Posted by: Patricia Salkin | April 26, 2012

Second Circuit Court of Appeals Finds Section of Zoning Law Void for Vagueness

Brendan Cunney owns property that is bounded by both the Hudson River and the East River.  His property slopes down to a flat portion where a house is constructed.  Cunney sought to do some reconstruction on his property and was bound by section E of the local zoning laws which requires no building to “rise more than two stories in height nor more than four and one-half (4 1/2) fees above the easterly side of River Road.”  Cunney applied to the village to get permits to construct his improvements.  Concerned about whether Cunney’s proposal violated section E, the zoning board held a hearing.  At the hearing, Cunney’s surveyor explained that it was not clear which point of the river the height of the proposed house should be measured, and thus, section E was ambiguous.  Various members of the zoning board argued that the measurement should be from different spots.  The zoning board however declined to decide the vagueness of section E, instead finding that regardless of where the height was measured from, Cunney would need a height variance, which the town denied.  

Cunney revised his site plan in an attempt to predict how the zoning board would apply section E.  The village planning board found that based on five separate measurements, Cunney’s second proposal complied with section E.  Therefore, the planning board approved Cunney’s second proposed site plan and the building inspector, subsequently, issued a building permit.  A few months into construction, the village engineer performed an inspection and found that part of a building was higher than allowed under section E.  Once Cunney completed construction, he applied for a certificate of occupancy.  The village asked the village engineer to conduct a review of Cunney’s property.  The engineer found that although there were spots higher than section E required, the construction was in substantial compliance with Cunney’s approved plans.  Ultimatel Cunney’s certificate of occupancy was denied, citing section E.  Cunney appealed to the zoning board of appeals who found that section E was not ambiguous and Cunney’s construction was in violation of it.  Cunney filed suit in New York state court which was removed to federal court by the defendant village.  The district court granted summary judgment for defendants, Cunney appeals. 

The claims brought before the Second Circuit are: whether section E is void for vagueness, both facially and as-applied to Cunney, and whether the defendants violated Cunney’s substantive due process rights by denying his certificate of occupancy.  Although Cunney brought a negligence claim and a malpractice claim against his surveyor, these are not at issue here.  

The Second Circuit begins by explaining that there are two grounds which a court may find a statute’s language vague to deny due process of law.  First, where a statute fails to give such warning that a reasonable person would know what the regulation requires, it is vague.  The court finds that here, a reasonable person would know that section E generally prohibits a building higher than two stories, the four and a half language is “remarkably unclear.”  Thus, the court finds that the statute fails to give proper notice to a reasonable person to comply with the statute.  The second ground, explains the court, is that an ordinance is void for vagueness where it does not contain explicit standards for those applying it to apply it objectively.  Here, although the stated purpose of the statute is to retain views of the river valley, this does not protect the statute from arbitrary enforcement.  Similarly, different members of the zoning board had different interpretations of section E and even the village engineer interpreted the section differently during different observations.  Thus, it is clear to the court “that the ordinance’s vagueness authorizes arbitrary enforcement” and that there is ample evidence it was arbitrarily enforced against Cunney.  

Next, the court turns to the village’s argument that it is not vague because there is a core meaning.  The court explains that where an ordinance has a clear core meaning, such that no reasonable enforcement officer could apply the ordinance differently, an as-applied vagueness challenge will fail.  Here, the court finds the core meaning of the ordinance is preservation of the views of the river.  It is clear, however, that reasonable enforcement officers could come to different conclusions about the four and a half requirement—mainly because separate enforcement officers actually did.  Thus, the court finds that it is reasonable that Cunney’s construction complied with section E.  Therefore, the court reversed summary judgment against Cunney and enters it in his favor. 

Finally, the court examines Cunney’s substantive due process claim.  Cunney argues that he incurred substantial expenses in construction on his property and that he acted with reliance on the village’s approval and issuance of a building permit.  Thus, Cunney argues, he has a vested right in a certificate of occupancy.  The court finds that the certificate of occupancy denial was based on the town’s perception that Cunney violated section E.  Since this court has held section E unconstitutionally vague, the village may no longer rely on this section for its denial.  Thus, the court remands the substantive due process claim to the district court for findings based on this decision.  

Cunney v. Board. of Trustees of Grand View, 660 F.3d 612 (2d Cir. (NY) 01/03/2011) 

The opinion can be accessed at: The opinion can be accessed at:

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