Daniel J. Mastrella, Rochester, for defendant.
Michael Polozie, Town Attorney of Town of Irondequoit, Rochester
(Daniel J. Doyle of counsel), for plaintiff.
OPINION OF THE COURT
CHRISTOPHER J. ENOS, J. This is a criminal action brought on by the Town of Irondequoit under the above caption, by means of an information sworn to July 2, 1998. Within said document, the defendant homeowner is charged with "the offense of illegally constructing a fence without a permit", and "as of July 1, 1998, (failing) to correct violation to comply with Town of Irondequoit Municipal Code" in violation of Town of Irondequoit Municipal Code (Irondequoit Town Code), chapter 98, article III, § 98-9 (A).[1] A violation of chapter 98 is "punishable by a fine of not more than one thousand dollars ($1,000) per day of violation or imprisonment not exceeding one (1) year, or both." (Irondequoit Town Code § 98-50 [A].) Further, "each day that the prohibited condition(s) or violation continues shall constitute a separate offense." (Irondequoit Town Code § 98-50 [B].) Accordingly, this punishment appears to be at least the equivalent of that for a class A misdemeanor under New York State Penal Law. (See, Irondequoit Town Code § 1-16 [B]; Penal Law § 70.15 [1], [3].) "A penal enactment must not only be strictly construed, especially where, as here, the act is a malum prohibitum and not a malum in se ( People v. Vetri, 309 N. Y. 401, 405; People v. Taylor, 192 N. Y. 398, 400; People v. Werner, 174 N. Y. 132, 134), but it must be reasonable and pellucid as well ( People v. Bunis, 9 N Y 2d 1, 4; People v. Adamkiewicz, 298 N. Y. 176, 179)." ( People v Scott, 26 NY2d 286, 291 [1970].) Further, statutes in derogation of the defendant's right at common law to build what she pleases upon her own property must be strictly construed in favor of the defendant. ( Thomson Indus. v Incorporated Vil. of Port Washington N., 27 NY2d 537 [1970]; 122 E. Fortieth St. Corp. v Dranyam Realty Corp., 226 App Div 78, 80 [1st Dept 1929].) spirit. There is no need for other homeowners to be similarly afflicted in the future. The matter is dismissed in its entirety, with prejudice. [1] Section 98-9 (A) provides: "No person * * * shall commence erection, construction, enlargement, alteration, removal, improvement, demolition, conversion or installation therein of any building or structure or change in nature the occupancy of any building or structure without first obtaining an appropriate permit from the Building Inspector, except that no permit shall be required for the performance of repairs which are not structural in nature and do not entail plumbing, electrical, heating, ventilation systems or components." [2] Irondequoit Town Code former § 235-69, as was in effect at the time of the alleged offense in this case, provided as follows: "Fencing. No fence shall be erected in any district higher than four (4) feet, except rear yards, and beyond the rear line of a dwelling a fence shall not be higher than six (6) feet. The face side thereof shall be located so as to face the adjoining lot. In residential districts, a fence shall not extend beyond the front line of the dwelling. On corner lots, no fence shall extend beyond the building line as extended from both streets. Electric and barbed wire fences shall not be permitted." [3] There was a building permit issued for this fence in April 1997. Even though further supportive of this defendant's case, the issuance of any permit here was surplusage. [4] Part of the People's case was that the defendant was told that she "would have to comply with ordinance approved December 16, 1997 by the Town Board." Although there had been a vote by the Town Board on December 16, 1997, to similarly amend section 235-69 to require, among other things, a building permit for all fences, such local law was never filed with the Secretary of State. Therefore, that attempted amendment was never made effective. [5] Irondequoit Town Code § 235-69 (A) (Aug. 1998): "Purpose. "(1) It is the purpose of this section to regulate the location and height of fences in all zoning districts and it shall apply to fences, walls, and other similar construction. "(2) The intent of this section is to provide uniform enhancement, security and privacy to property. Fencing which legally existed prior to the adoption of this section may continue as long as it is kept in substantial repair. The replacement or repair of such fencing may occur only in-kind up to 50% in any given calendar year."