Opinion
997/03.
Decided November 8, 2004.
Gregory J. Giammalvo, Town Attorney, for plaintiff.
Forchelli, Curto, Schwartz, Mineo, Carlino Cohn, LLP, for defendant.
The defendant is charged with violating Town of Oyster Bay Code § 246-8.2.6 (amended by Local Law 7-2003), which regulates off-street parking in residence districts. The operative language of the ordinance permits parking in "a side or rear yard, so long as such spaces are located outside of the minimum required side or rear yard." (Id.). Under § 246-5.3 of the Code, the required side-yard set back is eight feet. (See also, Testimony of Richard Miller in Trial Transcript dated March 22, 2004 at pp. 29-30).
The defendant is alleged to have violated the statute by parking a passenger vehicle on a gravel bed between his garage and the side property line, thereby encroaching on the minimum required side-yard.
At trial, the defendant conceded the essential elements in the accusatory instrument, to wit, that he parked a large mobile home in his side-yard and that such use was prohibited by the ordinance. Defendant argues, however, that his use of the side-yard is a valid one in that it is a pre-existing nonconforming use, entitling him to a dismissal of charges. The People contend that the defendant is unable to establish a prior nonconforming use.
For the reasons that follow, the Court concludes that the defendant violated Town of Oyster Bay Code § 8.2.6 and that there was no prior nonconforming use of the subject property.
Side and rear-yard regulations are an effort to insure access to light and air to the occupants of neighboring property; to prevent the spread of fire, and to provide easy access by public emergency vehicles, such as fire engines and ambulances. (Yokley, Zoning Law Practice Procedure § 23-5 [4th Ed.]). Indeed, as set forth in section 246-1 of the Town of Oyster Bay Code, the purpose of the zoning regulations are, inter alia, "[t]o secure safety from fire, flood and other dangers and to promote the public health, safety and general welfare, including, so far as conditions permit, making adequate provisions for light, air, convenience of access and solar energy use." (§ 246-1.4). Thus, the imposition of side and rear-yard restrictions, as with restrictions imposed by other regulations pertaining to the use of land, has been upheld. ( See, e.g., Yokley, Zoning Law Practice Procedure, supra; Matter of Setauket Develop. Corp. v. Romeo, 18 AD2d 825 [2d Dept. 1963]).
Notwithstanding the foregoing, Town of Oyster Bay Code § 246-4.2.2.1 states that "[a]ny legal nonconforming use of land may be continued." A nonconforming use is a use that was legal when it was established, and which, "if not abandoned or otherwise impermissibly changed, can be continued indefinitely, despite a change in the local ordinance making such use illegal. (1 Anderson, New York Zoning Law and Practice [2d ed], §§ 6.01, 6.07, and other cases cited thereunder; Oswego Zoning Ordinance, § 230)." ( People v. Burns, 115 Misc 2d 897 [City Ct., Oswego Cty 1982]).
Here, defendant asserts that he began parking his vehicle in the required side-yard area prior to the adoption of section 246-8.2.6, and that, at the time, such practice was legal. The People concede that defendant commenced parking the vehicle in the side-yard prior to the amendment of Code section 246-8.2.6. However, they urge that even before the amendment, defendant's maintenance/use of his side-yard was prohibited by Code section 246-7.9, and, as such, there can be no valid nonconforming use.
The People in this criminal proceeding must meet the burden of proving all the elements of the offense at issue beyond a reasonable doubt. (People v. St. Agatha Home for Children, 47 NY2d 46). Further, it is the People's burden to disprove the defense of prior nonconforming use beyond a reasonable doubt. (Penal Law § 25.00(1); People v. Burns, supra).
Town of Oyster Bay Code § 246-7.9 states that "[i]n R1 Residence Districts, there shall not be any paving located within the required side or rear yards . . ." At trial there was credible testimony and exhibits to prove that at all relevant times the side-yard area was paved in contravention of the Code. In this regard, the Court notes that the word "pave" is defined as "[t]o lay or cover with stone, brick, or other material, so as to make a firm, level, or convenient surface for horses, carriages, or persons on foot, to travel on; to floor with brick, stone, or other solid material; as, to pave a street; to pave a court." ( Webster's Revised Unabridged Dictionary, 1996); and in Roget's New Millennium Thesaurus (First Ed.), "gravel" is listed as a synonym for "pave". Moreover, the defendant conceded this point at trial and raises no contrary argument in his post-trial memorandum.
Contrary to defendant's contention, the Court finds no ambiguity between Code section 246-7.9 and Code section 246-8.2.6. Significantly, Code section 246-8.2.6 (prior to amendment) did nothing to alter the validity of section 246-7.9, which expressly prohibits the use of pavement within "required" side or rear yards. There is simply no reason to read the two Code sections as being antagonistic to each other. ( See generally, Matter of Raritan Develop. Corp. v. Silva, 91 NY2d 98 [Courts are to accord words of statute their plain meaning]).
The Court finds the People have proven beyond a reasonable doubt that defendant violated Code section 246-8.2.6; further, the People have met their additional burden of disproving the defense of prior nonconforming use beyond a reasonable doubt showing that the use of the side-yard was not legal when established.
Accordingly, all motions made during trial are denied.
The defendant, having been found guilty, is directed to appear for sentencing to be held in Room 373, of the First District Court, 99 Main Street, Hempstead, New York, on 20th the day of December, 2004, at 9:30 o'clock in the forenoon of that day.
So Ordered.