What penalties may a New York village impose for zoning violations, including for repeat offenders and for landlords who profit from illegal multi-family occupancy?

Plain-English summary

Port Chester's Village Attorney wanted to strengthen zoning enforcement. He asked the Attorney General four things: (1) Can the village add civil penalties on top of criminal fines and imprisonment? (2) Are there limits on the fine amount? (3) Can a second offense be a misdemeanor, with a third becoming a felony? (4) Can the village require the landlord to disgorge illegal rent collected from a multi-family occupancy in a single-family zone?

The Attorney General gave four answers. Yes, civil penalties are permissible under Municipal Home Rule Law § 10(4)(b), in addition to criminal fines and jail time, provided that the penalty is reasonable in light of the violation. Criminal fines are capped by the Penal Law, $250 for a violation, $1,000 for a class A misdemeanor, $500 for a class B misdemeanor, with higher caps for corporate defendants under Penal Law § 80.10. The village may escalate from a violation to a misdemeanor for repeat offenses (a long-standing pattern in state law). But the village may not designate any local-law offense as a felony, the home-rule grant in § 10(4)(b) covers misdemeanors and lesser offenses only, and local criminal courts can hear only non-felony offenses anyway. For disgorgement, two paths exist: Penal Law § 80.00(2)-(3) and § 80.05(5) let a court impose a fine of up to double the defendant's gain instead of the standard fine; or the village can enact a civil forfeiture local law tailored to local offenses, but the forfeiture law must include procedural protections (post-seizure hearings) and avoid excessive-fines problems flagged in County of Nassau v. Canavan (2003).

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Penal Law fine caps and the Municipal Home Rule penalty authority have been amended since 2004. Civil forfeiture jurisprudence has continued to develop under both state and federal due-process and excessive-fines analyses. A village drafting a zoning enforcement law today should check the current statutes and the most recent appellate decisions on excessive fines and procedural protections.

Common questions

Q: Can the village impose both a civil penalty and a criminal fine for the same violation?
A: Yes, under Municipal Home Rule Law § 10(4)(b), which authorizes "civil penalty, fine, forfeiture or imprisonment, or by two or more of such punishments." Civil penalties are recoverable in a civil action; criminal fines are imposed at sentencing.

Q: What is the cap on a criminal fine for a local-law violation?
A: For a violation, $250. For a class A misdemeanor, $1,000. For a class B misdemeanor, $500. Penal Law § 80.05. Higher caps apply to corporations under § 80.10. The village may set a specific lower amount in its local law.

Q: Can the village classify a zoning violation as a felony?
A: No. Municipal Home Rule Law § 10(4)(b) authorizes designation only as a misdemeanor or a lesser offense (violation, infraction). The AG could find no statutory authority for villages to create felonies, and local criminal courts cannot try felonies anyway (CPL § 10.30).

Q: How does an escalating-penalty regime work?
A: A common structure: first offense is a violation; second offense within a defined period becomes a misdemeanor. State law uses similar escalation in many regimes (e.g., Vehicle & Traffic Law § 1192 DUI). The local law should specify both the lookback period and the proof requirements (see CPL §§ 60.40(3), 200.60, 400.40 for state-law procedures).

Q: What is the "double the gain" alternate sentence?
A: Penal Law § 80.05(5) lets a court substitute a fine of up to double the defendant's gain from the offense in lieu of the standard fine. So a landlord who illegally pockets $30,000 in excess rent could face a court-imposed fine of up to $60,000, much higher than the $1,000 misdemeanor maximum.

Q: Could the village use civil forfeiture for illegal-occupancy profits?
A: Yes, but carefully. CPLR Article 13-A (the state civil forfeiture scheme) covers only felonies, and Municipal Home Rule Law § 10(4)(b) lets a village authorize forfeiture as a local remedy. But County of Nassau v. Canavan (2003) invalidated a local forfeiture scheme that lacked a prompt post-seizure hearing and allowed excessive fines under the Eighth Amendment. The village law must include due-process and excessive-fines protections.

Q: What about Village Law § 20-2006?
A: That section governs penalties for village ordinances adopted before September 1, 1974. After 1974, villages legislate by local law, not ordinance, so § 20-2006 does not constrain Port Chester's zoning code (adopted in 1975).

Background and statutory framework

The local-law penalty regime starts with Municipal Home Rule Law § 10(4)(b), which says a local government may "prescribe that violations of its local laws shall constitute misdemeanors, offenses, or infractions and to provide for the punishment of violations thereof by civil penalty, fine, forfeiture or imprisonment, or by two or more of such punishments." The provision derives from former City, Village, and County home-rule laws repealed when the Municipal Home Rule Law was enacted in 1963; the AG read the legislative history as confirming that "misdemeanor" is the ceiling and felonies are off-limits.

The Penal Law provides the classification grid that any local criminal penalty must fit into. Penal Law § 55.10 sorts offenses into violations, misdemeanors (Class A, Class B, unclassified), and felonies. Section 80.05 caps fines for non-felony offenses. Section 80.10 sets higher caps for corporate defendants. Section 80.00 and § 80.05(5) provide the "double the gain" alternate sentence.

On forfeiture, two regimes coexist. CPLR Article 13-A (state civil forfeiture) applies only to felony forfeiture crimes. Matter of Property Clerk v. Ferris and Grinberg v. Safir confirm that the state regime does not preempt local forfeiture laws. County of Nassau v. Canavan sets the substantive constitutional floor: procedural protections plus excessive-fines analysis.

The escalating-penalty doctrine is well-established. Village Law § 20-2006(1-a) and Town Law § 268 both contemplate escalating fines for repeat zoning violations within a defined period.

Citations and references

Statutes:

• CPLR §§ 1310, 1311, 1352, art. 13-A
• Criminal Procedure Law §§ 1.20(39), 10.30, 60.40(3), 200.60, 400.40
• General Business Law § 396-w
• Labor Law § 213
• Municipal Home Rule Law §§ 10(4)(b), 58
• Penal Law §§ 55.10, 80.00, 80.05, 80.10, 270.00, 405.00
• Town Law § 268
• Vehicle and Traffic Law § 1192
• Village Law §§ 7-714, 20-2006, art. 7
• L. 1985, ch. 488; L. 1963, ch. 843

Cases:

• County of Nassau v. Canavan, 1 N.Y.3d 134 (2003)
• Grinberg v. Safir, 266 A.D.2d 43 (1st Dep't 1999)
• Property Clerk v. Covell, 139 Misc.2d 707 (Sup. Ct. N.Y. County 1988)
• Matter of Property Clerk v. Ferris, 77 N.Y.2d 428 (1991)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) Nos. 88-22, 88-30, 84-32, 85-23, 85-30, 92-5, 93-14, 83-48

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-14_pw.pdf

Original opinion text

CIVIL PRACTICE LAW AND RULES §§ 1310, 1311, 1352, ART. 13-A; CRIMINAL PROCEDURE LAW §§ 1.20(39), 10.30, 60.40(3), 200.60, 400.40; GENERAL BUSINESS LAW § 396-w; LABOR LAW § 213; MUNICIPAL HOME RULE LAW §§ 10(4)(b), 58; PENAL LAW §§ 55.10, 80.00, 80.10, 80.05, 80.10, 270.00, 405.00; TOWN LAW § 268; VEHICLE AND TRAFFIC LAW § 1192; VILLAGE LAW §§ 7-714, 20-2006, ART. 7; L. 1985, CH. 488; L. 1963, CH. 843.

A village may impose both civil and criminal penalties for violations of local zoning laws, although criminal penalties must be consistent with the designation and classification of offenses under the Penal Law. A village may provide for increased penalties for subsequent convictions, but may not designate any such offense as a felony. The disgorgement of profits upon conviction of a zoning violation may be obtained through an alternate sentence under the Penal Law, or through enactment of a carefully crafted civil forfeiture law.

December 21, 2004

Anthony M. Cerreto
Village Attorney
Village of Port Chester
10 Pearl Street
Port Chester, NY 10573

Informal Opinion
No. 2004-14

Dear Mr. Cerreto:

You have asked several questions concerning the types of penalties the Village of Port Chester may impose for violations of its zoning regulations. You have inquired whether the Village may adopt a local law providing for a civil penalty in addition to a fine or imprisonment and whether there is a limitation on the amount of a fine that may be imposed. You have further asked whether the Village may provide that a second offense shall be deemed a misdemeanor and a third offense deemed a felony. Finally, you have inquired whether the Village may require the disgorgement of any profit upon conviction of a residential occupancy violation.

We conclude that both civil and criminal penalties are authorized and that fines must be consistent with the designation and classification of offenses under the Penal Law. We further conclude that the Village does not have authority to designate an offense as a felony. With respect to your final inquiry, we believe that the disgorgement of profit upon conviction of a residential occupancy violation may be required by utilizing alternate sentence procedures authorized by the Penal Law, or through enactment of a carefully crafted civil forfeiture law.

ANALYSIS

A. Authority for Civil Penalties and Limitations on Penalties and Fines

Your first question is whether the Village may provide for civil penalties, in addition to criminal fines and imprisonment, for violations of its zoning regulations. Article 7 of the Village Law, which governs a village's regulation of zoning matters, provides specific authority for a village to enforce its zoning regulations through actions for an injunction, but does not address penalties for zoning violations. See Village Law § 7-714 (authorizing proper village authorities, "in addition to other remedies," to institute actions to prevent, correct or abate zoning violations). You have informed us that the Village's current zoning regulations were adopted as local laws in 1975. Thus, Village Law § 20-2006, which defines the penalties that may be imposed for violations of village ordinances adopted prior to September 1, 1974, including specified penalties for violations of zoning ordinances, has no application to the Village's zoning code. However, we have previously recognized that a village may use its home rule powers to establish penalties for violations of its local laws. See Op. Att'y Gen. (Inf.) No. 88-30 (village may establish by local law penalty provisions for violation of its sewer use regulations). Municipal Home Rule Law § 10(4)(b) authorizes a local government to prescribe that violations of its local laws are to constitute misdemeanors and lesser offenses, "and to provide for the punishment of violations thereof by civil penalty, fine, forfeiture or imprisonment, or by two or more of such punishments" (emphasis added). Accordingly, the Village may adopt a local law providing for enforcement of its zoning regulations through both civil penalties and criminal fines.

With respect to determining an appropriate penalty or fine, we have noted that "[p]enalties for violation of a local regulation should have a reasonable relationship to the severity of the violation and should not be abhorrent to a sense of justice or shocking to the conscience. The reasonableness of the [penalty or] fine will depend on the nature of the particular violation."

Further, with respect to criminal fines for local law violations, local governments are subject to the provisions of the Penal Law governing the classification and designation of offenses. If the local law designates the offense as a violation without specifying the fine, the fine is to be fixed by the court and may not exceed $250. Penal Law § 80.05(4). If the offense is designated a class A or B misdemeanor, the fine is set by the court, but may not exceed $1000 or $500, respectively. Penal Law § 80.05(1),(2). The Penal Law provides for higher maximum fines for corporate defendants. See Penal Law § 80.10.

B. Designating the Classification for Multiple Offenses

You have also asked whether the Village may provide that a second offense for violation of its zoning regulations is a misdemeanor and a third offense is a felony.

We are not aware of any authority for a village to designate the violation of a local law as a felony. Municipal Home Rule Law § 10(4)(b) authorizes a local government to prescribe that violations of its local laws shall constitute "misdemeanors, offenses, or infractions." Although in other contexts the term "offense" broadly refers to any level of criminal conduct, see Penal Law § 10.00(1), we have consistently interpreted this provision as authorizing the designation of local law violations as misdemeanors or lesser offenses, i.e., violations and infractions. Moreover, Municipal Home Rule Law § 10(4)(b) derives from provisions of the former City Home Rule Law, Village Home Rule Law and County Law that specifically authorized the designation of local offenses as misdemeanors. We are not aware of any other statute or common law rule that would authorize a local government to designate the violation of a local law as a felony. Moreover, the authority of a village to designate infractions of its local laws as misdemeanors or violations but not felonies is consistent with the trial jurisdiction of the local criminal courts, which extends only to offenses other than felonies, see Criminal Procedure Law § 10.30(1).

While we conclude that the Village is not authorized to declare that subsequent zoning violations shall constitute felonies, we believe that the Village, exercising its home rule powers, may provide that a first offense under its zoning law is a violation and a second offense is a misdemeanor. The creation of escalating penalties or higher classification of an offense for subsequent convictions within a specified period is not uncommon. Although not directly applicable to violations of the Village's zoning laws, we note that the Legislature has provided for escalating penalties for subsequent violations of village zoning ordinances. See Village Law § 20-2006(1-a); see also Town Law § 268.

C. Disgorgement of Profits

Your final question relates to the ability of the Village to order the disgorgement of profits in connection with residential occupancy violations. In a subsequent telephone conversation you offered an example of the type of situation that such legislation would seek to address: A landlord owns property that is zoned for single family occupancy but leases the property for occupancy by two or more families, thereby obtaining additional rents in violation of the local zoning code. Your question is whether any such illegal profits may be recovered in an action to enforce the zoning regulation.

First, we note that the Penal Law already provides a procedure whereby the court, instead of imposing the fine otherwise authorized upon conviction of a misdemeanor or violation, may sentence the defendant to pay an amount not exceeding double the amount of the defendant's gain from the commission of the offense. Penal Law § 80.05(5); id. § 80.10(1)(e),(2)(b) (fines for corporations). The Penal Law sets forth the procedure for determining the defendant's "gain," and allows the court to fix the amount of the fine accordingly. See Penal Law § 80.00(2),(3); id. §§ 80.05(5), 80.10(3). Thus, state law already provides a mechanism whereby illegal financial gain may be used as the basis for imposition of a higher fine.

The disgorgement of illegal profits may also be viewed as a form of forfeiture. New York has enacted a comprehensive civil forfeiture provision that allows for the recovery of property constituting either the instrumentality or the proceeds (or substituted proceeds) of a crime. See C.P.L.R. art. 13-A. However, that statute applies only to forfeitures in connection with felonies, see id. 1310(5),(6), and courts have indicated that the state statute does not preempt local forfeiture laws.

As noted earlier, forfeiture is one of the remedies specifically authorized for enforcement of local laws. Municipal Home Rule Law § 10(4)(b). Thus, we believe the Village has authority to adopt a local law authorizing the forfeiture of proceeds obtained through commission of a local offense.

With respect to how such a law might be structured, we note that civil forfeiture laws have raised various constitutional concerns, including whether the law contains adequate procedural protections and is designed to avoid forfeitures that violate the federal and state constitutional prohibitions against excessive fines. See, e.g., County of Nassau v. Canavan, 1 N.Y.3d 134 (2003). A local forfeiture law therefore must be carefully drafted to ensure compliance with these constitutional principles.

CONCLUSION

In sum, we conclude that the Village is authorized under its home rule powers to provide for both civil and criminal penalties for violation of local zoning laws, but that criminal penalties must be consistent with the designation and classification of offenses under the Penal Law. We further conclude that the Village may provide for increased penalties for subsequent convictions under its zoning code, but may not designate any such offense as a felony. Finally, we are of the opinion that disgorgement of profits upon conviction of a zoning violation may be obtained through the use of an alternate sentence as authorized by the Penal Law, or through enactment of a carefully crafted civil forfeiture law.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions