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People v. Novie

Supreme Court of New York, Second Department

September 17, 2013

The People of the State of New York, Appellant,
v.
Brian Novie, Respondent.

PRESENT:: NICOLAI, P.J., LaSALLE and TOLBERT, JJ.

Appeal from an order of the Justice Court of the Town of Ramapo, Rockland County (Rhoda F. Schoenberger, J.), rendered January 31, 2012. The order granted defendant's motion to dismiss the accusatory instrument on the ground that sections 176-6 (A) (1) and 176-7 (C) of the Tree Preservation and Landscape Maintenance Law of the Village of Montebello are unconstitutional.

ORDERED that the order is reversed, on the law, and defendant's motion to dismiss the accusatory instrument on the ground that sections 176-6 (A) (1) and 176-7 (C) of the Tree Preservation and Landscape Maintenance Law of the Village of Montebello are unconstitutional is denied.

By amended information dated November 18, 2011, defendant was charged with violating sections 176-6 (A) (1) and 176-7 (C) of the Tree Preservation and Landscape Maintenance Law of the Village of Montebello (Tree Law). Defendant moved to dismiss the accusatory instrument on the ground that the aforementioned sections of the Tree Law are unconstitutional for reasons set forth below. In support of his motion, defendant stated that when he and his wife had purchased the property in question, it consisted of almost an acre of land with trees on the front of the property facing the town road and a backyard area that had been "left unattended and as a result became overgrown with mainly Ash trees that grew in a crowded manner... resulting in scrawny, pole-like trees that became unhealthy due to reaching their life expectancy and other causes, such as illness, disease and damage from vines." At the time, defendant had three-year-old twins and wanted an attractive, safe backyard for his family. Therefore, in 2009, defendant hired a contractor to cut down some dead and dying trees, after which the Village of Montebello (Village) charged defendant with violating the aforementioned sections of the Tree Law, which required defendant to, among other things, obtain the Village's permission to remove any tree on his property. [1]

In February 2010, defendant entered into a civil compromise with the Village by which, in lieu of prosecution, he agreed to pay the Village $250 and to "follow proper procedures with regard to any improvements/tree removal... concerning [his] property." In July 2010, defendant applied for a permit to remove from his property 15 dead ash and elm trees, two oak trees—to which defendant was allegedly allergic—and one birch tree, and agreed to pay professional consulting fees pursuant to chapter 65 of the Code of the Village of Montebello. In August 2010, defendant's application was approved to the extent of allowing 11 trees to be removed (eight dead or imminently dead trees, and three trees as of right). Defendant then hired a professional tree cutting company to remove the trees and alleges that, as the work was being performed, an officer of the Village stopped the work. By that time, 14 trees had, allegedly, been cut down. Thereafter, defendant was charged with violating sections 176-6 (A) (1) and 176-7 (C) of the Tree Law. On January 31, 2012, the Justice Court granted defendant's motion to dismiss the accusatory instrument. The court found that a zoning matter could not be prosecuted if it "does not have the underlying proper legislation in terms of taking into account the particular statute as being necessary to secure the health, safety and welfare of [the Village's] residents, or [the Village's] landowners, or [the Village's] taxpayers."

The Tree Law provides in pertinent part as follows:

" § 176-2 Legislative intent.
It is the intention of the Village of Montebello to retain the rural appearance of the community. Said rural appearance is a consequence of its existing wooded character and streetscape. Toward that end, the Village Board has implemented these regulations for the following purposes:
A. To preserve an important attribute of the Village, by encouraging owners of existing developed lands, and developers of lands, to save or replace as many native and mature tree species as possible when making improvements to real property.
B. To control and regulate indiscriminate and excessive removal, cutting, and destruction of trees in order to regulate and prevent conditions which cause increased surface runoff, soil erosion, and cause decreased soil fertility;
C. To maintain the stability and value of real estate by preserving existing woodlands and providing for the appropriate aesthetic of the streetscape; and
D. To ensure the continued maintenance of landscaping in accordance with site plan or subdivision plan approvals, or in accordance with the regulations contained herein.
§ 176-6 Tree removal; permit; Planning Board review; licensing of contractors; fees.
A. Prohibited activities. Except as permitted herein, no person shall do or cause to be done by others, either purposely, carelessly, or negligently, any of the following acts upon privately owned property within the Village of Montebello: (1) Cut, destroy, remove, or substantially injure any tree ...

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