Posted by: Patricia Salkin | June 19, 2013

Fed. Dist. Ct. in NY Denies Summary Judgment Motion Alleging Challenged Ordinance is Void for Vagueness

33 Seminary, LLC. (Seminary) purchased 31 Seminary Avenue, located in the City of Binghamton in January of 2009. In March of 2009, the City Council adopted an ordinance that redefined the type of activity permitted as-of-right in zoning districts, and those activities which would need planning board approval. Among the provisions, a two-unit residence is permitted as-of-right, but the conversion of the dwelling unit to more than four bedrooms must have planning commission approvals. Other provisions of the ordinance provided for exceptions to when a developer would need zoning approval, and exceptions for those exceptions. For example, the ordinance did not require planning board approval for accessory uses to one or two-family dwellings, unless the building inspector determined the use would have a significant impact on traffic, site access and parking among others.

In the months following the enactment of the ordinance, Seminary and its agent, Isaac Levin, filed numerous applications with the City for the purpose of eventually expanding the property to include five bedrooms per floor as opposed to the four the statute allows as-of-right.  Seminary also sought to reduce the setback requirement from 5 feet to 4 feet.  In May of 2009, Supervisor Chadwick informed Levin that the application had been denied due to a change of use. Levin argued that the City was incorrect in assuming it was a change of use as the ordinance made it permissible to have more than four bedrooms under the zoning with approval from the planning board.

Levin and Seminary submitted additional applications for building permit applications and were denied every time because Chadwick determined that the plans were always very similar and the developer would not be allowed to submit the same plans just with different names for the rooms. Continuing to argue that Seminary’s plans were changes of use, the Board held several public hearings to determine whether to approve the applications. After being approved for a new side and rear addition as well as a new roof and interior renovations, the public hearings boiled down to the construction of two five-bedroom floors. After several hearings without a resolution, the Board finally denied the application on the grounds that Seminary had failed to meet the general requirements to be granted a special permit. Seminary submitted one more application following this rejection, reducing the rooms per floor to four. The Board refused to accept the compromise and demanded that Seminary’s plans only include 3 bedrooms per floor. Seminary sued the City of Binghamton arguing the ordinance enacted in March of 2009 was unconstitutionally vague.

In response to the suit, the City filed a motion to dismiss for failure to state a claim. In a Memorandum-Decision and Order (MDO) the Court granted the motion in part and denied the motion in part. The relevant issue for purposes of future appeal is the Court’s determination that Seminary had adequately pled a case for vagueness because provisions of the ordinance appear to be conflicting. While the Court went on to say that the void-for-vagueness challenge may be deficient after a record develops more fully, the allegations have been sufficiently plead as to warrant the denial of the motion to dismiss. After the MDO was issued, Seminary filed a motion for summary judgment on the claim that the ordinance was void for vagueness. While discovery was supposed to be going on during the time between the MDO and the hearing on the motion, it seems as if both parties were willing to wait for the ruling on the motion before doing any real discovery as the process was extended by the magistrate several times before being stayed pending the outcome of the motion for summary judgment.


The Court explained there are two ways an ordinance could be void for vagueness, lack of notice and lack of explicit enforcement standards.               The standard for lack of notice is whether a person of ordinary intelligence must guess at the meaning of a restriction. It may be overcome where reasonable persons would know their conduct is at risk. The Court said that here the plaintiffs have not demonstrated with competent, admissible evidence, that the challenged provisions of the ordinance were not sufficiently crafted to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited. At issue is the “change of occupancy” status that Seminary argues is not defined and therefore creates confusion. The Court held that because the term “change of occupancy” is nowhere to be found in the Ordinance, the failure to define it cannot cause any confusion.

A statute or ordinance may also be unconstitutionally vague when it fails to have strict enforcement standards that limits or denies unfettered discretion to engage in arbitrary enforcement. Seminary alleged that the “change of use” provision provided for this type of unfettered discretion that allowed the Zoning Board to subjectively consider their application. The Court rejected this argument noting that the transcripts of the hearings contained statements from people not authenticated by testimony or deposition.

33 Seminary, LLC. v. City of Binghamton, 2013 WL 2446306 (NDNY 6/5/2013)

The opinion can be accessed at:

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