Posted by: Patricia Salkin | July 27, 2021

Fed. Dist. Court of NY Finds No Final Adjudication of Renewal of Permit Applications as Plaintiff’s Failed to Cure Building Code Violations

This post was authored by Matthew Loescher, Esq.

Plaintiffs William Stephen Dean, Rori Leigh Gordon, Green 2009 Inc., One55Day Inc, and Look Entertainment, Ltd., initiated this action on August 20, 2014, alleging that Defendants violated their constitutional rights by refusing to approve permits and other authorizations required for Plaintiffs to operate two cabarets located in the Town.

At the outset, the Town Defendants contended that Plaintiffs’ First Amendment claims were subject to a ripeness inquiry, as Plaintiffs failed to show that the 2010 Application had a final determination. In the 2016 Order, the Court held that even if the 2010 Application’s denial was not “final” because it was based on a lack of credibility and not on the merits, it was not futile for Plaintiffs to remedy the building deficiencies and therefore “avail themselves of the procedures set forth by the Town’s laws.” Here, Plaintiffs did not allege that they made any necessary alterations to the building or renewed their 2010 Application to the Board, nor did Plaintiffs have an immediate threat of injury and face unresolved building and zoning code violations. Similar to Plaintiffs’ permit applications for the Wantagh Property, there had been no final adjudication of the Bellmore Property permit applications, as plaintiffs sought a renewal of permits for the Bellmore Property. As such, they were required to cure building code violations, pass the building inspection, and receive a Certificate of Completion prior to receiving a final decision on their applications. Accordingly, the court held that Plaintiffs’ claims related to the 2016 Application at the Wantagh Property were ripe, but the claims related to the 2010 Application at the Wantagh Property and applications at the Bellmore Property were not ripe.

Town Defendants next claimed that Plaintiffs were not denied property rights without substantive due process because they did not have a “legitimate claim of entitlement” to constitutionally protected property rights in the requested permits and variances for the Wantagh Property, and the Board did not act arbitrarily in exercising its discretion to deny the 2016 Applications. Here, the court determined that Plaintiffs were not constitutionally deprived of the variances and permits because they did not meet the Town’s requirements for receiving approvals and, even if they had, the Board and Department of Buildings had discretion to deny Plaintiffs’ applications. The court therefore held that Plaintiffs did not have cognizable property rights in the permits and variances sought in the 2016 Application and consequently failed to state a substantive due process claim.

Defendants next contended that Plaintiffs were afforded procedural due process because the 2016 Application was denied due to “a lack of provision for safe parking, and the front portico violates the zoning setback regulations for this corner lot, causing a line-of-sight hazard for motorists entering onto Sunrise Highway from Oakland Avenue.” Here, the court found that Plaintiffs had neither attained an outcome from their pending, currently stayed Article 78 proceeding nor sufficiently stated why an Article 78 proceeding was inadequate to remedy the alleged violations – as it was best suited to address Plaintiffs’ procedural due process claim. Thus, the court held that Plaintiffs failed to state a claim for a violation of procedural due process.

Town Defendants further argued that Plaintiffs’ Equal Protection claims failed on both a selective enforcement or class-of-one theory because Plaintiffs’ self-created problems were unique and nonequivalent to any other entity making similar applications to the Town, and because the code violations were a legitimate reason for the Board’s denial of Plaintiffs’ application on their face. Even assuming Plaintiffs were treated differently from other similarly situated businesses, the court found Plaintiffs failed to state a claim under the class-of-one theory because code violations, setback violations, and parking safety hazards at the Wantagh Property provided a rational basis for the Board’s denial of Plaintiffs’ application. Additionally, because Plaintiffs did not show that ill will or malice motivated Defendants to discriminate against them, Plaintiffs also failed on their selective enforcement claim. Similarly, as Plaintiffs failed to show that Defendants acted in concert to inflict unconstitutional injury, their conspiracy claim was also rejected by the court.

As a final matter the court noted that once the lower court has determined whether the BZO implicates protected expression and whether the ordinance can be construed such that the constitutional question may be avoided, the court must determine whether the BZO Special Use Provision substantially burdens protected speech. Since the court could not resolve the constitutionality of the ordinance without additional development of the record and further briefing on the issues raised in this Memorandum and Order, it denied Defendants’ Motion on this claim. Likewise, while the court found that the BZO Temporal Limit Provision might implicate protected expression when analyzed in conjunction with the definition of cabaret, a more thorough analysis “of the language and legislative history of the statute are necessary in order to determine whether the challenged law reaches constitutionally protected conduct.” Accordingly, the court denied Town Defendants’ motion for judgment on the pleadings as the court could not resolve the issue of the BZO Temporal Limit Provision’s constitutionality at this stage of the litigation.

Dean v Town of Hempstead, 2021 WL 2010560 (EDNY 1/4/2021) 


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