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No appeal expected in challenge to Brockport law

The Village of Brockport’s 2008 law permitting property searches to check for building code violations is constitutional.

The Appellate Division, Fourth Department has ruled that a village law passed in 2008 does not preempt a state law and that Monroe County Supreme Court Justice Matthew A. Rosenbaum should have declared the law constitutional instead of dismissing the complaint.

The higher court agreed with Justice Rosenbaum on several other points. Justice Rosenbaum, who heard the case in the summer of 2009, did uphold the village’s law — it permits property searches to check for building code violations, as well as allowing inspectors to obtain an administrative search warrant if an owner does not consent to having property inspected.

“Hopefully that helps put to rest whether or not a municipality can require reasonable regulations on primary property,” said attorney Michael P. Leone, who represents the village. “The village believed that it was important to have basic regulations in place in order to regulate rental properties to ensure the health, safety and welfare of the residents of the village.”

Leone, of Harris, Chesworth, O’Brien, Johnstone, Welch & Leone LLP, said a more subtle point to come out of the decision is the idea that an ongoing regulation was declared a Type II action by the village board, meaning it required no further environmental review.

The Brockport Sweden Property Owners Association brought suit by its treasurer, Norman Giancursio, after passage of Local Law No. 8. Members contended the village board did not comply with State Environmental Quality Review Act regulations and that it should have declared the proposal a Type 1 action, which, according to the state Department of Environmental Conservation (www.dec.ny.gov), is likely to require preparation of an Environmental Impact Statement.

“They argued it had to be Type I in that there would be a whole bunch of additional requirements,” Leone said, noting the village did not abuse its discretion, but simply amended ongoing regulations on activities it had been regulating. He said it did not change the zoning or the village footprint.

The association, which represents a group of local landlords, was seeking to annul the determination enacting the law, as well as having the law itself declared unconstitutional in that it was preempted by and inconsistent with state law.

Members argued the village was trying to force illegal zoning changes and did not follow required procedures to amend Chapter 36 of the Brockport Village Code, the section on Minimum Housing and Buildings Code.

“We think the reading of Type II is too broad since it allows legislative changes to be made without SEQRA review by calling them continuing administration,” said Alan J. Knauf of Knauf Shaw LLP, who represents the association. “But, the court did not agree.”

The appellate division, in its Friday decision, noted the role of the court in reviewing SEQRA determinations is limited to whether it “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

The panel of five judges, led by Presiding Justice Henry J. Scudder, cites a number of cases including Matter of Dunk v. City of Watertown 11AD3d 1024-25; and Matter of Forman v. Trustees of State Univ. of N.Y., 303 AD2d 1019, 1020.

“Contrary to the petitioner’s contention, supreme court properly concluded that the determination of the village board that the enactment of Local Law No. 8 constituted a Type II action pursuant to SEQRA was not arbitrary and capricious, inasmuch as such action constitutes ‘routine or continuing agency administration and management …’” and did not include “new programs or major reordering of priorities that may affect the environment. Thus, we conclude that the court properly dismissed the petition.”

The higher court also rejected the association’s contention that allowing the code enforcement officer to apply for an administrative warrant to inspect rental properties violates the probable cause requirement of the Fourth Amendment.

The appellate division ruled the challenged local law, like all legislative enactments, “enjoys an ‘exceedingly strong presumption of constitutionality’” and that, “on its face,” it does not unconstitutionally penalize a property owner for refusing to consent and “bears a reasonable resemblance” to the village’s goals of promoting public health and safety and maintaining property values.

The court also concluded that the association’s contentions regarding the part of the law limiting the village’s liability with respect to the inspection of rental properties “is not ripe for review” and that its contention that the law may abrogate nonconforming uses is also not ready to be reviewed.

“The appellate division clearly looked at our arguments and considered them carefully,” Knauf said. “Some of our arguments were determined to be premature. They did not want to say the search warrant procedure was invalid on its face, even if in a particular case it would be contrary to the Fourth Amendment and the New York Constitution.

“We continue to believe that justifying a search warrant on the basis of the refusal of a property owner to allow access when there is no probable cause to believe there are violations eliminates the protection from invasion into the home that the Founders intended, but it looks like that issue will have to be raised on a motion to quash a particular subpoena,” he said.

Knauf said an appeal to the state Court of Appeals is unlikely since it would take leave.

“We are probably not going to pursue that,” he said.

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