Appeal from summary judgment for defendants granted by the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, in zoning case brought under 42 U.S.C. § 1983.
Kaufman, Pratt, and Miner, Circuit Judges.
Plaintiffs Marvin H. Greene and his wholly owned corporation, Lake Anne Realty Corp., (collectively "Greene"), appeal from a summary judgment dismissing, inter alia, their claims under 42 U.S.C. § 1983 alleging (1) that the Town of Blooming Grove, its planning board, its zoning board of appeals, and certain town officials (collectively "Blooming Grove" or "town") deprived Greene of due process and equal protection under the fourteenth amendment by classifying a portion of Greene's land as R-80 residential rather than R-30, and (2) that Greene was deprived of property without due process, also in contravention of the fourteenth amendment, by the town's failure to recognize his claim to a nonconforming bungalow colony use for the full 136 acres designated as a bungalow colony in an approved map dated October 28, 1960.
Because Greene has shown no disputed, material issues of fact on his challenge to the R-80 zoning classification of part of his land, we affirm the summary judgment dismissing that claim. On the question of whether Greene's vested nonconforming use as a bungalow colony should extend to the entire parcel, we reverse and remand for further proceedings because triable issues of fact are presented.
In 1952 Greene purchased approximately 710 acres of land in the Town of Blooming Grove, Orange County, New York -- 700 acres on the east side of Salisbury Mills Road and 10 acres on the west side. Greene intended to use all of the ten-acre parcel and part of the larger parcel as a vacation resort called Lake Anne Country Club to consist of a hotel, bungalow units, a swimming pool, and other recreational facilities. By June 1953 Greene had built ten two-unit bungalows on the larger parcel.
Prior to October 28, 1960, Greene submitted to the town planning board for approval a revised Lake Anne Country Club bungalow colony map, that designated for bungalow colony use a total of 136 acres, including the ten acres on the west side of Salisbury Mills Road. That map showed that by 1960 Greene had added, on the ten-acre parcel on the west side of the road: a luncheonette and cocktail lounge and other buildings including six units and six bedrooms; and on the 126 acres on the east side of the road: (1) on approximately ten acres, most of the now existing 120 bungalow units; (2) on an additional five acres, other buildings containing multiple bungalow units; (3) on another twenty acres, an outdoor pool and athletic facilities, and (4) approximately ten acres of ski facilities.
In addition, Greene had already constructed an "infra structure" to service the entire planned bungalow colony, including a water supply system claimed to be capable of supporting 544 bungalow units, an indoor swimming pool, and an outdoor swimming pool. He was also proposing to construct, and later did construct, a casino.
On October 28, 1960, the planning board approved Greene's map showing all the above facilities. In 1973 Greene applied to the planning board for approval of a further revised map of Lake Anne Country Club bungalow colony which would have added 264 new bungalow units to the 123 existing units. Contending that the application fell within a town-wide moratorium on "construction of single-family dwellings in subdivisions and multiple dwellings", the planning board refused to consider the application. In a subsequent article 78 proceeding, the New York Supreme Court, Rockland County, held that Greene's application was not subject to the moratorium. In the Matter of Application of Marvin Greene v. The Planning Board of Blooming Grove, No. 1173/74 (N.Y.Sup.Ct. July 17, 1974) (unreported).
The town appealed, but, on October 7, 1974, before the appellate division had ruled on the town's appeal, Blooming Grove repealed its zoning ordinance and replaced it with the Town of Blooming Grove Zoning Ordinance of 1974. Among other changes, the new ordinance eliminated bungalow colonies as a permitted use. Thereafter, the appellate division dismissed the town's appeal as moot.
On June 10, 1986, Greene, asserting a vested right to a nonconforming use of the entire 136 acres designated in the approved 1960 map as a bungalow colony, applied to the town's building inspector for a permit to build 419 additional bungalow units conforming with the zoning restrictions applicable at the time bungalow colonies had been a permitted use. Although the town attorney wrote an opinion letter in January 1987 to the building inspector, stating that Greene had no vested right to use the entire 136 acres as a planned bungalow colony, the building inspector has apparently neither issued the permit nor denied the application.
The 1974 zoning ordinance also established new residential zoning classifications. Under the ordinance most of Greene's property was placed in an R-30 district (minimum lot size of 30,000 square feet), but approximately thirty-five acres, not a part of the land designated for bungalow colony use, were classified R-80 (minimum lot size of 80,000 square feet).
Greene brought this civil rights action in federal district court pursuant to 42 U.S.C. § 1983 claiming, inter alia, (1) that the R-80 classification of a portion of his property was arbitrary and capricious and deprived him of due process and equal protection in violation of the fourteenth amendment, and (2) that failure to permit the use of the entire 136 acres, designated in the 1960 map for use as a bungalow colony, constituted a deprivation of property without due process of law in violation of the fourteenth amendment. Finding no material factual issues in dispute ...