People v Costa

[*1] People v Costa 2009 NY Slip Op 51556(U) [24 Misc 3d 1222(A)] Decided on June 30, 2009 New Rochelle City Ct Colangelo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2009
New Rochelle City Ct

The People of the State of New York,

against

Anthony Costa, Defendant.



08-64490



KENNETH E. POWELL, ESQ.

City of New Rochelle

515 North Avenue

New Rochelle, NY 10801

MATTHEW COSTA, ESQ.

270 North Avenue

Suite 811

New Rochelle, NY 10801

Attorney for Defendant

John P. Colangelo, J.

Defendant Anthony Costa ("Costa" or "Defendant") is charged on two virtually identical informations (the "Informations" or "Accusatorys"), signed by Housing Inspector Robert D'Onofrio of the New Rochelle Bureau of Buildings with violating § 331-11-A of the New Rochelle City Code (the "City Code" or "Code"). The basis of the alleged violations on docket number 09-64490 as set forth in the Information for that docket is Inspector D'Onofrio's alleged observation on October 1, 2008 of "4 college students residing in the first floor apartment" (the "Apartment") in the building located at 23 Summitt Avenue, New Rochelle, New York (the "Building"). The same substantive allegations are repeated under docket number 09-64491 for the second floor apartment. The Informations further state that such "premise is located in a RMF-0.4 Zoning District [Section 331-38 of the New Rochelle Zoning Ordinance] where the renting of a dwelling unit to more than three unrelated persons is not a permitted use." It is undisputed that Costa is the owner of the Building at issue. [*2]

Defendant appeared by counsel on October 21, 2008 for arraignment and entered pleas of not guilty. Soon thereafter, Defendant filed the instant motion to dismiss the "charges pursuant to The City of New Rochelle Zoning Code, the Equal Protection and Due Process Clauses of the New York Constitution Art. I §§ 6 & 11." The People oppose Defendant's motion.

Although styled as a motion of constitutional dimension, this motion and case instead revolve around an issue of statutory interpretation and construction specifically, the construction and interpretation of certain provisions of the New Rochelle Zoning Ordinance (the "Zoning Code"). Many of the essential facts are undisputed. Defendant concedes, for purposes of his motion, that four unrelated people were living in each Apartment, each of which is one half of the two family house. It is also undisputed that the area in which the Building is located is zoned for two family dwellings and that the Zoning Code, in pertinent part, defines a "dwelling unit" and "family" as follows:

"§ 331-4 DWELLING UNIT

A building or portion thereof providing complete housekeeping facilities for onefamily, including independent and complete cooking, sanitary and sleepingfacilities.

****

§ 331-4 FAMILY

A. One of the Following:

(1) Up to three persons occupying a dwelling unit; or

(2) Four or more persons occupying a dwelling unit and living together as atraditional family or the equivalent of a traditional family."

Thus, at first glance, it would appear that Costa is in violation of the Zoning Code. At all relevant times, four rather than three people resided in each Apartment and, Defendant concedes, such residents were not members of a "traditional family". However, the Zoning Code also permits certain "accessory uses" of a dwelling, including "[t]he renting out of one non-housekeeping room to not more than two persons per dwelling unit." (Zoning Code, § 331-38 (6)). It is the interpretation of this provision that is dispositive of this motion.

The Zoning Code does not set forth a definition of "non-housekeeping room". However, Defendant argues, with some force, that since the room in which one or two of the students in each apartment was staying did not contain "housekeeping facilities" i.e. a kitchen, a bathroom or even a sink it is therefore a "non-housekeeping room". If such room is deemed a "non-housekeeping room", then a fourth tenant's occupancy of it would not, Costa contends, run afoul of the Zoning Code by virtue of the "accessory use" provision. On the other hand, the [*3]People maintain that in order to constitute a "non-housekeeping room" that falls within the "accessory use" provision, not only must the room be devoid of such facilities, but the tenants of that room must be forbidden access to the facilities that are, and by law must be present in the Apartment overall the kitchen and bathroom (see Zoning Code § 331-4, definition of Dwelling Unit, supra ). The People cite the 1921 case of Waitt Construction Co. v. Chase, 197 A.D. 327 (1st Dept. 1921) for this proposition.

Based on the language of the relevant Zoning Code sections and their dictionary and common sense meaning, it is the Court's view that Defendant has the better of the argument. It is akin axiomatic that a "non-housekeeping" room is a room that does not contain housekeeping facilities such as a kitchen and bath. The Supreme Court, New York County so indicated in the context of determining whether rooms occupied by a tenant were "servants rooms" within the meaning of the Emergency Housing Rent Control Law, McKinney's Unconsol. Laws, §§ 8581, et seq. As the court stated in In re Goodman, 104 NYS2d 382, 384 (Sup. Ct., NY Co. 1950), rev'd on other grounds, 276 A.D. 695 (1st Dept. 1951):

"To constitute "servants rooms", the rooms must be non-housekeeping rooms located inthe service portion of the building. Since the rooms in question consist of two bedrooms,a living room, kitchen and bath (in other words, an apartment), for which the tenant pays arental of $1,800.00 per annum, it would be a distortion of the wording of the statute andthe legislative intent to say that they are "servants' rooms," and not "housingaccommodations."

This meaning of "non-housekeeping room" is at one with the Zoning Code which defines dwelling unit, as opposed to a non-housekeeping room, as containing "complete housekeeping facilities" including "cooking, sanitary and sleeping facilities." (Zoning Code § 331-4; emphasis supplied). That is, the non-housekeeping room need not and may not contain what the apartment already has overall. Relatedly, as an "accessory use", the "non-housekeeping" room is clearly intended by the Zoning Code to be integrated with, not separate and apart from the other rooms in the dwelling unit including the "cooking, sanitary and sleeping facilities" (Zoning Code § 331-4). The everyday common sense meaning of the term "accessory use" as well as the provisions of the Zoning Code itself support this construction.

As the People state in their opposition papers, under the New Rochelle Zoning Code, "[w]here words and terms are not specifically defined, they shall have their ordinary accepted meanings or as the context may apply." (Zoning Code, § 331-2; emphasis supplied). Here, the "ordinary accepted meaning" of the term "accessory", as well as the context in which it is used, buttress Defendant's position; even a cursory examination of the standard dictionary definition of "accessory" and its synonyms show as much. The American Heritage Dictionary of the English Language (Haughton Mifflin Co. 1981) defines "accessory" as "[s]omething supplementary; an adjunct," and in turn defines "adjunct" as "[s]omething attached to another thing but in a dependent or subordinate position", and "supplement" as "[s]omething added to complete a thing, make up for a deficiency, or extend or strengthen the whole." (Id.) (emphasis supplied). Thus, the "accessory use" provision as applied to the "non-housekeeping room" and when placed in "the context" of the other pertinent provisions of the Zoning Code clearly indicates that such room is to be an "adjunct" to be "added to"or "extend or strengthen" the dwelling unit itself by adding a room in which one or two occupants, in addition to the three non-family members [*4]allowed under the § 331-4 definition of "family", may permissibly reside.

Moreover, the People's argument that such room may not be considered a "non-housekeeping room" unless its occupants are somehow banned from using the housekeeping facilities that are available in the other sections of the apartment is at once inconsistent with the Zoning Code and wars with common sense. As shown above, Section 331-38(6), by its terms, allows for the renting of a non-housekeeping room as an "accessory use" i.e., as a "supplement" or "adjunct" to the use of the apartment. (Houghton Mifflin Dictionary, supra ). Since an apartment not only has, but is required by the Zoning Code itself to have, cooking and bathroom facilities, those who participate in the "accessory use" of it must perforce have the right and ability to enjoy them. Indeed, the Zoning Code mandates that all "dwellings" including apartments, contain functioning housekeeping kitchen and bathroom facilities. (Zoning Code § 331-4, supra ). To bar occupants of "non-housekeeping rooms" from the use of these facilities would frustrate the purpose of requiring them in the first place, and, in essence, convert such rooms into little more than cells from which their occupants are forbidden to roam hardly a valid "accessory use" of a fully furnished apartment.

The Second Department case cited by the People €" Waitt Construction Co. v. Chase, 197 A.D. 327 (1921) is not to the contrary, and is in fact consistent with this meaning of a "non-housekeeping room". The Court in Waitt, in deciding whether a particular building was an "apartment house" or on "apartment hotel", plainly stated that "non-housekeeping apartments" are those "without a kitchen or cooking facilities." It is undisputed that the room at issue in each Apartment contains no "kitchen or cooking facilities."

The above construction of the "accessory use" provision of the Zoning Code is dispositive of the instant motion. Defendant has adduced documentary evidence uncontradicted in any substantive manner by the People that one of the rooms in each Apartment was available to be used as a non-housekeeping room, and that no more than one person was permitted to live in each Apartment in addition to the three named tenants. In light of the quasi-criminal nature of the statute which Defendant is charged with violating, the presumption of compliance must rest with Defendant unless the People present some evidence that each additional occupant was not, in fact, using the non-housekeeping room for the accessory purpose intended by the statute. This the People have failed to do, other than to speculate as to what the living arrangements in each Apartment must have resembled.

Indeed, the People's suggestion that the virtually inevitable use by such non-housekeeping room occupant or occupants of the housekeeping facilities contained outside of their room their use of the Apartment's bathroom and kitchen somehow satisfies the People's burden of overcoming this presumption is meritless. As discussed above, since the occupancy of the non-housekeeping room is, by statutory definition, an "accessory" use of the Apartment itself, a resident of such room would necessarily be expected to avail himself or herself of the main portions of the Apartment without running afoul of the Code.

By reason of the foregoing, Defendant's motion to dismiss is hereby granted in all respects. [*5]

The foregoing constitutes the Decision and Order of this Court.

DATED: New Rochelle, New York

June 30, 2009

John P. Colangelo

City Judge