39 A.D.2d 549 | N.Y. App. Div. | 1972
In an action to recover a civil penalty of $23,500 for violation of a zoning ordinance prohibiting the conduct of a business in a restricted residential zone in the Village of Mill Neck, defendants appeal from an order of the Supreme Court, Nassau County, entered November 4, 1971, which denied their motion to dismiss the complaint for failure to state a cause of action. Order affirmed, without costs. Defendants’ time to serve their answer to the complaint is extended until 20 days after entry of the order to be made hereon. The Village of Mill Neck has on its books a zoning ordinance which in the main prohibits the use of one’s residence for a business in certain restricted residential zones (Building Zoning Ordinance of the Village of Mill Neck, § 310). A person violating that provision or any other one in the zoning ordinance subjects himself under another provision of the zoning ordinance “ to a civil penalty of $100 for each and every day that each and every violation continues” (§ 1110.2). Defendants allegedly violated the ordinance by conducting a shipping agency business in their home. On September 9, 1970 village authorities warned defendants that unless they ceased using their property for business purposes legal proceedings would be commenced to enforce the ordinance. Defendants allegedly did not abate in their alleged violation of the ordinance and on July 29, 1971 this action was commenced. At the outset we turn to the enabling legislation in the Village Law, since a village has only such powers as have been delegated to it. Section 93 of the Village Law provides, inter alia, that the “board of trustees of a village may enforce obedience to its ordinances by prescribing therein penalties for each violation thereof, not exceding two hundred fifty dollars for any offense.” We view the alleged failure of defendants to terminate the conduct of their business as one continuous inseparable offense. We further construe section 1110.2 of the Building Zone Ordinance to provide for a civil penalty of $100 a day up to a maximum of $250. Without such narrow construction we feel that section would be