Legal Action against Code Enfoecement Officer, NY

[quincy]

I live in a Resort area and not in any kind of Development with Homeowner Regulations.

This problem was really created in recent years in part due to the flood of illegals that have moved into this area.

So Code Enforcement Officers have turned into Bullys who harass anybody who lets them in in order to show they are doing their job.

If I was an Attorney, would I be having this problem? No, I'd be suing the crap put of each and every person who keeps dragging me through the courts for doing nothing wrong. I don't see how I am going to get out of this without an Attorney and I don't know where the money is going to come from for that.

I am merely curious, Q333. This resort area that you live in isn't Oyster Bay, is it?

 

[Q333]

I've asked many times for the info at Village Hall and the clerk tells me to call the Building Inspector. The Town has a website with the Rental Permit info. Everything there refers to Non-Owner Occupied dwellings, there is no mention of owner occupied. There is nothing in writing anywhere covering my situation. I have the chart regarding the Boarder policy but it just states no Secondary kitchens and is not specific. And now I have a signed statement from a Inspector saying I have a Secondary kitchen even though he destroyed it.

I just put in a request for assistance from the NYCLU. I also emailed 2 councilpeople up for reelection.

 

[OHRoadwarrior]

From perusing the zoning codes, it appears he is attempting to make an argument you sponsored an accessory apartment, by virtue of the microwaves existence. If you read the zoning on a residence, having more than one cooking area can create the impression of an accessory apartment. I would video the entire inside of the home, including the storeroom, where the microwave was stored and be prepared to counter any arguments contrary to the zoning code.

ACCESSORY APARTMENT
A secondary dwelling unit established in conjunction with and clearly subordinate to the single-family detached dwelling (one-family dwelling, detached), whether as a part of the same structure as the primary dwelling unit or a detached dwelling unit on the same lot and complies with the same standards outlined in Article IIA, Accessory Apartments.

[Added 7-28-1992 by L.L. No. 34-1992 Editor's Note: Section 3 of this local law stated as follows: "Existing accessory apartments lacking a certificate of occupancy may achieve conforming status without a violation being prosecuted by applying for a building permit within one year of the effective date of this local law and complying with the requirements of this section." This local law shall remain in effect until December 31, 1994. ; amended 4-23-2002 by L.L. No. 7-2002; 10-25-2005 by L.L. No. 57-2005; 12-13-2005 by L.L. No. 69-2005]


FAMILY

[Added 3-27-1984 by L.L. No. 6-1984; amended 9-10-1985 by L.L. No. 7-1985; 3-25-1986 by L.L. No. 5-1986]

A. Any number of persons occupying a single nonprofit dwelling unit, related by blood, marriage or legal adoption, living and cooking together as a single housekeeping unit.

B. Any number of persons, occupying a single nonprofit dwelling unit, not exceeding five, living and cooking together as a single housekeeping unit where all are not related by blood, marriage or legal adoption. A group of persons whose association or relationship is transient or seasonal in nature, rather than of a permanent and domestic character, shall not be considered a family.

C. Notwithstanding the provisions of Subsection B of this definition, a group of unrelated persons numbering more than five shall be considered a family upon a determination by the Zoning Board of Appeals that the group is the functional equivalent of a family pursuant to the standards enumerated in Subsection E herein.

D. In determining whether a group of more than five unrelated person constitutes a family for the purpose of occupying a dwelling unit, as provided for in Subsection C of this definition, the Zoning Board of Appeals shall utilize the standards enumerated in Subsection E in making said determination. Before making a determination under this subsection, the Board of Zoning Appeals shall hold a public hearing, after public notice, as provided under § 330-164. The fee for such an application shall be $75. Said application shall be on a form to be provided by the Zoning Board of Appeals.

E. In making a determination under Subsection D, the Zoning Board of Appeals shall find that:

(1) The group is one which in theory, size, appearance and structure resembles a traditional family unit.

(2) The group is one which will live and cook together as a single housekeeping unit.

(3) The group is of a permanent nature and is neither a framework for transient or seasonal living nor merely an association or relationship which is transient or seasonal in nature. Nothing herein shall preclude the seasonal use of a dwelling unit by a group which otherwise meets the standards of this subsection at its permanent residence.

(4) In no case shall a dwelling be occupied by more than the number of persons permitted under § 330-108 of this chapter.

(5) All other requirements of this chapter regarding the use and occupancy of dwelling units shall be complied with.

(6) Any determination under this subsection shall be limited to the status of a particular group as a family and shall not be interpreted as authorizing any other use, occupancy or activity.

F. Persons occupying group quarters, such as a dormitory, fraternity or sorority house or a seminary, shall not be considered a family.

http://www.ecode360.com/8700216

 

[quincy]

No, not an accessory apartment, OHR. An accessory apartment would be a separate dwelling.

See Chapter 270 Rental Properties, Section 270-15 A(13), Presumptive Evidence of Multi-family Occupancy (presumptive evidence of which would be 2 or more kitchens). This is what would apply to the living situation described here by Q333.

Section 270-15 A(13) describes what a kitchen (secondary or otherwise) is: "a range, oven, hotplate, microwave or other similar device customarily used for cooking or preparation of food and/or a refrigerator."

Your code enforcement officers have been busy in Southampton, haven't they, Q333? Other than the one who was charged with selling drugs and who is probably not doing a whole lot of code enforcing right now , the rest seem to have worked hard to get rent violators prosecuted. Southampton has collected quite a bit in fines this year as a result, which is easy to understand when fines for failure to comply with the rental codes are up to $8,000 for a first offense, and up to $15,000 for subsequent offenses (with jail time possible).

At any rate, contacting the ACLU might be helpful. Good luck.

 

[justalayman]

Not sure this applies to where you are but if it does, wow, are your regs tough. I was ready to say a microwave does not make a bedroom a kitchen but apparently it does:


:http://codes.lp.findlaw.com/nycode/MDW/3/1/33

1. Every space which is intended, arranged or
designed for cooking or warming of food shall be either a kitchen or
kitchenette. The term "kitchen" shall mean such a space eighty square
feet or more in floor area. The term "kitchenette" shall mean such a
space which is less than eighty square feet in floor area.

the worst part is all of the other rules that apply to a kitchen or kitchenette. I wonder; are all the college dorm rooms where the kids have microwaves now kitchens or kitchenettes? I would hope not. There are a lot of rules specific to kitchens and kitchenettes.

I would hope there is some clarification somewhere that does not make any room with a microwave a kitchen or kitchenette. That is such an onerous requirement it is simply absurd.

 

[Q333]

Ok, but again I would point out when he entered, I was renovating the kitchen. The appliances, including the stove were all pulled out and partially dismanteled, the sink was out, the countertops were being replaced. There was no microwave there, built-in or otherwise. The kitchen was clearly not in use. The only microwave he found was in the basement and he destroyed it before he left. So, at the time he drove away, I had zero functioning kitchens. And yet I sit here with paperwork saying I am being charged with a secondary kitchen.


And as for the drug dealer, 3 years ago he came here and wrote me up for a wood pile in my back yard. A neighbor had complained about how it looked. Cofe Enforcement told me to put up a fence on that side. Building Permits said I couldn't put a fence there. I chased my tail on that for awhile and finally put trees in. When I went to court over my wood pile, I was blindsided with a accessory apartment/change of use violation which he wrote from my driveway without entering my home. He had a notarized statement stating he witnessed and observed an accessory apartment without setting foot in my house or having any discussion with me whatsoever about it. I saw a Lawyer at that time who said I could either pay him thousands of dollars to fight the Town, or I could just get another Inspector. I went to court many many times over it. Finally, another code inspector came out and said, "I don't know what Al saw but there is no Accessory Apartment here." I made sure to tell him that Al had never been in the home. He wrote a field inspection report stating that the kitchen had ben removed instead of not found at all. This same microwave was there then and everything I was cited for this time was the same 3 years ago. I went back to court and because it appeared I complied with the town instead of being innocent to begin with, I was fined $250.

So, now you have a little further insight into my frustration. I've never had any other legal troubles exoect a speeding ticket I got 30 years ago.

 

[OHRoadwarrior]

You need to get beyond the outrage and focus on rebutting the presumption " Every space which is intended, arranged or designed for cooking or warming of food shall be either a kitchen or kitchenette". In the future, I would consider denying them entry, absent your lawyer.

 

[Q333]

Thank you for your help. Yes, I am angry and I am grateful that at least someone is listening to me.

As far as denying entry, what's wrong with this picture? An ordinary citizen cannot let a Town Code Officer into their home because they are notoriously unfair and prone to harassment? Even the the Building Inspector said that when I relayed this story to him. Last time I checked, this was still the USA, not Mexico, and I shouldn't have pay thousands of dollars to have rights and protect myself against a Police State. When he came to my house, the front door was open as we were painting and working in the kitchen. He knocked, called out my first name like he knew me, said it's Officer ________, can I come in?" in a friendly tone. I was holding a back splash to the kitchen wall and could not see him. Of course I said, OK. What would you have done?

It doesn't matter though whether I let him in or not. He had the appearance ticket already filled out in his hand. And as I found out from my previous experience with the Drug Dealer, these guys can write you up for whatever they want. He could have said I had circus animals in my home, notarize a statement saying he stepped in elephant dung in my Living Room and send me to court. And then the burden of proof is on me to prove that never happened.

 

[justalayman]

When he came to my house, the front door was open as we were painting and working in the kitchen. He knocked, called out my first name like he knew me, said it's Officer ________, can I come in?" in a friendly tone. I was holding a back splash to the kitchen wall and could not see him. Of course I said, OK. What would you have done?

Um, told them no. Are you old enough to recall Saturday Night Live in the early years? Their skit about "Landshark" comes to mind and the landshark character really parallels the inspector in your situation.

Ok, but again I would point out when he entered, I was renovating the kitchen. The appliances, including the stove were all pulled out and partially dismanteled, the sink was out, the countertops were being replaced. There was no microwave there, built-in or otherwise. The kitchen was clearly not in use. The only microwave he found was in the basement and he destroyed it before he left. So, at the time he drove away, I had zero functioning kitchens. And yet I sit here with paperwork saying I am being charged with a secondary kitchen.

the problem with that; by definition, that did create two kitchens. I think it is ridiculous to apply the rules they have in NY on that but that isn't going to change the fact the rule is there and they can enforce it.

If it were me, I would front an argument that while the ONLY intentional kitchen was being renovated and unusable, you had the microwave available for use as needed. There was no intent to create a permanent kitchen by placing the microwave in the basement and it was not creating an additional kitchen but a temporary replacement area due to the fact that the actual kitchen was not usable as a kitchen.


but the question I have is: how could he have a ticket already written if he had not been in the house and seen the microwave in the basement?

 

[Q333]

As I just relayed. I was given a ticket 3 years for something I didn't have by an Officer who never entered my home so somehow they can do this.

"but the question I have is: how could he have a ticket already written if he had not been in the house and seen the microwave in the basement?"

Based on hearsay. The Officer said his Boss, who is the Head of Code Enforcement, told him to give me the ticket and he was just following orders like a good little member of former German political party whose name I am not allowed to post here. He said his Boss had it on "Good Authority" that I had a separate accessory apartment and 2 kitchens in the house. Anyone here is allowed to file a an anonymous complaint against anyone. You can't get brought up on charges for false complaints like you can for a false police report. I am suing someone and so I would suspect that either she or her lawyer made the call but neither have ever been in the basement of my home. So, she could have also said I had a meth lab run by circus animals and I am guilty until proven innocent.

I said, "Don't you have to inspect my house first before giving me a ticket", He said, "No, I don't". I tried to reason with the guy and asked him to inspect, knowing I had no accessory and that the Inspector didn't care about the microwave in the same spot 3 years earlier. He came out of the basement and said, "Ok, there is no accessory apartment but you have a microwave down there". I shrugged my shoulders and agreed. I took it outside and threw it in the dumpster. There was no attitude on my part at all, I assure you. As a matter of fact. we had a nice chat. He stayed outside for at least 5 minutes while I went back to working in the kitchen. When I came out later, I found the microwave moved and the cord cut. I thought he was actually trying to HELP me by destroying it. I was NOT written up for Accessory Apartment, but for a separate kitchen.


As I write I am still finishing my kitchen and have no microwave or useable cooking device in the house at all.

 

[FarmerJ]

Some times city inspectors do the crap they do because they are getting pressure from above , My first house that I bought in 1987 in Minneapolis MN was built in 1888, it did not have a huge string of owners some changes had been made but many things were dated , closing was near the end of sept 87 and I moved in at end of oct 87. I had not lived there long when one day a woman came to the door after answering her she told me she was with the city of mpls and wanted to come in, I didnt call anyone from city for any thing , I asked why , She again told me she was with the city and wanted to come in then asked who my landlord was , I pointed to my chest and told her I had not called her for any reason so no you cant come in. She was the newest inspector and did the same thing to several others in the area that were tenants , M , she too declined but had to use her foot to hold the door to keep this inspector from pushing way in. SO know this , someone in your community has raised a huge stink ( likely someone in office now) to cause part of this , NOW onto clerks that refuse to provide you with answers , Next time around feel free to suggest to the clerk that the information you seek from them is public information , if they refuse to either provide you with a copy of ord to read for your self even if you have to pay a fee or if they attempt to re direct you to the inspector make it very clear to them that they are going to get a formal complaint in writting against them due to them failing to provide you with simple public info , and You know what , make a copy and send newspaper for editorial column And Dont let them get away with not providing to you the public information you seek ! now last but not least halloween is coming up, I suggest you set up a table in your front yard , put dressed manequins (bad spell) at the table complete with coffee mugs , old coffee pot and one dead nuker and a old toaster for your new outdoor kitchen LOL also Like OHRoadwarrior said dont let them in ever again, if inspections shows up with out you calling dont let them in , run them off while you tell them next time around your attorney has to be present.

 

[justalayman]

well, unless they have changed things. the government has the requirement to prove the charges, not the other way around. It's a moot point since he was in the house but when I met him at the door and he said; here's a ticket for having 2 kitchens, I would have said; but I don't have two kitchens so I'll address this with the courts and sent him on his way. At the hearing I would have stated: I don't have two kitchens.

After that, it is up to the charging entity to prove you do. That little thing called the Constitution prevents them from (legally) finding you guilty without evidence. If they do find you guilty (illegally), there are processes in place to deal with that.

The problem now is that he did see the microwave so you did have a second kitchen. I would suggest either accepting guilt or start poring over decisions in your area for situations such as this where the fact a "kitchen" was not a functional kitchen, having facilities creating a second kitchen were really the only lawfully defined kitchen.


and you can put a microwave in the actual kitchen so you will have something to cook with (although I hate microwave cooking)

 

[quincy]

Q333, I think you mentioned that you contacted the NY ACLU, and I think that was a good decision on your part. Many of these towns in your area seem to have overstepped legal lines a bit with a few of their ordinances and with their enforcement of some of these ordinances.

As for the microwave in the trash, the code enforcement officer, had he trespassed onto your property to retrieve the microwave out of your dumpster, could have violated a law, however since you basically invited him into your home and you apparently didn't protest when he removed the microwave and destroyed it, he is probably on pretty safe legal ground.

If the microwave was placed as trash at the curb, then anyone is legally entitled to take it. There would be no trespassing.

Again, make contact with the ACLU and have them review this "kitchen/kitchenette" provision in the ordinance.

Good luck.

 

[Q333]

[As for the microwave in the trash, the code enforcement officer, had he trespassed onto your property to retrieve the microwave out of your dumpster, could have violated a law, however since you basically invited him into your home and you apparently didn't protest when he removed the microwave and destroyed it, he is probably on pretty safe legal ground.
I would have protested if I knew. He didn't ask. I didn't see it. I went out an hour later and found it. After I came from court Friday I called this Officer and got his co-worker instead. I was "extremely displeased" and gave him a brief overview of what hapenned including the destroyed microwave part. I asked for a "Second Opinion" from another Officer. He said he would talk to the original Officer and get back to me. So, I would consider that a protest.

Good luck.[/QUOTE]

Thank you

 

[justalayman]

yet in this thread you said:

I took it outside and threw it in the dumpster.

When I came out later, I found the microwave moved and the cord cut. I thought he was actually trying to HELP me by destroying it.

Can I sue the Code Enforcement Officer in Small Claims for destruction of property and the improper report?

so you had no problems with him cutting the cord until you realized he was still going to cite you for having a second kitchen. YOU are the one that put it in the dumpster as well.

In other words; your argument now that he had no right to cut the cord is retaliatory because he wrote you up. I suspect you need to let that one go. That is not going to do you any good. If you had an issue with him cutting the cord, you should have filed a complaint at the time.

I tried to reason with the guy and asked him to inspect, knowing I had no accessory and that the Inspector didn't care about the microwave in the same spot 3 years earlier

just because a prior inspection didn't result in a citation or order to remedy doesn't mean they couldn't have done so.

Hell, you are the one that asked the guy to inspect your house. While I agree the rule is overly restrictive, the fact is; it is a rule. He was not only allowed in to inspect but actually invited in to inspect which resulted in the citation.