Posted by: Patricia Salkin | April 25, 2014

Fed. Dist. Court in NY Dismisses Due Process and Section 1983 Claims of Hurricane Irene Victims and Finds that a Variance was Required for Substantial Improvements to be Made

In August 2011, the Village of Mamaroneck issued an evacuation notice in anticipation of Hurricane Irene. Plaintiffs evacuated, but their home-like most homes in the neighborhood suffered severe flood damage when the river overflowed. The flooding reached the first floor of the home, and the resultant damage rendered it uninhabitable. After the first four weeks, with approximately fifty percent of the repair work having been completed, Melillo visited the site and subsequently issued a verbal stop work order to Plaintiffs’ contractor. Melillo informed Plaintiffs that he was deeming their repair work to be a “substantial improvement” under Chapter 186 of the Village Code which defined “substantial improvement” as follows:
Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement. Substantial improvement also means “cumulative substantial improvement.” The term includes structures which have incurred substantial damage, regardless of the actual repair work performed.

Plaintiffs filed suit on December 4, 2012, alleging that, after ignoring other homeowners’ unauthorized and noncompliant repair work, Defendants selectively enforced Chapter 186 against them in order to convince state and federal authorities that the Village was remedying its past failure to enforce flood-zone regulations.

The federal district court reasoned that the imposition of conditions in did not deprive Plaintiffs of any legally cognizable property interest and that those conditions may have “rendered it economically unfeasible for Plaintiffs to either repair their home to habitability or sell it without a significant loss,” while unfortunate, does not turn otherwise-discretionary state action into an unconstitutional deprivation of due process. Since the Plaintiffs have failed to allege a valid property interest, both their substantive and procedural due process claims are dismissed. Finally, the court granted the Defendant’s Motion to Dismiss the Plaintiff’s Monell claim because “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” (quoting Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006)).

Witt v. Village of Mamaroneck, 2014 WL 1327502 (S.D.N.Y. 2014)

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