| Matter of Turner v Municipal Code Violations Bur. of City ofRochester |
| 2014 NY Slip Op 08156 [122 AD3d 1376] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Thomas C. Turner et al., Appellants, vMunicipal Code Violations Bureau of City of Rochester et al.,Respondents. |
Santiago Burger Annechino LLP, Rochester (Michael A. Burger of counsel), forpetitioners-plaintiffs-appellants.
T. Andrew Brown, Corporation Counsel, Rochester (Sara L. Valencia of counsel),for respondents-defendants-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Monroe County(Ann Marie Taddeo, J.), entered June 5, 2013 in a CPLR article 78 proceeding and adeclaratory judgment action. The judgment, among other things, denied the relief soughtin the petition-complaint.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law without costs and judgment is granted in favor of petitioners-plaintiffs asfollows: It is adjudged and declared that section 120-175 of the Municipal Code of theCity of Rochester is unconstitutional under the United States and New YorkConstitutions.
Memorandum: Petitioners-plaintiffs (plaintiffs) commenced this hybrid CPLR article78 proceeding and declaratory judgment action seeking, inter alia, to declare section120-175 of the Municipal Code of the City of Rochester (Code) unconstitutional.Supreme Court denied the relief sought in the petition-complaint.
The ordinance at issue was enacted by the Rochester City Council to advance thehealth, safety, and welfare of the residents of the City of Rochester (see Code§ 120-162). To that end, the ordinance seeks to prohibit "outdoor storage"in all districts except specifically enumerated commercial districts (id.§ 120-175). The Code defines "outdoor storage" as "[s]torage of anymaterials, merchandise, stock, supplies, machines and the like that are not kept in astructure having at least four walls and a roof, regardless of how long such materials arekept on the premises" (id. § 120-208).
Plaintiffs contend that Code § 120-175 is unconstitutionally void forvagueness, and we agree. We therefore reverse the judgment and declare section 120-175of the Code to be unconstitutional. Municipal ordinances, like other legislativeenactments, "enjoy an 'exceedingly strong presumption of constitutionality' "(Cimato Bros. v Town of Pendleton, 270 AD2d 879, 879 [2000], lv denied95 NY2d 757 [2000], quoting Lighthouse Shores v Town of Islip, 41 NY2d7, 11 [1976]). The void-for-vagueness doctrine "embodies a 'rough idea offairness' " (Quintard Assoc. v New York State Liq. Auth., 57 AD2d 462,465 [1977], lv denied 42 NY2d 805 [1977], appeal dismissed 42 NY2d973 [1977], quoting Colten v Kentucky, 407 US 104, 110 [1972]), and animpermissibly vague ordinance is a violation of the due process of law (see People vStuart, 100 NY2d 412, 419 [2003]).
"In addressing vagueness challenges, courts have developed a two-part test. . . . [F]irst[,] . . . the court must determine whether the statutein question is sufficiently definite to give a person of ordinary intelligence fair notice thathis contemplated conduct is forbidden by the statute" (id. at 420 [internalquotation marks omitted]; see People v Nelson, 69 NY2d 302, 307 [1987]; see also Matter of Kaur v NewYork State Urban Dev. Corp., 15 NY3d 235, 256 [2010], cert denied subnom. Tuck-It-Away, Inc. v New York State Urban Dev. Corp., 562 US &mdash, 131S Ct 822 [2010]). "Second, the court must determine whether the enactment providesofficials with clear standards for enforcement" (Stuart, 100 NY2d at 420; seePeople v New York Trap Rock Corp., 57 NY2d 371, 378 [1982]).
We conclude that the ordinance fails to pass either part of the test. With respect to thefirst part of the test, we conclude that the ordinance gives ordinary people virtually noguidance on how to conduct themselves in order to comply with it, and the language usedin the ordinance makes it "difficult[ ] for a citizen to comprehend" the precise conductthat is prohibited (Nelson, 69 NY2d at 307). Moreover, with respect to thesecond part of the test, we conclude that the vague language of the ordinance does notprovide clear standards for enforcement and, thus, a determination "whether theordinance has been violated 'leaves virtually unfettered discretion in the hands of' the[code enforcement officer]" (Bakery Salvage Corp. v City of Buffalo, 175 AD2d608, 610 [1991], quoting People v Illardo, 48 NY2d 408, 414 [1979]).
In view of our determination, we do not address plaintiffs' remaining contentions.Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.