        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1090
CA 14-00572
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF THOMAS C. TURNER AND KINGSLEY
STANARD, PETITIONERS–PLAINTIFFS-APPELLANTS,


                    V                             MEMORANDUM AND ORDER

MUNICIPAL CODE VIOLATIONS BUREAU OF CITY OF
ROCHESTER AND CITY OF ROCHESTER,
RESPONDENTS-DEFENDANTS-RESPONDENTS.


SANTIAGO BURGER ANNECHINO LLP, ROCHESTER (MICHAEL A. BURGER OF
COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS.

T. ANDREW BROWN, CORPORATION COUNSEL, ROCHESTER (SARA L. VALENCIA OF
COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Ann Marie Taddeo, J.), entered June 5, 2013 in a CPLR
article 78 proceeding and a declaratory judgment action. The
judgment, among other things, denied the relief sought in the
petition-complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and judgment is granted
in favor of petitioners-plaintiffs as follows:

          It is ADJUDGED and DECLARED that section 120-175 of the
     Municipal Code of the City of Rochester is unconstitutional
     under the United States and New York Constitutions.

     Memorandum: Petitioners-plaintiffs (plaintiffs) commenced this
hybrid CPLR article 78 proceeding and declaratory judgment action
seeking, inter alia, to declare section 120-175 of the Municipal Code
of the City of Rochester (Code) unconstitutional. Supreme Court
denied the relief sought in the petition-complaint.

     The ordinance at issue was enacted by the Rochester City Council
to advance the health, safety, and welfare of the residents of the
City of Rochester (see Code § 120-162). To that end, the ordinance
seeks to prohibit “outdoor storage” in all districts except
specifically enumerated commercial districts (id. § 120-175). The
Code defines “outdoor storage” as “[s]torage of any materials,
merchandise, stock, supplies, machines and the like that are not kept
in a structure having at least four walls and a roof, regardless of
                                 -2-                          1090
                                                         CA 14-00572

how long such materials are kept on the premises” (id. § 120-208).

     Plaintiffs contend that Code § 120-175 is unconstitutionally void
for vagueness, and we agree. We therefore reverse the judgment and
declare section 120-175 of the Code to be unconstitutional. Municipal
ordinances, like other legislative enactments, “enjoy an ‘exceedingly
strong presumption of constitutionality’ ” (Cimato Bros. v Town of
Pendleton, 270 AD2d 879, 879, lv denied 95 NY2d 757, quoting
Lighthouse Shores v Town of Islip, 41 NY2d 7, 11). The
void-for-vagueness doctrine “embodies a ‘rough idea of fairness’ ”
(Quintard Assoc. v New York State Liq. Auth., 57 AD2d 462, 465, lv
denied 42 NY2d 805, appeal dismissed 42 NY2d 973, quoting Colten v
Kentucky, 407 US 104, 110), and an impermissibly vague ordinance is a
violation of the due process of law (see People v Stuart, 100 NY2d
412, 419).

     “In addressing vagueness challenges, courts have developed a
two-part test . . . [F]irst[,] . . . the court must determine whether
the statute in question is sufficiently definite to give a person of
ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute” (id. at 420 [internal quotation marks
omitted]; see People v Nelson, 69 NY2d 302, 307; see also Matter of
Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 256, cert denied
sub nom. Tuck-It-Away, Inc. v New York State Urban Dev. Corp., 562 US
___, 131 S Ct 822). “Second, the court must determine whether the
enactment provides officials with clear standards for enforcement”
(Stuart, 100 NY2d at 420; see People v New York Trap Rock Corp., 57
NY2d 371, 378).

     We conclude that the ordinance fails to pass either part of the
test. With respect to the first part of the test, we conclude that
the ordinance gives ordinary people virtually no guidance on how to
conduct themselves in order to comply with it, and the language used
in the ordinance makes it “difficult[] for a citizen to comprehend”
the precise conduct that is prohibited (Nelson, 69 NY2d at 307).
Moreover, with respect to the second part of the test, we conclude
that the vague language of the ordinance does not provide clear
standards for enforcement and, thus, a determination “whether the
ordinance has been violated ‘leaves virtually unfettered discretion in
the hands of’ the [code enforcement officer]” (Bakery Salvage Corp. v
City of Buffalo, 175 AD2d 608, 610, quoting People v Illardo, 48 NY2d
408, 414).

     In view of our determination, we do not address plaintiffs’
remaining contentions.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
