United States District Court, Eastern District of New York
December 24, 1991
LAWRENCE J. AND DORIS W. KONCELIK, PLAINTIFFS,
THE TOWN OF EAST HAMPTON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Wexler, District Judge.
MEMORANDUM AND ORDER
Plaintiffs, Lawrence J. and Doris W. Koncelik,
("plaintiffs"), husband and wife, bring this action under
42 U.S.C. § 1983 against the Town of East Hampton (the "Town"),
the Town Board of East Hampton ("Town Board"), the Town
Planning Board of East Hampton ("Planning Board"), the East
Hampton Town Zoning Board of Appeals ("ZBA"), and unnamed John
Doe conspirators Nos. 1 through 10 (collectively "defendants").
Plaintiffs allege violations of their constitutional rights to
procedural and substantive due process under the Fifth and
Fourteenth Amendments and further allege a taking of their
property without just compensation, also in violation of their
Fifth and Fourteenth Amendment rights. Presently before the
Court is defendants' motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). For the reasons stated below, the
motion is granted in part and denied in part.
Since 1948, plaintiff Doris Koncelik has owned approximately
17 undivided acres in the Town of East Hampton and both
plaintiffs own a contiguous parcel of 1.5 acres. In 1957, the
property was subjected to one acre zoning. Later it was
re-zoned to two acres and in 1985, just prior to the Town's
purchase of the approximately 600 acre Grace Estate (contiguous
to plaintiffs' land) as a nature preserve, it was re-zoned to
In November 1987, in order to develop her property, Doris
Koncelik applied to the ZBA for a variance to have the property
divided into four lots. Plaintiffs allege that defendants
conspired to deny the requested variance (and later to impose
numerous unreasonable easements and other conditions on their
approval of the Konceliks' application for a conforming
subdivision) in order to prevent the development of the
property, thereby effectively increasing the size of the
adjacent Grace Estate Town Nature Preserve. More specifically,
plaintiffs allege that at closed-door sessions the ZBA received
improper and prejudicial input from the Pine Barrens
Commission, the Town of East Hampton Department of Planning
("Planning Department") and the Planning Board. On August 3,
1988, on a split vote, the ZBA denied the variance.
Rather than seek judicial review of the ZBA's decision, on
November 18, 1988, the Konceliks applied to the Planning Board
for a conforming five-acre, three-lot subdivision and for a lot
line modification that would join their abutting 1.5 acre lot
with the two acres remaining from their proposed subdivision.
Without notice to the Konceliks, the Planning Board conducted
hearings, made various contradictory findings and
recommendations, and suggested numerous easements and other
restrictions which severely limited the area in which new
housing could be built. The Konceliks hired an environmental
expert who studied the property and found that the Planning
Board's recommendations and restrictions were all unnecessary,
and in some cases environmentally counter-productive.
On April 2, 1990, the Planning Board stated that it would
grant conditional approval of the Konceliks' application if the
Konceliks agreed to adopt the Planning Board's latest
recommendations. The Konceliks rejected those recommendations
on April 10, 1990, and insisted that the Planning Board act on
the application as submitted. On May 16, 1990, the Planning
Board approved the application, but subject to twenty-eight
On June 15, 1990, the Konceliks commenced an Article 78
proceeding in Supreme Court, Suffolk County in which they
appealed the ZBA's denial of their application for a variance
("ZBA claim") and the Planning Board's conditional approval of
their conforming subdivision ("Planning Board claim"). Their
complaint and verified petition alleged the identical
procedural and substantive due process and takings claims that
are presented in this case, albeit not in terms of federal
Constitutional violations. In November 1990, the state court
ruled that the appeal of the 1988 ZBA decision was time-barred.
However, as to the Planning Board's conditional approval, it
The Board found that the applicants had complied
with all statutory requirements for subdivision
waiver approval. . . . Nevertheless, conditions
inconsistent with intelligent planning, without
legitimate governmental or public purposes for
safety, health, welfare or environmental
interests, in contravention with the Town Code and
absent evidence demonstrating necessity were
imposed. . . . [T]he conditions employed by the
Planning Board are arbitrary, capricious, improper
and in excess of the powers delegated.
Koncelik v. Planning Board of the Town of East Hampton and the
Zoning Board of Appeals of the Town of East Hampton, No.
90-12629, (Supreme Court, Suffolk County, Nov. 2, 1990), at pp.
2-3 (unrecorded decision).*fn2 Accordingly, the state court
excised all twenty-eight of the Planning Board's conditions.
The Planning Board and the ZBA appealed and the Konceliks
cross-appealed regarding their ZRA claim. Both appeals are
currently before the Appellate Division.
After the appeals were perfected, plaintiffs brought this
action under 42 U.S.C. § 1983, alleging that defendants
violated their rights to procedural and substantive due
process, and deprived them of their property without just
compensation. They seek two million dollars in damages on each
of these claims, plus attorney fees.
Defendants suggest that plaintiffs brought this federal suit
merely as a means of pressuring them to give up their state
court appeal. They move to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure and, in the alternative,
urge this Court to decline jurisdiction due to the pendency of
the state action.
A. Abstention Doctrine Is Not Applicable
Defendants recognize this Court's jurisdiction pursuant to
28 U.S.C. § 1331 and 1343. Nevertheless, they request that this
Court abstain from exercising its jurisdiction because of the
pending state court appeals. They argue that the state courts
can provide plaintiffs with full and complete relief.
Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27
L.Ed.2d 669 (1971) and its progeny have held that principles of
federalism and comity require a federal court to decline
jurisdiction when it is asked to enjoin certain ongoing state
proceedings. See e.g., Huffman v. Pursue, Ltd., 420 U.S. 592,
604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975). In the instant
case, however, plaintiffs have already obtained their desired
injunctive relief from the state court. This § 1983 action
seeks additional relief: monetary damages and attorney fees for
the alleged violations of their Constitutional rights.
The mere pendency of a state proceeding with identical facts
does not entitle a federal court to dismiss an action over
which it has mandatory subject matter jurisdiction except in
specific circumstances not found here. Colorado River Water
Cons. Dist. v. U.S., 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47
L.Ed.2d 483 (1976); CECOS Intern., Inc. v. Jorling,
895 F.2d 66, 70 (2d Cir. 1990); Giulini v. Blessing, 654 F.2d 189, 193
(2d Cir. 1981).
Absent such circumstances, "[e]ach court is free
to proceed in its own way and its own time,
without reference to the proceedings in the other
court. Whenever a judgment is rendered in one of
the courts and pleaded in the other, the effect of
that judgment is to be determined by the
application of the principles of res judicata."
Id. (quoting Kline v. Burke Construction Co., 260 U.S. 226
230, 43 S.Ct. 79, 81, 67 L.Ed. 226 (1922)). See also Migra v.
Warren City School District Board of Education, 465 U.S. 75
80, 104 S.Ct. 892, 895, 79 L.Ed.2d 56 (1984) (in § 1983 action
res judicata applied based on prior state court adjudication);
Atlantic Coast Line v. Brotherhood of Locomotive Engineers,
398 U.S. 281
, 295, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970).*fn3
Accordingly, this Court cannot refuse to exercise its
B. Section 1983 Action Not Barred by Res Judicata
Although plaintiffs could have brought their § 1983 claims
before the state court in the Article 78 proceeding, Antonsen
v. Ward, 943 F.2d 198
, 202 (2d Cir. 1991); CECOS Intern., Inc.,
895 F.2d at 71; Kovarsky v. Housing & Development
Administration of the City of New York, 31 N.Y.2d 184, 335
N YS.2d 383, 286 N.E.2d 882 (1972), the principles of res
judicata do not, as defendants argue, preclude those claims
from this Court. Res judicata is not applicable because the
initial forum — the Article 78 proceeding — did not have
the power to award the damages sought here. Davidson v.
Capuano, 792 F.2d 275, 278-82 (2d Cir. 1986); Farid v. Smith,
850 F.2d 917
, 927 (2d Cir. 1988) (Kearse, J., concurring); Fay
v. South Colonie Cent. School Dist., 802 F.2d 21
, 29-30 (2d
Cir. 1986); Carino v. Town of Deerfield (Oneida County, N.Y.),
750 F. Supp. 1156
, 1162-63 (N.D.N.Y. 1990), aff'd, 940 F.2d 649
(2d Cir. 1991).
C. Principles Governing a Motion to Dismiss
It is well settled that a complaint should not be dismissed
"unless it appears beyond doubt that plaintiff can prove no set
of facts in support of his claims which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41
, 45-46, 78 S.Ct. 99,
102, 2 L.Ed.2d 80 (1957); Maggette v. Dalsheim, 709 F.2d 800
803 (2d Cir. 1983). Moreover, on a motion to dismiss, the
allegations in plaintiffs' complaint must be accepted as true.
Cruz v. Beto, 405 U.S. 319
, 322, 92 S.Ct. 1079, 1082, 31
L.Ed.2d 263 (1972) (per curiam). With these principles in mind,
the Court considers defendants' motion.
D. Plaintiffs Lack a Property Interest in Their
Application for a Variance
The starting point for an inquiry into any due process claim
is to determine whether plaintiffs had a property interest
sufficient to trigger federal due process guarantees. Board of
Regents v. Roth, 408 U.S. 564
, 576-77, 92 S.Ct. 2701, 2708, 33
L.Ed.2d 548 (1972); New Burnham Prairie Homes v. Village of
Burnham, 910 F.2d 1474
, 1479 (7th Cir. 1990); RRI Realty Corp.
v. Inc. Village of Southampton, 870 F.2d 911
, 914, 918 (2d
Cir.), cert. denied, 493 U.S. 893
, 110 S.Ct. 240
, 107 L.Ed.2d
191 (1989); Brady v. Town of Colchester, 863 F.2d 205
(2d Cir. 1988) ("In the context of a zoning dispute, to state a
claim . . . for deprivation of 'property' without due process
of law a person must establish that he had a valid 'property
interest' in some benefit that was protectible under the
fourteenth amendment at the time he was deprived of the
benefit"). The issue of whether an applicant has such a
property interest will generally be a matter of law for the
court. RRI Realty Corp., 870 F.2d at 918.
In RRI Realty Corp., the Second Circuit reversed a judgment
under a due process claim in favor of a builder who had alleged
that the Village of Southampton had wrongfully denied it a
building permit. The court reached its decision by focusing
solely on whether the builder had a protected property interest
under the entitlement
test developed in Yale Auto Parts Inc. v. Johnson, 758 F.2d 54
(2d Cir. 1985).
If federal courts are not to become zoning boards
of appeals . . . the entitlement test of Yale Auto
Parts — "certainty or a very strong likelihood" of
issuance — must be applied with considerable
rigor. Application of the test must focus primarily
on the degree of discretion enjoyed by the issuing
authority, not the estimated probability that the
authority will act favorably in a particular case.
RRI Realty Corp., 870 F.2d at 918. Because the Village's
Architectural Review Board had discretion to deny the building
permit, RRI had no property interest "regardless of how
unlawful under state law the ultimate denial may have been."
Id. at 919.
In the instant case, the ZBA clearly had discretion to deny
the Konceliks' application for a variance for a four-lot
subdivision. Accordingly, because the ZBA could have denied the
application on non-arbitrary grounds, the Konceliks had no
protectible property interest in the variance and their due
process claims are dismissed in regard to defendants' actions
up to August 3, 1988 (when the ZBA denied the variance).
See id. at 918. Because all of plaintiffs' allegations against
the ZBA relate to this time period, all claims against the ZBA
E. Plaintiffs' Have a Property Interest in Their
Application for a Conforming Subdivision
The situation as to the Konceliks' November 18, 1988
application to the Planning Board for a conforming five-acre,
three-lot subdivision is quite different. The state court found
that the Konceliks "complied with all statutory requirements
for subdivision waiver approval, the general policy of the Town
Code, the criteria for lot line modification and the
requirements of SEQRA." Koncelik, at 3. This Court is bound by
the doctrine of collateral estoppel to accept that finding.
See, e.g., Migra, 465 U.S. at 80, 104 S.Ct. at 896. It follows
that the Planning Board lacked the discretion to impose its
restrictive conditions on its approval of the Konceliks'
and the Konceliks therefore had a protectible
property interest in the conforming subdivision under the Yale
Auto Parts entitlement test. Thus, this Court must examine the
specific allegations of deprivation of due process as to the
Planning Board's conditional approval of the Konceliks'
F. Procedural Due Process Claim Not Barred as to Acts
Subsequent to August 3, 1988
The right to procedural due process mandates that all
litigants receive an opportunity for a full and fair hearing on
the merits of their claim before an impartial fact finder.
Logan v. Zimmerman Brush Co., 455 U.S. 422
, 428, 437, 102 S.Ct.
1148, 1153, 1158, 71 L.Ed.2d 265 (1982); Parratt v. Taylor,
451 U.S. 527
, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981);
Boddie v. Connecticut, 401 U.S. 371
, 378, 91 S.Ct. 780, 786, 28
L.Ed.2d 113 (1971).
Defendants argue that under Parratt and its progeny,
plaintiffs' procedural due process claim is barred due to the
existence of New York's Article 78 proceedings. Parratt, 451
U.S. at 543, 101 S.Ct. at 1917 (loss of property through random
and unauthorized acts of state agents is not actionable under §
1983 when the state provides adequate post-deprivation
remedies). They note Article 78 proceedings provide parties
with an inexpensive, simplified and speedy review of
administrative actions. See Davidson, 792 F.2d at 280; Liotta
v. Rent Guidelines Board, 547 F. Supp. 800, 801 (S.D.N.Y. 1982);
Herrmann v. Brooklyn Law School, 432 F. Supp. 236, 239 (E.D.N Y
1976); Austin v. Board of Higher Ed. of the City of New York, 5
N Y2d 430, 186 N.Y.S.2d 1, 10, 158 N.E.2d 681, 687 (1959).
However, the existence of post-deprivation remedies does not
necessarily preclude a plaintiff from bringing a § 1983 action
for deprivation of procedural due process.
Parratt and its progeny apply only to "random and unauthorized"
conduct. Logan, 455 U.S. at 435-36, 102 S.Ct. at 1158; Butler
v. Castro, 896 F.2d 698, 700 (2d Cir. 1990); Labov v. Lalley,
809 F.2d 220 (3d Cir. 1987) (Parratt not applicable "to charges
of intentional conspirato rial conduct under color of state
In Sullivan v. Town of Salem, 805 F.2d 81, 86 (2d Cir. 1986),
the Second Circuit held that if a building official's improper
denial of a certificate of occupancy either established or was
pursuant to town policy, then Parratt would be inapposite. In
this case, the Konceliks allege that the Planning Board imposed
its onerous conditional approval pursuant to the Town's plan to
effectively increase the size of the Grace Estate Town Nature
Preserve. As discussed above, on a motion to dismiss these
allegations must be accepted as true.
In addition, defendants' conduct cannot be characterized as
"unauthorized" in the sense that the term was used in
Parratt. Here, the government defendants that the Konceliks
charge with violating their procedural due process rights are
the specific entities that are charged with protecting those
rights. The state employee in Parratt, a prison guard, had no
similar duty or authority. See Zinermon v. Burch, 494 U.S. 113,
110 S.Ct. 975, 990, 108 L.Ed.2d 100 (1990).
Furthermore, the post-deprivation remedy discussed in
Parratt must be "adequate." In Acorn Ponds v. Village of North
Hills, 623 F. Supp. 688, 690-91 (E.D.N.Y. 1985), property owners
claimed that biased members of the North Hills Board of Zoning
and Appeals had improperly denied inspections which were
required for the acquisition of certificates of occupancy.
Plaintiffs twice obtained orders in Article 78 proceedings
directing that the inspections be made, but these
post-deprivation remedies were claimed to be inadequate due to
the resultant delays in obtaining the certificates of
occupancy. Id. at 691. The court, denied defendants' motion to
dismiss and held that "[those] claims, if proven, would
constitute a violation of plaintiff's right to due process . .
. cognizable under § 1983". Id. at 693.
In the instant case, the Konceliks allege that the Planning
Board, without giving them notice, held closed-door meetings at
which biased statements by the Planning Department were
improperly submitted to it and invariably acted upon. Moreover,
although plaintiffs timely and successfully availed themselves
of the Article 78 proceeding (as to the Planning Board claim),
their plans to develop their property are still being delayed
by the ZBA's and the Planning Board's pending appeal. Finally,
as stated above, the Article 78 proceeding neither decided the
procedural due process claim, nor was it the proper forum in
which to bring a claim for damages. Accordingly, defendants'
motion to dismiss the procedural due process claim is denied as
to acts subsequent to August 3, 1988.
G. Substantive Due Process Claim
In a zoning dispute case, a party is denied its right to
substantive due process if it is deprived of property in an
arbitrary or discriminatory manner. Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. 252
, 267, 97 S.Ct.
555, 564, 50 L.Ed.2d 450 (1977); Brady, 863 F.2d at 215. The
state court held that the twenty-eight restrictions that the
Planning Board included in its conditional approval of the
Konceliks' subdivision waiver application were "arbitrary and
capricious" and "inconsistent with intelligent planning,
without legitimate governmental or public purposes for safety,
health, welfare or environmental interests, in contravention of
the Town Code and absent evidence demonstrating necessity."
Koncelik, at 3. Although collateral estoppel may not apply to
the ultimate issue in the instant case because the state court
did not make its decision on federal Constitutional grounds,
see, e.g., Altaire Builders, Inc. v. Village of Horseheads,
551 F. Supp. 1066, 1075-76 (W.D.N.Y. 1982), the state court's
holding is clearly sufficient to defeat defendants' motion to
dismiss the substantive due process claim as to acts subsequent
to August 3, 1988.
H. Taking Claim
Defendants note that the Konceliks' complaint is very unclear
regarding the "takings" claim. Plaintiffs do not allege that
the Town has attempted to condemn their property through
eminent domain nor do they assert that they have been deprived
of all economically viable use of their property. Agins v. City
of Tiburon, 447 U.S. 255
, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d
106 (1980); see also, Park Ave. Tower Associates v. City of New
York, 746 F.2d 135
, 138-40 (2d Cir. 1984) (citing cases
upholding zoning regulations which substantially reduce
property value and rejecting taking claim based on zoning
change that would prevent investors from obtaining a
"reasonable return on their investments"), cert. denied sub
nom. 40 Eastco v. City of New York, 470 U.S. 1087
, 105 S.Ct.
1854, 85 L.Ed.2d 151 (1985).
Moreover, if plaintiffs intend to bring this claim under an
"inverse condemnation" theory, they would have to show that
their property has already been taken by the government, though
without the use of formal condemnation proceedings. See, e.g.,
United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127,
1130, 63 L.Ed.2d 373 (1980). However, they cannot show that
since the Planning Board has already granted conditional
approval for their three-lot subdivision and the state court
has eliminated all the Planning Board's conditions.
In any event, a takings claim does not ripen until a property
owner has used available state procedures to seek just
compensation. Williamson County Regional Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 3121, 87
L.Ed.2d 126 (1985); East-Bibb Twiggs Neighborhood Ass'n v.
Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264, 1266 (11th
Cir. 1990). Plaintiffs have not shown that New York's "inverse
condemnation procedure is unavailable or inadequate, and until
it has utilized that procedure, [their] taking claim is
premature." Williamson, 473 U.S. at 196-97, 105 S.Ct. at 3122.
Accordingly, defendants' motion to dismiss is granted as to the
I. Dismissal as to John Doe Conspirators, the Town and the
Regarding John Doe conspirators Nos. 1 through 10,
plaintiffs' complaint fails not only to name specific persons,
but even to allege specific acts. Plaintiffs must do more than
state "conclusory allegations to avoid dismissal of a claim
predicated on a conspiracy to deprive [them] of [their]
constitutional rights." Polur v. Raffe, 912 F.2d 52
, 56 (2d
Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1389
L.Ed.2d 446 (1991). They have failed to meet that burden.
Defendants contend that the Town and the Town Board should be
dismissed because plaintiffs make no allegations as to either
one. Further, they state that the Town Board is not even
involved in the granting or denial of variances or site plans,
functions reserved to the ZBA and the Planning Board.
In support of their claims against the Town Board, plaintiffs
cite only Shannon v. Village of Broadview, 682 F. Supp. 391
(N.D.Ill. 1988). However, Shannon, an employment discrimination
case, is completely inapposite. In Shannon, the "Board"
defendant is the Board of Fire and Police Commissioners, an
entity directly responsible for the allegedly discriminatory
acts. Furthermore, Shannon holds that the Village can be held
liable for the Board's acts, not that the Board is liable
whenever the Village is.
In contrast, plaintiffs' claims against the Town are
well-supported. A § 1983 action can be maintained against a
municipality for a single act of an official responsible for
making that policy. Pembaur v. City of Cincinnati,
475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986); Monell
v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct.
2018, 2035-36, 56 L.Ed.2d 611 (1978); Shelton v. City of
College Station, 754 F.2d 1251, 1257 (5th Cir. 1985). In
Shelton, the Fifth Circuit held a municipality liable for
injuries caused by unconstitutional acts of its zoning board
because the city "had delegated
exclusive policy-making authority to that Board with regard to
the grant or denial of variances." Id. at 1257. Similarly, in
the instant case, the authority granted by the Town to the
Planning Board makes the Town liable for any unconstitutional
acts of the Planning Board that caused injury to the Konceliks.
Accordingly, for the foregoing reasons, defendants' motion to
dismiss is granted as to the first and second causes of action
for procedural and substantive due process, but only as to acts
taken prior to August 3, 1988 (when the ZBA denied the
Konceliks' application for a variance); granted as to the third
cause of action for taking without just compensation; and
denied as to the first and second causes of action as to acts
taken subsequent to August 3, 1988. All claims against John Doe
conspirators, the ZBA and the Town Board are dismissed, with
leave to replead after completion of discovery; defendants'
motion to dismiss the Town and the Planning Board is denied.