| Matter of Cohn Chemung Props., Inc. v Town ofSouthport |
| 2013 NY Slip Op 05285 [108 AD3d 928] |
| July 11, 2013 |
| Appellate Division, Third Department |
| In the Matter of Cohn Chemung Properties, Inc., Petitioner,v Town of Southport et al., Respondents. |
—[*1] Buck, Danaher, Ryan & McGlenn, Elmira (John J. Ryan of counsel), forrespondents.
Lahtinen, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court byorder of the Supreme Court, entered in Chemung County) to review a determination ofthe Town Board of the Town of Southport which revoked petitioner's license to operate amobile home park.
Petitioner owns the Brookside Trailer Park in the Town of Southport, ChemungCounty, and it had a license to operate the mobile home park under chapter 352 of theTown of Southport Municipal Code. In March 2011, respondent David Sheen, the TownSupervisor, received a letter from the volunteer fire department regarding purported"sub-human living conditions" and "serious code violations" observed by fire departmentmembers when responding to a call at the mobile home park in January 2011. On April15, 2011, Peter Rocchi, the Town's Code Enforcement Officer, apparently attempted toinspect the park but was refused entry by its manager, Jerry Shoemaker. Rocchi reportedthe refusal to the Chemung County Sheriff, who applied for an administrative inspectionwarrant. A warrant, limited to an inspection for violations of land use regulations, wasissued by a town justice and, on April 21, 2011, Rocchi, accompanied by five inspectorsand escorted by a dozen law enforcement personnel, conducted an inspection of the park.
Over 300 alleged code violations were found, resulting in Rocchi issuing a notice ofviolation and order to remedy such conditions. Petitioner was then directed to appearbefore the Town Board of the Town of Southport for a hearing regarding the revocationof its license to [*2]operate the mobile home park. Thehearing was held over two days in June 2011, after which the Town Board voted four tozero, with Sheen abstaining, to revoke petitioner's license. This proceeding to annul thatdetermination ensued. Supreme Court, among other things, denied petitioner's requestsfor discovery and for a hearing regarding the issuing and executing of the administrativewarrant. Upon finding no objections that would terminate the proceeding, and asubstantial evidence issue having been raised, Supreme Court transferred the proceedingto this Court (see CPLR 7804 [g]).
Petitioner contends that the determination was not supported by substantial evidenceand was infected by errors of law. Under substantial evidence review, we "defer to the[Town Board's] credibility determinations and resolution of conflicting evidence" (Matter of Anghel v Daines, 86AD3d 869, 872 [2011]; see Matter of Silberfarb v Board of Coop. Educ. Servs.,Third Supervisory Dist., Suffolk County, 60 NY2d 979, 981 [1983]). The fact that adifferent conclusion could have been reasonably reached is not sufficient ground to setaside the determination (seeMatter of Steinberg v DiNapoli, 93 AD3d 1068, 1069 [2012]; Matter ofHolmstrand v Board of Regents of Univ. of State of N.Y., 71 AD2d 725, 726[1979]). Here, Rocchi related at the hearing events surrounding the inspection of the parkand conditions observed there. He presented photographs and detailed descriptions ofnumerous conditions that constituted code violations. Many were serious in nature,ranging from exposed electrical wires to sewage on top of the ground. Petitioner's soleshareholder, Gary Cohn, as well as the park's manager, Shoemaker, testified regardingefforts to address the identified violations. Although some had been repaired, many ofthe violations remained at the time of the hearing. Petitioner's reliance upon the lack ofextensive violations in earlier years or complaints from neighbors was not a particularlyrelevant factor; the important issue involved the conditions discovered during theinspection and not what may have occurred in prior years. The Town Board creditedmost of the extensive proof regarding code violations, and such proof providedsubstantial evidence supporting its determination. Further, in light of such proof, we findunavailing petitioner's contention that the penalty of revoking its license was shocking toone's sense of fairness.
Petitioner argues that various legal errors occurred leading up to and at the hearing.Our review of these arguments, made in a CPLR article 78 proceeding following ahearing, is limited to whether the Town Board exceeded its authority, violated acontrolling law or otherwise acted in an arbitrary and capricious manner (see e.g. Matter of Small v City ofN.Y. Dept. of Sanitation, 74 AD3d 828, 829 [2010]). Under the TownMunicipal Code, an order to remedy is supposed to give five days' notice for compliance.While the April 27, 2011 order incorrectly set forth the remedy date as April 21, 2011,the hearing was not conducted for nearly two months and petitioner was permitted tosubmit evidence of repairs up to the time of the hearing. Any error in Sheen (the TownSupervisor)—rather than the entire Town Board—making the appointmentof additional code enforcement officers to assist Rocchi does not render the proceedingfatally defective, since such inspectors were properly certified and the entire Town Boardconsidered the evidence regarding the inspections. Although petitioner should have beenallowed to question Sheen at the hearing, such questioning apparently would havepertained to matters prior to the inspection instead of the issue before the Town Boardregarding the violations revealed by the inspections and whether they had been rectified.The legal errors asserted by petitioner fail to reveal that the Town Board acted in anarbitrary fashion regarding the germane issues before it.
Supreme Court did not err in determining that a separate hearing was not necessaryregarding the issuing and executing of the administrative inspection warrant, which is notheld to [*3]as strict a standard as a warrant in a criminalcase (see Matter of Lacatena [Department of Agric. & Mkts. of State of N.Y.],173 AD2d 952, 953 [1991]; see also Sokolov v Village of Freeport, 52 NY2d341, 348 [1981]). Petitioner questioned the County Sheriff and elicited informationregarding the warrant at the hearing, and we agree with Supreme Court that a need for afurther hearing on the warrant was not established. We also find that Supreme Courtacted within its discretion in determining that a need for discovery within the context ofthis CPLR article 78 proceeding was not shown (see e.g. Matter of Morris Bldrs., LP v Empire Zone DesignationBd., 95 AD3d 1381, 1385 [2012], lv denied 19 NY3d 812 [2012]). Theremaining arguments have been considered and found unavailing.
Spain, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.