State of New York
Supreme Court : County of Monroe

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Although the defendants have advanced a novel argument to the contrary, the court is in no doubt whatsoever that they are operating a trucking business in a residential area, in violation of the zoning code of the plaintiff town. The strictly legal issues raised by the defendants center on whether or not this action is barred by an incapacity to sue or by the pendency of a proceeding before the town's zoning board of appeals. The defendants also raise equitable arguments concerning the town's entitlement to an order enjoining them from further operations. These arguments are all without merit.

Mr. Paul is running a large-scale trucking and gravel business in an area zoned for single-family residential use, with substantial damaging changes to the landscape and constant heavy-duty truck traffic on the surrounding roads. The property itself is largely if not entirely screened from the road by trees, and Mr. Paul refused to allow assessors on the property in 2000 when the town was reassessing all property. Only aerial surveillance by the town revealed the extent of the operation and the unpermitted landfill in portions of the site.

The record shows a history of violations, notices, and recalcitrance on the part of the defendants that goes back at least to 1999, when Mr. Paul was notified that he was in violation of the Zoning Code. In December 2000 he was ticketed, but the Town consented to numerous adjournments because Paul said he was relocating his operations. In December, 2001, based on Paul's assurances that he would reduce operations immediately and relocate his business by May 2002, the town agreed to an informal stay of enforcement proceedings. Mr. Paul did not follow through on these representations, and in January 2002, when Mr. Paul defaulted at a subsequent appearance, Town Justice Carl Coapman fined him $5,000. Defendants now claim that they had encountered opposition in one town to their relocation and rezoning application, but have secured another location. They state that they intend to relocate by June 1, 2003.

The town has nonetheless applied for an injunction. (Certain of their papers refer to it as a preliminary injunction, but the Order to Show Cause signed by the court on October 22 requests a permanent injunction.) The defendants have challenged the town's case on all three branches of the black-letter test for an injunction: irreparable injury, the ineffectiveness of other remedies, and a balance of equities in its favor. They also claim that the town has not established that they are in fact in violation of the zoning code.

This factual claim is preposterous. Defendants admit that they are running a business, and that trucks owned by this business and used in haulage drive in and out of the subject property in furtherance of that business. They speak of relocating the business from this site by June of next year. They have not challenged the town's claim that the property is located in a residential zone, nor have they presented an interpretation of the zoning code that would bring their operation within the uses permitted by the code in a residential zone. The only argument on this point that defendants offered at Special Term is that their office is located in the Village of Brockport.

The conclusion they apparently wish the court to draw is that their business operations take place only in this office, not at the site in question. Would the defendants also assert that because Eastman Kodak has its offices on State Street in Rochester, it would have the right to construct a factory in a residential neighborhood regardless of the zoning codes? Merely stating this argument is enough to refute it. The defendants have, it is true, not admitted a violation of the zoning code; but their violation is obvious from the record.

The three-prong test that defendants discuss is not applicable in this case. A municipality need not demonstrate irreparable injury to obtain an injunction. Indeed, no proof at all needs to be presented on the nature of the injury or the inadequacy of money damages; governmental authority would suffer irreparable harm if citizens could ignore duly enacted laws with impunity. As long ago as 1939 the Fourth Department held that in a municipality's application for an order enjoining an undertaking parlor from opening in a residential zone "[n]o special damage or injury to the public need be alleged. Equity will interfere to restrain violation of or to compel compliance with an ordinance of a common council" (City of Utica v Ortner, 256 App Div 1039). More recently, the Second Department noted that " Town Law § 268 authorizes the plaintiff to seek preliminary injunctive relief without establishing special damage or injury to the public or the nonexistence of an adequate remedy at law" (Town of Huntington v Pierce Arrow Realty Corp., 216 AD2d 287).

The defendants are correct, however, in arguing that the court must consider the balance of equities between the parties. An injunction is an equitable remedy, and an extreme one. Imposing one here will cause the defendants substantial economic harm. The court is mindful of this issue, but does not find the defendant's arguments convincing.The defendants have had ample time to move a business that they knew violated the zoning code. The injunction will undoubtedly work hardship, but the hardship was created by the defendants. Mr. Paul was notified in 1999 that his business was illegal where it was located, and he agreed in December 2001 to move his business in five month's time. A year has gone by. He cannot use his own dilatory conduct to counter the Town's right to see its laws obeyed.

Defendants also assert that several municipalities depend on its services for salt haulage during the winter. This claim is unsupported by any proof from the unnamed municipalities with whom defendants claim to have contracted. It is self-serving hearsay and is entitled to no weight. Moreover, even if defendants were to provide proof of these claims, the court cannot see their relevance to the balancing of equities between these parties.

There remain the legal objections made by the defendants: that the plaintiff must act through the building inspector, who is named in the zoning code as the officer who may bring enforcement actions; and that the action must be tolled during the pendency of a proceeding before the zoning board of appeals.

The defendants' discussion of these points is as full of obfuscation as its treatment of the equitable issues. It is true that municipalities have only the powers granted to them by the state, and that without the authority of the Town Law or a parallel statute no municipality has capacity to sue. Such authority is, of course, granted in the Town Law, including these specific provisions of § 268 (2):

In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is used, or any land is divided into lots, blocks, or sites in violation of this article or of any local law, ordinance or other regulation made under authority conferred thereby, the proper local authorities of the town, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use or division of land, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure, or land or to prevent any illegal act, conduct, business or use in or about such premises;

That decision, though, does not cite the town code and does not in any way depend on its language, and it is silent on the effect of authorizing a specific official to bring enforcement actions. The court does not see such delegation as restricting the powers of the board generally. The town board is the body to which the Town Law has given the authority to bring a lawsuit, and it does not lose this power by delegation. In a later case citing Thompson, construing a code which, like the one here, delegated enforcement authority to the building inspector, the Third Department held that the municipality need only pass a resolution authorizing the suit (Town of Claverack v Brew, 277 AD2d 807, 809).

The defendants disagree, and at Special Term argued that a mere resolution was insufficient; authority to sue in the name of a municipality must be acquired through an ordinance. They cite no support for the proposition that a municipality must formally invest itself with the authority already granted it by state law, and the defendants' position is contradicted by the Claverack case, which they themselves cite repeatedly in their first memorandum of law. This lawsuit was authorized by resolution of the board, which is sufficient to give the town authority to sue.

The defendants also claim to be awaiting an interpretation of the relevant parts of the code from the town's zoning board of appeals. Here, too, the defendants' citation of black letter law cannot disguise its inapplicability to the facts at hand. The court does not doubt that proceedings such as the present one are stayed during the pendency of an application before the zoning board of appeals. The defendants' request, however, is not such a proceeding. According to the Code and consistent with its name, the zoning board of appeals has strictly appellate jurisdiction. It does not render interpretations, and the defendants' request was thus a nullity. The board was entitled to ignore it. And while Mr. Paul at one time applied for a variance, he withdrew the application before any action was taken. No proceeding before these bodies bars the present application.

The defendants have conducted this litigation with a surprising amount of vituperation. They suggest that the motivating force behind the town's actions is the opposition of a neighbor who moved to the area in 1994. It may well be that the town had turned a blind eye to this operation until complaints began to grow. The town is nonetheless entitled to enforce its laws. Whatever equitable consideration might have been given to the defendants has to be weighed against their refusal to cooperate with the town since 1999 and their repudiation of the undertakings they made in Town Court. At this point the equities clearly favor the town, and it is entitled to a permanent injunction, with costs. Counsel for the town may prepare the order.

DATED: Rochester, New York

December 11. 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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