Posted by: Patricia Salkin | January 27, 2012

Fed. Dist. Court in NY Dismisses Due Process and Equal Protection Claims but Not Retaliation Claim

Barbara Tomlins obtained a building permit in June 2004 to vertically expand her Village of Wappingers Falls, NY home.  A neighbor appealed the issuance of the building permit to the Village’s Zoning Board of Appeals (ZBA).  A month after granting the permit, the building inspector ordered Tomlins to cease and desist ongoing construction until the appeal was decided.  In the meantime, the unprotected home flooded and the Village temporarily deemed the house unsafe to inhabit.  In October 2004, the ZBA revoked the building permit as well as the certificate of occupancy that allowed Tomlins to re-inhabit her home after the flooding.  Tomlins sought an order vacating the ZBA’s decision from the Dutchess County Supreme Court.  In March 2005, the court upheld the revocation of the building permit but vacated the ZBA’s revocation of the certification of occupancy.

Throughout 2005 and 2006, building permit applications by Tomlins were continually denied.  In July 2006, the Village code enforcement officer denied an application because “the house’s lot coverage and setback measurements did not conform to the Village zoning code.”  Between August 2006 and July 2007, several zoning variance applications were filed with the ZBA, one of which was granted.  John Fenton, in May 2007, took over as the Village’s code enforcement officer and building inspector.  Fenton initially removed the order of unsafe condition after inspecting the house, but in late 2007 he issued a stop-work order and posted the house as unsafe, thereby preventing Tomlins from occupying it.

After further rounds of denied applications, in October 2008, the ZBA granted the requested variances on a number of conditions.  Among others, the ZBA required that Tomlins remove all outdoor storage sheds, remove insulation above the attic floor level or stairs ascending to the attic, and that she obtain a certificate of occupancy before occupying the house.  In November 2008, Tomlins filed a complaint in District Court against the ZBA and Fenton (Village building inspector) for violating her substantive due process rights, against Fenton for denying her equal protection under the law, and against both Fenton and the ZBA for “retaliating against her for her prior use of the courts under the First Amendment.”  Defendants moved for summary judgment.

After deciding that neither the ZBA nor Fenton qualified for quasi-judicial immunity, the Court dismissed Tomlins substantive due process claim.  Tomlins was not “entitled” to the building permits or zoning variances because they were denied on “legitimate, non-arbitrary grounds” and the Defendants had “wide discretion in deciding” to deny them.  The Court also dismissed Tomlins’ Equal Protection claim against Fenton for failure to “raise a triable issue of fact as to a causal connection” between Fenton’s actions in 2008 and the state court proceeding she brought against the ZBA in 2004.  There was no proof that Fenton knew of the state court proceeding, as he was not employed by the Village until 2007.

Tomlins’ First Amendment retaliation claim against the ZBA, however, was not dismissed.  The Court found that there was evidence of “an ongoing course of adverse action” by the ZBA against Tomlins “sufficient to create a fact issue for trial.”  The ZBA had deviated from its standard procedure, and acted without authority, when it required that Tomlins obtain a certificate of occupancy after the state court had vacated the order revoking said certificate.  Further, the ZBA treated Tomlins “differently than other variance applicants” when it conditioned her variance on the removal of storage sheds, attic insulation, and attic stairs.  Finally, because the ZBA imposed additional “and seemingly increasingly unreasonable procedural requirements” upon Tomlin with each successive variance application, the Court allowed the claim to stand.

Tomlins v. Village of Wappinger Falls 2011 WL 2714213 (S.D.N.Y. 7/8/11)


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