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April 20, 1996

JOHN KIRSCHNER, GEORGE KIRSCHNER, MARTHA KIRSCHNER and J & G CENTRAL AUTO COLLISION, INC., d/b/a CENTRAL AUTO COLLISION, Plaintiffs, against THE ZONING BOARD OF APPEALS OF THE INCORPORATED VILLAGE OF VALLEY STREAM: and EDWARD DeLUCIE, FRED SAN FANANDRE and MARVIN RONIK, in their capacity as constituting Members of the Zoning Board of Appeals of the Incorporated Village of Valley Stream, Defendants.

The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 The plaintiffs originally filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violation of their Free Speech, Due Process and Equal Protection rights under the First, Fifth and Fourteenth Amendments of the United States Constitution. This Court granted the defendants' motion for summary judgment dismissing the plaintiff's second amended complaint in its entirety on February 4, 1994. However, the Court also granted the plaintiffs leave to replead their equal protection claim. The plaintiffs filed a third amended complaint on February 28, 1994 which the Court dismissed on June 3, 1994 pursuant to Fed. R. Civ. P. 12(b)(6). Leave was again granted to replead. On October 21, 1994 the Court granted the defendants' motion for sanctions against the plaintiffs' attorneys for reasonable attorneys' fees and costs incurred in dismissing the third amended complaint. On June 7, 1994, the plaintiffs filed their fourth amended complaint again alleging a violation of their equal protection rights. The defendants move for summary judgment in their favor arguing that the plaintiffs are unable to maintain a their equal protection claim as a matter of law.


 The plaintiffs John, George, and Martha Kirschner own and operate an auto body shop, J & G Central Auto Collision, Inc. d/b/a Central Auto Collision, located at 1081 Rockaway Avenue, Valley Stream, New York. The area is zoned as C-1, and under the Village of Valley Stream's Zoning Code an auto body repair shop is not permitted in a C-1 district. However, because the auto body shop at issue pre-dated the enactment of the Village's old zoning code in 1952, the plaintiffs' predecessors in title were allowed to operate the auto body shop since 1952 as a legal non-conforming use.

 In 1969, the ZBA granted the plaintiffs' predecessor in title a special permit to expand the existing non-conforming use by 3% of the total land area, increasing the size of the auto body shop from 890 square feet to 1080 square feet.

 Beginning in 1985, the plaintiffs applied for a special permit to expand the size of the auto body shop. According to the plaintiffs, the expansion was sought in order to install up-to-date spray booths and other ventilating equipment, so as to ultimately allow all the auto body operations to be contained within a totally enclosed, ventilated structure. According to the defendants, the plaintiffs made four such applications.

 The first application was made on August 28, 1985, and requested an expansion of 1,636 square feet. The application was made pursuant to then section 99-47 of the Village Code, which allowed for expansion of a non-conforming use, so long as the expansion did not exceed 25 percent of the land area occupied by the business. The ZBA held an evidentiary hearing on September 2, 1986 with respect to the application, at which the plaintiffs participated. At that hearing numerous Village citizens spoke in opposition to the plaintiffs' expansion of the auto body shop, including the defendant Edward DeLucie, who resided adjacent to the premises and presented a petition on behalf of 65 other neighbors living near the shop.

 A week later the Nassau County Planning Commission ("NCPC") recommended disapproval of the application to expand the non-conforming use on the grounds that expansion would introduce commercial traffic to a residential street, and the parking and storage resulting from the additional automobile capacity would create a hazardous and unsightly condition. Because the NCPC disapproved the application, the ZBA could only approve the application by a supermajority (4 to 1) vote. The ZBA issued findings and decisions rejecting the plaintiffs' application for expansion. One of the bases for the ZBA's rejection was that the proposed expansion of 1,636 square feet exceeded the 25 percent limit on non-conforming use expansion. The defendant Fred San Fanandre was a member of the ZBA at the time, and voted to deny the application.

 The second application by the plaintiffs to expand the non-conforming use was made in 1988. A hearing with regard to this application was held on September 2, 1988. Once again, the NCPC recommended disapproval of the application, and for a second time, on September 27, 1988, the ZBA voted to reject the application. This time, however, the ZBA stated that the grounds for the rejection were that under section 99-47 of the Village Code, only one special permit allowing expansion of non-conforming use may be granted during the life of any non-conforming use. Since one such permit had been granted in 1969, no more special permits could be granted for the auto body shop.

 In September 1990, the Village Board of Trustees adopted a New Zoning Code. The new section 99-2403 of the Village Code provided for a maximum expansion of a lawful existing non-conforming use of 25 percent. However, the new section 99-2505(A)(1)(a)(9) of the Village Code states, in relevant part, that:

In addition to the general standards for a special permit approval . . . the [ZBA] may, as a condition of approval of any such use, establish any other additional standards, conditions and requirements, as it may deem necessary or appropriate to promote the public health, safety and welfare and to otherwise implement the intent of this local law. The [ZBA] may modify the application of the general and specific standards prescribed in this local law as they apply for special permit approval on a case-by-case basis, in its sole judgment and at its discretion, if it makes the following findings:
a) That the requirement is superfluous or in excess of what is necessary and adequate.
b) That alternate protections are provided to meet the general intent of the regulation.
c) That the modification of the requirement will not adversely affect the general health, safety or welfare of the public.
d) In modifying these requirements, the [ZBA] may impose other alternative requirements in order to achieve substantial justice. (emphasis added)

 After the enactment of the new Village Code, the plaintiffs applied for a third time to have the non-conforming use expanded. A hearing was held on November 13, 1990. This time, however, on December 18, 1990, the ZBA voted 4 to 1 to grant the special permit. Again, the defendant San Fanandre voted to deny the permit. According to the ZBA's Findings and Decisions, the ZBA granted the special permit because it construed the new section 99-2505(A)(1)(a)(9) as giving the ZBA discretion to exceed the 25 percent non-conforming use expansion limitation. According to the plaintiffs, the ZBA's Findings recognized that Central Auto Collision was a viable profitable business which had been restricted from updating its equipment, a restriction which could be remedied by expanding the existing structure.

 On January 24, 1991, the Village Attorney, Michael T. Hopkins, wrote a letter to the ZBA Chairperson addressing the ZBA's decision to construe the new ordinance so as to permit an expansion in excess of 25 percent. The Village Attorney stated in the letter that it was not the intent of the Village Trustees in enacting section 99-2505 to allow the ZBA to waive the 25 percent limitation on the maximum allowable expansion for a non-conforming use, but rather, to keep the 25 percent figure as a jurisdictional limitation upon the ZBA.

 On March 19, 1991, the Mayor of the Village was defeated for re-election, and the Village Attorney was replaced.

 For a fourth time, a hearing was held by the ZBA on May 14, 1991 to consider the plaintiffs' application to expand the non-conforming use. On June 23, 1991, the ZBA issued its Findings and Decision denying the special use permit. In addition to finding that the prior ZBA decision to grant a non-conforming expansion of greater than 25 percent exceeded its jurisdiction, the ZBA also found that such an expansion presented health and safety problems to the surrounding area.

 The plaintiffs then challenged the ZBA's reversal of its prior decision in an Article 78 proceeding before the Supreme Court, Nassau County (Judge Levitt), claiming fraud, estoppel, and the illegality of the ZBA action. The Supreme Court dismissed the proceeding for failure to properly to serve the ZBA. The plaintiffs' motion to reargue was denied on January 26, 1993.


 The plaintiffs proceed with their fourth amended complaint making a single claim for violation of their equal protection rights pursuant to the Fourteenth Amendment of the United States Constitution. Specifically, the plaintiffs allege in their complaint that the

defendants, . . . intentionally and with malicious or bad faith intent to injure plaintiffs selectively treated plaintiff's [sic] application differently from other similarly situated applicants, including, but not limited to Two Guys Auto Body, Red Lobster Restaurant, Hermac Auto Body, Andy's and Terry's Automotive, Permit Research Co. and Acquisition Corp. and United Auto Body, all of which requested permission to [expand] a non-conforming use.

 However, in their May 31, 1995 Rule 3(g) statement, the plaintiffs address only the special use permit granted to United Auto Body to modify that company's nonconforming use. In comparing the United Auto Body's and Central Auto's Collision applications, the plaintiffs acknowledge that in their January 28, 1994 Rule 3(g) statement, they distinguished the United Auto Body's application as "separate and unrelated" because in that case, ...

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