Defendants Port Washing ton Holding Club built a retaining wall exceeding the height allowed pursuant to Village Code without seeking or obtaining a variance which would allow it to do so and used the property to store 9,750 cubic yards of unpermitted ‘rubbish’ and ‘trash’. The New York trial court agreed with the Town that the Club had violated several sections of Village code and ordered the Club to remove the trash/rubbish/fill from the premises. The Club’s appeal was dismissed as the court determined that evidence presented concerning unpermitted waste disposal on the site was adequate to support summary judgment in favor of the Town. The Club alleged that the action against them was a criminal prosecution and that their due process rights were violated. The Court noted that the Town did not seek criminal penalties, and that therefore this was a civil and not a criminal matter. Further, since the due process claims were not brought before the trial level court, the claim could not first be adjudicated at the appellate level.
Village of Muttontown v. Port Washington Holding Club, 2010 WL 2197683 (N.Y.A.D. 2 Dept. 6/1/2010).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27652.pdf
