People v Hyland

[*1] People v Hyland 2008 NY Slip Op 50716(U) [19 Misc 3d 1114(A)] Decided on April 2, 2008 Suffolk Dist Ct, Second District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 28, 2008; it will not be published in the printed Official Reports.

Decided on April 2, 2008
District Court of Suffolk County, Second District

People of the State of New York, Plaintiff

against

Thomas Hyland, Defendant



BATO 61-08



Suffolk County District Attorney's Office

By: Joseph Wilson, Esq.

Special Assistant District Attorney

200 E. Sunrise Highway

Lindenhurst, New York 11757

Thomas Hyland

pro se Defendant

C. Stephen Hackeling, J.

The Court conducted a trial of the above captioned action on March 3, 2008, wherein the People of the State of New York (hereafter "The People") accused the defendant Thomas Hyland of violating the Town of Babylon Code Section 213-77(A), alleging that on November 20, 2007, the defendant owner of a single family residence, located at 1581 3rd Street, West Babylon, New York, provided lodging to non family persons, and operated same as a rooming house.

The Facts

It was either undisputed or stipulated that a Town Ordinance Inspector entered the defendant's residence on November 20, 2007 upon the consent of the defendant's girlfriend and observed or was told that the defendant resided at the B residential zone property with his mother, his minor son, his girlfriend and sometimes his girlfriend's minor son. The mother lived in an authorized and permitted accessory apartment. Also residing in the house on that particular night were two unidentified veterans who were friends of the defendant. The inspector observed four occupied bedrooms, and two presumed locked bedrooms.

The People offered no evidence concerning rental or lodging payment, although the

pro se defendant volunteered that his mother and girlfriend communally contribute to the household mortgage and food expenses and that when veteran friends reside at the premises there is an informal understanding that they will "contribute for food". The defendant's unrebutted testimony was that he counsels disabled veterans who are suffering from "Post [*2]Traumatic Stress Disorder".

The Law

Section 213-77(A), of the Babylon Town Code is entitled "Uses not permitted", and provides:

"Anything to the contrary notwithstanding, in a B Residence

District, no building or premises shall be used and no building

shall be erected or altered for any of the following uses:

(A) rooming house..."

Discussion

The Babylon Town Code is amazingly succinct in prohibiting the use of "rooming house" in a B residence district. Rooming house is defined in Section 213-1 as "a dwelling, other than a hotel or motel, where lodging is provided for compensation". The complicating factor in this controversy is that neither of the terms "lodging" or "compensation" are defined in the Babylon Town Code, and the term "family" is expansively defined.

New York Law generally defines a lodger as a person who contracts for less than a landlord / tenant relationship wherein unexclusive occupancy of real property is granted and the owner does not surrender dominion over the premises to the lodger. See Ashton v. Margolies, 72 Misc. 70; (App Term, 1911); Schreiber v. Goldsmith, 35 Misc. 45; (App Term, 1901). Such a definition appears to include most non children real property occupants who are not on the deed or lease of real property. Kinsfolk who are provided "with board and the confines of a home" are historically considered lodgers. See generally, Matthews v. Matthews, 2 N.Y.S. 121 (N.Y.A.D.

3d Dept. 1888).

The Court's research of the definition of "compensation" under New York Law reveals that though the word is utilized in a plethora of statutes and precedent, a precise definition is limited to specialized areas of the law which are inapplicable to the present proceeding such as Worker's Compensation, Taxation, Public Officers and Eminent Domain. The Court will therefore utilize the Black's Law Dictionary definition which provides that "compensation is the giving back of an equivalent, in either money... or in actual value otherwise conferred".

(4th ed, 1968).

Competing Statute

In the case at bar, the defendant freely admits that he relies upon the contributions of all the adult occupants to meet and sustain the operation of the household, inclusive of the mortgage payment and communal food expense. At first blush, this exchange of funds for mutual unexclusive shelter / food establishes the lodging in exchange for compensation elements and therefore contravenes Section 213-77. However, such an interpretation would conflict with a [*3]competing sister statute [FN1] wherein the defendant's B residential zoning status allows the premises use as a "one family residence". See Section 213-76 (A).

What is family?

It is well settled that local zoning statutes which seek to regulate the membership of a family are constitutionally suspect and are generally unenforceable. See McMinn v. Town of Oyster Bay, 66 NY2d 544 (N.Y.1985); See also, Baer v. Town of Brookhaven, 73 NY2d 942 (N.Y.1989). To pass constitutional master, these Court of Appeals decisions have provided that local zoning must allow for the cohabitation of more than blood or marriage related persons and must include the factual equivalent of a natural family. The Babylon Town Code defines family "as a single person or collective group of persons related by kinship, adoption, blood or marriage, or the functional and factual equivalent of a natural family, living together under the same roof and cooking together as a single housekeeping unit, in a common household whose relation is of a permanent and distinct domestic character".

To its credit, Babylon Town's definition of family also includes the Court of Appeals "functional and factual equivalent of a natural family" alternative safe harbor requirement. The definition provides:

"A single housekeeping unit bearing the generic character of

a family unit as a relatively permanent household, not a

framework for transients or transient living, leading a stable,

nonprofit, family-like existence, headed by a householder as

one would likely find in a biologically unitary family; in every

sense but a biological one it must function as a stable, single-

family unit, albeit occasionally changing in composition even

as a natural family might and does".

Premised thereon, the Court is required to reconcile the interpretation of these two competing statues within a constitutional framework so as to mutually and harmoniously co-exist. See generally, NY Statutes L. Section 98. People ex rel. Jackson v. Potter, 47 NY 375 (NY1872). The simplest manner to accomplish this task is to find that the Babylon Town Board intended its rooming house statute to only apply to non-family members. As Babylon allows "family members" to co-habitate, regardless of their occupancy circumstance or arrangement, the Court holds that the mother and son meet the traditional family definition and are outside the purview of section 213-77. [*4]

Only the girlfriend, her son and the two veteran friends remain for consideration. The Babylon Code definition of family or its functional equivalent does not expressly mention the status of "friends", and as a result does not make a distinction between "female friends" or "male friends". As such, the Court concludes that it is possible to include friends in the "family" definition, and that the statute is gender neutral. Other than the description as a "girlfriend" the record is devoid of any evidence of the nature of the defendant's relationship to her.

Accordingly the girlfriend, her son and the veterans maintain identical status for the purpose of this decision.[FN2]

The defendant is constitutionally entitled to associate and to entertain overnight such friends as he chooses. See dicta, Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536 (1974). The tender of equivalent payment ("compensation") criminalizes the occupancy of the defendant's friends in Babylon unless they are members of the defendant's non traditional family. Membership in the family is not listed in the code as an "affirmative defense" which needs to be established by the defendant. As such, the People bear the burden of proof of non family status beyond a reasonable doubt. See New York Penal Law Sec. 25 and New York CPL Sec. 300.10. Such a burden could possibly be met by evidence establishing that the friends' occupancy was exclusive or that lodging was provided in exchange for a fixed contractual sum, or that the occupants did not acknowledge the owner as the "householder" person in control of the family/residence. [FN3] In any event, no such proof exists in the record of this action. The proof was limited to a hearsay complaint alleging that 13-14 people / veterans lived in the premises, and one inspector's testimony that she observed four occupied bedrooms, several locked doors, and approximately seven partially unrelated individuals inclusive of two veterans occupying the premises. Accordingly, the Court finds the defendant "not guilty".

__________________________

J.D.C. [*5]

Date: April 2, 2008 Footnotes

Footnote 1:Sec. 213-77(A) expressly carves out other codes sections for exclusion via use of the "Anything to the contrary notwithstanding".

Footnote 2:The Court notes that there does exist precedent that non married occupants who reside together as "paramours" or "defacto, husband and wife" are not licensee's and that the law affords them an enhanced family occupancy status. See, Minors. v. Tyler, 137 Misc 2d 505 (Civ. Ct. NY 1987); Concourse Village Inc. v. Bulotti, 133 Misc 2d 973 (Civ. Ct. NY 1986).

Footnote 3: Babylon's non traditional family statute is drawn so broadly that the probability that the People could meet this burden, absent a purported family member disclaiming this status, is questionable. An objective criteria definition of the term "transient" in the non traditional family statute would be helpful.