Opinion
07-20019.
February 9, 2009.
The following papers read on this motion:
Notice of Motion/Order to Show Cause X Answering Affidavits X Replying Affidavits X
............ ............................ .............................Order to show cause by the plaintiff Town of Oyster Bay for an order, inter alia: (1) enjoining the defendants from engaging in "any type of occupancy whatsoever" with respect to certain premises known as 120 New South Road, Hicksville, New York; (2) directing the defendants to properly maintain the subject premises by removing accumulations of garbage, refuse, litter, cutting weeds and by further removing all vehicles and containers not in accordance with stated provisions of the Town of Oyster Bay Code ["the Code"]; and (3) prohibiting the defendants from using the premises to store automobiles, automobile parts, garbage, refuse and litter in violation of the Code and/or without appropriate approvals, permits and permission and/or conducting any business or activities at the premises without the appropriate and required approvals, permits and permission.
By summons and verified complaint date November 2007, the plaintiff Town of Oyster Bay ["the Town"] commenced the within action for injunctive relief as against the defendants, Riziero Del Monaco and lessee, Action Brothers Industries, Inc. ["the defendants"], the fee owner and lessee, respectively, of a fenced, 1.11 acre, unimproved commercial property located at 120 New South Road, Hicksville, New York in the Town's "LI" light Industry zone (Cmplt., ¶¶ 2-7; Sabellico Aff., ¶ 6).
The Town asserts the property has for years been the subject of Town enforcement citations and findings of guilt thereon, and has continually existed in a chronic state of clutter, disarray and "non-maintenance" Moreover, and at the same time, the property has been subject to an ongoing — but to date, incomplete — solid waste clean-up plan imposed pursuant to outstanding consent orders issued by the New York State Department of Environmental Conservation in 1999 and 2003 (Sabellico Aff., ¶¶ 4, 7; Domingo Reply Aff., ¶ 13).
With respect to the state of the property at the time of the instant application, the Town contends, inter alia, that the fenced property is currently overgrown, in part, with tall weeds; that alleged surface grade changes have been made without proper approvals that these changes have resulted in pooled water near a contaminated dirt pile and run-off into public street areas; that the property's dirt surface is littered and/or strewn with, inter alia, construction debris, masonry bricks, empty diesel tanks, drums of chemicals, including an improperly contained, amino methylpropanol drum and/or drums of other unknown substances — some of which are allegedly not ventilated and/or stored safely; that also present at the site are oxygen/acetylene tanks consistent with commercial salvage operations; a partially "tarped" dirt mound of contaminated soil; unattached tires, rusted out/uncovered commercial dumpsters, roll-off containers; and an assortment of heavy machinery and commercial vehicles — some of which are in disrepair, inoperable, partially stripped and/or unlicensed and unregistered — including, utility trailers, bull dozers, a back hoe, "hi-low" apparatus, front-end loaders, and pickup/flatbed trucks (Spinelli Aff., ¶¶ 7-13; Sabellico Aff., ¶¶ 4, 12-13; Domingo Aff., ¶¶ 3-10; Reply Aff., ¶¶ 7-11).
Additionally, the property has allegedly been (1) subject to "back blading" — a grade-altering procedure employed to remove ground debris; and (2) utilized as an unauthorized, "solid waste transfer station," for which required permits and/or approvals have never been issued ( see, Town Code § 201-18) (Domingo Aff., ¶¶ 4, 14-16; Reply Aff., ¶¶ 8-10; Spinelli Aff., ¶¶ 9-12).
Based upon the foregoing allegations, the Town has commenced the within action for preliminary and permanent injunctive relief, i.e., for an order, inter alia, directing the defendants to maintain and utilize the subject property in conformity with applicable Code provisions and requirements. The Town has since brought on the instant application for a preliminary injunction.
Town Law § 268 permits a municipality to obtain a temporary restraining order and preliminary injunction strictly enforcing its zoning ordinances without application of the three-pronged test for injunctive relief, i.e., without establishing special damage or injury to the public, or the nonexistence of an adequate remedy at law ( Incorporated Village of Plandome Manor v. Ioannou, 54 AD3d 364, 365; Town of Dover Town Bd. v. Cascino, 41 AD3d 834, 835; Village of Chestnut Ridge v. Roffino, 306 AD2d 522, 524; Town of Thompson v. Braunstein, 247 AD2d 753).
Rather, and "`[t]o obtain preliminary injunctive relief based on a violation of its zoning ordinances, a town need only show that it has a likelihood of success on the merits and that the equities are balanced in its favor'" ( Town of Riverhead v. Silverman, 54 AD3d 1024, quoting from, Town of Dover Town Bd. v. Cascino, supra see, Town Law § 268; Incorporated Village of Plandome Manor v. I oannou, supra; Town of Thompson v. Braunstein, supra, 247 AD2d 753). "Further, in balancing the equities, the protection of the public is of paramount consideration" ( Town of Smithtown v. Schleider, 156 AD2d 668, 669)
The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court ( Doe v. Axelrod, 73 NY2d 748, 750; Automated Waste Disposal, Inc. v. Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073).
With these principles in mind, and upon the exercise of its discretion, the Court finds that the Town has made a prima facie showing warranting an award of the requested relief to the extent indicated below ( Town of River head v. Silverman, supra; Town of Dover Town Bd. v. Cascino, supra; Town of Thompson v. Braunstein, supra).
Specifically, Town's submissions — which include photographs and the affidavits of its enforcement officer and a registered architect, who both personally inspected the site — have prima facie established that the defendant has violated various Town Code provisions and/or created potential public safety risks by, inter alia, allowing grass, weeds and vegetation to become overgrown (Code § 182-20[A]) permitting rubbish, litter, construction debris, etc., to accumulate in excess (Code § 182-20[B]); openly storing vehicle parts and/or dismantled vehicles and roll off containers at the site (Code §§ 246-5.5.17.4; 246-8.4.1); making unauthorized surface grade changes (Code § 93-15[B]); permitting contaminated run off/storm water to reach public areas; improperly storing and failing to properly contain, toxic and potentially flammable/explosive materials, liquids and refuse (Code § 182-9[B]); and maintaining an unlicensed solid waste transfer station (Code § 200-18).
The defendant does not dispute that he has been continually cited for and, in fact, pleaded guilty to various Code violations over a period of several years ( cf., Town of Dover Town Bd. v. Cascino, supra; Village of Chestnut Ridge v. Roffino, supra) (Delmonaco Aff., ¶ 15). It bears noting that attached to the Town's reply papers is a November, 2007 letter written by the DEC's Assistant Regional Director to the Town Attorney, Tomas M. Sabellico, in which the subject property is described as a "solid waste management facility" and which further advises that violations of New York State solid waste laws were then still present and unresolved (Sabellico Aff., Exh., "D").
Contrary to defendants' contentions, although the DEC is currently supervising an approved clean-up plan, the existence of the plan does not preclude the Town from enforcing applicable Code provisions subject to its jurisdiction (Sabellico Reply Aff., ¶¶ 1-5; Exh., "D"-"F"). The Court notes that the underlying 1999 DEC consent order executed by the defendant provides, inter alia, that the defendant must "comply with all applicable Federal, State and local laws, rules and regulations" and must apply for all other necessary Federal, State and local approvals" (Sabellico Reply Aff., Exh., "B" at 4).
To the extent that the defendants have attempted to otherwise raise factual issues in connection with the Town's assertions, it is settled that the existence of a claimed factual issue will not alone "be grounds for denial of the motion" for an injunction ( S.P.Q.R. Co., Inc. v. United Rockland Stairs, Inc., 57 AD3d 642; Winzelberg v. 1319 50th Realty Corp., 52 AD3d 700 see, CLR 6312[c]).
In sum, the Town has demonstrated a likelihood of success of the merits and further shown that "the equities are balanced in [its] favor, given that the defendants had the opportunity to remedy the violations but failed to do so, despite repeated notices of violations" and the existence of the related "agreement with the State Department of Environmental Conservation" ( Town of Dover Town Bd. v. Cascino, supra, 41 AD3d at 835; Village of Chestnut Ridge v. Roffino, supra; Town of Thompson v. Braunstein, supra, 247 AD2d at 755).
The Court has considered the defendants' remaining contentions and concludes that they are lacking in merit.
Accordingly, it is,
ORDERED the order to show cause by the plaintiff Town of Oyster Bay for a preliminary injunction is granted to the extent that the defendants are hereby directed to properly maintain the subject premises by removing accumulations of garbage, refuse, litter, cutting weeds and by further removing all vehicles and containers not in accordance with stated provisions of the Town of Oyster Bay Code ["the Code"], and it is further;
ORDERED that the defendants shall be prohibited from using the premises to store automobiles, automobile parts, garbage, refuse and litter in violation of the Code and/or without appropriate approvals, permits and permission; and it is further,
ORDERED that the defendants shall be otherwise enjoined from conducting any businesses or activities at the premises without the appropriate and required approvals, permits and permission.
This constitutes the decision and order of the Court.