Posted by: Patricia Salkin | December 31, 2014

NY Appellate Court Finds Ordinance Prohibiting Outdoor Storage is Unconstitutionally Vague

To advance the health, safety and welfare of the residents of the City, the City Council of Rochester enacted an ordinance prohibiting “outdoor storage” in all districts except specifically enumerated commercial districts. The ordinance defined “outdoor storage” as “[s]torage of any materials, merchandise, stock, supplies, machines and the like that are not kept in a structure having at least four walls and a roof, regardless of how long such materials are kept on the premises.” Plaintiffs challenged the ordinance as unconstitutionally void for vagueness. The trial court dismissed the complaint and the appeals court reversed, agreeing that the ordinance was vague.

The court concluded that the ordinance failed to pass the two-part vagueness test. The first prong requires the court to determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The second part requires the court to determine whether the enactment provides officials with clear standards for enforcement.

With respect to the first part of the test, the Court concluded that the ordinance gives ordinary people virtually no guidance on how to conduct themselves in order to comply with it. With respect to the second part of the test, the vague language of the ordinance did not provide clear standards for enforcement and, thus, a determination of whether the ordinance has been violated leaves virtually unfettered discretion in the hands of the code enforcement officer.

Turner v. Municipal Code Violations Bureau of City of Rochester, 122 A.D. 3d 1376 (4 Dept. 11/21/2014)

The opinion can be accessed at:

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