for a license to operate a junkyard on unzoned property within the town.

Petitioner and her husband are the owners of four adjoining parcels of land at the junction of Route 17 and County Road 314 in the hamlet of Dewittville, a primarily residential settlement with a population of about 200 on the northwest side of Chautauqua Lake. Petitioner and her husband make their home on the property, which is located on a hillside overlooking the lake and for the past several years they have also operated an automobile repair service, a used car sales business and a junkyard there.

In 1967 the Town of Chautauqua enacted a local ordinance, known as Local Law No. 1--1967, which required the licensing of junkyards. The law provided, in substance, that junkyard operations were to be screened from public highways by a six-foot fence made of tight wood and that other perimeters were to be enclosed by a six-foot fence made of either tight wood or close wire mesh. Fences were to be equipped with a gate which could be secured during periods when supervisory personnel were not in attendance and cars were to be arranged in neat rows leaving a ten-foot wide fire lane along the inside fence lines. Fire extinguishers were to be on hand and junkyard operators were required to maintain an office and suitable public sanitary facilities. In addition, the law required payment of a $25 licensing fee, mandated the renewal of license applications on a yearly basis, and provided for the revocation of licenses in the event a licensee failed to conduct his business in conformity with its regulatory provisions.

According to town records, on June 2, 1970 a letter was sent to 17 town residents, including petitioner's husband, advising them that the town had received 'numerous complaints regarding junk autos and junkyards in various locations' and suggesting that they obtain a copy of Local Law No. 1 from the town clerk's office. Petitioner denies having received such a letter and denies having been in the junk business at that time but, in any event, she admits having received a letter addressed to her husband dated May 17, 1974 which stated:

'Your Town Board has had numerous complaints regarding junk autos and junk yards in various locations in the Town of Chautauqua.

You or your property has been mentioned in one or more of these complaints. We are not only trying to avoid complaints but also to improve the general appearance of the Town.

We are again reminding you that there are State and Town laws regarding junk cars and junk yards and that these laws will be enforced.'

Petitioner stated that she disregarded this letter because she was then the holder of a New York State dismantler's license and a state license to buy and sell used cars, and she believed that these two licenses were all that were required for the legal operation of her business. On August 9, 1974, however, she received another letter from the town, this one specifically informing her of the existence of Local Law No. 1 and advising that she ought to procure a license. On the very next day petitioner obtained a license application and submitted it for consideration by the Board at its September 9, 1974 meeting.

Petitioner's husband appeared at the September 9 meeting in support of the license application. At that time the Board also had before it a petition signed by 63 residents of Dewittville opposing the granting of the license on the grounds that the establishment of a junkyard would cause 'depreciation of surrounding property and will be an 'eye-sore' in the community.' Discussion centered around the fact that petitioner's property was not in compliance with the regulatory provisions of the licensing law and, additionally, around the problem that its hillside location would minimize the screening effect of any tight wood fence that might be constructed along the public highway. To alleviate this dilemma petitioner offered to terrace the hill with a bulldozer in order to allow for storage of cars at a lower elevation. The Board, however, voted to disapprove petitioner's license application but in doing so it added a proviso granting petitioner 60 days within which to bring her property into compliance with the requirements of the law. One Board member stated that if petitioner were able to comply with the law within 60 days she would be given a license.

Petitioner then took immediate steps toward compliance. She aligned her cars in orderly rows and installed fire extinguishers. She claimed to have expended in excess of $6,000 to construct a fence in accordance with the law's specifications, and also an additional $10,000 to begin construction of a new building which was to house a dismantling and storage area along with office space and sanitary facilities. Since winter was approaching it was not possible to terrace the hill as had been planned but, as a temporary measure, petitioner constructed a dirt berm which served partially to conceal cars parked on the hill from view.

On November 11, 1974 petitioner appeared at another meeting of the Town Board and requested that her license be granted. The residents of Dewittville who opposed granting the license also were present. After the subject had been discussed the Town Board took the position that since petitioner's original license application had been denied and she had not filed a new application, she was at that time operating her junkyard in violation of the law. The next day she was informed by letter that she must cease her operations and 'remove offending materials from your place of business.'

There is some dispute in the record as to whether petitioner actually did cease her junkyard operation pursuant to this notice. She stated that no new junk cars were added to her inventory after the notice was received but people who lived nearby stated that they saw cars being brought in. Her response was that any brought in after November 12, 1974 were not junk cars but rather were there for either repair or resale. At any rate, it appears that while it may be true that no new cars were added to petitioner's junk inventory after November 12, none were removed from her property either.

On December 9, 1974 petitioner appeared at a meeting of the Town Board with a new license application in hand. At the same meeting a proposed local law was introduced which placed a six-month moratorium on the granting of junkyard licenses pending completion of work on a new town zoning ordinance. Action was deferred on petitioner's new license application pending an inspection of her property by Town Board members.

On December 21 her property was inspected. On December 28 the new junkyard license moratorium law was enacted, to become effective immediately, and on January 4, 1975 the Town Board voted to deny petitioner's license application. The reasons stated by the Board for its action, as reflected in the minutes of the January 4 meeting, can be summarized as follows: (1) neither of petitioner's license applications was accompanied by a $25 fee; (2) petitioner did not cease her operations as directed on November 12 but instead...