Dep't of Buildings V

Dep't of Buildings v. Owners, Occupants and Mortgagees of 2163 and 2169 Hermany Avenue, Bronx County OATH Index No. 1392/05 (Apr. 13, 2005)*

In this zoning violation (padlock) proceeding, the evidence established illegal use of lots for commercial vehicle storage, storage of a boat, dead storage of unlicensed motor vehicles, and junk salvage storage, in violation of the Zoning Resolution. ALJ recommends that premises be closed in accordance with terms of stipulation with owner/occupant. *Stipulation complied with Sept. 15, 2005. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - OWNERS, OCCUPANTS AND MORTGAGEES OF 2163 AND 2169 HERMANY AVENUE, BRONX COUNTY Respondents ______

REPORT AND RECOMMENDATION JOAN R. SALZMAN, Administrative Law Judge This is a zoning violation proceeding referred to this tribunal pursuant to section 26-127.2 of the New York City Administrative Code (the “padlock law”). The Department of Buildings, petitioner, alleges that the yard at 2163 Hermany Avenue in the Bronx has been used for the partial storage of a commercial vehicle, and that a lot on the premises at 2169 Hermany Avenue has been used for storage of a boat, commercial vehicle storage, dead storage of unlicensed motor vehicles, and for junk salvage storage (including storage of salvaged automobile parts). It is alleged further that these properties, also known as Block: 3686, Lots: 47 and 45, although located in an R3-2 residence district, are being used for commercial and manufacturing purposes that are not permitted by law. Petitioner seeks an order of closure by which the offending premises would be sealed as a public nuisance pursuant to the padlock law (ALJ Ex. 1; Pet. Ex. 2) (Admin. Code § 26-127.2 (Lexis.com 2005)). -2- A hearing was held before me on April 12, 2005. One of the respondents, Somnath Lachman, as owner of 2163 and 2169 Hermany Avenue, as yard occupant of 2163 Hermany Avenue, and as occupant of 2169 Hermany Avenue, entered into and signed a stipulation of settlement (the “stipulation”) with the Department (Pet. Ex. 1) prior to the hearing. He was not present for the hearing, which proceeded as an inquest as to the remaining respondents, none of whom appeared. Petitioner presented sworn proof of service of the petition and notice of the hearing on the named, remaining parties, Diana Lachman, owner of 2163 Hermany Avenue, Ravidat Parasiam, owner of 2169 Hermany Avenue, MERS, mortgagee of 2163 Hermany Avenue, Alliance Mortgage Banking Corporation, assignor of 2163 and 2169 Hermany Avenue, PHH Mortgage Services, assignee of 2163 and 2169 Hermany Avenue, Federal National Association, assignee of 2169 Hermany Avenue, and Eastern Service Corporation, assignor of 2169 Hermany Avenue (Pet. Ex. 2), in accordance with the mandates of section 26-127.2(c) of the New York City Administrative Code. Petitioner’s proof of service establishes the jurisdictional prerequisites for finding these respondents in default. Therefore, the remaining owners, mortgagees, assignors and assignees of the premises are in default. At the hearing, petitioner presented the testimony of Department of Buildings Inspector Lennox B. Williams, who visited the premises; three inspection reports including photographs of the site taken by Inspector Williams; a Fire Department permit application for 2163 Hermany Avenue; a certificate of occupancy for 2169 Hermany Avenue; the applicable provisions of the Zoning Resolution; a tax map showing the location of the premises; and a zoning map showing the zoning designation of the premises (Pet. Exs. 3-10). Upon consideration of the evidence in this matter, I find that respondents' use of the premises is in violation of the Zoning Resolution and recommend closure of the premises, consistent with the terms of the stipulation on file.

ANALYSIS

The premises are located in an R3-2 residence district. A Fire Department permit application, approved October 19, 1933, shows that the lawful use of 2163 Hermany Avenue is as a two-story, single-family residence (Pet. Ex. 8). The lawful use of the premises at 2169 Hermany Avenue, according to the certificate of occupancy dated June 8, 1925, is as a private, -3- five-car garage. Inspector Williams inspected the premises on September 17, 2004, November 9, 2004, and January 5, 2005 (Pet. Exs. 3-5). In the course of his on-site inspections, Inspector Williams observed that the premises included a yard at 2163 Hermany Avenue, and a lot at 2169 Hermany Avenue. At 2163 Hermany Avenue, on September 17, 2004, Inspector Williams observed a commercial vehicle, a truck marked “Office Depot.” The door of the cab of the truck bore a printed address and the name of “Dynamex Operations East, Inc.” (Pet. Ex. 3). At 2169 Hermany Avenue, Inspector Williams observed up to seven passenger vehicles (four of them unlicensed on September 17, 2004), one commercial vehicle (a truck marked “Serta” on November 9, 2004), a hauling trailer, an outboard motor boat on the trailer, three compound pails, a jet ski on a trailer, and salvaged autoparts. (Pet. Exs. 3-5). Mr. Williams testified that the commercial truck or trucks he saw straddled both 2169 and 2163 Hermany Avenue. The New York City Zoning Resolution (Dec. 15, 1961) (nyc.gov/planning) (the “Zoning Resolution”), as amended, does not permit commercial or manufacturing uses as of right in residential districts. The uses of the premises for boat storage, commercial vehicle storage, dead storage of motor vehicles, and junk salvage storage fall within Use Groups 14 (boat storage), 16 (commercial vehicle storage, dead storage of motor vehicles) and 18 (junk salvage storage) of the Zoning Resolution. Zoning Resolution, App. A: Index of Uses, revised April 8, 1998; Zoning Resolution §§ 32-23 (Feb. 26, 1998), 32-25 (May 22, 1969), 42-15 (Aug. 15, 1974). The cited Use Groups, 14 and 16 for commercial uses, and Use Group 18 for manufacturing uses, encompass uses permitted as of right only in certain commercial or manufacturing districts, not in an R3-2 residential area. Zoning Resolution § 12-10 (Dec. 15, 1961). No valid permit or certificate of occupancy permits the uses of the premises found here.

FINDINGS AND CONCLUSIONS

1. Service of the petition and the accompanying notice of hearing on owners, mortgagees, assignors and assignees was sufficient to entitle the Department to proceed in those respondents' absence.

2. The subject premises, 2163 and 2169 Hermany Avenue, Bronx County, are used for impermissible commercial or manufacturing purposes in a residential zone, in violation of the Zoning Resolution. -4- 3. The premises can be sealed without impairing access to any residence.

RECOMMENDATION

The padlock law authorizes only one remedy: the closure of the offending premises or the relevant portion of them. I recommend that the Commissioner issue an order of closure for the yard at 2163 Hermany Avenue, and for the lot at 2169 Hermany Avenue, Bronx, New York, consistent with the terms of the stipulation of settlement, in accordance with the above findings.

Joan R. Salzman Administrative Law Judge

April 13, 2005

SUBMITTED TO:

PATRICIA J. LANCASTER, FAIA Commissioner

APPEARANCES:

INGRID M. ADDISON, ESQ. Attorney for Petitioner

No Appearances for Respondents