Opinion
20-CV-5635 (GRB)(AYS)
2022-01-12
Allen YU and North Long Island Realty, LLC, Plaintiffs, v. The INCORPORATED VILLAGE OF OYSTER BAY COVE; Robert Walles, as Code Enforcement Officer, the Incorporated Village of Oyster Bay Cove; and Robert A. Peterson, as Building Inspector, the Incorporated Village of Oyster Bay Cove, each sued in their official and individual capacities, Defendants.
Eric Sanders, The Sanders Firm, P.C., New York, NY, for Plaintiffs. Michael Adam Czolacz, Amanda Maria Zefi, Morris Duffy Alonso & Faley, New York, NY, for Defendants.
Eric Sanders, The Sanders Firm, P.C., New York, NY, for Plaintiffs.
Michael Adam Czolacz, Amanda Maria Zefi, Morris Duffy Alonso & Faley, New York, NY, for Defendants.
MEMORANDUM AND ORDER
GARY R. BROWN, United States District Judge:
Plaintiffs bring this action under 42 U.S.C. § 1983 for alleged violations of substantive due process rights and the Takings Clause arising out of the Village of Oyster Bay Cove's enforcement of its Village Code concerning construction, conservation, nuisance, and animal control. Defendants move to dismiss plaintiffs’ complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, defendants’ motion to dismiss is GRANTED.
Procedural History
Plaintiffs filed this action on November 19, 2020. Docket Entry ("DE") 1. At a pre-motion conference held on March 4, 2021, the Court dismissed the equal protection, conspiracy, and Monell claims because the complaint alleged no facts to support allegations of racial animus. DE 23 ("Hr. Tr.") at 22:3-15. The Court dismissed plaintiffs’ procedural due process claim because the Village Justice's failure to advise a represented defendant of their right to appeal is insufficient to state a claim. Hr. Tr. at 22:16-21. Hence, plaintiffs’ remaining claims arise under substantive due process and the Takings Clause. On June 17, 2021, defendants filed the instant motion to dismiss for failure to state a claim under Rule 12(b)(6). DE 25.
Facts
Plaintiff Allen Yu is the principal owner of North Long Island Realty, LLC, an inactive New York limited liability company. Compl. ¶¶ 1-2. Yu identifies as Chinese. Id. ¶ 1. In September 2014, plaintiffs Allen Yu and North Long Island Realty, LLC purchased a 4.31-acre parcel of real property located at 156 Cove Road in the Village of Oyster Bay Cove, New York for $1.31 million. Id. ¶¶ 6, 9. From 2014 to 2017, plaintiffs were subject to a series of enforcement actions by the Village of Oyster Bay Cove for violations of the Village Code:
A search of the New York State Department of State records online indicates that North Long Island Realty, LLC was voluntarily dissolved on December 19, 2018. Under Rule 17(b) of the Fed. R. Civ. P., the capacity of a corporation to sue or be sued is determined by "the law under which it was organized." Generally, "[t]he dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution ...." N.Y. Bus. Corp. Law § 1006 (McKinney). "The courts in New York have consistently given effect to the statutory mandate that corporations ‘may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place.’ " Race Safe Sys., Inc. v. Indy Racing League , 251 F. Supp. 2d 1106, 1108 (N.D.N.Y. 2003) (quoting N.Y. Business Corp. Law § 1006(a) ). Hence, North Long Island Realty, LLC, although dissolved, may proceed in this action.
• On September 15, 2014, Village Building Inspector Robert Peterson issued Allen Yu a stop work order for performing construction work on the principal dwelling and accessory cottage without a building permit. Id. ¶ 15.
• On May 13, 2015, Peterson sent plaintiffs a letter stating that a well on the property located within 100 feet of the buffer area of a wetland was prohibited unless approved by the Village Planning Board. Id. ¶ 26.
• On June 27, 2016, Code Enforcement Officer Robert Walles issued an information charging plaintiffs with excavating and grading for the expansion of a driveway without Village approval. Id. ¶ 33. Earlier, plaintiffs had applied for but were denied permission to build an expanded driveway or make alterations to the cottage and decks. Id. ¶¶ 28-29.
• On July 20, 2016, Walles issued an appearance ticket stating that he had personally observed plaintiffs engage in construction without a permit, unapproved site plan changes, and unapproved grading and excavation in violation of Village Code. Id. ¶ 35.
See Village Code § 177-3 (A)(7) (installation of a well within a wetland buffer area is prohibited without prior written approval of the Planning Board).
• On September 26, 2016, Peterson issued a stop work order and filed an appearance ticket charging plaintiffs with: (1) altering a non-conforming cottage/accessory structure without a permit; (2) installing fencing and driveway gates without permits within 100 feet of a wetlands buffer; (3) constructing two decks without permits within 100 feet of a wetlands buffer; and (4) installing a chain-link roofless enclosure between two non-conforming sheds within 100 feet of a wetlands buffer, all in violation of Village Code. Id. ¶ 40.
• On December 21, 2016, Peterson issued a superseding information containing 14 counts claiming that on September 26, 2016 he had personally observed said violations of Village Code. Id. ¶ 46.
• On March 27, 2017, Peterson sent plaintiffs a letter stating the driveway lighting and colored arboreal lighting violated Village Code. Id. ¶ 52.
• On April 5, 2017, the Village denied plaintiffs’ application "to maintain alterations to the cottage, existing driveway entrance piers, erecting new driveway gates and maintain a roofless fenced in enclosure." Id. ¶ 54.
• On April 19, 2017, Peterson issued plaintiffs four informations charging 370 counts claiming violations of Village Code between October 3, 2016 and April 12, 2017, to wit: constructing a fence, driveway gates, two decks, and a chain-link roofless enclosure within the 100-foot wetlands buffer area without Village approval; altering the nonconforming cottage to increase its nonconformity; and installing exterior lighting not properly shielded to prevent illumination to the adjoining property. Id. ¶¶ 56-59.
See Village Code § 320-53(C) ("No such nonconforming use shall be enlarged or extended, nor shall it be changed to another nonconforming use.").
See Village Code § 320-57 (regulations regarding the height and placement of fences); Village Code § 177-3 (A)(3) (regrading within a wetland buffer area is prohibited without prior written approval of the Planning Board).
See Village Code § 177-3 (A)(1) (construction of a structure within a wetland buffer area is prohibited without prior written approval of the Planning Board).
Id.
See Village Code, Chapter 200, Lighting, Outdoor.
On September 26, 2018, plaintiffs were tried in Village Court. Id. ¶ 99. Evidence submitted at trial included testimony from Walles, Peterson, and a neighbor, as well as photos and videos of plaintiffs’ purported pattern and practice of Village Code violations. See People v. Yu , 61 Misc. 3d 1225(A), 111 N.Y.S.3d 808, 2018 WL 6497168 (N.Y. Just. Ct. 2018). Following the trial, on October 4, 2018 the Village's Planning Board denied Yu's site plan to permit alterations to the existing building, expand an existing driveway, construct new piers and a gate, and maintain an existing deck. Compl. ¶ 113. Two months later on December 10, 2018, the Village Court issued its decision and found plaintiffs guilty of all charges and continuing violations, including:
building without permits or applications, construction of structures on wetland buffers, nuisance lighting, construction of gating, and gut renovations to a cottage without permits or approval, as well as the erection and maintenance of non-conforming
structures and other conduct clearly prohibited by the Village Code or otherwise prohibited until the proper applications and building permits are obtained.
People v. Yu , 2018 WL 6497168 at *4. The Village Court (1) rejected plaintiffs’ argument that the Village Code is void for vagueness, finding the "[d]efinitions provided are specific, lack subjective requirements in favor of objective elements and are definitive on their face," id. at *5, and (2) rejected plaintiffs’ selective enforcement claim because "the Village initially viewed several examples of Mr. Yu's conduct as violating the Village Code but did not submit any violations ... choosing instead to give Defendants an oral warning and a period of time to cure the defects and other violations identified without penalty." Id. at *5. The Village Court imposed a fine of $242,750, equal to 25% of the maximum permitted by law. Id. at *6.
The Village Court did not inform plaintiffs that the court order was appealable, and the Village Clerk ignored plaintiffs’ request for instructions on filing a notice of appeal. Compl. ¶¶ 119, 121. On January 10, 2019, plaintiffs’ counsel notified the Village Clerk of their intention to file a notice of appeal. Id. ¶ 122. On October 8, 2019, plaintiffs paid the Village of Oyster Bay Cove $241,253.30 in satisfaction of the judgment. Id. ¶ 124.
Discussion
Motions to dismiss are decided under the well-established standard of review for such matters, as discussed in Burris v. Nassau County District Attorney , No. 14-5540 (JFB) (GRB), 2017 WL 9485714, at *3-4 (E.D.N.Y.), adopted by 2017 WL 1187709 (E.D.N.Y. 2017), incorporated by reference herein. The gravamen of that standard, of course, is whether, assuming the allegations in the complaint to be true, the complaint sets forth sufficient factual allegations to render the claims plausible.
A. Statute of Limitations
Section 1983 claims in New York are subject to a three-year statute of limitations. Ruane v. Cty. of Suffolk , 923 F. Supp. 2d 454, 458 (E.D.N.Y. 2013). Federal law determines when a Section 1983 claim accrues. Id. Accrual occurs "when the plaintiff knows or has reason to know of the injury which is the basis of his action[.]" Pearl v. City of Long Beach , 296 F.3d 76, 80 (2d Cir. 2002) (citations and internal quotation marks omitted). A Section 1983 takings claim accrues once the claim is ripe, i.e., when the state regulatory entity has rendered a final decision. See Stensrud v. Rochester Genesee Reg'l Transportation Auth. , 507 F. Supp. 3d 444, 451–52 (W.D.N.Y. 2020) (citing Knick v. Twp. of Scott, Pennsylvania , ––– U.S. ––––, 139 S. Ct. 2162, 204 L.Ed.2d 558 (2019) ). Here, the Village of Oyster Bay Cove Planning Board denied Yu's site plan for a construction permit on October 4, 2018. Compl. ¶ 113. Thus, as to the takings claim, plaintiffs only knew or had reason to know of a potential constitutional injury after October 4, 2018. This falls well within the three-year statute of limitations because the complaint was filed on November 19, 2020. DE 1.
However, because any conduct predating November 19, 2017 falls outside the statute of limitations, plaintiffs cannot raise any claims based on the informations and stop work orders – all of which were issued prior to that date. As a result, the only acts falling within the statute of limitations are (1) the denial of the site plan on October 4, 2018, and (2) the judgment against plaintiffs in Village Court on December 10, 2018. Because the state court judgment cannot be challenged under the Rooker-Feldman doctrine, the claims over which this court has jurisdiction and that fall within the statute of limitations must be limited to the denial of the site plan.
The Rooker-Feldman doctrine precludes federal courts from hearing "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Hoblock v. Albany Cty. Bd. of Elections , 422 F.3d 77, 85 (2d Cir. 2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) ). The doctrine has four requirements: " ‘First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must ‘complain[ ] of injuries caused by [a] state-court judgment[.]’ Third, the plaintiff must ‘invit[e] district court review and rejection of [that] judgment[ ].’ Fourth, the state-court judgment must have been ‘rendered before the district court proceedings commenced’—i.e., Rooker–Feldman has no application to federal-court suits proceeding in parallel with ongoing state-court litigation.’ " Hoblock , 422 F.3d at 85. Hence, the Rooker-Feldman doctrine deprives this Court of jurisdiction insofar as plaintiffs complain of injuries caused by the state-court judgment, e.g., the $242,750 penalty. However, "Rooker–Feldman does not apply to injuries that have been merely ‘ratified’ rather than ‘produced’ by a state court judgment." See Beard v. Town of Monroe , No. 3:13-CV-1714(JBA), 2014 WL 4678038, at *4 (D. Conn. Sept. 18, 2014) (finding Rooker-Feldman doctrine inapplicable where plaintiff alleged defendants selectively enforced zoning laws because it was not necessary to "review" the state court judgment to determine if zoning laws were selectively enforced). Hence, this Court maintains jurisdiction over the substantive due process and takings claims insofar as they arise from the denial of the site plan despite the fact that the Village Court indirectly "ratified" the Village's denial of said plan in its judgment.
B. Substantive Due Process
Plaintiffs must meet a heavy burden to satisfy the standard for a substantive due process violation:
Substantive due process guards a person's rights "against the government's ‘exercise of power without any reasonable justification in the service of a legitimate governmental objective.’ " Tenenbaum v. Williams , 193 F.3d 581, 600 (2d Cir. 1999) (quoting County of Sacramento v. Lewis , 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ). "To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ " Okin v. Vill. of Cornwall–On–Hudson Police Dep't , 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis , 523 U.S. at 847 n. 8, 118 S.Ct. 1708 ). The interference with the plaintiff's protected right must be "so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection." Tenenbaum , 193 F.3d at 600 ; see also Lewis , 523 U.S. at 840, 118 S.Ct. 1708 (doctrine of substantive due process "bar[s] certain government actions regardless of the fairness of the procedures used to implement them" (internal quotation marks omitted)). Where, as here, "a specific act of a governmental officer that is at issue," the Supreme Court has "repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’ " Lewis , 523 U.S. at 846, 118 S.Ct. 1708 (quoting Collins v. City of Harker Heights , 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ).
Bartels v. Inc. Vill. of Lloyd Harbor , 97 F. Supp. 3d 198, 219 (E.D.N.Y. 2015), aff'd sub nom. Bartels v. Schwarz , 643 F. App'x 54 (2d Cir. 2016). In addition, "[w]here another provision of the Constitution ‘provides an explicit textual source of constitutional protection,’ a court must assess a plaintiff's claims under that explicit provision and ‘not the more generalized notion of substantive due process.’ " Kia P. v. McIntyre , 235 F.3d 749, 757–58 (2d Cir. 2000) (quoting Conn v. Gabbert , 526 U.S. 286, 293, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) ) (internal quotation marks omitted).
Here, plaintiffs’ claim that the Village unlawfully devalued their property by denying construction permits and diminished their finances through permitting fees fails to raise a substantive due process claim. "In order to allege a property interest sufficient to support a substantive due process claim, the plaintiff must allege that it had a valid property interest in the land-use benefit in question." Leung v. Town of Oyster Bay , No. 2:16-CV-4356(ADS)(AYS), 2019 WL 5309995, at *7 (E.D.N.Y. Oct. 21, 2019). Plaintiffs do not have a valid property interest in "building without permits or applications, construction of structures on wetland buffers, nuisance lighting, construction of gating, and gut renovations to a cottage without permits or approval" in violation of Village Code. People v. Yu , 2018 WL 6497168 at *3 ; see Leung , 2019 WL 5309995, at *6–10 (restauranters do not have a property interest protected under substantive due process to operate a restaurant in violation of Oyster Bay Cove Town Code). As plaintiffs do not have a valid property interest in violating Village Code, they fail to establish any state action "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Bartels , 97 F. Supp. 3d at 219 (quoting Okin , 577 F.3d at 431 ). Additionally, plaintiffs’ substantive due process claim is rejected insofar as it can be raised as a malicious prosecution claim since such claims may be brought under the Fourth Amendment instead of the more generalized notion of "substantive due process." See Kia P. , 235 F.3d at 757–58.
Even supposing that the Village's enforcement actions fell within the statute of limitations, this Court would still find no plausible due process claim. Although charging plaintiffs with 370 violations gives one pause, New York has town and village "ordinance[s] provid[ing] that the continuance of a violation over given periods of time permits each period to be punished as a separate offense ...." People v. Leo , 20 Misc. 3d 1, 4, 860 N.Y.S.2d 804 (App. Term 2008). Under Village of Oyster Bay Cove Code, "[e]ach consecutive day on which any violation of any provision of the Code continues shall constitute a separate violation for the purposes of enforcement and punishment ...." § 1-14, Continuing Violations. In light of these ordinances permitting the cumulation of violations over time for the same offense, the Court finds no colorable due process claim on the basis of the numerosity of the charges brought. Finally, although plaintiffs suggest the Village Court's $242,750 penalty was excessive, the Court lacks jurisdiction over a claim arising out of the state court's penalty, see footnote 8, supra , and, in any event, there is an "enormous range of penalties available ... in the usual civil penalty case ...." United States v. J. B. Williams Co. , 498 F.2d 414, 439 (2d Cir. 1974). Moreover, such a claim would more properly be brought under the Eighth Amendment. See Kia P. , 235 F.3d at 757–58.
C. Takings Clause
"The law recognizes two species of takings: physical takings and regulatory takings." Buffalo Tchrs. Fed'n v. Tobe , 464 F.3d 362, 374 (2d Cir. 2006) (citing Meriden Trust & Safe Deposit Co. v. FDIC , 62 F.3d 449, 454 (2d Cir. 1995) ). Here, no physical taking has occurred as the state has not "physically take[n] possession of an interest in property for some public purpose." Buffalo Tchrs. Fed'n , 464 F.3d at 374. Although plaintiffs argue the Village sought to decrease the property's valuation in order to force a sale to a more "desirable" family, there is no allegation that the property was ever transferred. See DE 26, Pl. Opp. at 11-12. Hence, the issue is whether a regulatory taking has occurred because "the state regulation goes too far and in essence ‘effects a taking.’ " Buffalo Tchrs. Fed'n , 464 F.3d at 374. A regulatory taking may be categorical or non-categorical. Sherman v. Town of Chester , 752 F.3d 554, 564 (2d Cir. 2014). "A categorical taking occurs in ‘the extraordinary circumstance when no productive or economically beneficial use of land is permitted.’ " Id. (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency , 535 U.S. 302, 330, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) ). " ‘Anything less than a complete elimination of value, or a total loss,’ is a non-categorical taking, which is analyzed under the framework created in Penn Central Transportation Co. v. New York City , 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)." Sherman , 752 F.3d at 564. The Penn Central framework is a fact-intensive ad hoc inquiry which weighs three factors: "(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action." Buffalo Tchrs. Fed'n , 464 F.3d at 375 (citation omitted). Additionally, "[w]hen a plaintiff alleges a regulatory taking in violation of the Fifth Amendment, a federal court should not consider the claim before the government has reached a ‘final’ decision." Pakdel v. City & Cnty. of San Francisco, California , ––– U.S. ––––, 141 S. Ct. 2226, 2228, 210 L.Ed.2d 617 (2021) (per curiam) (citation omitted).
Plaintiffs fail to allege a plausible takings claim. First, the economic impact of the enforcement of Village Code does not weigh in favor of finding a taking. The Village Court's $242,750 penalty cannot factor into the Court's analysis because, as discussed supra in footnote 8, under the Rooker-Feldman doctrine this Court lacks jurisdiction over claims brought by "state-court losers complaining of injuries caused by state-court judgments." That Yu was unable to "have a driveway the way he designed it" or "other modifications that he wanted to make to his property" which resulted in "property devaluation," Hr. Tr. at 15:16-23, is hardly sufficient to establish a taking. "A demonstrated decrease in the value of one's property is insufficient to constitute a taking. Rather, a party must prove that the State has deprived it of ‘all reasonable uses’ of its land." Sag Harbor Port Assocs. v. Vill. of Sag Harbor , 21 F. Supp. 2d 179, 186 (E.D.N.Y. 1998), aff'd sub nom. Sag Harbor Port Assocs., Inc. v. Vill. of Sag Harbor , 182 F.3d 901 (2d Cir. 1999) (citations omitted) (denial of permit to construct a tennis club in a residential district is not a taking). The Village's permitting fees, even if hefty, do not rise to the level of a taking because they did not effectively deprive plaintiffs of "any economic use" of the property, which can still be used as a residence. See Vanderveer v. Zoning Bd. of Appeals , No. 2:19-CV-3833-FB-CLP, 2020 WL 7042669, at *3–4 (E.D.N.Y. Dec. 1, 2020), aff'd sub nom. Vanderveer v. Zoning Bd. of Appeals Town of E. Hampton , No. 20-4252, 2021 WL 3745741 (2d Cir. Aug. 25, 2021) (zoning ordinance which cost $12,000 annually is insufficient to establish a taking because plaintiff could still use property as a residence); see also Palazzolo v. Rhode Island , 533 U.S. 606, 630–31, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (denial of permit to build private club on wetlands is not a taking because the property retained $200,000 in development value since a residence could be constructed on the uplands portion); Murr v. Wisconsin , ––– U.S. ––––, 137 S. Ct. 1933, 1949, 198 L.Ed.2d 497 (2017) (finding no taking where the landowner can use the property for residential purposes).
Moreover, the restrictions on plaintiffs’ expansion of the driveway cannot alone constitute a taking. "[A]n ordinance prohibiting construction on the curtilage of a single-family dwelling does not cause a regulatory taking, because courts focus ‘on the nature of the interference with rights in the parcel as a whole ,’ including the portions of the property not subject to restrictions." Elmsford Apartment Assocs., LLC v. Cuomo , 469 F. Supp. 3d 148, 165 (S.D.N.Y. 2020), appeal dismissed sub nom. 36 Apartment Assocs., LLC v. Cuomo , 860 F. App'x 215 (2d Cir. 2021) (quoting Keystone Bituminous Coal Assoc'n. v. DeBenedictis , 480 U.S. 470, 495–96, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) ).
The second and third factors of the Penn Central framework also weigh against finding a taking. Plaintiffs do not allege that the Village Code – which is intended to protect the wetlands and promote public safety – interfered with any investment-backed expectations. Plaintiffs could not have reasonably expected that they could build without a permit or violate Village Code without consequences. See Greenport Gardens, LLC v. Vill. of Greenport , No. 19-CV-2330(PKC)(ARL), 2021 WL 4480551, at *12 (E.D.N.Y. Sept. 30, 2021) (imposition of 20 fines totaling $5,000 does not interfere with investment-backed expectations where plaintiffs did not allege they expected to violate nuisance and public safety laws without incurring a fine). Finally, the character of the government action weighs against finding a taking because, as many of the Village Code regulations at issue here were intended to protect the wetlands, it "arises from some public program adjusting the benefits and burdens of economic life to promote the common-good." Vanderveer , 2020 WL 7042669, at *4 (quoting Penn Central , 438 U.S. at 124, 98 S.Ct. 2646 ).
Applying the Penn Central framework, the Court concludes that plaintiffs fail to allege a plausible claim under the Takings Clause.
Conclusion
For the reasons stated herein, the motion to dismiss is granted in its entirety.