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In re Zoning Ordinance S 270-29

Other Lower Courts

January 29, 2008

In the Matter of Zoning Ordinance 270-29. A Appearance Ticket Issued to-James Vanarman.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Penelope D. Clute, J.

Before the Court is an Appearance Ticket issued by the City of Plattsburgh Building Inspector's Office to James VanArman, alleging a violation of Plattsburgh Zoning Ordinance 270-29.A. That provision is entitled "General use standards. . . . . Vibration, odor and glare." The "Comment" portion of the ticket alleges "Light shining in neighbor's window." The ticket was issued on December 7, 2007 and directed Mr. VanArman to appear in City Court on December 13, 2007.

Mr. VanArman and Building Inspector Burdo appeared on December 13, and Mr. VanArman requested a trial. The trial was scheduled for January 4, 2008, and notification was sent to the neighbors, Marty and John Strack, as well as to the parties present in Court.

On January 4, 2008, trial was held, and the Court heard testimony from Building Inspector Kyle Burdo, Marty Strack, Krista VanArman and James VanArman. The Court received exhibits, consisting of photographs, police reports, a portion of a map showing the locations of the two homes, the pertinent provision of the Zoning Ordinance and a page from the Zoning Dictionary used by the City of Plattsburgh with the definition of "Glare."

The Zoning provision of the Plattsburgh City Code reads: " 270-29. General use standards. In any district, the following standards for uses shall apply: A. Vibration, odor and glare. No offensive or objectionable noise, vibration, odor or glare shall be noticeable at or beyond the property line." In the Zoning Dictionary, "glare" is defined as "A sensation of brightness within the visual field that causes annoyance, discomfort or loss in visual performance and visibility."

A summary of the trial testimony follows:

Kyle Burdo - Building Inspector.

The first police report by Martha Strack complaining of the VanArmans' lights was filed in May 2007. He received a phone call complaining of the lights in July 2007. He issued a Violation Notice to VanArman on August 9, 2007. There were other police reports on October 9 and November 15, 2007. He explained that the reports were made to the police since the building inspectors office is not open at night. The Court received in evidence three police reports and the Violation Notice.

Mr. Burdo testified that he personally went to the Strack house after dark in the summer before issuing the August 9 Violation Notice. He observed a "substantial glare coming in the window" which faces the VanArman house; he observed that there was no shade, curtain or other treatment covering the window. Adjacent to this room was a bathroom, and light came into the bathroom if the door was left open. Then, on the other side of the bathroom was a bedroom, and if both bathroom doors were left open, light came through to the bedroom. The Court received as "People's Exhibit 2" a satellite photograph of the two homes, and Mr. Burdo marked on it the location of the three rooms, the street light between the two homes, and the lights on the back of the VanArman house.

Mr. Burdo said that his understanding from Ms. Strack when he went to the house was that the room facing the VanArmans was a spare bedroom, used by her grandchildren when they visit. The Police Report from May 26, 2007 states in part, "She asked me to follow her upstairs and into a spare room on the east side of the house. She complained that the light from the neighbors poolside glared into the room and woke her up. The light did shine into the spare room then through the doorway into the bathroom and then it did appear that it went through another door way into her bedroom."

Mr. Burdo testified that to him, the glare was not offensive in the second bedroom. He noted that there were steps that can be taken to stop the light, such as closing the door and putting a window treatment on. He testified that the light from VanArmans was offensive and objectionable to Ms. Strack. He was uncertain, given the repeated complaints, whether the Building Inspector was obligated to charge VanArman.

After Mr. Burdon discussed the case with his supervisor, and with Mr. VanArman, the Building Inspectors Office concluded that it should bring the charge in hopes of obtaining the ruling of City Court on two issues: (1) the meaning of "offensive or objectionable . . . glare," and (2) is the decision to charge a violation of this provision within the discretion of ...


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