People v. Idema

CourtNew York Town Court
Writing for the CourtHERMAN H. TIETJEN
Citation135 Misc.2d 1058,518 N.Y.S.2d 292
PartiesPEOPLE of the State of New York, Plaintiff, v. J. Keith IDEMA, Defendant.
Decision Date01 May 1987

Page 292

518 N.Y.S.2d 292
135 Misc.2d 1058
PEOPLE of the State of New York, Plaintiff,
v.
J. Keith IDEMA, Defendant.
Town Justice Court, Town of Rhinebeck,
Dutchess County.
May 1, 1987.

Page 293

David T. Warshaw, Poughkeepsie, for defendant.

Albert R. Trezza, Poughkeepsie, for Town of Red Hook (People).

HERMAN H. TIETJEN, Justice.

Defendant Keith Idema is charged with violation of the Town of Red Hook Zoning Ordinance of May 10, 1983 ("Town Ordinance") §§ 65-5 and 65-140 namely (1) "Using land and structures not in conformity with zoning regulations" and (2) "Failure to obtain a certificate of Occupancy".

Defendant applies to this Court for an order of dismissal premised on the following contentions: (a) that the information of Town Zoning Enforcement Officer Robert T. McCarthy ("ZEO") was issued during a time when an automatic stay under Town Law § 267(4) was in effect and he thus acted without jurisdiction and (b) the information

Page 294

made by the ZEO is defective as a matter of law under Criminal Procedure Law ("CPL") § 170.35.

The defendant's motion is granted in both respects. Once an appeal has been filed pursuant to Town Law § 267(4) and not formally disposed of by the Zoning Board of Appeals ("ZBA") by formal order of that Board after a hearing or because the appeal has been found to be defective, both the Town Law and the Town Ordinance prohibit any activity on the part of local officials against the appealing party for actions arising from the subject matter under appeal. Furthermore, the information and supporting deposition fail to set forth with sufficient particularity facts to support a violation of the Town Ordinance sufficient to meet the requirements of CPL §§ 100.15 and 100.40.

FACTS

This matter comes before this Court by virtue of a transfer by order of the Dutchess County Court, CPL § 170.15(3)(a), as a consequence of the disqualification of all of the Town Justices of the Town of Red Hook. Defendant applied to this Court for a dismissal of the information against him by motion dated October 8, 1986. The matter was not fully submitted until April 2, 1987.

The events which initiated the case before this Court began with a letter from the ZEO to the owners of a parcel of land commonly known as Sky Park Acres or Sky Park Airport ("Sky Park"), a small private commercial airstrip consisting of several hundred acres located in the Town of Red Hook. In his letter of September 25, 1984 ("Order I") the ZEO informed Sky Park's owners that based upon an inspection of September 20, 1984 several violations existed: "numerous building and structures have been constructed without obtaining a building permit" and "the property is being used for purposes for which a use permit is necessary." The owners were "Directed and Ordered" to comply with the Town Ordinance and to "Cease and Desist all para military and weapons operations on your property mentioned above forthwith." The letter contained a warning that failure to comply with the directive and Town Ordinance constituted an offense punishable by fine or imprisonment or both.

Upon receipt of the letter by the owners of Sky Park and defendant, the latter, who was the occupant of the property and conducted activities thereon through a company of which he was allegedly the president, known as Counterr Group, Inc. ("Counterr"), caused to be filed with the ZEO and ZBA a "Notice of Appeal" ("Notice I") dated September 27, 1984 in which he appealed to the ZBA "pursuant to Red Hook Code Section 65-146 to the Board of Appeals from a determination of Robert T. McCarthy, Zoning Enforcement Officer, dated September 25, 1984, a copy of which is annexed hereto."

The ZEO received a copy of Notice I together with a letter in which Counterr's attorney advised him of his client's willingness to meet with him on an informal basis to discuss ways of resolving the differences between Counterr and the Town. He also advised the ZEO "I would respectfully bring to your attention that this appeal stays all proceedings in furtherance of your proposed finding." Personal service of Notice I was made on the secretary of the ZBA on September 28, 1984.

The minutes of the monthly meeting of the ZBA dated October 3, 1984 acknowledged receipt of Notice I: "We had been served with a summons. We do not have any application from them [Counterr] before us so Mr. Trezza was to contact them...." The minutes acknowledged the "Cease and Desist" order of the ZEO and "tabled" Notice I until an application was received. The application referred to was a two page form supplied by the Town entitled "Application to Board of Appeals-Town of Red Hook" which denotes in more detail the nature of the request for relief or action required of the ZBA. The minutes fail to disclose whether an application fee was paid or demanded. At its next monthly meeting, the ZBA corrected the October 3, 1984 minutes to note that Notice I received from Counterr's attorney was not a "summons"

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but rather an "Order of Show Cause."

On January 28, 1985 Counterr filed with the ZBA an appeal (Notice IA) on the form previously referred to and supplied by the Town. On the official form, defendant, on behalf of Counterr, requested "A certificate of Existing Use" identifying Sky Park location; and under "Type of Appeal" asked for "an interpretation of the Zoning Ordinance or Zoning Map" to wit: "Petitioner contends that it is a prior non-conforming use previously permitted under the previous zoning map." In the accompanying letter with Notice IA the attorney for defendant and Counterr requested the ZBA to notify his office of the date and place of "the hearing on this matter."

In a letter dated February 1, 1985, the ZBA invited Counterr to send a representative "to answer any questions the Board might have since we will have an informal [so underlined in the text] discussion regarding this application at this meeting." 1 The matter was scheduled as the last item and defendant contends in his papers that because of the lateness of the hour and other business engagements the following day he did not remain for the informal discussion with the Board. The Town Attorney, in his papers, contends that "the Board, to my understanding, rejected the appeal as incomplete." [Affirmation in opposition-para 6] He failed to supply copies of minutes or an order of the ZBA to support this contention. No further formal demand for a filing fee was made by the Board.

On May 5, 1985, the ZEO issued an "Order to Remedy Violation-Town of Red Hook" based upon "operating a business without a use permit in violation of 65-5". This order was to be complied with "on or before the 5th day of May 1985" ("Order II"). In response to Order II, defendant's attorney, by letter of May 15, 1985 addressed to "Town of Red Hook" with a copy directed to the Town's attorney, acknowledged receipt by his client of Order II and noted his client's appeal of same to the ZBA ("Notice II"). He requested being supplied with a form if necessary and noted that Notice I and Notice IA had never been heard or acted upon. He reaffirmed his client's willingness to meet at an informal meeting if requested.

Thereafter, without the ZBA having taken any formal action on Notices I, IA or II, the ZEO proceeded to arrest defendant charging him with two violations of the Town Ordinance in a information dated October 11, 1985 supported by a deposition of a witness dated October 12, 1985, attesting to a violation observed on October 10, 1985. Defendant was arraigned before one of the Town's justices and ordered held until bail was posted. A Superior Court vacated the bail order, but only after defendant served several days in jail.

DISCUSSION

The Appeals

An analysis of the issues before this Court must begin with the question of whether there was an appeal pending before the ZBA. Town Law § 267(2) gives the ZBA the power "review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this article." The statute proceeds to state "Such appeal may be taken by any person aggravated, or by an officer, department, board or bureau of the town." Town Law § 267(2), see, Jonas v. Town of Colonie, 110 A.D.2d 945, 488 N.Y.S.2d 263 (3rd Dept.1985).

Town Law § 267(3) provides that an appeal to the ZBA "shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the officer from whom the appeal is taken and

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with the board of appeals a...

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2 practice notes
  • People v. Beecher
    • United States
    • New York Justice Court
    • January 29, 1992
    ...violations and refer to the proper statutory sections to fairly apprise the defendant of the charges against him. People v. Idema, 135 Misc.2d 1058, 518 N.Y.S.2d 292 (Dutchess Co.1987). The allegations are set forth in an evidentiary and not conclusory fashion and even detail at times what ......
  • MATTER OF MILNARIK v. Rogers
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2002
    ...v Zoning Bd. of Appeals of Town of Wappinger, 32 AD2d 668, 668-669; Village of Lake Placid Land Use Code § XI [F]; People v Idema, 135 Misc 2d 1058, Nor do we find that the late payment of the appeal fee requires dismissal as this is not a jurisdictional defect (see People v Idema, supra). ......
2 cases
  • People v. Beecher
    • United States
    • New York Justice Court
    • January 29, 1992
    ...violations and refer to the proper statutory sections to fairly apprise the defendant of the charges against him. People v. Idema, 135 Misc.2d 1058, 518 N.Y.S.2d 292 (Dutchess Co.1987). The allegations are set forth in an evidentiary and not conclusory fashion and even detail at times what ......
  • MATTER OF MILNARIK v. Rogers
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2002
    ...v Zoning Bd. of Appeals of Town of Wappinger, 32 AD2d 668, 668-669; Village of Lake Placid Land Use Code § XI [F]; People v Idema, 135 Misc 2d 1058, Nor do we find that the late payment of the appeal fee requires dismissal as this is not a jurisdictional defect (see People v Idema, supra). ......

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