Plaintiff Anthony Missere owns two adjoining properties in the Village of Cornwall-on-Hudson, on one of which he operates the Riverbank Restaurant. He initiated plans to expand his restaurant by filing an application with the village zoning board. Defendant Yannone owns another property that physically adjoins Missere’s property. While Missere’s applications were pending, Yannone allegedly lobbied against the plans and Mayor Gross allegedly signed and certified an official zoning map erroneously indicating that the property was not located in a CBS zone. The Code Enforcement Officer produced an opinion letter finding that the property was located within a CBS zone and Yannone filed an appeal sixty days later. Missere alleged it was untimely, but the board heard it anyway and overturned the Code of Enforcement Officer’s decision. Missere challenged this decision in the Supreme Court, but his claim was unsuccessful since Board’s decision was within its discretion and not arbitrary or capricious.
Missere attempted to file a variance application, but the board dismissed it claiming that they could only hear appeals of determinations of other administrative officers. In the mean time a new Code Enforcement Officer granted Yannone several Certificates of Occupancy, despite Missere claiming that they were improper since they were based on expired permits. In addition, Missere claims that a six-foot-high fence Yannone built on the property line violated a number of ordinances, but the village made no effort to rectify the situation. Missere claims that he was deprived of property without due process, his equal protection is violated due to selective enforcement and that Mayor Gross violated his rights under the 14th Amendment.
Regarding Missere’s due process claims that he was deprived of his right to expand his restaurant, the court finds that his claim is not ripe. The Village did not render its final decision on his application for a use variance that could allow him to operate a restaurant. Although Missere relies on the futility exception which allows a property owner to be excused from obtaining final decision when a zoning agency has made it clear that all such applications will be denied, the court finds it inapplicable. Here the Board failed to act over a two year period, but the court explained that a mere delay in acting on a variance application does not constitute what was intended by the futility exception. Furthermore, Missere’s property interest claim would fail on the merits. His allegations of having a constitutionally protected property interest are incorrect, since he had no “entitlement” to a variance. It is well established that under NY law, local zoning boards have broad discretion and have the option to elect not to issue a variance.
Under the Equal Protection Clause of the 14th Amendment, the government is required to treat similarly situated persons alike. Since the plaintiff is not a member of a constitutionally protected class he can assert one of two theories: selective enforcement or class of one. Even if it is assumed all of the facts alleged by Missere are in fact true, none support either theory of an Equal Protection claim since they were inadequately pled or insufficient as a matter of law. First, the property in question was not similarly situated as compared to those that received permits since there was considerable question as to whether the land was located in the CBS zone, where the others were not. Second, Missere claims that he was made to clear a substantial hurdle to have outdoor dining while Yannone was excused. However, due to the lack of facts in the complaint there can be no reasonable assumption that the two situations are substantially similar. Finally, the remainder of allegations are not accompanied by evidence indicating that Missere and Yannone were similarly situated, and therefore any equal protection claim is invalid.
Also, any claims against Yannone’s establishments are not actionable since Missere did not allege that any conduct was engaged in that is actionable under statute 1983. Under this statute, the defendant is required to have acted under color of law. This occurs when an entity acts in accordance with coerce state powers, when state provides significant encouragement or when the entity has been delegated a public function by the state. Mere lobbying and receiving what was assumed to be favorable treatment do not amount to the joint action necessary to find the defendants liable. Therefore, the defendant’s motions to dismiss are granted in their entirety.
Missere v. Gross, 826 F. Supp. 2d 542 (S.D.N.Y 3/31/2011)