Mountain Pac. Realty, LLC v Village of Monticello Bd. of Trustees
Annotate this CaseDecided on December 31, 2007
Supreme Court, Sullivan County
Mountain Pacific Realty, LLC, Petitioner,
against
Village of Monticello Board of Trustees and SUE FLORA, AS CODE ENFORCEMENT OFFICER OF THE VILLAGE OF MONTICELLO, Respondents.
3860-06
Marvin Newberg, Esq.
33 North Street
Monticello, NY 12701
Attorney for the Petitioner
E. Danielle Jose, Esq.
17 St. John Street
Monticello, NY 12701
Attorney for Respondents
Frank J. LaBuda, J.
Petitioner moves by Order To Show Cause (OSC) and petition for Article 78 relief for an order of this Court annulling and canceling the Village of Monticello Resolution dated December 4, 2006 for petitioner to remove a fence on petitioner's property.
Respondents submitted motion to dismiss for failure to state a cause of action or, in the alternative, to allow the filing and service of an answer. A Stay of said Resolution was granted pending the disposition of this matter.
Petitioner submitted a Reply Affirmation to respondents motion to dismiss.
Thereafter, by Decision and Order dated March 7, 2007 this Court denied respondents motion to dismiss and ordered respondents to serve and file an answer.
Respondents served and submitted an anwser and this matter is now fully submitted. [*2]
Petitioner owns real property situated on East Broadway in the Village of Monticello. Said property abuts the property of Mountain Mall.
Petitioner's property has a structure which houses two businesses in the front with a driveway on the left leading to a parking lot in the rear.
Petitioner's erected a fence on the opposite side of its building from the driveway and separating their property from the property of the Mountain Mall. Said fence runs along the property line from front to rear effectively closing off foot and vehicle ingress or egress between petitioner's property and Mountain Mall. However, even though the fence is entirely within the property of petitioner the portion of the fence running along petitioner's building is less than five feet from the building itself.
Respondent's argue that Village Code § 119-3 governs this issue as it defines a fence as an "Unsafe Building or Structure" and prohibits a said unsafe structure which "...is or may become dangerous or unsafe to the public..."
There is no argument that the fence is defective in any way. It is not dilapidated or in need of repair, it is not unsightly and it is straight and erect.
There is no question, however, that an obstruction which does not allow the public to escaping from the building in an emergency or prevents fireman or policeman from gaining ingress or egress to perform their duties in a time of public safety is prohibited by the Village Code §119-3.
In this matter, however, the entire fence does not fall within the prohibition of Village Code §119-3.
The portion of the fence running from the front point of petitioner's property and the rear of the building is prohibited by Village Code §119-3 but the portion of the fence running from the rear of petitioner's building along the parking lot and ending at the petitioner's rear property line is not covered by the ordinance as it is not unsafe as set forth in Village Code §119-3.
Based upon the above, it is
ORDERED, that petitioner's order to show cause is partially granted, and it is further
ORDERED, that petitioner shall remove that portion of the fence running from the front of the building along the property line to the rear of the building, and it is further
ORDERED, that the portion of petitioner's fence running from the rear of the building along the property line to the rear boundary shall remain at petitioner's discretion, and it is further [*3]
ORDERED, that the stay previously ordered herein is vacated.
This shall constitute the Decision and Order of this Court.
DATED: December 31, 2007
Monticello, NY
___________________________________
Hon. Frank J. LaBuda
Acting Supreme Court Justice
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