Posted by: Patricia Salkin | June 15, 2017

NY Appellate Court Affirms Motion to Dismiss Town’s Enforcement Action in the Furtherance of Justice

Dennis Sant and Kathleen Sant owned a residence in the Town of Southeast, Putnam County. In 1989, the Town building department granted a permit to the Sants to erect a “pole barn” on their property. The next year, Dennis Sant informed the Town building inspector that the structure would be used as a barn and “studio.” When the barn was completed, at least part of it was occupied by Dennis Sant’s brother as a residence. The Sants did not obtain a variance or other permits for a residence in the pole barn. Their property was zoned for single-family residential use, but in 1997, the property was reclassified as multi-family for tax purposes. In 2008, the Town notified the Sants that their property did not comply with various provisions of the Town of Southeast Code. In response, Dennis Sant wrote to the building inspector, claiming he would do whatever needed to be done, and he retained an engineer.
In 2013, the Sants were charged with two counts of violating Code former § 138–17 (permitting an accessory structure to be used and occupied as a dwelling), two counts of violating Code § 54–8 (constructing and permitting the use of an accessory structure as a residential dwelling unit in violation of a building permit and without a proper building permit), and one count of violating Code § 54–11 (permitting an accessory structure to be used as a residential dwelling without obtaining a certificate of occupancy). The Justice Court of the Town of Carmel, Putnam County, granted defendants’ motion to dismiss the accusatory instrument in the furtherance of justice.

On appeal, the People claimed that neither the money spent prior to obtaining approval, nor the change in real property tax classification of the Sants’ property warranted the dismissal of the accusatory instrument in the furtherance of justice. On appeal, the People contended that neither the money spent prior to obtaining approval, nor the change in real property tax classification of the Sants’ property warranted the dismissal of the accusatory instrument. Here, however, the Town collected additional taxes after classifying the property as multi-family, yet did not charge the Sants with violations when the pole barn had been completed or in 1997, when the classification of the property had changed. The court found that there was no explanation why the Town revisited this matter in 2008, and decided to prosecute 23–year–old Code violations in 2013. Furthermore, after the Sants had been notified of the violations in 2008, they hired an engineer and took steps to comply with the Town’s requirements. Accordingly, the order dismissing the accusatory instrument in the furtherance of justice was affirmed.
People v Sant, 2017 WL 2380865 (NY App. Term 2 Dept., 9th and 10th Dist. unrep. 5/23/2017)


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