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COLLARD v. INCORPORATED VILLAGE OF FLOWER HILL

October 30, 1984

Allison C. COLLARD and Julia A. Collard, Plaintiffs,
v.
The INCORPORATED VILLAGE OF FLOWER HILL, the Board of Trustees, William R. Howe, Building Inspector, Herbert Ash, Thomas J. Walsh, Robert S. Caine, Alfred E. Runge, and the Zoning Board of Appeals of the Incorporated Village of Flower Hill; and John M. Farrell, Esq., Village Attorney, Defendants.



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge.

 Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) (lack of jurisdiction over the subject matter) and 12(b)(6) (failure to state a claim upon which relief can be granted).

 HISTORY

 Plaintiffs are the owners of the fee of real property located at the intersection of Northern Boulevard, Ridge Drive West and Ridge Drive East in the Incorporated Village of Flower Hill. Plaintiffs purchaesd the property in 1977. It consists of 28,000 square feet on which is erected a two-story office building occupying approximately 2,300 square feet.

 Prior to 1966, the then vacant property was zoned Residential B-2 District which limited the use to a single family detached house on a lot having a minimum area of 7,500 square feet. The property consisted of three lots, i.e., lots 9, 12, and 13. In 1966, the Board of Trustees granted the then owners' application to have lots 9 and 13 rezoned from the use of single family residence to a General Municipal and Public Purposes District which permitted the property to be used as a sanitarium with accessory doctors' offices. As a condition to granting the application, the owner executed a covenant restricting the use of lots 9 and 13 as provied in the rezoning. The sanitarium was constructed, but the operators found the use of the property as a sanitarium unprofitable. A further application was made in 1976 requesting a rezoning into a Business District. As part of the application, lot 12 was included in the request. The application was granted. As a condition the owner was required to execute a covenant restricting the entire plot, lots 9, 12 and 13, to certain professional type uses, i.e., medicine, dentistry, law, engineering, architecture or accounting, and limiting the number of tenancies. It further required that all alterations and extensions to the existing building be approved by the Board of Trustees. Such a covenant was executed by the owner and recorded in the Office of the Clerk of Nassau County as a restriction on the use of the property running with the land. The covenants recited that the property was "zoned as part of the Business District of the Village in accordance with the provisions of Chapter 86, Section 86-12 of the Code of the Village of Flower Hill." It limited changes to the existing buildings as follows:

 No building or structure situated on the subject premises on the date of the Declaration of Covenants will be altered, extended, rebuilt, renovated or enlarged without the prior consent of the Board of Trustees of the Village.

 In December, 1978, plaintiffs petitioned the Board of Trustees for its consent to alter and enlarge the existing building. The application was denied on or about January 12, 1979. Plaintiffs commenced an action in the Nassau County Supreme Court against the Village of Flower Hill in April, 1979.

 The complaint claimed that the Board's action "deprived plaintiffs of an authorized use of the premises" (State Comp.Par. 7) and that the Board's action was "unconstitutional and confiscatory and violates the Constitution of the State of New York and [the] Constitution of the United States, which in substance forbids actions by Government authorities depriving any person of property without due process of law" (State Comp.Par. 8). The complaint was dismissed by order of the Appellate Division of the Supreme Court for the Second Judicial Department for failure to state a cause of action. Collard v. Incorporated Village of Flower Hill, 75 A.D.2d 631, 427 N.Y.S.2d 301 (1980). The Court of Appeals affirmed, 52 N.Y.2d 594, 439 N.Y. S.2d 326, 421 N.E.2d 818 (1981).

 Plaintiffs thereafter submitted a site plan to the Building Inspector of the Village of Flower Hill proposing the erection of a new building to the rear of the existing building on lot 12. The Building Inspector denied the application on the ground that it failed to comply with section 86-12 of the Village Code in the minimum rear yard requirement, pointing out that under section 86-12 of the Code, lot 12 was the rear yard of the existing building. Plaintiffs subsequently submitted a formal building on lot 12 on the same location as the proposed addition. They sought a variance from the rear yard requirement and height regulation. The proposed plan for the new office building consisted of five levels, each level having an area of approximately 2,690 square feet -- a total of 13,450 square feet. The application was considered by the Nassau County Planning Commission. *fn1" The Nassau County Planning Commission denied the application. The denial was sustained by the Zoning Board of Appeals of the Village of Flower Hill.

 On July 21, 1982, plaintiffs petitioned the Nassau County Supreme Court for a review of the determination by the Zoning Board of Appeals. The petition claimed that "[t]he Board's denial of the application results in an unlawful confiscation of the Petitioners' property, since it cannot be used for the construction of a separate commercial building." (Plaintiffs' State Petition Par. 41).

 On November 9, 1982, the Nassau County Supreme Court upheld the Zoning Board of Appeals' interpretation of the definition of lot and sustained the prohibition of more than one principal building per lot. Collard v. Runge, No. 14312/82 (N.Y.Sup.Ct. Nassau Co. Nov. 9, 1982) (unpublished decision), aff'd without opinion, 99 A.D.2d 687, 471 N.Y.S.2d 731 (2d Dep't 1984), appeal denied, 64 N.Y.2d , N.Y.S.2d , 472 N.E.2d 327 (N.Y.Ct.App.1984).

 In the meantime, on July 21, 1981, plaintiffs filed a complaint in this court claiming their civil rights were violated by the unconstitutional and confiscatory action by the Board in denying consent to extend the existing building (first claim) and denying a permit for the construction of a second building on lot 12 (second claim). In the first claim, the complaint alleges a conspiracy between the Village of Flower Hill and John M. Farrell, Jr., attorney for the Board and the Village. The second claim alleges a conspiracy among Farrell, William R. Howe (the Building Inspector) and the defendant members of the Zoning Boad of Appeals who voted to sustain the determination of the Nassau County Planning Commission. Plaintiffs seek compensatory and punitive damages and a declaration "that the actions of the Board of Appeals . . . be [found] arbitrary, capricious and illegal and [to] grant plaintiffs the right to build the proposed building on their property." (Comp. p. 9). Defendants had moved to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b). All proceedings in this case were stayed pending review of the state court decision on appeal. Collard v. Incorporated Village of Flower Hill, No. 82-2143 (E.D.N.Y. Dec. 10, 1982) (unpublished memorandum of decision and order). The state court order was affirmed by the Appellate Division of the Supreme Court, Second Judicial Department, by summary order, without opinion, entered January 9, 1984. The Court of Appeals denied leave to appeal on June 29, 1984.

 This court, having withheld action on the original motion to dismiss, is now called upon to decide that motion. *fn2" ...


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