Posted by: Patricia Salkin | July 30, 2009

Neighbor of View-Obstructing House Fails to Demonstrate Due Process or Equal Protection Injuries

Frog Hollow Builders (Frog Hollow) purchased land in Glen Cove, New York, with the intention of building a residence to sell.  Initially Frog Hollow began the process of obtaining a variance to build.   After the zoning board requested more information, Frog Hollow altered their plan to one that would not require a variance.  Around the same time, Glen Cove began to work on amendments to the zoning code that would bar construction of Frog Hollows’ building.  Prior to the adoption of the amendments, the zoning board approved Frog Hollows’ permit.  During the entire process, plaintiff Michele Puckett (Puckett) had been attending the zoning meetings to voice opposition and meeting with Glen Cove city officials.  Puckett resided in a house across the street from Frog Hollows’ construction project.  After construction began Puckett, through her own investigation, discovered that the architect of the Frog Hollow project was not licensed in New York State.  After Puckett informed the mayor of Glen Cove, the mayor issued a Stop Work Order to Frog Hollow.  Hearings resumed on the matter several weeks later.  Acting on advice from the town attorney, the zoning board allowed Frog Hollow to continue with construction.  The town attorney gave this advice based on the view that amendments to the zoning code were improper due to deficiencies in notification of neighboring municipalities.  Puckett next tried to stop construction by commencing a proceeding under Article 78 of New York’s Civil Practice Law and Rules.  The defendants (Glen Cove officials) sought and obtained a dismissal for failure to exhaust administrative remedies.  Plaintiff alleges that the construction of the “mammoth nonconforming home” has forever blocked her view of the water, and as a result caused loss of enjoyment of her property.  Additionally she claimed the process subjected her to humiliation, economic, emotional, and psychological injuries.  To redress these injuries plaintiff commenced a Section 1983 lawsuit against the City of Glen Cove, the City Attorney, and the Building Department Administrator. 

Puckett first argued that the defendants violated her Equal Protection rights pursuant to the Fourteenth Amendment.   This violation was allegedly evidenced by selective enforcement of zoning laws to the benefit of Frog Hollow and detriment of the plaintiff.  The court held that the plaintiff was unable to show any group of similarly situated individuals receiving different treatment.  The facts showed no homeowners that had been treated differently than the plaintiff, or even a developer that had been treated differently by the city.  Further, even if Puckett could find information showing similarity, the Equal Protection claim was still doomed because she could not point to any treatment based on maliciousness or bad faith.  To the contrary, the record showed that the defendants investigated the plaintiff’s complaints and acted on the legal advice of the town attorney. 

Puckett also claimed that the defendants’ actions violated both her procedural and substantive due process rights.  Here the court examined the plaintiffs claimed right as either: (1) the right to an unobstructed view of the water, or (2) the right to prohibit a neighboring landowner from building on his land.  The court rejected outright the possibility that there might be a right to unobstructed views under the Constitution.   The court was also not persuaded that the plaintiff may have a right to prohibit the granting of a building permit to a neighbor.  This is because of the amount of discretion the defendants had in regards to the issue.  The plaintiff cannot be said to have been “virtually assured” of getting the neighbors’ permit applications rejected. 

The court next examined Puckett’s First Amendment retaliation claim.  In the process, the court settled a dispute over whether such a claim required an actual chilling effect on speech.  The court held that such chilling is required only where a plaintiff claims no other harm besides the chilling of speech.  Here the plaintiff alleged injuries beyond speech chilling.  Having settled the elements the plaintiff would have to show to support the First Amendment retaliation claim the court conducted the analysis.  Applying Second Circuit precedent, the court recognized that the motivation behind the defendants’ conduct was not properly determined in a motion to dismiss.    Finding one matter that required the controversy to proceed to discovery, the court declined rule on the qualified immunity issues regarding the two named defendants.

Puckett v. City of Glen Cove, 2009  WL 1916275 (E.D.N.Y.6/30/2009)


  1. What a well written opinion! I am interested to see how the qualified immunity/municipal liability issue plays out…

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: