Opinion
99 CIV. 11701 (DLC).
February 13, 2002.
Richard D. Malmed, Philadelphia, PA., Attorney for Plaintiff.
James Kerr Kerr Weiss, New Paltz, NY., Attorney for Municipal Defendants.
Terry Rice Rice Amon, Suffern, NY., Of Counsel Attorney for Municipal Defendants.
Russel H. Beatie, Curt D. Marshall, Beatie Osborn LLP, New York, NY., Attorney for Defendant Tamarack Preserve, Ltd.
OPINION and ORDER
On December 1, 1999, plaintiff Donald Rosendale ("Rosendale") filed suit under Sections 1983 and 1985 of Title 42 of the United States Code ("Section 1983" and "Section 1985"), alleging that certain actions of the defendants with regard to the issuance and enforcement of a special use permit and enforcement of municipal ordinances and state law violated his rights under the Fifth and Fourteenth Amendments. Defendant Tamarack Preserve ("Tamarack") and municipal defendants Arlene Iuliano ("Iuliano"), Terry Binotto ("Binotto") and the Town of Armenia have moved for summary judgment. For the reasons that follow, defendants' motions are granted.
BACKGROUND
The following facts are undisputed or as shown by the plaintiff. Tamarack is a for-profit corporation organized under the laws of New York State. Defendant Iuliano is the Supervisor of the Town of Armenia and has held that position from January 1, 1984 to December 31, 1985, and from January 1, 1997 to the present. Defendant Binotto served as Zoning Officer for the Town of Armenia from April 1999 to September 2000.
In November of 1990, Tamarack applied to Armenia's Zoning Officer, Charles Back, for a special use permit to establish a rod and gun club at Turkey Hollow Road in Armenia, New York. The tract of land in question is adjacent to the plaintiff's land, on which he has a farm and a residence. The rod and gun club's proposed site was located in an area zoned "R-A." Under Armenia's Zoning Law, a special use permit is a prerequisite to the establishment of a "Rod and Gun Club" in an R-A Zoning District. Back denied Tamarack's application on December 21, 1990, on the ground that the authority to issue a special use permit resided solely in the Zoning Board of Appeals ("ZBA"), and forwarded the application to the ZBA. In his letter to the ZBA referring Tamarack's application, Back noted that "[t]imely notices were mailed to all property owners within 500 ft. of the applicant's property lines."
Back also stated in the letter that "the shooting stations are no nearer to any and all residents as 4,000 ft. — a better part of a mile."
The ZBA referred Tamarack's application for a special use permit to the Dutchess County Planning Department for review. The Planning Department's January 4, 1991 report on the Tamarack application to the ZBA recommended that the permit be granted on the condition that steel shot, instead of lead shot, be used. In addition, the Planning Department recommended that the ZBA "require complete information about the amount of noise created by the proposed use."
The ZBA also referred Tamarack's application to the Planning Board on December 28, 1990. At a meeting on January 3, 1991, the Planning Board discussed the application and noted that a site visit to test the noise level should be arranged for members of both the Planning Board and the ZBA.
At a meeting on February 14, 1991, the ZBA announced that Tamarack's application had been referred to the Planning Board and noted that Tamarack anticipated that ten to seventeen shooting stations would be built. Rosendale, present at that meeting, voiced his concern about the range's environmental impact and effect on his horses. The ZBA Chairman emphasized that the Board should ensure that it had "complete information about the amount of noise created by the proposed use."
In conjunction with its application for a special use permit, Tamarack hired Vibra-Tech Engineers to conduct impact sound pressure level tests at the proposed location. The tests were conducted on March 21 and 26, 1991. Vibra-Tech reported noise levels between 64dB and 70dB.
Vibra-Tech Engineers conducted a second test for Tamarack on May 4, 2001, in which it concluded that the decibel levels did not exceed 70dB. On April 10, 2001, Acoustilog conducted a noise level test for the plaintiff, in which it found that the noise reached 83dB.
At a public hearing on May 2, 1991, members of the Planning Board discussed their visit to the site and the results of an informal noise test they performed. Rosendale was present at that hearing.
In its official report to the ZBA on Tamarack's application on May 20, 1991, the Planning Board noted that the town engineer had concluded that the noise levels were within "acceptable limits," but that it recommended that "an additional noise test be performed with the 'listening points' being those of greatest concern by any neighbors or other interested parties." In addition, the Planning Board recommended that "[a] mylar . . . be submitted containing . . . location of the shooting range within the property boundaries of the estate." Further, the Planning Board recommended that "[n]otes . . . be placed on the mylar relating to . . . no future change in use to be allowed within the boundaries of the shooting range [and] . . . a designated noise level, which if exceeded, will result in elimination of the shooting site from which those sound levels are emanating."
In that report, the Planning Board also noted that "[a]s a profit making business and with new construction [the tax base of the property] will most likely change."
The ZBA discussed the application at public hearings on May 9 and June 13, 1991. Rosendale was present at the May 9 meeting but not at the meeting on June 13. At these hearings, the ZBA discussed the recommendations of the Planning Board, which included (1) the performance of another noise test "with listening points being those of greatest concern by any neighbors or interested parties;" (2) submission of a mylar; and (3) indication on the mylar that there would be "no future change in use to be allowed within the boundaries." In response to a concern voiced by the Chairman at the June 13 meeting about the level of sound when shots were fired to the north, the Tamarack representative said that "if this was that offensive he would be agreeable to not have shooting in that area." At the end of the discussion on June 13, the Chairman "motioned to grant the Special Use Permit contingent upon the above conditions being met." This motion was unanimously approved.
After the permit was issued, Tamarack retained a surveyor to create a Mylar showing the "envelope on the property in which the [shooting] sites would be located" for submission to the ZBA. The Mylar did not indicate where within that envelope specific shooting sites were located.
In 1992, Tamarack began to expand its operation. In June of 1992, Tamarack applied for zoning approval for the issuance of a building permit to demolish and renovate a structure. The permit was issued on June 27, 1992. Tamarack applied for a second permit on March 27, 1994, and this permit was issued on April 27, 1994. A certificate of occupancy for a building larger than the original was issued on June 19, 1995. Tamarack applied to the New York State Liquor Authority for a liquor license on January 12, 1999. The license was granted and became effective on February 2, 1999.
Although the parties have not offered evidence that the permit was issued, their arguments reflect an understanding that it was.
Beginning in February of 1991, the plaintiff began registering complaints about the noise caused by Tamarack's shooting operation with the ZBA, Tamarack, Zoning Administrator Back, and the Dutchess County Sheriff's Office. Rosendale sent letters outlining his concerns to defendant Binotto in November and December of 1999, and in January of 2000. In response, defendant Binotto sent Rosendale a letter noting that he had reviewed the files and determined that the "board did a through [sic] and complete review of the facts and findings with the issuance of the Special Use Permit."
After Binotto's resignation, the plaintiff directed his complaints to Kevin Donahue, Armenia's Code Enforcement Officer. During an executive session of a town board meeting in early 2001, Donahue, who was under a limited contract at the time, was told that the board would not authorize him to investigate Rosendale's complaints.
On December 1, 1999, the plaintiff, proceeding pro se, filed suit against Iuliano and Binotto seeking punitive and compensatory damages and a refund of property taxes on the ground that their failure to enforce the town's zoning laws caused his property to be taken without compensation. Rosendale's complaint further alleged that Tamarack constituted a public and private nuisance in violation of New York state law. Iuliano and Binotto answered the complaint on December 27, 1999.
On January 7, 2000, Rosendale amended his complaint to add a claim of inverse condemnation. Defendants Iuliano and Binotto answered the Amended Complaint on January 13, 2000.
In early March of 2000, the plaintiff obtained counsel. On March 6, 2000, Rosendale amended his complaint a second time.
The Second Amended Complaint added defendants Tamarack and the Town of Armenia and alleged the following causes of action: (1) the rod and gun club is a nuisance that caused his property to be taken without compensation in violation of the Fifth and Fourteenth Amendments; (2) the rod and gun club is a nuisance in violation of the New York Constitution; (3) failure to enforce the town's zoning laws caused his property to be taken without compensation in violation of the Fifth and Fourteenth Amendments; (4) the defendants' actions deprived him of substantive due process; (5) the defendants' actions deprived him of procedural due process; (6) the defendants' actions caused an inverse condemnation of his property; and (7) the defendants' actions constitute a nuisance under state law.
The municipal defendants — defendants Iuliano, Binotto and the Town of Armenia — answered the Second Amended Complaint on April 3, 2000. On May 8, 2000, Tamarack filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6). The municipal defendants filed a motion for judgment on the pleadings pursuant to Rule 12(c) on May 11, 2000. On January 17, 2001, the Honorable Barrington D. Parker, Jr., to whom this case was then assigned, denied the defendants' motions to dismiss, finding that the plaintiff's action was not barred by the three-year statute of limitations applicable to Section 1983 claims because his claims were based on the existence of a continuing nuisance.
Tamarack answered Rosendale's Second Amended Complaint on February 8, 2001. On April 20, 2001, the plaintiff moved to amend the Second Amended Complaint. The plaintiff's proposed amendments would eliminate his takings and inverse condemnation claims and his claim for class action relief pursuant to Rule 23, and replace his request for money damages with a prayer for equitable relief.
Tamarack moved for summary judgment on June 2, 2001, and the municipal defendants moved for summary judgment on October 1, 2001. The case was transferred to this Court on November 1, 2001.
As there has been no opposition to the plaintiff's motion to amend his complaint, his motion is hereby granted, and this Opinion will address only the claims that remain in the plaintiff's Third Amended Complaint. Plaintiff's claims under the Third Amended Complaint are, therefore, as follows: (1) substantive due process; (2) procedural due process; (3) nuisance as a taking under the Fifth and Fourth Amendments; (4) nuisance under the New York Constitution; and (5) nuisance under state law. Rosendale maintains that the municipal defendants, in conspiracy with Tamarack, violated his right to substantive due process by failing to enforce conditions attached to Tamarack's special permit; failing to enforce town building, zoning and noise ordinances; and failing to enforce state law. Second, he argues that the defendants violated his right to substantive due process when they issued the building permits and the certificate of occupancy without first ensuring that Tamarack had complied with the town's building and zoning ordinances. Third, the plaintiff maintains that he was denied his right to procedural due process when the defendants issued Tamarack the building permits and the certificate of occupancy, as well as when the State of New York issued Tamarack its liquor license.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). "A dispute regarding a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mount Vernon Fire Ins. Co., 277 F.3d 232, 236 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
1. Failure to Enforce Permit Conditions and Zoning Ordinances
To state a substantive due process claim, the plaintiff must establish a valid property interest in the action or benefit sought and show "that the defendants infringed that property interest in an arbitrary or irrational manner." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir. 2001); Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir. 1999). The Second Circuit "appl[ies] a strict 'entitlement test' in land use regulation cases to determine if the abridgement of an asserted property right is cognizable under the substantive component of the Due Process Clause." Harlen, 273 F.3d at 503; see also DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998). "[A] constitutionally protected property interest in land use regulation arises only if there is an entitlement to the relief sought by the property owner." Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir. 1994). A plaintiff does not ordinarily have an entitlement to the benefit sought if the "local regulator has discretion with regard to the benefit at issue." Gagliardi, 18 F.3d at 192; see also Harlen, 273 F.3d at 504; Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). "The issue of whether an individual has such a property interest is a question of law." Gagliardi, 18 F.3d at 192.
First, Rosendale claims that the municipal defendants, in conspiracy with Tamarack, have failed to enforce conditions attached to the special use permit, town building, zoning and noise ordinances, and a state law regulating noise levels. Even assuming the truth of plaintiff's contentions — that the special use permit was, in fact, conditioned on all of the factors the plaintiff has named, that one or more municipal noise ordinances were violated, that zoning and building ordinances were violated, and that the municipality was responsible for enforcing a state law — Rosendale has failed to establish that he had an entitlement to the enforcement of these conditions and laws. Under New York state law, "the decision to enforce [zoning and building] codes rests in the discretion of the public officials charged with enforcement." Young v. Town of Huntington (In re Young), 503 N.Y.S.2d 657, 657-58 (N.Y.App.Div. 1986); see also Mayes v. Cooper (In re Mayes), 724 N.Y.S.2d 791, 792 (N.Y.App.Div. 2001); Dyno v. Vill. of Johnson City (In re Dyno), 690 N.Y.S.2d 325, 326-27 (N.Y.App.Div. 1999).
The conditions and representations that the plaintiff, over the course of the litigation, has maintained were attached to the permit include: (1) changes in the use of the property would not be allowed; (2) a Mylar would be submitted showing location of the shooting stations; (3) shooting in the northern part of the site would be eliminated if neighbors found it offensive; (4) additional noise tests would be made on his property; (5) no new structures would be built; (6) there would be no shooting within 4,000 feet of any residence; (7) there would be no more than ten shooting sites; (8) there would be no wild bird hunting; (9) there would be no shooting with automatic weapons; and (10) shooting would be within specified time periods.
Rosendale contends that the municipal defendants have failed to enforce one or more municipal ordinances regulating noise levels. See, e.g., Armenia Code § 80-1(A); see also id. § 80-2(A). This ordinance was enacted in 1995. The ordinance in effect when the special permit was issued regulated noise levels in industrial areas, and the town laws submitted to the Court indicate that the noise limit for industrial areas may be 50dB. Plaintiff claims that an ordinance applicable to Tamarack defines excessive noise as 35dB.
Plaintiff has maintained, over the course of the litigation, that the municipal defendants, in conspiracy with Tamarack, have failed to enforce: fire and safety codes, ordinances requiring a permit for new construction, and ordinances requiring a variance for the construction of a building larger than the original or for the establishment of a retail shop, tavern, for-profit business, or "clubhouse" in a residential zone. The plaintiff maintains that some or all of these laws are contained in Town Law art. 16, § 268(2).
New York's General Business Law provides that the A-weighted sound level of small arms fire on the shooting range [may] not exceed 90 dB(A) for one hour out of a day, or . . . 85 dB(A) for eight hours out of a day measured at, or adjusted to, a distance of one hundred feet outside the real property boundary of the shooting range. N.Y. Gen. Bus. Law § 150(1) (McKinney 2001).
Further, Armenia's own building and zoning code vests municipal officials with discretion in reaching a decision about whether and how to enforce its provisions. Section 7.53 of the Armenia Zoning Law provides:
In case any building or structure is erected . . . or maintained, or any building, structure, or land is used in violation of this law, or by any ordinance or regulation made under authority conferred hereby, the governing body, or with their approval, the Zoning Officer or other proper official . . . may institute any appropriate action or proceedings to prevent such unlawful erection, . . . maintenance or use . . . to restrain, correct, or abate such violation, [or] to prevent the occupancy of said building, structure or land. . . .
Both zoning and building are regulated by Armenia's Zoning Law.
(Emphasis added.) Thus, while the ZBA has the power to take enforcement action against Tamarack should it determine that Tamarack has violated any provision of the zoning and building code, it is not required to bring such an enforcement action.
Because the town officials retain discretion in making enforcement decisions, the plaintiff cannot establish a protected property right in such enforcement. The plaintiff cannot establish a due process violation because he has "no right to demand that the Municipal Defendants enforce the zoning laws." Gagliardi, 18 F.3d at 192. While a government entity may not always make the right decision, the question of whether a particular decision was right, so long as the entity in question possesses discretion in reaching this decision, "does not raise a federal question. . . . [F]ederal courts should not become zoning boards of appeal." Harlen, 273 F.3d at 505 (internal citations omitted).
Over the course of this litigation, the plaintiff has also claimed that the special use permit was granted unlawfully. Under Section 6.52 of the Zoning Law, however, a special use permit "may be authorized" by the ZBA, should it determine that such a permit is warranted. Because the ZBA's issuance of a special use permit is discretionary, the plaintiff cannot establish that he has a property interest in the issuance, or decision not to issue, the permit.
In addition, the plaintiff claims that the municipal defendants issued building permits and the certificate of occupancy in violation of the town's zoning and building laws. The plaintiff claims that the certificate of occupancy could not have been lawfully issued without a variance for the increased size of the building and that the building permits could not have been lawfully issued without variances for the establishment of a retail shop, tavern, for-profit business, or "clubhouse" in a residential zone. Again, Rosendale can establish a protected interest in the defendants' compliance with the zoning and building laws only by showing that the defendants were prohibited from issuing the permits and certificate in question and that they issued them despite the prohibition. If, however, the municipal defendants had "broad discretion in determining whether to grant or deny the building permit[s] . . . the grant . . . of the permit[s] [does] not infringe upon any protected property interest." Gagliardi, 18 F.3d at 193 (internal citation omitted). The plaintiff has not indicated the provision of law the municipal defendants allegedly violated by issuing the permits or certificate. Consequently, he has not shown that the defendants' discretion in issuing these documents was sufficiently circumscribed to create a protected federal interest.
Even assuming, however, that the permits and the certificate were issued in clear violation of municipal law, "the mere violation of a state law does not automatically give rise to a violation of federal constitutional rights." Zahra v. Town of Southhold, 48 F.3d 674, 682 (2d Cir. 1995). While individuals have an interest in the government's compliance with the law, the question, however, is "whether such an interest rises to a constitutional level. . . . 'Indeed, even an outright violation of state law . . . will not necessarily provide the basis for a federal claim, at least where the applicant has a state law remedy.'"Id. (quoting Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985) (emphasis in original)). In this case, had the permits been unlawfully issued, Rosendale could have pursued an Article 78 proceeding to challenge the town's violation of municipal law. Where the plaintiff has not pursued state law remedies or indicated the provision of law allegedly violated, the Court is reluctant to conclude that he has a constitutionally protected property interest in the municipality's compliance with building and zoning ordinances.
2. Notice and Hearing Requirements
Rosendale also maintains that he was denied procedural due process when the defendants issued the building permits and the certificate of occupancy, as well as when New York state issued Tamarack a liquor license. To establish a violation of procedural due process, the plaintiff must (1) identify a property interest; (2) demonstrate that the governmental action with respect to that property right amounted to a deprivation; and (3) show that the deprivation was without due process of law. Local 342, Long Island Pub. Serv. Employees, UMD, ILA, AFL-CIO v. Town Bd. of the Town of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994);see also Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001)). "The deprivation of a procedural right to be heard, however, is not actionable when there is no protected right at stake." Gagliardi, 18 F.3d at 193. Because Rosendale has not shown a federally protected interest in the enforcement of the town's building, zoning or noise ordinances, he is "unable to state an actionable claim for deprivation of procedural due process." Id.
Rosendale had a right to be heard with regard to the decision to issue the special use permit. A special use permit may only be issued by the ZBA "after notice, hearing and findings by the Board." When the application involves a special exception use, the ZBA must give notice to "all owners of property within five hundred (500) feet of the nearest line of property for which the . . . special exception use is sought." The plaintiff does not claim, however, that he was denied his right to be heard in connection with Tamarack's application for a special use permit, and the record shows that he was present at two of the three public hearings before the ZBA, as well as the hearing before the Planning Board.
Section 64 of New York's Alcoholic Beverage Control Law provides applicants for liquor licenses, municipalities and community boards — not individuals — with hearing rights. N.Y. Alco. Bev. Cont. Law § 64(2-a) (McKinney 2001); see also id. § 64(7)(f). Further, contrary to the plaintiff's contention, the municipality's involvement in the issuance of a liquor license is limited to the right to "express an opinion for or against the granting of such license." Id. § 64(2-a). Consequently, plaintiff's claim against these defendants must be dismissed.
3. Takings
The plaintiff's first cause of action alleges a nuisance in violation of the Fifth and Fourteenth Amendments. A nuisance claim, however, has its source in state, not federal law, and such a claim would be cognizable as a federal constitutional violation only if the government action at issue resulted in "a permanent physical occupation, or, in the 'extraordinary circumstance,' when [the state action in question] 'deprives land of all economically beneficial use.'" Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 106 (2d Cir. 1992) (internal citations omitted) (emphasis in original). Because the plaintiff has stated that he "is not pursuing a theory of inverse condemnation, or taking under the Fifth Amendment," the Court reads his first claim as a pendent claim of nuisance under state law.
4. Conspiracy
Because plaintiff has failed to establish a protected interest necessary to show a violation of substantive or procedural due process, he has also failed to state a claim under Section 1985. Section 1985(3) "provides no substantive rights itself but merely 'provides a remedy for violation of the rights it designates.'" Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990) (quoting Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979)). As a result, to state a claim under Section 1985(3), the plaintiff must establish that he has been deprived of a federal right. Id.; see also Dean Tarry Corp. v. Friedlander, 826 F.2d 210, 213 (2d cir. 1987). Because the plaintiff has not established that he was deprived of a federal right, the defendants are entitled to judgment as a matter of law on his claim under Section 1985. Id. at 214.
5. Pendent State Law Claims
The plaintiff's remaining claims are that Tamarack is operating a public and private nuisance in violation of the New York Constitution and state common law. Although the statute providing supplemental jurisdiction over pendent claims, 28 U.S.C. § 1367,
does not require dismissal of pendent state-law claims where all of the federal claims have been dismissed, "if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals."Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (quotingUnited Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966)) (internal citation omitted). Here, questions of New York state law will predominate in any disposition of the plaintiff's claims based on the existence of a continuing public and/or private nuisance in violation of the New York Constitution and New York state law. Accordingly, Rosendale's pendent state claims are dismissed.
Because the plaintiff's claim fails as a matter of law, the Court does not address defendant Tamarack's argument that it is not a state actor under Section 1983, or the municipal defendants' arguments that they are protected by qualified immunity, that the plaintiff's claims are not ripe, not exhausted, or barred by the statute of limitations, or that the plaintiff has failed to state a claim against the town under Section 1983.
CONCLUSION
For the foregoing reasons, plaintiff's motion to amend his complaint is granted. The defendants' motions for summary judgment are granted with regard to the plaintiff's claims under Sections 1983 and 1985 and the Fifth and Fourteenth Amendments. Plaintiff's pendent state claims of public and private nuisance under the New York Constitution and New York state law are dismissed without prejudice. The Clerk of Court shall close the case.
SO ORDERED: