August 29, 2014
Landlord student housing lawsuit dismissed
State Supreme Court Justice Kevin Dowd dismissed a case filed against the city by landlord Gerry Ruggiero who called for the city Codes Department to revoke a Certificate of Zoning Occupancy for student housing at 5 Monroe Heights.
In 1978, the city passed zoning ordinances restricting the occupancy of a dwelling to no more than three unrelated individuals, but in 2003, the constitutionality of the law was challenged in subsequently repealed.
The property was purchased by landlords John DelVecchio and Chris Calabro in 1985 and was converted into student housing before Calabro became the sole property owner in 1986.
In August 2004, Calabro was issued a CZO for the Monroe Heights property, acknowledging it as a single dwelling “with a preexisting, nonconforming occupancy of 10 unrelated individuals allowed to reside in the unit.”
Last October, Ruggiero filed a complaint via email with the city zoning officer requesting the CZO be revoked, the matter be referred to the city Zoning Board of Appeals, or that he also be issued CZOs for his properties.
But in the decision handed down from the court Thursday, Dowd said Ruggiero failed to challenge the issuance of the CZO, within the statute of limitations.
“The Cortland City Code requires a challenge to the issuance of a CZO within 60 days of the issuance,” the decision reads. “Petitioner (Ruggiero) did not file within that time frame. The failure to timely challenge the issuance of the CZO for 5 Monroe Heights requires the dismissal of this proceeding.”
Dowd also challenged Ruggiero’s standing in the case, saying Ruggiero did not say his business properties near 5 Monroe Heights were adversely affected by Calabro’s CZO adding even if he did, that is not what the case was ultimately about.
“Petitioner (Ruggiero) argues that it is not the 2004 issuance of the CZO that he is challenging, but the refusal to revoke the CZO,” the decision reads. “Even if the court did find that petitioner had standing, the First Amendment Petition (case) would have to be dismissed.”
On Thursday, Ruggiero said the reason he filed the lawsuit was because he believes he and other landlords in the city are being treated unfairly.
“The evidence is overwhelming that the CZO was issued to a politically-connected landlord in violation to the zoning ordinances that ... they (the city) are going after other landlords for,” he said.
City Corporation Counsel Ric Van Donsel was unavailable for comment, but Director of Administration and Finance Mack Cook, who has knowledge of the case, said he feels the appropriate decision was made.
“The court deals with law and fact and does deal with conjecture,” he said. “The law can only deal with the facts that are presented to it (and) the law that applies.”
Ruggiero added he plans on appealing the case to a higher court.
“I want to have the Third Department Appellate Division review the case,” he said, “because I don’t believe the judge. There’s a processing error by the judge in this case, I believe.”
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