Posted by: Patricia Salkin | October 17, 2009

Plaintiff Makes Case for Selective Enforcement and Violation of Equal Protection Claim to Proceed

The Plaintiff, Sonne, owns a three-story building in the Village zoned for commercial, and she planned to rent the third floor to a commercial tenant. The building inspector refused to permit Sonne to use the third floor on the ground that it only has one usable exit and that it therefore violates the State Uniform Fire Prevention and Building Code Act. The inspector recommended that Sonne apply for a State variance. An opinion from a regional architect from the NYS Department of State stated that so far as the building code was concerned, Sonne could use the third floor for the “last legal use” of the space even if it violated the current building code, so long as there was no change of occupancy or substantial alteration or construction work. However, since the “last legal use” of the space was for storage, which was not a listed use in the district, the code enforcement office again denied the permit. After Sonne and an adjacent property owner negotiated a deal over a fence needed for egress, the Village granted a Sonne a variance for two years. After Sonne complained to the Village about problems with her neighbors, she was cited for a number of violations in what was described by the inspector as an enforcement “sweep” ordered by the mayor. Sonne filed suit against the Village and individual Village employees alleging, among other things, a violation of her civil rights and equal protection for selective enforcement.  The appeals court was asked to review the trial court’s denial of both a summary judgment motion by Sonne and cross motion.  

The Appeals Court found that Sonne established that she had certificates of occupancy from the Village that were deemed void by the Village without notice and without compliance with the procedure for revocation.  While the Court noted that she was denied use of the third floor not based upon the lack of certificate of occupancy but on a provision in the State Fire Code which had been incorporated into the Village Code, it further determined that the Fire Code, as so integrated into the local code only applied to properties within the “scope” of the Code, meaning it would not apply to property where buildings were substantially completed prior to the effective date (as was the case here).  Additionally, the Court said that the Suffern Code provides that once a nonconforming use is abandoned, it is required to comply with zoning…no reference is made to building codes or to fire codes. However, despite these problems, the Court said that Sonne did not make a case for egregious official conduct under 42 USC 1983.

With respect to her claim for declaratory relief, the Court found that this was a proper vehicle for Sonne’s challenge that her property rights were being violate since at issue was the Village’s classification of the property as subject to the Fire Code, not the denial of a particular application which would have to be challenged pursuant to an Article 78 proceeding.

As to her Equal Protection challenge, Sonne alleged that her building was singled out from other downtown buildings that were similarly situated because she exercised her right to free speech when complaining about the treatment of her variance application for the fence. The Court found merit to this allegation due to the absence of similar enforcement actions against other properties as part of the downtown “sweep.”

Sonne v. Board of Trustees of Village of Suffern, 2009 WL 3134718 (N.Y.A.D. 2 Dept. 9/29/2009).

The opinion can be accessed at:

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