IN RE: THOMAS C. TURNER AND KINGSLEY STANARD

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THOMAS C. TURNER AND KINGSLEY STANARD, PETITIONERS—PLAINTIFFS–APPELLANTS, v. MUNICIPAL CODE VIOLATIONS BUREAU OF CITY OF ROCHESTER AND CITY OF ROCHESTER, RESPONDENTS- DEFENDANTS–RESPONDENTS.

CA 14–00572

Decided: November 21, 2014

PRESENT:  SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. SANTIAGO BURGER ANNECHINO LLP, ROCHESTER (MICHAEL A. BURGER OF COUNSEL), FOR PETITIONERS–PLAINTIFFS–APPELLANTS. T. ANDREW BROWN, CORPORATION COUNSEL, ROCHESTER (SARA L. VALENCIA OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and judgment is granted in favor of petitioners-plaintiffs as follows:

It is ADJUDGED and DECLARED that section 120–175 of the Municipal Code of the City of Rochester is unconstitutional under the United States and New York Constitutions.

Memorandum:  Petitioners-plaintiffs (plaintiffs) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, to declare section 120–175 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 the health, 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 any materials, merchandise, stock, supplies, machines and the like that are not kept in a structure having at least four walls and a roof, regardless of how long such materials are kept on the premises” (id. § 120–208).

Plaintiffs contend that Code § 120–175 is unconstitutionally void for vagueness, and we agree.   We therefore reverse the judgment and declare section 120–175 of the Code to be unconstitutional.   Municipal ordinances, like other legislative enactments, “enjoy an ‘exceedingly strong presumption of constitutionality’ “ (Cimato Bros. v. Town of Pendleton, 270 A.D.2d 879, 879, lv denied 95 N.Y.2d 757, quoting Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11).   The void-for-vagueness doctrine “embodies a ‘rough idea of fairness' “ (Quintard Assoc. v. New York State Liq. Auth., 57 A.D.2d 462, 465, lv denied 42 N.Y.2d 805, appeal dismissed 42 N.Y.2d 973, quoting Colten v. Kentucky, 407 U.S. 104, 110), and an impermissibly vague ordinance is a violation of the due process of law (see People v. Stuart, 100 N.Y.2d 412, 419).

“In addressing vagueness challenges, courts have developed a two-part test ․ [F]irst[,] ․ the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” (id. at 420 [internal quotation marks omitted];  see People v. Nelson, 69 N.Y.2d 302, 307;  see also Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 256, cert denied sub nom.  Tuck–It–Away, Inc. v New York State Urban Dev. Corp., 562 U.S. _, 131 S Ct 822).  “Second, the court must determine whether the enactment provides officials with clear standards for enforcement” (Stuart, 100 N.Y.2d at 420;  see People v. New York Trap Rock Corp., 57 N.Y.2d 371, 378).

We conclude that the ordinance fails to pass either part of the test.   With respect to the first part of the test, we conclude that the ordinance gives ordinary people virtually no guidance on how to conduct themselves in order to comply with it, and the language used in the ordinance makes it “difficult [ ] for a citizen to comprehend” the precise conduct that is prohibited (Nelson, 69 N.Y.2d at 307).   Moreover, with respect to the second part of the test, we conclude that the vague language of the ordinance does not provide clear standards for enforcement and, thus, a determination “whether the ordinance has been violated ‘leaves virtually unfettered discretion in the hands of’ the [code enforcement officer]” (Bakery Salvage Corp. v. City of Buffalo, 175 A.D.2d 608, 610, quoting People v. Illardo, 48 N.Y.2d 408, 414).

In view of our determination, we do not address plaintiffs' remaining contentions.

Frances E. Cafarell

Clerk of the Court