G.I. Developing initiated this suit challenging zoning actions taken by the municipality of Brookhaven, New York. The United States District Court, Eastern District of New York granted Brookhaven’s motion for summary judgment on G.I.’s procedural due process claims. On appeal, the Second Circuit undertook a de novo review and affirmed.
G.I. claims its procedural due process rights were violated when their certificate of zoning compliance (hereinafter “CZC”) was revoked, and when G.I. was issued criminal citations. The Second Circuit stated that when analyzing a procedural due process claim, the court is to consider “(1) whether plaintiff possessed a protected liberty or property interest, and, if so, (2) what process plaintiff was due before it could be deprived of that interest.” It was undisputed that the CZC was a protected property interest. Thus, the Second Circuit needed only to consider whether the process made available to G.I. was adequate.
In determining whether the level of process provided was adequate, the court explained that there are two types of claims: those that result from the government following official procedure, and those that result from unauthorized acts of local officials. The former usually results in a pre-deprivation proceeding, whereas the latter usually involves a post-deprivation hearing or remedy. The trial court found that the zoning inspector’s invalidation of the CZC via letter was unauthorized. G.I. appealed, claiming summary judgment was improper as questions of fact remained concerning the zoning inspector’s authority to invalidate the CZC.
The Second Circuit disagreed with G.I., finding it was clear that the zoning inspector’s acts were unauthorized. The court relied on the zoning inspector’s uncontradicted deposition statements providing that he was not authorized to invalidate the CZC, and that it was the first and only time he had done so in his twenty year career as chief zoning inspector. In addition, following the invalidation of the CZC, Brookhaven had notified G.I. that the letter from the zoning inspector was of no force and effect, and that G.I.’s CZC was still valid. Further in support of the trial court’s decision, the Second Circuit also indicated that only building inspectors had the authority to invalidate CZC’s.
Since the letter of invalidation was unauthorized, the Second Circuit addressed the adequacy of the post-deprivation procedure. An Article 78 Proceeding was available to G.I. following the unauthorized invalidation of their CZC, which G.I. undertook. The Second Circuit stated that Article 78 proceedings do provide an adequate procedure to remedy unauthorized acts. However, G.I. claims Brookhaven forced G.I. to withdraw their Article 78 Proceeding. Specifically, G.I. claims Brookhaven threatened the shelving of G.I.’s variance application while the Article 78 Proceeding remained. The Second Circuit dismissed this assertion as it was not supported by admissible evidence. Thus, the Second Circuit found that the Article 78 proceeding provided adequate process to remedy the authorized deprivation.
G.I. Home Developing Corp. v. Weis, 2012 WL 4679331 (2nd Cir., Oct. 4, 2012).
The opinion can be accessed here.