Posted by: Patricia Salkin | October 17, 2010

NY Towns Lack Authority to Establish Administrative Tribunal to Adjudicate Violations of Local Accessory Apartment Law

The Town of Huntington, NY adopted a local law governing accessory apartments to allow property owners to maintain accessory apartments on their residential properties as a method of providing for affordable housing for smaller families and single people, increasing compliance with building and fire codes, and providing homeowners with a supplemental source of income in order to avoid foreclosure and keep property properly maintained.  The law requires anyone wishing to have an accessory apartment to submit an application to a hearing officer, who would make a decision after a public hearing. 

A permit for an accessory apartment was issued for the subject property before the current owners purchased the property.  Inspection of the premises, upon reasonable notice, was a condition on which the permit was issued.  The property was later sold and the current owners applied to have the accessory apartment permit transferred into their name.  At the time the transfer was granted, they agreed to “periodic searches.”  They again consented to such searches approximately nine years later when they applied to renew the permit.  

A few months after renewal was granted, the owners received a notice of violation for non-certified use and operation of a kennel, to which they responded, in a letter, that town officials were not permitted entry onto their property.  The Town then notified the owners that it was commencing an investigation to determine whether or not to revoke the permit for the accessory apartment, in light of the owners’ refusal to permit entry.  A hearing was held to determine whether the owners had violated the Town’s Accessory Apartment Law.  The town rejected the argument that conditioning the permit on allowing inspections was unconstitutional and revoked the permit due to the owners’ refusal to allow their property to be searched. 

Instead of forcing their tenant to vacate the premises, the owners initiated an Article 78 proceeding against the Town on grounds that the Accessory Apartment Law was unconstitutional.  They also challenged the law on grounds that the Town could only inspect the premises at the time the owner first applied for the permit. Further, the owners alleged that the Town could not adjudicate land use violations, but rather that this was properly the domain of Unified Court System.  The Town countered that the searches were not warrantless, but actually were preceded by notice to the property owners.  

The trial court found in favor of the property owners.  The Hearing Officer’s decision to revoke the permit was annulled, citing case law that disallowed conditioning permits for accessory apartments on warrantless searches.  The trial court did not address the question of which body had jurisdiction to hear zoning and land use disputes under statute and the New York State Constitution. 

On appeal, the Town argued that obtaining a permit for an accessory apartment is a privilege, not a right and without a right, there could be no constitutional violation in relation to requiring searches as a condition of that privilege.  The property owners further attacked the constitutionality of the law, alleging that it was arbitrary and was not related to any legitimate state interest, as well as requesting judgment on the issue of which adjudicatory body should have jurisdiction over the dispute. 

The court took up the jurisdiction issue first and referencing guidance from case law and an opinion by the Attorney General, the court found that it was likely that the administrative tribunal established by the Town to adjudicate land use violations was a usurpation of authority properly vested in the New York State Unified Court System by the Municipal Home Rule Law and the New York State Constitution.  The Court explained that Article 30 gives the legislature the power to assign jurisdiction, and the legislature has exercised this power by enacting statutes that assign jurisdiction over local code violations to the District Court.  The jurisdiction of state courts over the subject type of actions is found throughout applicable legislation. 

Specific attention was paid to a provision of the Town Law that allows Town Boards to adjudicate violations of town building codes or zoning ordinances and assign remedy, so long as such violations would still be deemed misdemeanors.  The court also acknowledged the ability of municipalities to adopt local laws that take the place of the Town Law, noting, however, that the state can preempt local laws where it makes clear it intends to be the sole source of law on a particular topic. The concluded that the state constitutional grant of authority to the legislature to determine jurisdiction was expressed the intent that the state should solely occupy the area of law concerning jurisdiction, thus preempting any determinations made locally.  

While municipalities of a size specified by General Municipal Law (GML) §380 may create an administrative adjudicative tribunal, the creation of a tribunal in a municipality that does not meet the GML requirements would invalidate the conditions contained therein.  Because the Town did not meet the population requirements for such a tribunal, the court found that the Accessory Apartment Review Board did not have jurisdiction over the violation of the Town zoning code.  Because of its lack of jurisdiction, its determination to revoke the accessory apartment permit was annulled, and therefore the trial court opinion was affirmed on this ground. 

Stoffer v Department of Public Safety of the Town of Huntington, 2010 WL 3245403 (N.Y.A.D. 2 Dept. 8/17/2010) 

The opinion can be accessed at:


  1. The accessory apartment law is absolutely ridiculous. Neighoors should be able to have input in this – afterall, its technically a variance from single famliy zoning so if I bought a single family house in a neighbhood and the house next store got an accessory apartment permit I would be very angry. This law only benefits the landlords.

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