Posted by: Patricia Salkin | June 25, 2013

Fed. Dist. Court in NY Dismisses Fire Island Property Owners Claims of Due Process and Equal Protection Violations Following Denial of Variance Request

Plaintiffs, Michael DeFalco and William Matthews, own property on Fire Island, New York.  Plaintiffs’ dwelling and amenities occupied a total of 42.6% of the lot and all the structures had valid certificates of occupancy (“COs”).  Although the town’s zoning laws only allowed for 35% coverage, Plaintiffs’ structures existed before the enactment of such laws.  In 2010, Plaintiffs sought variances to make changes to their home. While the proposed changes would alter the structure of the dwelling, Plaintiffs insisted that the lot coverage would remain at 42.6%. The Board of Zoning Appeals for the Town of Brookhaven (“Board”) partially granted Plaintiffs’ application but placed limits regarding the lot coverage.  The Board determined that the 42.6% lot coverage was far greater than the permissible 35% and to allow such coverage would set a negative example for others.  As such, the Board agreed to allow Plaintiffs 37% lot coverage if they chose to continue with the structural changes to the property.  The Board did not revoke the COs that were already in place so long as Plaintiffs chose not to make any changes.

Plaintiffs brought action against the Town of Brookhaven (“Town”), the Board, and the Board Chairman, alleging that Defendants violated their constitutional due process and equal protection rights.  Defendants then moved for judgment on the pleadings and Plaintiffs moved for partial summary judgment on the due process claims.

After determining that plaintiffs had standing, the federal district court addressed the issue of whether Plaintiffs stated a cause of action for violation of procedural and substantive due process, specifically by determining whether they had a cognizable property interest. The Court noted that the property interest was not in Plaintiffs’ CO for the structure that already existed, since this would not have been affected if Plaintiffs chose not to make the alterations to their home.  Thus, the court had to determine whether a variance request constitutes a property interest.  The Court noted that a landowner’s right to maintain a nonconforming structure “does not extend to subsequent construction.”  If, as here, the landowner’s rights are grandfathered in because the nonconforming structure existed prior to the enactment of a prohibitory statute, these rights cease to exist once the landowner makes changes to the structure.  Since the decision whether to grant a variance is discretionary, no property right exists and therefore the due process claims were dismissed.

Further, the court dismissed the equal protection claim brought under a “class-of-one” theory, a theory that is limited to disputes between citizens and local governments or municipalities, but not freely applied to government officials acting in an official capacity. The court concluded that the plaintiffs’ “class-of-one” allegations were conclusory, merely asserting the elements of the claim without providing any factual support.  Since Plaintiffs were not entitled to an assumption of truth regarding these allegations, the court granted Defendants’ motion to dismiss the equal protection claims.

DeFalco v. DeChance, 2013 WL 2658641 (E.D.N.Y. 6/13/2013)

The opinion can be accessed at:

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