Third Department Upholds ZBA Denial of Petitioner’s Request to Rescind Charges For Waste Removal After Violations

Petitioner’s neighbor filed a complaint with Respondent City of Albany’s Department of General Services (“DGS”) that trash was “blowing around” his yard and into the street. DGS issued Petitioner a notice of violation, stating that his yard violated Chapter 313 of the Code of the City of Albany (“Code”), governing solid waste. The notice stated that if Petitioner failed to remedy the violation, DGS would bill him for the cost of cleanup, plus a 15% administrative surcharge and a fine of up to $500. After Petitioner failed to remedy the condition, DGS cleaned up the property and billed him $838.73 ($638.73 for cleanup costs and a $200 fine). Shortly thereafter, DGS removed an “oversized amount of trash,” including furniture, from the curb in front of Petitioner’s property, notified Petitioner that it constituted “illegal debris,” and charged him $444.24 ($119.24 for cleanup costs and a $325 fine). DGS denied Petitioner’s request to rescind the two bills after two administrative hearing.  Petitioner appealed to the BZA, which reversed the $200 fine on the first violation, and vacated the charge on the second violation.  Petitioner filed an Article 78 proceeding to further review the first charge, and the Supreme Court, Albany County dismissed the petition. 

On appeal, Petitioner argued that the violation should have been prosecuted in criminal court because it classified as a criminal violation pursuant to Penal Law § 55.10, which provides in relevant part that “any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if ... a sentence to a term of imprisonment which is not in excess of [15] days is provided therein, or the only sentence provided therein is a fine.” The court found that because this section set forth the penalties for failing to comply with a notice of violation, the general penalty provision set forth in Code § 258–1 was not applicable. As such, the court held that a violation of Code § 313–51.1(E) was not a criminal violation within the meaning of Penal Law § 55.10(3), and thus not preempted.

Petitioner also argued that his constitutional rights were violated during the administrative process, and was therefore not required to exhaust his administrative remedies. He claimed that he was not provided with adequate notice of the first violation, that the Enforcement Committee was biased, that DGS failed to introduce evidence at the hearing, thus denying him his right to confront his accusers, and that DGS shifted the burden of proof. The court found that these claims would be better addressed with the administrative agency so that the necessary factual record could be established.

Accordingly, the court affirmed the dismissal of petitioner’s application.

The case was Haddad v City of Albany, 149 A.D.3d 1361 (3d Dep’t 2017).

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