Development

U.S. Dist. Ct., SDNY

(Seibel, J.)

In landowner's action against the zoning board of appeals (ZBA) pursuant to 42 U.S.C. section 1983, the ZBA moved for summary judgment dismissing the complaint, which asserted due process, equal protection, and first amendment violations. The court dismissed the due process and equal protection claims, but held that questions of fact remained about whether the ZBA had violated landowner's first amendment rights by acting in retaliation for landowner's earlier litigation against the ZBA.

In 2004, landowner obtained a building permit to expand her non-conforming house. When a neighbor appealed issuance of the permit, the ZBA revoked both the building permit and the certificate of occupancy for the house. Landowner then brought an article 78 proceeding challenging the determination. Supreme Court upheld revocation of the building permit, but vacated revocation of the certificate of occupancy as arbitrary and capricious. Then, in 2005 and 2006, landowner sought variances to permit construction of an expanded building. Although the ZBA granted a lot size variance, it denied lot coverage and setback variances. Concerns also arose about a newly constructed attic, because it appeared possible that the attic would function as an extra story, in violation of the zoning code. In 2008, landowner revised her plans and again sought variances, which the ZBA ultimately granted, but on condition that landowner not occupy the house until she obtains a certificate of occupancy, that she remove all outdoor storage sheds, and that she remove insulation above the attic floor level (to ensure that the attic is not used as living space). Landowner then brought this federal court action, contending that the ZBA had violated her due process, equal protection, and first amendment rights.

The court first rejected the ZBA's contention that it was entitled to quasi-judicial immunity for its actions. The court held that federal law applied to the issue, and that the ZBA had not addressed the factors relevant to quasi-judicial immunity under federal law. As a result, the ZBA did not satisfy its burden or establishing quasi-judicial immunity. Turning to the merits, the court dismissed landowner's due process claim because landowner could not establish she had a property interest in the variances she sought. The court noted that the ZBA retained considerable discretion in granting variances, and that discretion was sufficient to defeat a due process claim. The court then held that landowner's equal protection claim was based on selective enforcement, and to prevail on that claim, she had to establish that differential treatment was based on impermissible considerations. Here, the only impermissible consideration alleged by landowner was displeasure with landowner's earlier article 78 proceeding. As a result, the court treated the equal protection claim as subsidiary to landowner's First Amendment claim. With respect to the claim, the court held that landowner had come forward with enough circumstantial evidence to raise a triable issue of fact. In particular, the court noted that the ZBA had imposed less onerous conditions on other applicants when the ZBA was concerned about improper use of attics, and that ordering landowner to obtain a certificate of occupancy ' when landowner already had, by virtue of a court order, a valid certificate of occupancy ' raised the possibility of retaliatory motive. As a result, the court denied the summary judgment motion with respect to the First Amendment claim, while granting the motion with respect to the other claims.

First Amendment Claims Against Zoning Board
Survive Summary Judgment

Tomlins v. Village of Wappingers Falls Zoning Board of Appeals

NYLJ 8/4/11

U.S. Dist. Ct., SDNY

(Seibel, J.)

In landowner's action against the zoning board of appeals (ZBA) pursuant to 42 U.S.C. section 1983, the ZBA moved for summary judgment dismissing the complaint, which asserted due process, equal protection, and first amendment violations. The court dismissed the due process and equal protection claims, but held that questions of fact remained about whether the ZBA had violated landowner's first amendment rights by acting in retaliation for landowner's earlier litigation against the ZBA.

In 2004, landowner obtained a building permit to expand her non-conforming house. When a neighbor appealed issuance of the permit, the ZBA revoked both the building permit and the certificate of occupancy for the house. Landowner then brought an article 78 proceeding challenging the determination. Supreme Court upheld revocation of the building permit, but vacated revocation of the certificate of occupancy as arbitrary and capricious. Then, in 2005 and 2006, landowner sought variances to permit construction of an expanded building. Although the ZBA granted a lot size variance, it denied lot coverage and setback variances. Concerns also arose about a newly constructed attic, because it appeared possible that the attic would function as an extra story, in violation of the zoning code. In 2008, landowner revised her plans and again sought variances, which the ZBA ultimately granted, but on condition that landowner not occupy the house until she obtains a certificate of occupancy, that she remove all outdoor storage sheds, and that she remove insulation above the attic floor level (to ensure that the attic is not used as living space). Landowner then brought this federal court action, contending that the ZBA had violated her due process, equal protection, and first amendment rights.

The court first rejected the ZBA's contention that it was entitled to quasi-judicial immunity for its actions. The court held that federal law applied to the issue, and that the ZBA had not addressed the factors relevant to quasi-judicial immunity under federal law. As a result, the ZBA did not satisfy its burden or establishing quasi-judicial immunity. Turning to the merits, the court dismissed landowner's due process claim because landowner could not establish she had a property interest in the variances she sought. The court noted that the ZBA retained considerable discretion in granting variances, and that discretion was sufficient to defeat a due process claim. The court then held that landowner's equal protection claim was based on selective enforcement, and to prevail on that claim, she had to establish that differential treatment was based on impermissible considerations. Here, the only impermissible consideration alleged by landowner was displeasure with landowner's earlier article 78 proceeding. As a result, the court treated the equal protection claim as subsidiary to landowner's First Amendment claim. With respect to the claim, the court held that landowner had come forward with enough circumstantial evidence to raise a triable issue of fact. In particular, the court noted that the ZBA had imposed less onerous conditions on other applicants when the ZBA was concerned about improper use of attics, and that ordering landowner to obtain a certificate of occupancy ' when landowner already had, by virtue of a court order, a valid certificate of occupancy ' raised the possibility of retaliatory motive. As a result, the court denied the summary judgment motion with respect to the First Amendment claim, while granting the motion with respect to the other claims.