Posted by: Patricia Salkin | August 11, 2020

Fed. Dist. Court in NY Grants Town’s Motion to Dismiss Claims Challenging Change of Zoning Classification of a Home

This post was authored by Matthew Loescher, Esq.

In this case, Plaintiff claimed that, in 2010, he received a building permit to add a second kitchen to his home, and that on July 13, 2012, he received from the Town Building Department a Certificate of Occupancy for a second kitchen with interior alterations. Plaintiff alleged that at an unspecified point in time, the Town changed the property classification for his home from a New York State Department of Finance and Taxation “Code 210 Single Family House” to a “Code 215 Single Family House with year-round Accessory Apartment.” Plaintiff further alleged that even though the Town did “not recognize Code 215” homes, a Code 215 home was a “legal entity” because the Town “collects taxes as if these New York State Code 215 homes were legal even though there are no specific laws regarding accessory apartments.” Lastly, Plaintiff claimed that the Town policy prohibiting Code 215 homes from being converted to multi-family homes amounted to “taxation without utilization.”

Plaintiff first contended that he was entitled to relief in federal court because the building code enforcement proceedings in Town Court were “deliberately done to create duress and intimidate plaintiff from utilizing all due process available to him”, and therefore, the Younger abstention did not apply. As these allegations were found to be conclusory by the court, the bad-faith exception to Younger abstention did not apply. Moreover, to the extent plaintiff contended that the ongoing Town Court proceedings had somehow denied him due process or equal protection, the court held plaintiff could raise those complaints in that case.

Next, to the extent plaintiff’s substantive due process claims relied on allegations regarding how he was taxed with respect to his property, these claims were also dismissed as they did not allege conduct “so outrageously arbitrary so as to constitute a gross abuse of governmental authority.” Furthermore, the court determined that plaintiff failed to offer plausible factual allegations that he had a legitimate claim of entitlement, and that absent the alleged due process violation, his application for a use variance would have been granted. Thus, plaintiff could not plausibly allege he had a legitimate claim of entitlement to use of his property as a multi-family home – as he failed to allege his home was zoned for multi-family use or used in such manner prior to the enactment of the zoning ordinance prohibiting this use. Accordingly, plaintiff’s substantive due process claim was dismissed, and Defendants’ motion to dismiss was granted.

Brennan v Town of Clarkstown, 2020 WL 4287364 (SDNY 7/27/2020)


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