People v. Novie
| Decision Date | 17 September 2013 |
| Citation | 41 Misc.3d 63,976 N.Y.S.2d 636,2013 N.Y. Slip Op. 23315 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Brian NOVIE, Respondent. |
| Court | New York Supreme Court — Appellate Term |
OPINION TEXT STARTS HERE
Feerick Lynch MacCartney PLLC, South Nyack (Donald J. Feerick, Jr., of counsel), for appellant.
Michael D. Diederich, Jr., Stony Point (Brigitte M. Gulliver of counsel), for respondent.
PRESENT: NICOLAI, P.J., LaSALLE and TOLBERT, JJ.
Appeal from an order of the Justice Court of the Town of Ramapo, Rockland County (Rhoda F. Schoenberger, J.), rendered January 31, 2012. The order granted defendant's motion to dismiss the accusatory instrument on the ground that sections 176–6(A)(1) and 176–7(C) of the Tree Preservation and Landscape Maintenance Law of the Village of Montebello are unconstitutional.
ORDERED that the order is reversed, on the law, and defendant's motion to dismiss the accusatory instrument on the ground that sections 176–6(A)(1) and 176–7(C) of the Tree Preservation and Landscape Maintenance Law of the Village of Montebello are unconstitutional is denied.
By amended information dated November 18, 2011, defendant was charged with violating sections 176–6(A)(1) and 176–7(C) of the Tree Preservation and Landscape Maintenance Law of the Village of Montebello (Tree Law). Defendant moved to dismiss the accusatory instrument on the ground that the aforementioned sections of the Tree Law are unconstitutional for reasons set forth below. In support of his motion, defendant stated that when he and his wife had purchased the property in question, it consisted of almost an acre of land with trees on the front of the property facing the town road and a backyard area that had been “left unattended and as a result became overgrown with mainly Ash trees that grew in a crowded manner ... resulting in scrawny, pole-like trees that became unhealthy due to reaching their life expectancy and other causes, such as illness, disease and damage from vines.” At the time, defendant had three-year-old twins and wanted an attractive, safe backyard for his family. Therefore, in 2009, defendant hired a contractor to cut down some dead and dying trees, after which the Village of Montebello (Village) charged defendant with violating the aforementioned sections of the Tree Law, which required defendant to, among other things, obtain the Village's permission to remove any tree on his property.1
In February 2010, defendant entered into a civil compromise with the Village by which, in lieu of prosecution, he agreed to pay the Village $250 and to “follow proper procedures with regard to any improvements/tree removal ... concerning [his] property.” In July 2010, defendant applied for a permit to remove from his property 15 dead ash and elm trees, two oak trees—to which defendant was allegedly allergic—and one birch tree, and agreed to pay professional consulting fees pursuant to chapter 65 of the Code of the Village of Montebello. In August 2010, defendant's application was approved to the extent of allowing 11 trees to be removed (eight dead or imminently dead trees, and three trees as of right). Defendant then hired a professional tree cutting company to remove the trees and alleges that, as the work was being performed, an officer of the Village stopped the work. By that time, 14 trees had, allegedly, been cut down. Thereafter, defendant was charged with violating sections 176–6(A)(1) and 176–7(C) of the Tree Law. On January 31, 2012, the Justice Court granted defendant's motion to dismiss the accusatory instrument. The court found that a zoning matter could not be prosecuted if it “does not have the underlying proper legislation in terms of taking into account the particular statute as being necessary to secure the health, safety and welfare of [the Village's] residents, or [the Village's] landowners, or [the Village's] taxpayers.”
The Tree Law provides in pertinent part as follows:
“§ 176–2 Legislative intent.
It is the intention of the Village of Montebello to retain the rural appearance of the community. Said rural appearance is a consequence of its existing wooded character and streetscape. Toward that end, the Village Board has implemented these regulations for the following purposes:
A. To preserve an important attribute of the Village, by encouraging owners of existing developed lands, and developers of lands, to save or replace as many native and mature tree species as possible when making improvements to real property.
B. To control and regulate indiscriminate and excessive removal, cutting, and destruction of trees in order to regulate and prevent conditions which cause increased surface runoff, soil erosion, and cause decreased soil fertility;
C. To maintain the stability and value of real estate by preserving existing woodlands and providing for the appropriate aesthetic of the streetscape; and
D. To ensure the continued maintenance of landscaping in accordance with site plan or subdivision plan approvals, or in accordance with the regulations contained herein.
...
§ 176–6 Tree removal; permit; Planning Board review; licensing of contractors; fees.
A. Prohibited activities. Except as permitted herein, no person shall do or cause to be done by others, either purposely, carelessly, or negligently, any of the following acts upon privately owned property within the Village of Montebello:
(1) Cut, destroy, remove, or substantially injure any tree except as may be permitted in Subsection B, permitted activities, below.
...
B. Permitted activities. Notwithstanding the restrictions above, the following activities shall be permitted:
(1) The cutting, pruning, or trimming of trees in a manner that is not harmful to the health of the tree.
(2) The cutting, destruction or removal of trees which are dead or imminently dead or which endanger public safety and pose imminent peril, such condition confirmed by the Village Engineer, or his or her designee as chosen by the Village Board of Trustees, with the assistance of an arborist if the Village Engineer or designee believes same necessary to facilitate making an informed decision in the circumstances, in the form of a permit issued after application and after payment of a permit fee set by said Board by resolution, and prior to cutting or removal ... Any person who cuts, destroys or removes trees for said purpose without first obtaining a permit because he or she believed that public safety was endangered or an imminent peril posed shall submit a written application to the Planning Board made within five days after the cutting, destruction or removal of trees has occurred ... In the case of removal without a permit, independent proof (such as a photograph, police report or arborist's certification) is required in accordance with § 176–6D, Exceptions, in order to obtain approval from the Planning Board excepting said person from the regulations contained herein. The Planning Board may also request the Village Engineer, Village Planner or other Village consultant to assist in evaluating such applications. The fees charged to the Village by all such consultants shall be paid by the applicant. Removal of trees for nonimminent perils shall be governed by § 176–6B(4).
(3) Upon receipt of a permit after application to the Village Engineer or other designee of the Village Board and payment of a permit fee set by said Board by resolution, the cutting or removal of not more than one tree per 10,000 square feet of lot area during any two-year period but, irrespective of lot area, in no event removal of more than eight trees per lot in any two-year period, or 12 trees in any six-year period, unless said removal is in accordance with a site or subdivision plan duly approved by the Planning Board. In the latter case, trees shall have been identified on said plans, and no additional trees shall be cut without approval of the Planning Board. For the purpose of this provision, year' shall be construed to be the calendar year.
...
D. Exceptions. Upon written application to the Planning Board, and after payment of a permit fee set by the Board of Trustees by resolution, the Planning Board may, by resolution, grant an exception from any of the requirements of this chapter ... if the enforcement of one or more of the provisions is impractical or will exact undue hardship because of peculiar conditions pertaining to the property in question but, in so granting, may require that a compensatory planting or compensatory payment be made. The Planning Board may also request the Village Engineer, Village Planner or other Village consultant to assist in evaluating such applications. The fees charged to the Village by all such consultants shall be paid by the applicant.
E. Planning Board review standards and fees.
...
(5) The fees for an application to the Planning Board for tree removal shall be $250 or other such fee as set from time to time by resolution of the Village Board. The Planning Board may also request the Village Engineer, Village Planner or other Village consultant to assist in evaluating such applications. The fees charged to the Village by all such consultants shall be paid by the applicant. ...
§ 176–7 Penalties for offenses.
A. [A]ny person violating any of the terms or provisions of this chapter or refusing to comply with the rules and regulations of this chapter shall, upon conviction, be subject to a fine not exceeding $250 for each offense. Each tree that is cut or damaged without appropriate approval from a Village agency shall constitute a single offense, up to a maximum penalty of $10,000 per lot.
...
C. In addition to being subject to prosecution and fining, any person having violated this chapter shall also be referred to the Planning Board for the purpose of developing a tree remediation plan, showing the existing and proposed landscaping conditions on the premises in question, and which shall be designed to mitigate the effects of the offense, which...
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