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Dean Tarry Corp. v. Friedlander

decided: August 24, 1987.

DEAN TARRY CORPORATION, PLAINTIFF-APPELLANT,
v.
STANLEY J. FRIEDLANDER, CHARLES A. BUNT, SHARON ARTHUR, PATRICK J. PILLA, PETER F. BARBELLA, ROBERT G. LUSTYIK, JEROME W. BLOOD, FRANK A. REEL AND THE VILLAGE OF TARRYTOWN, NEW YORK, DEFENDANTS-APPELLEES



This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Kram, J., holding that plaintiff-real estate developer had no cognizable property interest in having its municipal site development plan approved by the defendant Village of Tarrytown and certain of its officials and employees.

Kaufman Meskill and Mahoney, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Kram, J., dismissing Dean Tarry Corporation's complaint brought under 42 U.S.C. § 1983 (1982) against the Village of Tarrytown, New York, and certain of its officials and employees. Dean Tarry appeals from so much of the district court's judgment that held that Dean Tarry lacked a cognizable property interest in having its municipal site development plan approved by the defendants and that rejected its conspiracy claim.

BACKGROUND

Dean Tarry owned property in Tarrytown, New York. In June 1979, Dean Tarry submitted for approval a site development plan outlining a multi-family structure to Tarrytown's Planning Board. The Planning Board rejected the plan, stating that it was "a similar project to that presented to the [Planning] Board in 1976 and it was turned down then for the reasons of health, safety and welfare of the people in the area." Dean Tarry Corp. v. Friedlander, 650 F. Supp. 1544, 1546 (S.D.N.Y. 1987).

Dean Tarry sought review of the Planning Board's decision under Article 78 of the New York Civil Practice Law and Rules. Justice Slifkin of the Supreme Court, Westchester County, held that the discretion exercised by the Planning Board pursuant to the zoning ordinance was not authorized by the enabling statute, Section 7-725 of the New York Village Law and, in effect, constituted impermissible spot-zoning. Dean Tarry Corp. v. Friedlander, 103 Misc. 2d 435, 426 N.Y.S.2d 202, 205-06 (Supp. Ct. 1980). Justice Slifkin granted the petition for review and deemed the site plan to have been approved. The Appellate Division, however, reversed Justice Slifkin's decision and remanded the matter to the Planning Board "to make the findings of fact which underlie its determination." Dean Tarry Corp. v. Friedlander, 78 A.D.2d 546, 432 N.Y.S.2d 35, 35 (2d Dep't 1980).

In October 1980, the Planning Board issued specific findings of fact purporting to be the basis of its decision. Dean Tarry challenged these findings in another Article 78 proceeding. In an unreported decision, Justice Wood of the Supreme Court, Westchester County, rejected the Planning Board's proffered findings as "merely a subsequent rationalization by [the Planning Board] to justify [its] rejection." J. App. at 105. Justice Wood found that Dean Tarry's plan met all of the technical requirements of the zoning ordinance and, like Justice Slifkin, determined that the discretion given to the Planning Board by the zoning ordinance was beyond the scope of the enabling statute. Id. at 99. Justice Wood thereupon ordered the defendants to approve Dean Tarry's plan. Id. The Appellate Division affirmed. Dean Tarry Corp. v. Friedlander, 86 A.D.2d 648, 449 N.Y.S.2d 552 (2d Dep't), appeal dismissed, 56 N.Y.2d 710, 436 N.E.2d 1336, 451 N.Y.S.2d 734 (1982).

In the meantime, shortly after Justice Slifkin's decision, Tarrytown's Board of Trustees unanimously amended the zoning ordinance in a manner preventing approval of Dean Tarry's plan. In early 1981, the Board of Trustees again amended the ordinance, restricting the permissible height of proposed structures such as Dean Tarry's.

After prevailing in the state court litigation, Dean Tarry filed the complaint in the instant action. Thereafter, it presented to the Planning Board a new plan which complied with the zoning ordinance as amended. However, no vote was taken because three of the five Planning Board members, defendants herein, recused themselves to avoid a conflict of interest, thereby preventing a quorum. Then Dean Tarry sold the property.

Decision Below

Dean Tarry sought damages, costs and attorney's fees under 42 U.S.C. § 1983 in the district court against defendants for violating Dean Tarry's Fifth and Fourteenth Amendment rights. Dean Tarry alleged, inter alia, that defendants' rejection of the development plan constituted a taking without just compensation and a deprivation of property without due process, and that defendants conspired to prevent Dean Tarry from developing its property by pursuing the appeals in the state court litigation and by passing the zoning amendments.

On January 13, 1987, the district court granted defendants' motion for summary judgment and dismissed Dean Tarry's complaint. The district court held, inter alia, that Dean Tarry failed adequately to allege a taking, failed to state a colorable procedural due process claim and did not possess a cognizable property right in the approval of its plan. 650 F. Supp. at 1551-53. The district court also rejected Dean ...


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