Posted by: Patricia Salkin | October 5, 2017

Fed. Dist. Court of NY Denies Retaliation and Equal Protection Claims Arising from the Construction of a Luxury Hotel

Real estate developer Randy M. Hare entered a purchase agreement with E-Properties for a former nursing home, with the intention of remodeling the nursing home into a 50-room luxury hotel. The Village of Warsaw Planning Board approved Hare’s request to convert the nursing home into a hotel, including: the addition of a carport; a use variance to convert the nursing home into a hotel; and three area variances, which pertained to building height, setback for a carport, and parking. Donald Williams, the Building Inspector and Code Enforcement Officer for the Village of Warsaw, granted Hare a one-year extension of his original permit in 2008. In 2009, the Village of Warsaw appointed Daniel Hurlburt to replace Williams as Code Enforcement Officer. In 2009, Hare timely applied to Hurlburt for another extension of his building permit, but was denied. Hulburt then issued a “Stop Work” order and directed Hare to vacate the property, where Hare had been living for two years. Hare filed an Article 78 petition against the Village of Warsaw in New York State Supreme Court challenging the Village’s refusal to renew his original building permit. The Wyoming County Planning Board disapproved Hare’s site plan, and Hare appealed in the present action.

Hare first argued that Hurlburt began retaliating against him, after his meeting with New York State Code Enforcement Officer Vijaykumar, by requesting additional documents and requiring him to modify his plans to meet new building code requirements. The court found, however, that each of Hurlburt’s actions taken before and after the Vijaykumar meeting stemmed from his initial determination that Hare would have to supplement his building permit application until it was complete. As such, the treatment that Hare argued was retaliatory began before he engaged in protected activity. Accordingly, the court rejected Hare’s First Amendment retaliation claim.

As to Hare’s class-of-one equal protection claim, Hare failed to present any evidence to support his claim that the three projects he identified were substantially similar, or “prima facie identical in all relevant respects” to the Harenton Hotel project. Specifically, the two chemical dependency projects involved remodeling office space and remodeling a small garage, and the DiMartino restaurant project took less than one year to complete and did not involve any permit extension requests. Accordingly, the court granted Defendants’ Motion for Summary Judgment on this claim. Having dismissed the federal claims, the court declined to exercise jurisdiction over the state claims.

The Harenton Hotel, Inc v Village of Warsaw, 2017 WL 4169342 (WDNY 9/20/2017)

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