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At a Trial Term of the Village ofSolvay Justice Court, held in and for the Village of Solvay, at Solvay, New York on the 1h day of February, 2008.
PRESENT: Hon. Daniel F. Mathews.III. Presiding X THE PEOPLE OF THE STATE OF NEW YORK -vsPAUL MOTOLO DECISION AND ORDER
The above entitled matter having duly come on to be heard by this Court, without a jury, on the 7thday of February, 2008, and the Village of Solvay having appeared by and through counsel, Samuel Young, Esq., and the Defendant Paul Motolo having personally appeared with Counsel, Steven Snyder, Esq~,and the Court having heard the testimony from sworn witnesses Donna Taggart, Code Enforcement Officer for the Village of Solvay in prosecution of the action, and Defendant Paul Motolo, in defense of the allegations, and exhibits having been received and due deliberation thereon having been had, NOW, THEREFORE, the Court finds as follows: Defendant Paul Motolo was cited by the Village of Solvay Code Enforcement Office by two separate Informations, both dated November 11,2007, the first Information (hereinafter referred to as Information #1) alleges 3 violations of the Village ofSolvay Code, to wit: §89-15, §165-8and §96-1, for remodeling without a valid building permit and allowing debris to be located on the property. The second Information (hereinafter referred to as Information #2) alleging 14 violations of the State of New York IBCC; Property Maintenance Codes §108.1.1; §303.1; §303.2; §303.4; §303.7; §303.9; §303.10; §303.12; §303.13; §303.13.1; §303.13.2; §303.16;§604.3; §702.4, alleging unsafe porches, basement hatchway, roof and electrical hazards, as well as chipped and peeling paint, broken and/or missing windows and doors, AND, the testimony of Code Enforcement Donna Taggart and Defendant Paul Motolo having been in sum and substance as follows: that Defendant Motolo undertook the re-roofing and re-siding of the property located at 205 King Avenue; that no building permit was ever appliedfor nor issued for any work to be done at 205 King Avenue; Defendant Motolo having testified that he had hired a contractor to perform the work on his behalf; that the contractor had removed the siding and the roof shingles; during the course of having the roof re-shingled, the contractorhad tarped the roofto protect it from the weather while the re-roofing was ongoing, Page 1 of 8
and the tarp had blown off during a storm on two separate occasions, the first causing slight water damage, and the second causing significant water damage to the interior walls due to rain; that Defendant Motolo contacted his insurance company which hired contractors to remove the interior sheet rock due to the potential for mold; that the contractor hired by the insurance company did in fact remove the sheet rock in the interior of the home; that during the course of the renovation, a Stop Work Order was issued by the Code Enforcement Officer on June 11, 2007 prohibiting Mr. Motolo "from any construction, alterations, or repairs on the premises for any purposes". See People's Exhibit #4. The Stop Work Order issued alleged "Remodeling without a Building Permit"; AND the Court having reviewed the pertinent portions of the Village of Solvay Code and the New York State Property Maintenance Code and the Residential Code of the State of New York, and the Court therefore finds as follows: INFORMATION #1 The pertinent part of the factual allegations ofInformation #1 reads as follows: ". . . on or about the 11thday of June, 2007, at 205 King Avenue in the Village of Solvay, County of Onondaga and State of New York, at about 4:14 p.m. o'clock in the fore/after noon of that day, said defendant did commit the violation of Remodeling without a valid Building Permit and allowing debris to be located on the property, contrary to the provisions of section Chapters 165-8 & 89-15, and 96-1 of the Village ofSolvay Codes. . ." The accusatory part ofInformation #1 alleges as follows (in italics): Count #1: violation of Village ofSolvay Code §89-15, 'Noperson shall commence erection, construction, removal, improvement, demolition, conversion or change in nature of the occupancy of any building or structure or cause same to be done withoutfirst obtaining s separate Building Permitfrom the Code Enforcement Officerfor each building or structure' - However, the balance of §89-15 of the Code goes on to say". . . except that no building permit shall be requiredfor the performance of ordinary repairs which are not structural in nature." The was no proof in the record that the work performed by the Defendant was structural in nature, and the section under which the Defendant was cited does not apply to the type of work commenced. The Village Code has no permit requirements for remodeling, even though the Code Enforcement Officer uses the term remodeling in the factual portion of the accusatory instrument. Therefore, Count #1 of Information #1 is dismissed. violation of Village of Solvay Code §165-8, 'Before the construction or alteration of any building or structures, or anypart of either, or the Page 2 of 8
excavation therefore is commenced, the owner shall submit to the Code Enforcement Office a detailed statement of such plans and structural drawings of theproposed work as the Building Code may require. Such statement shall show theproposed cost and general design of the proposed building, structure or alterations' - Likewise, this section under ~hich the Defendant was cited does not apply to the type of work commenced by the Defendant. The work done by Defendant or his contractor does not fall within the common definition of 'construction' nor the definition of 'alteration' as that term is defined in the Residential Code of New York State. It should be noted that the Village of Solvay Code does not provide a definition of either 'construction' or 'alteration'. Therefore, Count #2 of Information #1 is dismissed. Count #3: violation of Village of Solvay Code §96-1, 'noperson shall throw, deposit, sweep, or cause the accumulation of ashes, refuse, dirt, grass clippings, leaves, waste or garbage upon any street, sidewalk orpublic
place or in any private street, land or premises'
- Based upon
testimony of CEO Taggart, the contractors materials and debris were under a tarp which was located on the property. Defendant Motolo testified that the storm which blew the tarp off the roof also scattered some building materials and debris, but there was no intentional depositing of debris onto the neighbors property. Defendant Motolo also testified that he rented a dumpster and the debris was cleaned up when brought to the defendant's attention. Count #3 of Information #1 is dismissed. INFORMATION #2: The pertinent part of the factual allegations of Information #2 reads as follows: " . . . on or about the 11thday of June, 2007, at 205 King Avenue in the Village of Solvay, County of Onondaga and State of New York, at about 4:14 p.m. o'clock in the fore/after noon of that day, said defendant did commit the violation of "Allowing unsafe porches, including 2nd floor porch, basement hatchway, roof & electrical hazards. Also allowing the exterior of the building to have chipped & peeling paint, broken &/or missing windows and doors, contrary to the provisions of section 108.1, 303.1, 303.2, 303.4, 303.7, 303.10, 303.12, 303.13, 303.16, 604.3, 702.4 of the State of new York IBCC: Property Maintenance Codes. . ." The accusatory part ofInformation #2 alleges as follows (in italics): Count #1:
§P M 108.1.1 Unsafe structures. "An unsafe structure is one that is found to be dangerous to the life, health, property or safety of the public or the occupants of the structure by not providing minimum safeguards to protect or warn occupants in the event of fire, or because such structure contains
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unsafe equipment or is so damaged, decayed or dilapidated, structurally unsafe, or of suchfaulty construction or unstablefoundation, thatpartial or complete collapse ispossible" - There is absolutely no evidence in the record to indicate that the property cited is structurally unsafe, and Count #1 of Information #2 is dismissed. Count #2:
§P M 303.1 General. "The exterior of a structure shall be maintained in good repair, structurally sound and sanitary so as not to pose a threat to the public health, safety or welfare" - The testimony received does not
show the property to be in poor repair, structurally unsound or unsanitary. To the contrary, the testimony was that the Defendant was in the process ofre-siding the house when he was issued a Stop Work Order prior to the new siding being installed. But for the issuance of the Stop Work Order, this potential violation would not have been in existence except for the period of time it took for the contractor to strip the old siding and install the new. Because a building permit is not required for the work being performed, the stop work order is therefore invalid. Count #2 of Information #2 is dismissed in the interest of justice. Count #3:
§303.2 Protective treatment. All exterior surfaces, including but not limited to, doors, door and window frames, cornices, porches, trim, balconies, decks and fences shall be maintained in good condition. Exterior wood surfaces, other than decay-resistant woods, shall be protectedfrom the elements and decay by painting or other protective covering or treatment. Peeling, flaking and chipped paint shall be eliminated and surfaces repainted. All siding and masonry joints as well as those between the building envelope and the perimeter of windows, doors, and skylights shall be maintained weather resistant and water tight. All metal surfaces subject to rust or corrosion shall be coated to inhibit such rust and corrosion and all surfaces with rust or corrosion shall be stabilized and coated to inhibit future rust and corrosion. Oxidation stains shall be removedfrom exterior surfaces. Surfaces designed for stabilization by oxidation are exempt from this requirement. The testimony received at trial of both CEO Taggart and Defendant Motolo was that the existing aluminum siding on the building was removed in the course of replacing same, thereby exposing chipped and peeling paint. The misplaced logic of the Code Enforcement Officer that this exposed chipped paint should acts as the impetus for a violation of the Property Maintenance Code is unfathomable. A homeowner should have a reasonable period of time in order to enhance the property, without fear of repercussion from the Code Enforcement Office. Therefore, this charge is dismissed in the interest of justice.
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§PM 303.4 Structural members. All structural members shall be maintainedfree from deterioration, and shall be capable of safely supporting the imposed dead and live loads. There is absolutely no evidence in the record, aside from the conjecture of the Code Enforcement Officer concerning the second floor porch roof, that the structural members are deteriorated or unable to support a load. The position of the Village is that the Defendant must prove that the structural supports are not deteriorated or are otherwise adequate. This is an unfair and improper shifting ofthe burden of proof. Since the Village failed to sustain its burden of proof on this charge, County #4 is dismissed.
§PM 303.7 Roofs and drainage. The roof andflashing shall be sound, tight and not have defects that admit rain. Roof drainage shall be adequate to prevent dampness or deterioration in the walls or interior portion of the structure. Roof drains, gutters and downspouts shall be maintained in good repair andfree from obstructions. Roof water shall not be discharged in a manner that creates a public nuisance. Again, the testimony received was that this was an ongoing roofing and siding project. Unfortunately, during a rain storm, the tarp on the roof blew off on two separate occasions, resulting in the interior of the property sustaining water damage, which in turn resulted in an insurance claim, and thereafter, the homeowner/defendant's insurance company requiring that the interior ofthe property be gutted. For the reasons enumerated on Count #3, this charge is likewise dismissed. §303.9 Overhang extensions. All overhang extensions including, but not limited to canopies, marquees, signs, metal awnings,fire escapes, standpipes, and exhaust ducts shall be maintained in good repair and be properly anchored (sic) metal or wood shall beprotectedfrom the elements and against decay or rust by periodic application of weathercoating materials, such as paint or similar surface treatment. There is no evidence in the record that the building in question contained any qualified 'overhang extensions' as enumerated in this section, and this charge is therefore dismissed. §PM 303.10 Stairways, decks,porches and balconies. Every exterior stairway, deck,porch or balcony, and all appurtenances attached thereto, shall be maintained structurally sound, in good repair, with proper anchorage and capable of supporting the imposed loads. The Village has again failed to establish any violation of this section, and has rather attempted to shift the burden to the Defendant to disprove a violation. This charge is dismissed.
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§PM 303.12 Handrails and guards. Every handrail and guard shall be firmly fastened and capable of supporting normally imposedloads and shall be maintained in good condition. Again there is no proof in the record ofthis.alleged violation, and again the Village attempts to shift the burden of proof. This charge is dismissed. §303.13 Window, skylight and doorframes. Every window, skylight, door andframe shall be kept in sound condition, good repair and weather tight. The evidence presented, including the testimony of Defendant Motolo, was that a basement window was in fact broken. However, Defendant Motolo further testified that the basement window was broken by the company hired by his insurance company to remove the sheet rock in order to facilitate the removal of the debris through the window. Defendant Motolo further testified that the window would have been replaced upon the completion of the work. However, he was unable to do so because of the Stop Work Order issued by the Code Enforcement Office. This charge is dismissed in the interest of justice.
§303.13 Glazing. All glazing materials shall be maintainedfree from cracks and holes. The factual portion ofthe accusatory instrument does not address window glazing, only 'broken and/or missing windows' and therefore, this charge is dismissed based upon a defective accusatory instrument. §PM 303.13.2 Openable windows. Every window, other than afixed
window, shall be easilyopenableandcapableof beingheld inpositionby
window hardware. There is no proof in the record of non-openable windows, other than the testimony of CEO Taggart that the plywood depicted in the top right photo of page 5 of People Exhibit #3, was at one time a window that has since been boarded up. This is again conjecture on the part of the Village that this was at one time a window. In any event, the credible evidence of Defendant Motolo was that once the existing siding was removed, this plywood was exposed, and that he was unaware of its existence. It is also noted that the siding was on the building when Defendant Motolo purchased the property, and that he took no action in boarding any windows. This charge is dismissed for the Village's failure to sustain its burden of proof.
Count #12: §PM 303.16. Basement hatchways. Evert basement hatchway shall be maintained to prevent the entrance of rodents, rain and surface drainage water. The evidence presented showed that the basement hatchway was in disrepair. However, Mr. Motolo testified that he was uncertain how the
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hatchway came to be in the condition depicted in the picture, but did acknowledge that the contractors hired by the insurance company did access the basement in order to put either heaters or de-humidifiers in the basement in an attempt to dry same. In any event, Defendant Motolo testified that the hatchway would have been repaired but for the issuance of the Stop Work Order. This charge is dismissed in the interest ofjustice. Count #13: §PM 604.3 Electrical system hazards. Where it isfound that the electrical system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, improperfusing, insufficient receptacle and lighting outlets, improper wiring or installation, deterioration or damage, orfor similar reasons, the defects shall be corrected to eliminate the hazard. The credible testimony was that an exterior light fixture was knocked off its bracket when the siding was being removed, and that Mr. Motolo intended to have the defect corrected as soon as the new siding was installed, however he was unable to do so due to the Stop Work Order issued by the Code Enforcement Office. This charge is likewise dismissed in the interest of justice due to the unreasonable action of the Code Enforcement Office in not allowing Mr. Motolo to remedy the defect by the issuance of the Stop Work Order.
§PM 702.4 Required emergency escape openings shall be maintained in accordance with the code in effect at the time of construction, and the following: Required emergency escape and rescue openings shall be operationalfrom the inside of the room without the use of keys or tools. Bars, grilles, grates, or similar devices arepermitted to beplaced over emergency escape and rescue openingsprovided the minimum net clear opening size complies with the code that was in effect a the time of construction, and such devices shall be releasable or removablefrom the inside without the use of a key, tool, orforce greater than that which is requiredfor normal operation of the escape and rescue opening. The factual portion of the accusatory instrument relative to this charge is likewise defective, and this charge is dismissed. It should be noted, however, that the Code Enforcement Office takes an unreasonable position that Defendant Motolo removed a door when the evidence clearly shows that doorway shown in People's Exhibit #3, at page 5, was replaced prior to the installation of the aluminum siding being replaced by Defendant Motolo, and was apparently covered over with asbestos or asphalt shingle several decades ago.
Based upon a review of the exhibits received and one and one-half hours oftrial testimony, this Court finds that all seventeen charges brought against the defendant must be dismissed. Of the seventeen charges, several are defective in pleading, several are inapplicable, some were not proven, and some must be dismissed in the interest Qfjustice. It is extremely distressing to this Court that the Code Enforcement Office brought numerous charges against this Page 7 of 8
defendant, infringed on substantial property rights in denying him access to his property while. leaving it open and exposed to the elements by issuing the Stop Work Order pending the trial and decision of the Court, and then fails to sustain its burden in pleading, proof and logic. The Stop Work Order is hereby rescinded and Mr. Motolo shall be entitled to continue the work previously commenced on his property without the need for a building permit. Dated: March 17, 2008