Opinion
Index No. 901516-22
09-30-2022
In the Matter of the Application of KEIONZIE CLEMENTS, TROY WASHINGTON, ERIC ALLEN, LARRY STANTON, JULIA PRESTON, Petitioner, v. NEW YORK SECRETARY OF STATE, Respondent. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
LEGAL ASSISTANCE OF WESTERN NEW YORK, INC. David Kagle, Esq. Alissa R. Hull, Esq. Attorney for Petitioners HON. LETITIA JAMES Attorney General for the State of New York (Kasey Hildonen, Esq) Assistant Attorney General Attorney for the Respondent
Unpublished Opinion
LEGAL ASSISTANCE OF WESTERN NEW YORK, INC. David Kagle, Esq. Alissa R. Hull, Esq. Attorney for Petitioners
HON. LETITIA JAMES Attorney General for the State of New York (Kasey Hildonen, Esq) Assistant Attorney General Attorney for the Respondent
DECISION AND ORDER
HON. ADAM W. SILVERMAN JUDGE
The following e-filed documents, listed by NYSCEF document number 1, 3-32, 39-41, 44, 48, were read on Respondent's Motion to Dismiss (Motion # 2).
Policies of strict enforcement in contrast to systems permitting fact-based discretion are debated throughout our legal system and with the advantages of each posing a significant policy determination. The merits of concentrating authority in a central entity versus disbursing authority to allow local discretion are also subject to debate. While unfettered local control or overly broad discretion can lead to arbitrary governance, a system of overly rigid or centralized authority can cause other unintended consequences though failure to account for diversity of communities or the variance of individual circumstances. This State has long sought to balance the merits of each of these systems. The New York Constitution has enshrined certain rights for local governments for the express purpose of "[e]ffective local self-government" (NY Const art IX; see generally Gerald Benjamin, Home Rule: Elusive or Illusion?, NY St BJ, October 2017, at 25). In many areas, by the State Constitution or by statutes adopted by the Legislature, this State has crafted a system of broad state standards that often include local administration and a level of discretion.
In this special proceeding, Petitioners seek a writ of mandamus to compel a multitude of actions. Petitioners ask the Court to order Respondent to (1) implement regulations establishing minimum standards for adequate inspections, with such standards to provide for timely and complete inspections, with documented and publicly available findings; (2) implement regulations which establish minimum standards for enforcement of the Uniform Code as with such standards to provide for timely, sufficient and appropriate enforcement of the Uniform Code when violations are observed in rental properties, including required enforcement actions when landlords do not voluntarily comply with the code; (3) set out and specify limitations on the imminently dangerous conditions under which a home may be posted as an unsafe structure without first affording a tenant or occupant a pre-deprivation opportunity to contest the matter; (4) set out and specify limitations on the imminently dangerous conditions under which a rental property home may be posted as an unsafe structure without first taking affirmative actions to compel the responsible landlord to make repairs; (5) implement a standard for notifying tenants and occupants of the means in which they may challenge a determination that a structure is unsafe; (6) train code enforcement officers that they must specify the defects in any premises they determine to be unsafe and provide notice of all available pre- or post-deprivation opportunities to challenge a determination that the premises are unsafe to occupy; and (7) ensure that the opportunity to challenge an unsafe structure notice explicitly allows for cross-examination and consideration of alternatives to placarding of premises.
Respondent opposes the requested relief, asserting Petitioners have failed to present a clear legal right to the requested relief. Additionally, Respondent asserts that the promulgation of regulations involves the exercise of judgment or discretion, not a purely ministerial act which is required by law, and thus a writ of mandamus to compel cannot be used. Respondent asserts that the challenge before the Court regards the content of the regulations and not simply their promulgation. Finally, Respondent asserts that the requested actions would be impracticable to apply to each of the 1,600 local governments in the State, This proceeding, while Petitioners' standing arises under a specific factual context, requires the Court to look at the State's code enforcement management, including its statutes and regulations, more broadly. Therefore, the specific alleged failures of the Village of Dryden do not dictate the outcome of this case. While the Court sympathizes with the articulated challenges faced by tenants throughout this State to find safe, affordable housing, Petitioners in this case have failed to demonstrate a clear legal right to the relief they seek and thus their Petition must be denied and dismissed.
I. Factual Allegations
Petitioners commenced this special proceeding pursuant to CPLR article 78 by fling a Notice of Petition and Petition on March 6, 2022 [NYSCEF Doc No 1, 2], Petitioners are former residential tenants of 12 - 14 W. Main Street, Village of Dryden, Tompkins County (hereinafter "the Property") [NYSCEF Doc No 1, ¶ 1]. On or about May 3, 2021, the Village received a Code Enforcement Complaint Form regarding the Property [NYSCEF Doc No 1, ¶ 22]. After an inspection, the Code Enforcement Officer sent a Notice of Violation and Order to Remedy on June 16, 2021 to the owner of the Property directing the violations be remedied by July 8, 2021 [NYSCEF Doc No 1, ¶ 23, 25; 15]. On September 29, 2021, the Code Enforcement Officer reinspected and sent another Notice of Violation and Order to Remedy directing that certain immediate repair be made by October 7, 2021: Toilet be made functional, bathroom sink reinstalled and made functional, and smoke and carbon monoxide detectors installed [NYSCEF Doc No 1, ¶ 26; 16]. Despite these Orders, the Property owner still did not remedy the violations [NYSCEF Doc No 1, ¶ 28]. On October 15, 2021, Code Inspection Officers again inspected the Property and found violations [NYSCEF Doc No 1, ¶ 33-34].
Petitioners assert, upon information and belief, that the Village "never took any action against the [Property owner] to affirmatively compel her to make repairs or penalize her for renting substandard housing" and that "the failure to enforce the code and ensure that the premises are safe is due to the lack of minimum inspection and enforcement protocols from the Respondent" [NYSCEF Doc No 1, ¶ 37-38],
On October 28, 2021, the Village served all tenants with a Notice of Order to Vacate and Secure [NYSCEF Doc No 1, ¶ 39; 19]. On October 29,2021, counsel for the Petitioners contacted the Village and Respondent requesting a due process hearing before the Order to Vacate was enforced, which was scheduled for November 9,2021 and the Order to Vacate was stayed pending the hearing [NYSCEF Doc No 1, ¶ 40-42; 20-21]. Petitioners testified at the hearing regarding the long-standing nature of the violation and their lack of alternative housing [NYSCEF Doc No 1, ¶ 43-44]. Petitioners' counsel testified regarding the authority of the Village to compel the Property owner to make repairs or for the village itself to make repairs and seek compensation from the Property owner [NYSCEF Doc No 1, ¶ 45]. Additionally, Petitioners were not allowed to question any Village officials and the Property owner failed to appear [NYSCEF Doc No 1, ¶ 46-47].
The record conflicts regarding if the hearing was pre-deprivation or post-deprivationsee Kagle Affidavit ¶ 31 ("Duc to the lack of statewide standards, the Petitioners allege that the municipality also failed to offer the tenants an appropriate pre-deprivation opportunity to be heard in connection with the decision to make them homeless"). MOL asserts that "The only reason Petitioners secured a pre-deprivation hearing was because they contacted Legal Assistance of Western New York (LawNY) who submitted a demand for a hearing on their behalf. After LawNY's demand for a hearing, the Village of Dryden reissued a notice to all tenants informing them that the Notice of Order to Vacate and Secure had been "temporarily stayed by legal action," essentially confirming that the Village had no intention of offering a pre-deprivation hearing or any iteration of the Petitioners' due process rights until contacted by LawNY."
Petitioners assert, upon information and belief, the Village "had pre-determined the outcome of the hearing, as the Meeting Agenda already contained the language of the resolutions proceeding with placarding the buildings" and "the defective nature of the hearing was the direct result of the Respondent Secretary's failure to implement and enforce minimum enforcement standards which provide for meaningful due process of law" [NYSCEF Doc No 1, ¶ 50-21].
II. Applicable Law
a. Writ of Mandamus to Compel
A mandamus proceeding brought pursuant to Article 78 may seek to compel an agency "to perform a duty enjoined upon it by law" (CPLR 7803 [1]), however, it is "an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought" (Matter of Shaw v King, 123 A.D.3d 1317, 1318-1319 [3d Dept 2014] [internal quotation marks and citation omitted]). Indeed, "the long-established law is that [while] a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion" (Klostermann v Cuomo, 61 N.Y.2d 525,539 [1984] [internal quotation marks and citation omitted]). More succinctly, "[m]andamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment" (Alliance to End Chickens as Kaporos v New York City Police Dept., 152 A.D.3d 113,117 [1st Dept 2017], affd 32 N.Y.3d 1091 [2018], cert denied_ US_, 139 S.Ct. 2651 [2019]).
b. Local Administration of Code Enforcement
"[T]he Uniform Fire Prevention and Building Code Act (Executive Law art 18) sets forth the minimum state-wide fire and building code standards (see Executive Law §§371 [2]; 379, 383), which local governments must administer and enforce (Matter of Brown v City of Schenectady, __A.D.3d__; 2022 NY Slip Op 05245 *2 [3d Dept 2022], citing Executive Law § 381 [2]; 2020 Property Maintenance Code of NY St § 103.1). "[A] local government has the option to decline this responsibility by adopting a local law to that effect, thereby shifting the responsibility to the respective county" (Matter of Brown v City of Schenectady,__A.D.3d__; 2022 NY Slip Op 05245 *2 [3d Dept 2022], citing Executive Law §381 [2]; 19 NYCRR § 1202.1). Likewise, a county government may adopt a local law thereby shifting the responsibility to Respondent (see Executive Law § 381 [2]; 19 NYCRR § 1202.1). Absent both the local and county government opting out of enforcement, the statute and regulation both place primary responsibility for administrating the Code upon local government (see 19 NYCRR 1202.1).
Executive Law §381(1) provides that Respondent "shall promulgate rules and regulations prescribing minimum standards for administration and enforcement of the uniform fire prevention and building code promulgated in accordance with sections [Executive Law § 377] and [Executive Law § 378]... [and] shall promulgate such regulations after public hearing and after considering reaction to initial administration and enforcement of the uniform building and fire prevention code, including how local governments have organized to provide for such initial administration and enforcement. Such rules and regulations shall address the nature and quality of enforcement and shall include, but not be limited to the following:
"a. frequency of mandatory inspections for compliance with the uniform code and the state energy conservation construction code,
"b. number and qualifications of staff, including requirements that inspectors be certified pursuant to this chapter,
"c. required minimum fees for administration and enforcement, "d. adequacy of inspections,
"e. adequacy of means for insuring compliance with the uniform code and the state energy conservation construction code, including provisions intended to achieve compliance with the state energy conservation construction code consistent with the compliance goals set forth in section 410(2)(C) of the American Recovery and Reinvestment Act of 2009,
"f. establishment of a procedure whereby any provision or requirement of the uniform code may be varied or modified in cases where strict compliance with such provision or requirement would entail practical difficulties or unnecessary hardship or would otherwise be unwarranted. Such procedure shall be designed to insure that any such variance or modification shall not substantially affect adversely provisions for health, safety and security, and that equally safe and proper alternatives may be prescribed. Requests for a variance shall be resolved within sixty days of the date of application unless a longer period is required for good cause shown,
"g. procedures for inspection of certain classes of buildings based upon design, construction, ownership, occupancy or use, including, but not limited to, mobile homes, factory manufactured homes and state-owned buildings,
"h. minimum basic training and in-service training requirements for personnel charged with administration and enforcement of the state energy conservation construction code; and
"i. standards and procedures for measuring the rate of compliance with the state energy conservation construction code, and provisions requiring that such rate of compliance be measured on an annual basis."
The Executive Law further empowers Respondent to "investigate and conduct hearings relative to whether administration and enforcement of the uniform fire prevention and building code complies with the minimum standards promulgated" and take remedial action if Respondent "determines that a local government has failed to administer and enforce the uniform fire prevention and building code in accordance with the minimum standards" (Executive Law § 381 [3], [4], see also Executive Law § 381 [6]).
Pursuant to this authority, Respondent has promulgated 19 NYCRR 1203.3 and 19 NYCRR 1203.5. Set forth in 19 NYCRR 1203.3 (i), which requires local governments to set forth a procedure for complaints. 19 NYCRR 1203.5 sets forth regulations regarding "[c]ompliance with an order to remedy." 19 NYCRR 1203.5 (c) states that "the time within which a person or entity served with an Order to Remedy is required to comply with such Order to Remedy is hereby fixed at 30 days following the date of such Order to Remedy." Significantly, 19 NYCRR 1203.5 (g) states that "Nothing in this section shall be construed as requiring an Authority Having Jurisdiction / to issue an Order to Remedy in a given situation where violations of the Uniform Code are found to exist if, in the judgment of the Authority Having Jurisdiction, such violations can be addressed adequately by the use of other enforcement tools or by other means."
Additionally, as cited by Petitioners, Respondent's Manual states that "As the minimum standards impose no requirements pertaining to procedures for correcting code violations in the absence of voluntary compliance, this is a feature of a local enforcement program which is left to the discretion of local officials. Local officials should consider local needs and circumstances when determining how the municipal enforcement program will address this issue. Administrative enforcement methods, such as the stop-work order or the order to remedy within a specific time period, are procedures which may be utilized prior to seeking judicial remedies. A stop-work order directs that all construction activities cease until such time as the code violations are corrected and the code enforcement official thereafter rescinds the order. The order to remedy merely identifies the problem for the violator and directs its correction. These administrative tools often will resolve a problem and thereby avoid the need to obtain judicial intervention. There will be situations, however, where court action will be necessary to achieve code compliance. Some local governments decide to utilize criminal sanctions for only the most egregious code violations. As an alternative, injunctive relief from a justice of the Supreme Court pursuant to Executive Law § 382 (3) is available. The choices in types of remedies available arc numerous, thereby permitting a local government to design enforcement procedures to meet the specific needs of the community."
III. Discussion
a. Petitioners' Argument
Petitioners assert that the regulations and technical advisement "fail to establish any minimum standard at all for the quality or documentation of an inspection in response to a complaint or required minimum enforcement actions when violations are identified in rental housing" [NYSCEF Doc No 1, ¶ 55]. Petitioners further claim Respondent has failed to create a "statewide standards to enforce the code on behalf of renters" [NYSCEF Doc No 1, ¶ 57]. Petitioners also assert that, upon information and belief, Respondent's "Division of Building
Standards and Codes condones and permits placarding rental properties and ejecting tenants, without requiring any actual enforcement of the code, ordering repairs or pursuing court remedies against responsible landlords" [NYSCEF Doc No 1, ¶ 61]
In support of their argument, Petitioners rely on the affirmation of one of their counsels to demonstrate the ineffectiveness of Respondent's regulations. Attorney Kagle cites an incident where a landlord was allowed six months to repair a rental property, he filed a complaint with Respondent regarding this timeline, and Respondent agreed the timeline was excessive, however, Respondent's Syracuse Board of Review determination took longer than the timeline for repair that the Board of Review itself found to be excessive [NYSCEF Doc No 4, ¶ 13-15; 6, 7]. Attorney Kagle cites other "reports of tenants and litigation [Legal Assistance of Western New York has] filed" along with letters he has sent to Respondent regarding issues as evidence that Respondent has failed to meet his obligation "to promulgate rules and regulations which "address the nature and quality of enforcement" including the "frequency of mandatory inspections," "adequacy of inspection" and "adequacy of means for insuring compliance with the uniform code" [NYSCEF Doc No 4, ¶ 19; 8-13]. Attorney Kagle notes that Breon v Perales, (2015 WL 7289399 [WD NY, November 16,2015,6:15-cv-6335 (MAT)]), upheld the right to due process in Code Enforcement proceeding regarding unsafe structures. He also asserts that "this requirement to provide notice and an opportunity to be heard is being broadly ignored by many local code enforcement office," that Legal Aid has asserted to Respondent that he "is in violation of Executive Law 381 by failing to pass regulations which establish minimum standards for inspection and enforcement," and that "the inevitable outcome of [Respondent's] refusal to establish minimum inspection and enforcement standards for code enforcement officers" [NYSCEF Doc No 4, ¶ 23, 25, 27]. Attorney Kagle concludes that "[o]nly by the implementation and enforcement of meaningful minimum standards for inspections and enforcement will tenants be able to rely on code enforcement officers to address violations in their homes in a routine, timely and professional manner, without fear that the code officers will unnecessarily make them homeless" [NYSCEF Doc No 4, ¶ 34], Petitioners further assert that hearings, like that held by the Village, still fail to comport with due process because they lack cross-examination or consideration of alternatives and, though they concede that Respondent has issued a "Technical Bulletin" on due process, they assert that the bulletin is insufficient because it is not itself a rule or regulation [NYSCEF Doc No 1, ¶ 63-64], Petitioners also assert, upon information and belief, that "training materials fail to establish meaningful procedures or guidelines for code enforcement officers on giving notice of the nature of the alleged hazard to the tenants or occupants or of a structure deemed unsafe" and "fail to provide code enforcement officials with sufficient or effective guidance on notifying tenants or occupants of their right to a pre-deprivation or a post-deprivation challenge of an official determination to post a structure as unsafe, or the procedure for such challenge" [NYSCEF Doc No 1, ¶ 65-66], despite the Bulletin stating that "each local government responsible for enforcing the Uniform Code is required to adopt of local law, ordinance or regulation that established the local government's code enforcement program . . . [and those] procedures should include provisions calling for notice and opportunity to be heard consistent with Constitutional due process requirements. This point is made during the Basic Training Program for code enforcement officials in New York State."
To the extent that Respondent argues Petitioners lack standing, the Court finds that there is a present controversy for which Petitioners have standing to pursue this challenge. The disputed regulations have an immediate impact on Petitioners' leasehold because it allegedly allows for the deprivation of that property interest without due process (see generally Matter of New York State United Teachers ex rel. Iannuzzi v Bd. of Regents of Univ, of State of New York, 33 Misc.3d 989, 993 [Sup Ct, Albany County 2011, Lynch, J.]; United States v Petty Motor Co., 327 U.S. 372, 379 [1946]).
Respondent correctly notes that this proceeding does not involve the Village nor does the record include any indication regarding any appeal to the Board of Review, similar to that previously filed by Petitioners' counsel [NYSCEF Doc No 4, ¶ 13-15], Petitioners also conceded at oral argument that they did not participate in the most recent rule making process despite Petitioners' counsel asserting that he had previously noted the issues raised in this proceeding.
Most significantly, Respondent asserts that he has complied with the statute at issue and Petitioners merely challenge the sufficiency of the content of the regulation, not the existence of the regulation itself [NYSCEF Doc No 41, p 6 citing 19 NYCRR 1201-1210].
c. Petitioners' Argument in Opposition
Petitioners' assert that Respondent errs in relying on 19 NYCRR 1201-1210 because these regulations do not meet the requirements of Executive Law § 381 (d) and (e) because they do not "address the nature and adequacy of means for insuring compliance with the code" [NYSCEF Doc No 44, p 2]. Petitioners assert that "(n]owhere in the regulations has the Respondent... set out a single minimal action which a code officer must take when they identify a code violation in a rental property" [NYSCEF Doc No 44, p 2]. In support of this argument Petitioners cite to the language of Respondent's manual that asserts that it allows voluntary compliance as a means of enforcing the Code at the discretion of local officials [NYSCEF Doc No 44, p 2; 5], Petitioners further assert that tenants like themselves are "at the mercy of local officials" because Respondent "has not complied with [the statute] with particular respect to rental properties" [NYSCEF Doc No 44, p 3].
In support of their argument. Petitioners cite only one case where a court ordered an agency to promulgate regulations after an inordinate delay- Spring Realty Co. v New York City Loft Bd., (127 Misc.2d 1090, 1096 [Sup Ct, New York County 1985, McCooe, J.], aff'd, 117 A.D.2d 1029 [1st Dept 1986], aff'd as mod, 69 N.Y.2d 657 [1986]). In that case, the Court found that "[t]he law [was] almost three years old and there [was] no legitimate reason given for the failure to promulgate the regulations. A reasonable time to act is presumed when there is no specific time given. Three years is not reasonable" (id.).
d. Respondent's Argument in Reply
Respondent notes in Reply that multiple sections of the regulation address the concerns that Petitioners raise. For instance, the minimum standard regulations adopted by Respondent require each local government that is responsible for administration and enforcement of the Uniform Code to exercise its powers in "due and proper manner" so as to extend to the public protection from the hazards of fire and inadequate building construction (9 NYCRR 1203.2 [d]). Additionally, the minimum standard regulation requires each local government to establish its own code enforcement program (see 19 NYCRR 1203.2 [a]) and states elements that the local government's code enforcement program is required to include, such as inspections of buildings which contain an area of public assembly, fire safety and property maintenance inspections of all multiple dwellings and all nonresidential occupancies (see 19 NYCRR 1203.3 [h]), procedures for addressing bona fide complaints which assert that conditions or activities fail to comply with the Uniform Code or with local laws, ordinances, or regulations (see 19 NYCRR 1203.3 [i]); and procedures for identifying and addressing unsafe structures and equipment (19 NYCRR 1203.3 [f]).
Finally, Respondent notes that the statute does not require that he create a regulation specific to code enforcement related to rental properties [NYSCEF Doc No 48 p 6, citing Doc No 44, p 2]. Respondent asserts that he could not "promulgate regulations specifying how each of the 1,600 local governments in the State should address every possible permutation of code violation for every occupancy classification of all buildings, including rental properties" [NYSCEF Doc No 48 p 7].
IV. Analysis
Petitioners' arguments contend that Respondent's regulations do not require a set timeline and specific elements for adequate inspections and so he has failed to perform a duty required by statute. The record before the Court does not support such an assertion.
In creating the system set forth in Executive Law § 381 and 382, the state Legislature chose a system defaulting code enforcement to local administration. This option acknowledges the vast diversity of circumstances that individual cases and communities can present. Peeling paint on a senior citizen's home (see International Property Maintenance Code § 305.3 [2020]) may be better addressed through voluntary compliance and referral to a homeowner assistance program. Likewise, it may not be best to issue an Order of Remedy, triggering the necessity of compliance within thirty days (19 NYCRR 1203.5), to a low-income family who just purchased their first home because there is a missing handrail (see International Property Maintenance Code § 307.1 [2020]). Respondent has chosen to set forth a system that relies first on voluntary compliance, stating such "should be the goal of the municipality," while acknowledging that "[v]oluntary compliance will not always be achieved" (Administration and Enforcement of the Uniform Fire Prevention and Building Code and the State Energy Conservation Construction Code, James A. Coon Local Government Technical Series, NY State Department Division of Local Government Services [July 2022], available at https://dos.ny.gov/system/files/documents/2022/07/administration-and-enforcement-of-the-uniform-code-2111.pdf [last accessed Sept. 26, 2022]). Such a position is supported by legal scholars who suggest informal code enforcement aimed at voluntary compliance plays an important part of an overall code enforcement system (see generally Marilyn L. Uzdavines, Barking Dogs: Code Enforcement Is All Bark and No Bite [Unless the Inspectors Have Assault Rifles], 54 Washburn LJ 161, 164-265 [2014]). The displacement of low-income residents, the very ill from which Petitioners in this case seek redress, has in some cases been found to be a direct result of aggressive enforcement of housing codes (see e.g. Price v City of Stockton, Cal., 394 F.Supp.2d 1256, 1260 [ED Cal 2005]).
Considering the underlying rationality of Respondent's promulgation of regulations to grant local governments a significant level of discretion regarding addressing code enforcement through voluntary compliance, regardless of whether this Court agrees with the amount of variation Respondent allows, the Court finds that a writ of mandamus to compel does not lie under these circumstances. Mandamus to compel is "available 'only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law'" (Matter of Schmitt v Skovira, 53 A.D.3d 918, 920 [3d Dept 2008], quoting New York Civ. Liberties Union v State of New York, 4 N.Y.3d 175, 184 [2005]; see generally Siegel, NY Prac § 7801 at 1068 [6th ed 2018]). The duty must be positive, not discretionary, and must establish "a right to the relief sought which is so clear as not to admit of reasonable doubt or controversy" (Matter of Thornton v Saugerties Cent. School Dist., 145 A.D.3d 1138, 1141 [3d Dept 2016] [internal quotation marks and citations omitted], Iv NY3d 902 [2017]; see Matter of Carpenter v City of Troy, 192 A.D.2d 920, 921 [3d Dept 1993]). No such clear legal right is presented here and the Court does not accept that Respondent's actions are equivalent to taking no action.
Unlike in Spring Realty Co. v New York City Loft Bd. (supra), here, Respondent has issued regulations. Petitioners' objections to the amount of discretion allowed and the incorporation of voluntary compliance as part of the structure do not demonstrate a clear legal right for Petitioners, but rather demonstrate that Petitioners' disapproval of the regulations is more appropriately viewed as a disagreement with Respondent's discretionary decisions and a desire that the statue were structure differently. Petitioners may exercise their right to challenge the sufficiency of the Village's procedures through the administrative process, may seek legislative action to create a stricter enforcement structure statewide, or may petition Respondent as part of the rulemaking process to adopt different regulations, but the remedy to Petitioners' concerns does not lie in a writ of mandamus to compel.
Notably, while the Court does not find that Petitioners have met their burden of demonstrating a clear legal right to a writ of mandamus to compel, this should not be read to mean the Petitioners lack due process rights to the extent they may have been deprived of a proper hearing (see Matter of Brown v City of Schenectady, 72 Misc.3d 549, 558 [Sup Ct, Schenectady County 2021, Cuevas, J.], affd,__A.D.3d__, 2022 NY Slip Op 05245 [3d Dept 2022]; see generally Mathews v Eldridge, 424 U.S. 319 [1976]; Goldberg v Kelly, 397 U.S. 254, 267 [1970]).
V. Conclusion
As Petitioners have failed to meet their burden demonstrating a clear legal right to the relief requested, the Court grants Respondent's Motion to Dismiss.
Accordingly, the petition is hereby denied and dismissed.
The Court has uploaded the original Decision/Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office of the Albany County Clerk.
Counsel for the Petitioners is not relieved from the applicable provisions of CPLR 2220 and 202.5b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party.
SO ORDERED AND ADJUDGED.