So if you neighbor installs a very bright spot light that stays on all night long and shines on your bedroom window, is there a remedy?
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 the Building Inspector, or does a citizen complaint require the filing of a charge?
Martha [Marty] Strack — Neighbor testified that the problem with the Van Armans' lights started in February 2007. She submitted Exhibits 9 & 10, photographs that she said she took in the first bedroom at night, which she said show how bright the room is from the VanArmans' lights. She described the light as coming through the bedroom window "24/7." She said the light goes into the bathroom if the door is open. Ms. Strack said there is no window treatment on the window facing VanArmans except cafĂ© curtains. She said she priced them, and it would cost $500 to get something that would keep the light out.
She says that she sleeps in the room that faces her neighbor, and that she cannot fall asleep because of the brightness of the glare from VanArman's lights. Ms. Strack testified that the lights are not pointed at her house. She requests that the lights be shielded or otherwise redirected. She asserted that the VanArmans' lights are objectionable because their illumination goes way beyond the property line, and they are offensive to her and she cannot sleep.
Krista VanArman, wife of James VanArman, testified that the police have come over when the light is on for only 10 minutes. They turned it on when they used the pool or barbequed. They turned it off when the police asked them to. There was only one time when Ms. Strack personally contacted them about the lighting; other times she called the police without coming and explaining to the VanArmans that they had a problem.
On that one occasion Ms. Strack asked Ms. VanArman to change the light because her grandchildren would be visiting and sleeping in that room. In response, the VanArmans changed the top light to a blue bulb, and pointed the lower white bulb down, so that it does not even light to the center of the pool and does not reflect off it. She testified that it is a lot darker with the blue light. Those changes were still in place on the date of the trial.
She said the shed lights are also pointed down, and they are on a motion sensor. She explained that some things trigger it, including the automatic pool cleaner. She described that none of the lights illuminate between the pool and hedge on the Strack side of the yard, and that they use a flashlight if they and their young children are going out there at night because it is so dark.
James VanArman testified that he is willing to use the lights just for the BBQ and swimming. He portrayed himself as being reasonable and expressed his frustration that Ms. Strack called authorities repeatedly without trying to work it out with him. He pointed out the street light and suggested that its brightness was the problem.
Ms. Strack responded, expressing concern that she was being depicted as unreasonable. She stated that the street light did not cast any light into her bedroom. She also said that the VanArmans' changing to the blue light made no difference at all. She expressed her view that the law is clear-cut, that since there is light going beyond the boundary of the VanArman's property, they are in violation. She reiterated that she will not put a window covering on the one window through which the light passes because it will cost her $500.
At the conclusion of the testimony, the Court reserved decision.
Conclusions of Law
Enforcement of Zoning Ordinances.
Numerous New York state and federal courts have held that enforcement of zoning laws is entirely within the discretion of the public officials who are charged with enforcement. In this case, that is the City of Plattsburgh Building Inspector. Over and over, the Courts have held that enforcement of a municipal code is not mandatory, and public officials cannot be required to bring violations. See In the Matter of Perazzo v. Lindsay, 23 NY2d 764, 296 NYS2d 957 (1968); In the Matter of the Church of the Chosen, et al., v. City of Elmira, 18 AD3d 978, 795 NYS2d 141 (3d Dept 2005), citing Matter of Dyno v. Village of Johnson City, 261 Ad2d 783, 784, 690 NYS2d 325 (1999) appeal dismissed 93 NY2d 1033 (1999) lv denied 94 NY2d 818 (1999), and other cases. See also In the Matter of Saks v. Petosa, 184 AD2d 512, 584 NYS2d 321 2d Dept 1992); Manuli v. Hildenbrandt, 144 AD2d 789, 534 NYS2d 763 (3d Dept 1988); In the Matter of Young v. Town of Huntington, 121 AD2d 641, 503 NYS2d 657 (2d Dept 1986); Straub and Village of Ellenville Police Department v. Town of Wawarsing, Stoeckler and Kissell, 80 Fed Appx 133 (2d Cir 2003) quoting Young v. Town of Huntington; Rosendale v. Iuliano, et al., 2002 WL 215656 (SDNY) quoting Young v. Town of Huntington.
In several of these cases, including Perazzo, Church of the Chosen, Manuli, and Young, neighbors tried to compel city officials to file code violations. The Courts concluded that the neighbors could not require enforcement; that doing so was the decision of the officials.
Thus, this Court concludes that it is the determination of the Building Inspector, not the neighbor, as to whether the City Code is violated, and further whether to bring an enforcement action. If Building Inspector Burdo concluded that the light emanating from the VanArmans did not violate the ordinance, he was not required to file a violation. Repeated complaints by Ms. Strack do not eliminate the discretion of the Building Inspector to use his judgment and experience in making the decision not to bring an enforcement action against the VanArmans.
Determining a Violation.
The wording of the ordinance does not prohibit all "noise, vibration, odor or glare" which is "noticeable at or beyond the property line." It prohibits only that which is "offensive or objectionable." The Building Inspector's opinion was that the "glare" in this case did not violate the City's zoning law.
There is no question that Ms. Strack objects to her neighbors' lights. But, that in and of itself does not mean that they are "objectionable" within the meaning of the ordinance. The Building Inspector, after personally viewing the scene, determined that the exterior lighting at the VanArmans did not violate the law. Factors such as the number and wattage of the lights, their directional orientation, the location of these two homes in a city neighborhood lighted by municipal street lights, reasonable security needs, and hours of illumination are all appropriate considerations. So are the number of windows exposed to the lights and whether any window treatments cover those windows. Any accomodations made by either party are also relevant.
After carefully considering all of the evidence presented, the Court concludes that James VanArman has not violated section 270-29A of the Plattsburgh City Zoning Code. The Violation is therefore dismissed."
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