Posted by: Patricia Salkin | September 20, 2015

Fed. Dist. Court in NY Dismisses Section 1983 Claims against Township and Neighbors Relating to Alleged Interference with the Plaintiff’s Ability to Build on His Land Which was Subject to a Restrictive Covenant

Plaintiff Robert Gregory attempted to build upon his property but there is a restrictive covenant in place that protects his neighbors’ views of Oyster Bay. Plaintiff brought claims pursuant to 42 U.S.C. § 1983 and New York law against the Incorporated Village of Centre Island, the Village’s Board of Zoning Appeals, Deputy Mayor Lawrence Schmidlapp, the Village’s Board of Trustees, and Laura Sweeney Chuba, plaintiff’s neighbor and a member of the Village’s Board of Trustees. Under the terms of the covenant that the prior owners of plaintiff’s land entered into, the owners of the parcel were required, to ensure that “all open views from points off the premises to Oyster Bay shall remain in their present unobstructed state.” The gravamen of plaintiff’s complaint is that the defendants purposefully frustrated his efforts to seek zoning variances and building permits. Plaintiff brought four claims pursuant to 42 U.S.C. § 1983: a procedural due process claim under the Fourteenth Amendment; a substantive due process claim under the Fourteenth Amendment; an equal protection claim under the Fourteenth Amendment; and a claim of retaliation under the First Amendment. Plaintiff also alleged that the defendants violated his constitutional rights as part of a conspiracy.

Here, the court found that the plaintiff was barred from asserting claims arising from events before April 16, 2011, since the summons and complaint in this action were dated April 16, 2014. Therefore, plaintiff could only pursue claims relating to the following events, which were within the three-year limitations period: the Zoning Board’s October 2011 decision denying plaintiff’s variance application, and plaintiff’s pending “as-of-right” application. The court rejected the argument that plaintiff was still experiencing harms flowing from the Village’s previous actions, thus making his claims timely under the continuing violation doctrine, because the Second Circuit clearly stated that ongoing harms flowing from discrete events do not trigger the application of the continuing violation doctrine. Equitable tolling was also inapplicable because plaintiff was aware of the allegedly unconstitutional conduct at the time it occurred, and he failed to provide to the Court any facts that could give rise to equitable tolling. The court concluded that defendants had not met their burden of demonstrating that the complaint failed to plead a protected property interest affected by the denial of the as-of-right application; however, the Court concluded that plaintiff’s claim failed, because plaintiff failed to satisfy the second prong of a substantive due process claim. Here, nothing in the complaint suggested that the Village’s view that the covenant barred the application was entirely unsound or arbitrary. The court similarly found the Equal Protection claim unavailing, due to plaintiff’s failure to find a similarly situated person in a comparable zoning district.

Next, plaintiff’s claim that the defendants retaliated against him for refusing to pay legal fees and refusing to cede his property line to his neighbor was found to not give rise to a First Amendment claim, since even if the Court were to construe both allegations as official requests of plaintiff from state officials, at most plaintiff was alleging that state actors took action against him because he refused the government’s requests. Plaintiff’s conspiracy claim then failed since it had no viable constitutional claim giving rise to it. Accordingly, the court declined to exercise supplemental jurisdiction over the remaining claims, and dismissed the complaint with leave to amend.

Gregory v Incorporated Village of Centre Island, 2015 WL 5092623 (EDNY 8/28/2015)

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