Howard and Jacqueline Sacher (“Plaintiffs”) own a home located in the Village of Old Brookville, New York (“Village”). In 2008 or 2009, Plaintiffs constructed an addition to a pre-existing cottage on their property (“Cottage”) without first seeking a permit or approval from the Village. Additions were made to the first floor of the Cottage, a new second floor was constructed, and the daughter of Plaintiffs began residing in the Cottage. The additions, as well as the daughter’s residency, were in violation of several Village zoning laws.
Plaintiffs sought to legalize the Cottage after its completion by seeking certain variances and rulings. The Village Zoning Board of Appeals (“ZBA”) conducted a hearing at which testimony was given by Plaintiffs in support of the additions and by neighbors in opposition to the additions. The ZBA ultimately granted all the variances related to the first floor of the Cottage and Plaintiffs’ daughter’s occupancy, but it denied the variances related to the second floor. Plaintiffs appealed the ZBA’s decision and brought an Article 78 proceeding in the trial court which affirmed the decision of the ZBA, stating that there was no evidence of Plaintiffs’ argument that the ZBA did not apply the correct balancing test. Plaintiffs appealed this decision to the Appellate Division, and said appeal was still pending at the time the district court decided the motion of the present proceeding.
Plaintiffs filed a complaint with the District Court for the Eastern District of New York (“district court”), asserting two claims pursuant to 42 U.S.C. 1983 against the Village, the ZBA, and several other local entities (collectively, “Defendants”): (1) that Plaintiffs’ right to equal protection of the law was violated, and (2) that Plaintiffs’ procedural due process rights were violated. Plaintiffs alleged that the Mayor of the Village harbored a personal animus toward the Sachers and intentionally tried to prevent the granting of their variances. The complaint listed several examples of other similarly situated Village residents who were either not required to submit variance applications or who were granted the necessary variances. The complaint also cited specific examples of ways in which the Mayor acted to prevent the variance approvals. With regard to the procedural due process claims, Plaintiffs claimed that the Mayor’s actions made it impossible for the Sachers to have had a fair and impartial hearing, thus depriving them of their procedural right to have their applications heard by an independent ZBA.
In response to Plaintiffs’ complaint, Defendants filed a motion to dismiss all of Plaintiffs’ claims. Defendants based their motion to dismiss the equal protection claim on the following: (1) that the Sachers provided no evidence that they were treated differently from similarly situated property owners; (2) “that the discretionary nature of the ZBA’s determination bars the claim,” and (3) that Plaintiffs are precluded from making the claim because of the Article 78 Court’s previous decision. Defendants further contended that Plaintiffs’ due process claim should be dismissed because they did not have a constitutionally protected property right, and even so, “they received all process that was due.”
The district court first addressed Defendants’ assertion of issue preclusion, which “bars re-litigation of an issue of fact fully and fairly litigated in a prior proceeding resulting in a final judgment on the merits.” The court here acknowledged that since the Article 78 Court found that the ZBA’s decision was rational and supported by the evidence, Plaintiffs’ equal protection claim would likely be barred by issue preclusion. However, since the Article 78 Court’s decision was still pending appeal, the decision was not yet a “final judgment.” Without a final judgment, the district court here was unable to conclude that litigation of Plaintiffs’ issue was precluded here.
The court next addressed Plaintiffs’ equal protection claim. The Fourteenth Amendment’s Equal Protection Clause requires equal treatment of all those who are similarly situated. The “class of one” theory allows a plaintiff to claim a violation of equal protection if he can show that he was intentionally treated differently from others who are similarly situated, and that there was no rational basis for that treatment. In a class of one case in a zoning context, a plaintiff must be able to show that his property was so similarly situated to his comparator that “no rational person could see them as different.”
Here, the court noted that certain parts of Plaintiffs’ complaint were far too vague to sufficiently plead a class of one claim. Some of the allegations only generally mentioned “various” properties with “numerous” zoning violations. The court found this ambiguous language did not demonstrate the high level of similarity required to state the claim. With regard to the rest of the complaint, the court found the allegations “just plausible enough to survive a motion to dismiss.” Plaintiffs alleged specific properties with structures similar to that of Plaintiffs. The court emphasized that in order to survive a summary judgment motion, Plaintiffs would need to provide far more evidence regarding the similarities. The court suggested that in order to demonstrate similarities that “no rational person could see . . . as different,” Plaintiffs’ evidence should show that the structures of comparators were built without the required permits or variances, and that neighbors objected to the structures in the same way that Plaintiffs’ neighbors did. In the context of a motion to dismiss, however, the court was satisfied by Plaintiffs’ allegations.
Finally, the court addressed Plaintiffs’ due process claim. A plaintiff asserting a procedural due process violation must be able to “(1) identify a property right, (2) establish that governmental action with respect to that property right amounted to a deprivation, and (3) demonstrate that the deprivation occurred without due process.” In a zoning context, an applicant for a permit or variance does not have a vested property interest in the permit or approval where the deciding authority has discretion in making the decision. Without a protected property right, such an applicant cannot assert a violation of due process. The court explained that here, where the ZBA had discretion to grant Plaintiffs’ applications, Plaintiffs did not have a protected property interest. Thus, Plaintiffs were unable to state a claim of a due process violation, and the court dismissed this claim.
Sacher v. Village of Old Brookville, 2013 WL 4780046 (EDNY 9/4/2013).
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