Dep t of Buildings v. 74 Targee Street, Staten Island OATH Index No. 1302/09 (May 27, 2009)

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1 Dep t of Buildings v. 74 Targee Street, Staten Island OATH Index No. 1302/09 (May 27, 2009) Petitioner established that the premises is being used for an impermissible commercial use. Respondents failed to establish a defense of legal nonconforming use. Closure recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - OWNERS, OCCUPANTS AND MORTGAGEES OF 74 TARGEE STREET, STATEN ISLAND Respondents REPORT AND RECOMMENDATION JULIO RODRIGUEZ, Administrative Law Judge This zoning violation proceeding was referred to this tribunal pursuant to section of the Administrative Code (the padlock law ). Petitioner alleges that the annex building on the premises at 74 Targee Street, Staten Island, also known as Block 544, Lot 123, is being impermissibly used for a business office. Petitioner seeks an order of closure pursuant to the padlock law (ALJ Ex. 1). See Admin. Code A hearing was held on February 11, Respondent, Daniel Catalfumo, owner of the premises, appeared and was represented by David Darcy, an architect. No other respondents appeared. Respondent conceded that the premises has been used as a business office. However, he argued that the use constitutes a legal nonconforming use because the premises has been continuously used as a business office since The record was held open until March 6, 2009, in order for the parties to submit additional documentation regarding legal use documents that existed for the premises. For the reasons set forth below, I find the use of the premises violates the Zoning Resolution and the padlock law, and recommend closure of the premises in a manner that will not impair access to any residence on the premises.

2 - 2 - PRELIMINARY ISSUE Prior to the hearing, respondent moved to dismiss the petition. Respondent argued that the Department was collaterally estopped from re-litigating whether the commercial uses in the auxiliary building on the premises are permissible uses based on a prior decision from the Environmental Control Board ( ECB ) issued on January 22, In that matter, an ECB hearing officer found that the auxiliary building on the premises was used continuously as a commercial establishment [dating] back to before the zoning changed.... The Department opposed the motion to dismiss. By letter dated January 22, 2009, I denied respondent s motion. As Judge Casey explained in Dep t of Buildings v Avenue L, Brooklyn, OATH Index No. 1023/06 (Mar. 30, 2006), the doctrine of res judicata (claim preclusion), and the related concept of collateral estoppel (issue preclusion), bar relitigation of an identical claim or issue by the same parties where there has been a final judgment on the merits. See Sterling Drug, Inc. v. Weinberger, 509 F.2d 1236 (2d Cir. 1975); Ryan v. New York Telephone Co., 62 N.Y.2d 494 (1984). This tribunal has repeatedly and consistently held that neither res judicata nor collateral estoppel precludes an action under the padlock law where there has been a prior ECB proceeding. See Dep t of Buildings v. Block 11356, Lot 10, Blake Avenue, Queens, OATH Index Nos. 1897/02 & 1926/02 (Feb. 19, 2003); Dep t of Buildings v. 116 East 73 rd Street, Manhattan, OATH Index No. 1807/02 (Jan. 24, 2003); Dep t of Buildings v & th Street, Queens, OATH Index No. 1896/02 (Nov. 18, 2002). As those cases recognize, there are significant differences between hearings pursuant to the padlock law and ECB summary violation proceedings. ECB proceedings are less comprehensive, have a much different purpose, and have far less severe consequences. ANALYSIS The premises at 74 Targee Street, in Staten Island, is located in a R3-2 residential district and consists of a two family dwelling and an auxiliary building. There is no dispute that the auxiliary building is currently being used to house a bail bonds office, Spartan Bail Bonds, and the law office of John M. Murphy Jr., both of which are commercial uses that fall within Use Group 6 of the Zoning Resolution. Zoning Resolution 32-15(B) (Sept. 25, 2002); Zoning Resolution. App. A: Index of Uses, Sept. 9, The current use of the premises is contrary to the Zoning Resolution which does not permit commercial uses as of right in residential districts.

3 - 3 - Use Group 6 encompasses commercial uses permitted as of right only in certain commercial districts, not in R3-2 residential districts. There is no certificate of occupancy that would permit commercial uses. A docket sheet regarding the installation of a tankless heater on the subject premises in the 1950 s is the only legal use document produced by the Department (Pet. Ex. 8). The docket sheet lists the premises as a two family dwelling. Thus, the current use of the premises for a business office is an impermissible commercial use in violation of the Zoning Resolution, constituting a "public nuisance" within the meaning of the padlock law. Although the current use of the premises is inconsistent with the Zoning Resolution, respondent argued that the commercial use at the premises constitutes a legal nonconforming use. Section of the Zoning Resolution defines a nonconforming use as "any lawful use, whether of a building or other structure or of a tract of land, which does not conform to any one or more of the applicable use regulations of the district in which it is located, either on December 15, 1961 or as a result of any subsequent amendment thereto." To establish a defense of prior nonconforming use, a party must show that the commercial use of the premises predated the 1961 Zoning Resolution and was legal at the time it was established, and that the premises have continued to be commercially occupied since that time without an impermissible change in or interruption of the use for a period of two or more years. Town of Virgil v. Ford, 160 A.D.2d 1073 (3d Dep't 1990); Dep t of Buildings v Jessup Avenue, Bronx, New York, OATH Index No. 882/94 (June 29, 1994); Dep t of Buildings v Decatur Avenue, Bronx, New York, OATH Index No. 349/94 (Jan. 10, 1994); Dep t of Buildings v. 137 Osgood Avenue, OATH Index No. 888/93 (Sept. 23, 1993). Nonconforming uses are necessarily inconsistent with the established land-use pattern and are generally viewed by the law as detrimental to the zoning scheme. Toys R Us v. Silva, 89 N.Y.2d 411, (1996). The overriding public policy of zoning in New York State is aimed at the reasonable restriction and eventual elimination of nonconforming uses. Id. The disfavoring of nonconforming uses was expressly incorporated into the 1961 Zoning Resolution. The purposes of the Zoning Resolution were to encourage the development of desirable residential, commercial, and manufacturing areas with appropriate groupings of compatible and related uses and thus to promote and to protect public health, safety, and general welfare. Id. at 418 (quoting Zoning Resolution 51-00). The Zoning Resolution s Statement of Legislative Intent reads that [t]he regulations governing non-conforming uses are therefore adopted in

4 - 4 - order to provide a gradual remedy for existing undesirable conditions resulting from such incompatible non-conforming uses. Id. A defense of prior nonconforming use is an affirmative one that respondent bears the burden of proving. Town of Ithaca v. Hull, 174 A.D.2d 911, 913 (3d Dep't 1991); Dep t of Buildings v. 232 Mount Hope Place, Bronx, OATH Index No. 1207/94 (Oct. 28, 1994). Here, respondents failed to meet this burden. Respondent testified that he purchased the premises in 2005, at which time the auxiliary building was occupied as a law office. Respondent submitted a letter dated September 10, 2007, that he received from the New York City Department of City Planning which reads that the premises has been located in an R3-2 zoning district, since Prior to 1961 it was located in an Unrestricted District which allowed residential and commercial uses (Resp. Ex. B). Respondent argued that since 1958 the premises has been continuously used for commercial purposes consisting of a bail bonds office, a real estate office, a car service base, and/or a law office. As proof, respondent offered documentary evidence including photocopies of microfilm records of relevant portions of telephone directories maintained by the public library for 1958, 1962, 1963, 1959 through 1961, 1965 through 1967, 1973 through 1976, and 1981 to 1982, letters from past and present tenants, and an affidavit by Anastasios Sarantos (also known as Thomas Sarantos), a neighbor, who also testified. At best, respondent s documentary evidence established that the premises at issue housed a bail bonds office, listed under Massa Philip, from 1958 to 1967 (Resp. Exs. A, H), a real estate office, listed under Geba, from 1973 to 1976 (Resp. Ex. C), a car service, listed under Safe Car Service, from 1981 to 1982 (Resp. Ex. D), the law office of John M. Murphy Jr., Esq. from 2000 to 2007 (Resp. Ex. E), and a bail bonds office, Spartan Bail Bonds, from 2007 to present (Resp. Ex. F). The documentary evidence does establish what if any commercial uses were at the premises from 1967 to 1973, 1977 to 1980, and 1983 to In order to fill gaps, respondent relied upon Mr. Sarantos s affidavit (Resp. Ex. I). In the affidavit, Mr. Sarantos affirmed that he is the owner of 76 Targee Street and that he has lived there continuously since Prior to purchasing 76 Targee, Mr. Sarantos resided at 74 Targee Street, from 1966 to Mr. Sarantos went on to affirm that Mr. Geba, the then owner of the premises at issue, and Mr. Geba s daughter-in-law, owned a real estate office which was maintained in the auxiliary building on the premises. The real estate office remained on the premises until the property was sold to Mr. Carlos Maldonado in Mr. Maldonado then

5 - 5 - opened a car service in the auxiliary building which remained until the auxiliary building was rented to Mr. John M. Murphy Jr., Esq., in Mr. Sarantos s in court testimony was in stark contrast to the affidavit he authored out of court. At trial, Mr. Sarantos testified that he could not recall when Mr. Geba sold the property to Mr. Maldonado. He did recall that Mr. Maldonado operated a limousine service from the auxiliary building, which he opened within several months of purchasing the property. Mr. Sarantos testified that Mr. Maldonado was forced to close the limousine business within a few years due to the rising costs of insurance. Most significantly, on cross examination, Mr. Sarantos acknowledged that from 1982 to 2000 the auxiliary building did not house any businesses. This testimony, which establishes an interruption of the commercial use for a period of eight years, is fatal to respondent s defense. See Zoning Resolution (Oct. 7, 1976). FINDINGS AND CONCLUSIONS The subject premises is being used for an impermissible commercial purpose in a residential district in violation of the Zoning Resolution constituting a public nuisance. RECOMMENDATION I recommend that the Commissioner issue an order of closure consistent with the above findings. May 27, 2009 SUBMITTED TO: ROBERT D. LiMANDRI Commissioner APPEARANCES: KEVIN M. O SULLIVAN, ESQ. Attorney for the Petitioner DAVID DARCY Representative for Respondent Catalfumo Julio Rodriguez Administrative Law Judge