Posted by: Patricia Salkin | May 28, 2017

NY Appellate Court Upholds Denial of Petitioner’s Request to Rescind Waste Removal Violation Bills Upheld by Zoning Board of Appeals

Respondent City of Albany’s Department of General Services (hereinafter DGS) received a complaint from one of petitioner’s neighbors that trash was “blowing around” his yard and into the street. DGS issued a notice of violation informing petitioner that the condition of his yard violated Chapter 313 of the Code of the City of Albany dealing with solid waste and that, if he failed to remedy the condition, DGS would bill him for the cost of cleanup, together with a 15% administrative surcharge, and impose a fine of up to $500. After petitioner failed to take remedial action, DGS cleaned the property and charged him $838.73 ($638.73 for cleanup costs and a $200 fine). On a second occasion, sanitation workers from DGS removed an “oversized amount of trash,” including discarded furniture, from the curb in front of petitioner’s property while they were collecting trash from residents. DGS then notified petitioner that the oversized trash constituted “illegal debris” and that it was charging him $444.24 ($119.24 for cleanup costs and a $325 fine) for having to remove the trash. DGS denied petitioner’s request to rescind the two bills, prompting petitioner to request a hearing. The Supreme Court in Albany County dismissed petitioner’s application.

As to the first violation, the BZA upheld the $638.73 portion of the charge that reflected the cleanup costs, but reversed the $200 fine, finding that DGS lacked the authority to levy a fine with respect to this charge. Petitioner next argued that the violation should have been prosecuted in criminal court because it classified as a criminal violation pursuant to Penal Law § 55.10. Penal Law § 55.10(3)(a) provides that “any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if … a sentence to a term of imprisonment which is not in excess of [15] days is provided therein, or the only sentence provided therein is a fine.” The court found that because this section set forth the penalties for failing to comply with a notice of violation, the general penalty provision set forth in Code of the City of Albany § 258–1, which provides for a fine and/ or imprisonment only when “no penalty for a violation of an ordinance is imposed in any section or chapter of such ordinance”, was not applicable. As such, the court held that a violation of Code of the City of Albany § 313–51.1(E) was not a criminal violation within the meaning of Penal Law § 55.10(3).

Petitioner next argued that his constitutional rights were violated during the administrative process, and was therefore not required to exhaust his administrative remedies. Specifically, he claimed that he was not provided with adequate notice of the first violation, that the Enforcement Committee was biased, that DGS failed to introduce evidence at the hearing, thereby denying him his right to confront his accusers, and that DGS shifted the burden of proof. The court found that these claims would be better addressed with the administrative agency so that the necessary factual record could be established. Accordingly, the court affirmed the dismissal of petitioner’s application.

Haddad v City of Albany, 2017 WL 1401237 (NYAD 3 Dept 4/20/2017)

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