Posted by: Patricia Salkin | January 10, 2013

Fed. Dist. Ct. in NY Dismisses Substantive Due Process and First Amendment Claims Finding No Vested Right or Property Interest

A dispute arose when the Panettas purchased real property and needed to install a drainage system to develop it. The Village suggested securing an easement from the adjoining neighbors, but the neighbors declined the request, forcing the Panettas to obtain a street opening permit to install the requisite utilities which was ultimately granted. The planning board, satisfied with the construction and installation of the drainage system, eventually issued a building permit for a single family dwelling and a temporary Certificate of Occupancy (“CO”). However, despite reviews and approvals by the village engineers and managers, neighbors still complained that the drainage system was not in compliance with the approved designs. To them, the plaintiffs had not complied with the “as built” drawings but instead installed the drain approved only by the engineers, not the board.

The Village Manager then informed the plaintiffs that they needed to rectify the drainage issues satisfactorily and in compliance with the plans approved by the board or else the board would not issue a permanent CO. In this action, plaintiffs contended that the defendants were attempting to coerce them into performing a “private public works project” by pushing for a hard pipe drainage system be installed, which was not required by the resolution.

The court tackled the substantive due process right first. In order to assert such a claim, the plaintiffs must plead that a constitutionally cognizable interest is at stake and that the defendants’ alleged acts against that land were arbitrary, conscience-shocking, or oppressive in the constitutional sense. To establish a constitutionally cognizable property interest, plaintiffs must demonstrate a clear entitlement to the benefit in question. Because property interests are created and defined by state law, the court looked to New York law which states:

[A] vested right in a certificate of occupancy may arise where a landowner demonstrates a commitment to the purpose for which the certificate was granted by effecting substantial changes and incurring substantial expense to further the development of the property.

The court added that neither the issuance of a temporary CO, nor substantial changes or expenditures to improve the property, will establish a vested right.

Although the court recognized that the building department issued a building permit and temporary CO, and that plaintiffs asserted the engineers assured them they complied with the board’s resolution, the court ruled that enough facts were not sufficiently pled to amount to a cognizable property interest. The court noted that the plaintiffs did not put forth sufficient information demonstrating that municipal action rendered the improvements valueless. Additionally, this lack of municipal actions carried over to the named individuals as well who, in order to be liable under 42 U.S.C. section 1983, must have been action under the color of state law when they deprived plaintiffs of a constitutional right. To the court, because plaintiffs have so far failed to plausibly allege a constitutionally cognizable property right in the CO for the single-family dwelling, they cannot sustain a claim that defendants deprived them of that right. For these reasons the court granted the defendants’ motions to dismiss the substantive due process claim.

The plaintiffs also alleged that the neighbors conspired with municipal officials to violate their civil rights. This claim was based only on the facts that the neighbors inquired into the construction process and compliance issues, and participated at board meeting and “lying” to the planning board. According to the court, these assertions were insufficient to support a conspiracy claim. Conclusory, vague, or general allegations are  not sufficient to support a conspiracy claim unless amplified by specific instances of misconduct. Because the plaintiffs failed to put forth such specific instances, the court granted the motions to dismiss with prejudice.

Lastly, plaintiffs purport to allege a First Amendment retaliation claim by asserting that defendants’ continued failure to issue the CO was carried out in retaliation for plaintiffs’ petitioning of the village for issuance of the permanent CO. The right to complain to public officials and to seek administrative and judicial relief is protected by the First Amendment. “To state a First Amendment retaliation claim, plaintiffs must establish: (1) they have an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by their exercise of that right; and (3) defendants’ actions effectively chilled the exercise of their First Amendment rights.”

The first element is satisfied as the plaintiffs have a constitutional right to petition the government for the redress of grievances. The court also found that the second element was satisfied. The court looked to Fed. R. Civ. P. 9(b), which provides that “[m]alice, intent, knowledge and other conditions of mind . . . may be averred generally,” to support its finding. However, as for the third element, chilling must be established by “a change in behavior.” Here, the court held that plaintiffs did not demonstrate a change in behavior as a result of chilling. Plaintiffs had been in contact with municipal officials via correspondence and their attorney and thus failed to sufficiently plead a change in behavior. This claim was dismissed as well.

Panetta v. Village of Mamaroneck, 2012 WL 5992168 (S.D.N.Y. 2/28/2012)

The opinion can be accessed at:


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