Cunney applied for permits to construct a home on his property. The applicable code provisions required that buildings in the zoning district, which were in a downward-sloped area, be no higher than four and one-half feet above the easterly side of an adjacent road. The Village engineer initially determined that the building was in compliance, but upon re-measurement concluded that the building exceeded the height limit by approximately three feet and refused to issue a certificate of occupancy. Cunney appealed the determination to the zoning board of appeals, which granted a variance subject to three conditions: the pool house be removed from its present location prior to the issuance of the Certificate; that Cunney ensure an open and unobstructed view for entire northerly side of the property as well as a along a diagonal line along river; and that no structures may be built in the unobstructed area described in the aforementioned area.
Cunney then filed an action in federal court, alleging violations of the First and Fourteenth Amendments and seeking $3 million in compensatory damages. The Village moved to dismiss, which the court converted into a motion for summary judgment. The district court granted the motion, holding that the zoning law was not unconstitutionally vague as applied to the owner, and that it adequately apprised him of what conduct the regulation required. The Court said that the ordinance could, however, result in potentially arbitrary or ad hoc enforcement since it does not provide “sufficiently clear standards” to subjectively measure the height of homes in the district. However, the Court concluded that Cunney’s property falls within the core goals of the Village Code (to “preserve…the remaining view of the Hudson [River] from River Road.”) and that this value could be easily understood. Lastly, with respect to his substantive due process claim, the Court concluded that Cunney did not possess a protectable property right to occupy the building as “the certificate of occupancy or the landowner’s substantial changes in and of themselves, will not establish a vested right.”
Cunney v. Board of Trustees of the Village of Grand View, 675 F. Supp. 2d 394 (S.D.N.Y. 12/ 18/ 2009).
