Appellate Term Holds Individual Equally Liable For Zoning Violations Regardless Of Whether She Acted Personal Or Corporate Capacity

Defendant/Appellant Claudia Dowling (“Dowling”) was hired to conduct a four-month open house design by the owner of a residential property in the Village of Laurel Hollow (“Village”). Under the plan, different designers would decorate each room, and the home would then be open to the public for a small fee. The owner applied for a permit, but the Village denied this request, as well as his appeal for a use variance, finding the event would alter an essential character of the neighborhood by introducing a commercial use and creating negative impacts such as traffic. Dowling proceeded with the open house and was issued a succession of appearance tickets and stop work orders for operating an unlawful use. The Justice Court of the Village of Laurel Hollow, Nassau County, after a joint non-jury trial, convicted Dowling on five counts of violating Village of Laurel Hollow Code § 145–5(E) and four counts of violating Village of Laurel Hollow Code § 23–3(P).  Dowling appealed.

On appeal, the Supreme Court, Appellate Term for the 9th and 10th Judicial District rejected Dowling's argument that she could not be held liable in an individual capacity.  The Court noted that the state penal law specifically states that individuals are subject to same criminal liability for illegal conduct performed on behalf of a corporation as they would be if they acted on their own.  Here, the accusatory instruments sufficiently alleged that Dowling had operated an unlawful commercial use in a residential district. Accordingly, she was liable regardless of whether she acted in an individual capacity or as the president of Claudia Dowling, Inc.

Dowling alternatively argued that the open house was a use “customarily incidental and accessory to a single-family dwelling,” because the event was merely incidental to the sale of the house. However, the Court found that the event had a commercial intent, noting the fee charged to attendees and that under the Dowling’s contract with the owner, the open house would continue for its full six-week run even if the house was sold before that time had lapsed.  Thus, the Court upheld the five counts of violating § 145-5(E) of the Village Code.

However, the Court ruled in Dowling's favor on the four counts derived from the validity of the village's stop work orders. The Court held that the code inspector exceeded his authority in issuing these orders because the Village's power to issue stop work orders derived from the building code and was limited to violations occurring during construction. The Court also emphasized that because the building code was penal in nature, it was strictly construed against the Village. As such, the Court concluded that "there was no valid line of reasoning and permissible inferences" from which the village could have decided that the open house was in violation of the building code, vacated the convictions on those four counts, dismissed the accusatory instruments, and ordered the remission of any fines Dowling had paid.

The case was People v Dowling, 57 Misc.3d 52 (N.Y. App. Term 2017).

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