People v Simpson

[*1] People v Simpson 2004 NY Slip Op 51604(U) Decided on December 16, 2004 District Court, Suffolk County Hackeling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2004
District Court, Suffolk County

The People of the State of New York,

against

Ann Simpson and Stephen Beyer, Defendants.



HUTO 902-04

C. Stephen Hackeling, J.

The People of the State of New York (hereinafter "the People"), via identical informations dated September 2, 2004, have accused the co-defendants Stephen Beyer and Ann Simpson of violating Sec. 198-10 (A) of the Huntington Town Code, alleging that they are allowing an un-permitted use on their property by maintaining approximately 50 boat stands, moorings, tool boxes and a commercial box truck to be stored on the premises. A two day trial of the matter was conducted on November 3rd and 9th, 2004, wherein the Court considered the testimony of twelve witnesses and reviewed dozens of documentary and pictoral exhibits. The Court makes the following Findings of Fact and Conclusions of Law in finding the defendants "Not Guilty" of the alleged offense.

Undisputed Facts

The undisputed relevant facts regarding this matter are as follows:

1.Prior to 1922, a commercial fishing boat rental business was started and operated as "Simpson's dock" on the west side of Centerport Harbor, running north approximately 400 feet from the intersection of Milldam Road and Centershore Road. Exhibit 21. The facility consisted of several residential structures on the west side of Centershore Road, and beach and dock facilities on the east/harbor side of the road.

2.In 1931, Ann Simpson married Arthur Simpson; moved in with the Simpson family and helped run the family "boat and bait" business, which utilized and stored approximately forty wooden boats. [*2]

3.The Town of Huntington enacted a zoning statute in 1934 which classified all the assorted Simpson lots as Residential-80.

4.Formal title to all the Simpson real property eventually passed to Mrs. Simpson upon the death of her father in-law 1963. She retired in 1968 and thereafter turned over the boatyard business to her son, Peter Bohler.

5.The real property lots containing the residential structures and the actual dock complex were conveyed to a series of different owners who operated the facility as a marina. For an undisclosed reason, Mrs. Simpson re-acquired title to one lot containing the "boat Ramp" with Louise Beyer in 1984 (hereafter " the ramp lot"). Mrs. Beyer thereafter conveyed her ½ interest in the ramp lot to her son, Stephen Beyer, the other co-defendant.

6.The defendants lease the ramp lot to Peter Bohler who also operates the contiguous marina "dock lot".

7.The Town of Huntington Zoning Board of Appeals has recognized the adjacent "dock lot's" non-conforming lawful use as a marina. No such certification was sought for the "ramp lot".

8.The defendants do not dispute the commercial uses of the ramp lot as described in the People's Accusatory Instrument.

9.The ramp lot has been taxed by the Town of Huntington as a "commercial property".

Disputed Issues of Fact

A)The defendants assert that the commercial activity conducted on the ramp lot is the same that existed prior to the zoning code enactment in 1934. The People assert that the present marina operation is a major intensification from the pre-code operation.

B)The parties dispute whether an earthen boat ramp existed on the ramp lot in 1934. An ancillary issue is whether said boat ramp is a structure under the Town code?

C)The defendants assert that the marina use on the ramp lot has been continuous. The People assert that the commercial marina use was abandoned for over a year in the 1980's, when the boatyard was owned by Harvey Vangroff.

D)There exists a factual dispute as to whether the Box truck is utilized as a motor vehicle or a storage structure. [*3]

The Law

The People's accusatory instrument charges the defendants with violating Huntington Town Code Sec. 198-10A which provides:

"Except as hereinafter provided" (A) No land may be used except for a purpose permitted in

the district in which it is located..."

Sec. 198-13 provides that an R-80 use limits the premises to "(1) single family dwellings..".

The Town of Huntington allows all real property uses which pre-dated its zoning code and which have been continually maintained thereafter in its grandfather zoning statute Sec. 198.102 which provides:[FN1]

102. Continuation of existing uses.

The lawful use of any land, building or structure existing at

time of passage of this chapter may be continued, and such

may be extended throughout a building...

The Court finds its constructive to cite to the Town of Huntington's legislative history and intent by noting Section 198.30 of the Huntington Town Code which establishes a "Harbor Use" District when it provides:

Legislative findings and intent. Commercial and other

water-dependent uses contribute significantly to the economic

well-being of the Town, as well as to the quality of life of its residents. There is a limited amount of waterfront space suitable for commercial

water-dependent uses. Once the limited and suitable shoreline space is lost to non-water-dependent uses, it is difficult to recover that space for important and appropriate water-dependent uses. The C-9 Harbor Use District is intended to reflect the policies and purposes of the Local Waterfront Revitalization Program, as adopted by the Town board. The intent of the C-9 Harbor Use District is to preserve and

foster uses that are dependent upon a waterfront, or near water

location, and to preserve and enhance the social historic, aesthetic [*4]

and environmental quality of Huntington Harbor and its environs. Marina, Commercial - A privately owned waterfront commercial

enterprise that is primarily designed or used for the berthing and/or

servicing of vessels engaged in service or commerce.

Use regulations. (1) Waterfront property. In the C-9 Harbor Use District, waterfront

property shall only be used for the following purposes:

(a) Commercial marinas, or private recreational marinas. (b) Rental of watercraft and outboard engines, inclusive of the sale of bait, and tackle, and the storage and maintenance of rental watercraft.

( c) Charter or party boat enterprises for fishing or sightseeing.

(d ) Yacht or boating club.

(e) Sale, refitting, fitting-out, maintenance or repair of watercraft. (f) Loading and unloading and sale of finfish, shellfish, crabs, or lobsters as well as seafood related food products.

(g) Aquarium or mariculture facilities or support facilities for mariculture activities. (h) Accessory uses and structures, necessary to support water-dependent uses, including docks.

The Court makes reference to the Town's legislative intent as it deems this language to give it license to construe its statues in such a manner as to facilitate its stated purpose "to preserve and foster uses that are dependent upon a waterfront".

Discussion

Over the past century the world has experienced a techniclogical explosion which has produced the invention of internal combustion engines, human flight, nuclear energy and the computerized assemblage and retrieval of information. The ultimately dispositive issue presented to this Court is how does the advent of evolving technology impact upon municipal zoning statutes which in this case have not substantially changed over the past seventy years?

In the case at bar there exists no serious dispute as to what kind of commercial activity existed on the site pre 1934. The property was utilized in both a commercial and residential capacity which evolved around the accessing of Centerport harbor for the waterfront purposes which existed at the time. Rowboats and sailboats were leased, launched and stored with accessory uses to facilitate same such as bait procurement and boat repair. In their post trial brief, the People advance the proposition that the evolution of technology to what is now defined as a "marina" is an intensification of the use sufficient to remove it from the Town's grandfathered [*5]use statute. The Court disagrees.

The New York Court of Appeals has established an "intensification litmus test" which disregards any " increased business volume" standard and which instead directs the Court to determine whether the "character of the business" is the same. People v. Perkins, 282 NY 392 (1940). Utilizing the Town's own legislative findings the Court concludes that a "commercial water dependent use" as it existed in 1934 may change with technology so as to evolve from human and wind propelled wooden aquatic vessels to combustion engine propelled fiberglass aquatic vessels. The use may evolve from wooden cradles to metal racks. Such a transition is not an intensification as the use was at all times commercial in nature, involved the entirety of the subject property, and shared the common denominator of facilitating access to Centerport Harbor for aquatic purposes. The character of the subject business is consistent with both its past activity and with the Town's present day definition as established in Sec. 198.30.

The People's case took particular note of the boat ramp's non existence pre-1934. The testimony and exhibits do appear to bear this fact out, though the record before the Court is inconclusive. However, the Court finds that the subject boat ramp is not a structure as defined under Sec. 198.2 of the Town law as it consists of dug out and compacted earth and Harbor sediment. In any event, the subject earthen ramp is not an intensification as the Court finds that boats were launched and retrieved from the subject site pre-1934.

More problematic for the defendants is the issue of the Box truck which is allegedly being utilized as a tool shed. Motor Vehicles are also not structures as defined under Town law and their utilization is governed by the New York State Vehicle and Traffic Law. The Town argues that the Box truck is violating Town Code Sec. 198-110 )(4) which prohibits commercial vehicles from parking overnight or being utilized for storage without a special use permit in a residential zone. The record is incomplete in establishing whether the subject motor vehicle is in fact a registered commercial vehicle. Additionally, violations of 198-110 )(4) are different in nature than the 198-(10) violation detailed in the subject accusatory instrument. To the extent that the motor vehicle is unregistered and being utilized in lieu of a tool shed it would be an illegal use. However, The Town's grandfather zoning clause would allow for the utilization and storage of any mechanized vehicle or system which launches or retrieves boats from the water. As the People did not meet their burden of both pleadings and proving a Sec. 198-110 )(4) Box truck violation, the Court limits its consideration to whether it is a structure, which it is not.

Abandonment

The People also advance the proposition that the subject marina use was abandoned for over a year in the 1980's, which would strip it of it's "nonconforming use" status. Abandonment does not occur unless there has clearly been a complete cessation of the entire nonconforming use. Marzella v. ZBA of Dobbs Ferry Village, 69 NY2d 967 (1987). A fair reading of the Court of Appeal's Marzella decision indicates that the People bear the burden of proof on the issue of abandonment. The evidence does not bear this fact out as the defendant's and their witnesses are [*6]unequivocal in their assertion of continued use while the People's witnesses framed their testimony with hesitation and whose conclusions of abandonment came from hearsay, unidentified sources.

DATED: HUNTINGTON, NY

DECEMBER 16, 2004

J.D.C. Footnotes

Footnote 1:The Court is aware that the Town has yet to implement its Local Waterfront Revitalization Re-zoning statute for Centerport Harbor and that the subject property is zoned residential.