Posted by: Patricia Salkin | August 30, 2016

Fed. Dist. Court in NY Denies Equal Protection and Retaliation Claims against Village

Plaintiff Robert Gregory intended to build upon his property, which was governed by a restrictive covenant 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 (collectively, “the Village defendants”), and Laura Sweeney Chuba, plaintiff’s neighbor and a member of the Village’s Board of Trustees. The gravamen of plaintiff’s complaint was that the defendants had purposefully frustrated his efforts to seek zoning variances and building permits. The Village defendants and Chuba previously filed separate motions to dismiss, which the Court granted. Plaintiff was granted leave to file an amended complaint “to address the pleading deficiencies identified by the Court with respect to his substantive due process, equal protection, and First Amendment retaliation claims.”

In plaintiff’s substantive due process claim, plaintiff claims that the denial of his “as-of-right” application was arbitrary and capricious because his architect and the Village building inspector, Joe Richardson, believed that the proposed construction did not violate the covenant. Because the court previously held that plaintiff had plausibly alleged that his building plans did not violate the terms of the covenant, the court focused on whether plaintiff’s amended complaint stated a plausible claim under the second prong of a substantive due process claim. The court found that the allegations included in plaintiff’s amended complaint failed to suggest that the Village’s view that the covenant barred plaintiff’s application was entirely unsound or taken in bad faith.

Plaintiff’s Equal Protection claim likewise failed because although plaintiff asserted that similarly situated applicants were treated differently, his assertions were conclusory and he failed to plead “that the Village granted virtually identical applications submitted by other persons in comparable zoning districts.” With respect to plaintiff’s claim that the defendants retaliated against him for refusing to pay legal fees and refusing to cede his property line to Chuba. However, the court found that requesting a building permit and variance did not constitute protected speech. Because plaintiff failed to adequately plead a constitutional claim, the court determined that he also failed to plead a conspiracy claim. Furthermore, the court declined to retain jurisdiction over plaintiff’s remaining state law claims, and dismissed the case with prejudice.

Gregory v Incorporated Village of Centre Island, 2016 WL 4033171 (EDNY 7/27/2016)

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