Village of Upper Nyack v. Christian, 30 N.Y.2d 577 (1972)

When a statute grants a power and provides a detailed procedure for its exercise, the statute is self-executing and does not require a separate ordinance for implementation.

Summary

This case addresses whether Section 89(7-a) of the Village Law, which empowers villages to remove unsafe buildings, is self-executing without the need for a separate implementing ordinance. The Village of Upper Nyack sought to compel the removal of a fire-damaged building under this law. The executor of the mortgagee’s estate argued that the law was merely enabling and required an ordinance. The Court of Appeals held that the statute was self-executing because it provided a complete procedure, including inspection, notice, survey, and judicial review, without requiring further legislative action by the village.

Facts

A nightclub and restaurant in the Village of Upper Nyack was partially destroyed by fire in 1963 and subsequently abandoned. The executor of the first mortgagee’s estate took possession, paying taxes and maintaining the property. In 1969, the village, acting under Village Law § 89(7-a), initiated proceedings to declare the building unsafe and order its removal. The village appointed an inspector who reported the building was unsafe. The executor received notice of the unsafe condition and a deadline to secure or remove the building. A survey was conducted, but the executor’s experts did not submit reports.

Procedural History

The Village of Upper Nyack petitioned in Supreme Court for a determination that the building was unsafe and for its removal. The executor moved to intervene and dismiss the petition, arguing that an implementing ordinance was required. The Supreme Court ruled in favor of the Village. The Appellate Division affirmed. The Court of Appeals granted leave to appeal to resolve the question of whether the statute required an implementing ordinance.

Issue(s)

1. Whether Section 89(7-a) of the Village Law is self-executing, allowing a village to proceed with nuisance removal without first enacting an implementing ordinance.

2. If Section 89(7-a) is self-executing, whether a village can remove or compel removal of a particular building by resolution, rather than through the more formal enactment of an ordinance.

Holding

1. Yes, Section 89(7-a) of the Village Law is self-executing because it provides a complete framework with standards and procedures for addressing unsafe buildings.

2. Yes, the procedure by village board resolution suffices because the statute itself dictates the required actions and safeguards, rendering a separate ordinance unnecessary.

Court’s Reasoning

The Court reasoned that when a statute provides a complete grant of power with specific standards, procedures, and opportunities for judicial review, it is self-executing. Section 89(7-a) provides a detailed two-step administrative procedure for determining a building to be unsafe, a method for notifying interested parties, a requirement of judicial review, and the power to assess expenses on the property. "Generally, where a statutory grant of power is complete within itself, providing standards, procedures, and penalties, the statute is self-executing, and no other legislation is required." The court distinguished this statute from those that grant only a general power to prevent and remove nuisances, which might require further definition through ordinances.

The Court also highlighted that the Village Law, unlike the Town Law, does not have an introductory paragraph requiring a public hearing before exercising powers. While acknowledging that the State Comptroller’s office had previously issued opinions suggesting an ordinance was necessary, the Court found those opinions unpersuasive in light of the statute’s comprehensive nature. The Court emphasized that the statute requires a judicial determination before a building can be removed, providing sufficient protection to property owners and obviating the need for a preliminary ordinance. According to the court, "In this instance, the Legislature has chosen to protect property owners from arbitrary determinations by local officials by requiring a judicial determination, rather than a public hearing or a referendum."

The court noted the difference between an ordinance, which provides a permanent rule of government, and a resolution, which deals with temporary or special matters. The village, by proceeding via resolution, was addressing a specific case based on findings of fact. The court reasoned that when general legislation (either statute or ordinance) is in effect, a municipal corporation may act in particular instances by resolution.