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March 30, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


This action has its genesis in the enforcement of a zoning code against plaintiff. The grayamen of the Complaint is that defendants selectively enforced the zoning code against plaintiff because of her race. Plaintiff brings claims, inter alia, that defendants violated her constitutional rights to procedural due process, substantive due process, and equal protection.

Defendants now move to dismiss pursuant to FED.R.CIV.P. 12(b)(1) and (6), or, alternatively, for summary judgment pursuant to FED.R.CIV.P. 56. For the reasons that follow, I grant in part and deny in part defendants' motions.


A. Facts

In the spring of 1996, Plaintiff Carole H. Riley, an African-American female, moved to the Albany, New York area to pursue her Pizza Hut franchisee business. At the outset, she retained a real estate agent to find her a home residence that could also serve as a home office. She viewed one property, which she ultimately did not pursue because of zoning concerns. In August 1996, she purchased real property located at 1545 New Scotland Road in Bethlehem, Albany County, New York (the "property"). According to plaintiff, while she understood that the property was (and remains) zones "A residential," her real estate agent led her to believe that the property could also be used as a home office. See Plaintiff's Statement of Material Facts, at ¶ 15. That understanding also appears to have stemmed from poor legal advice and a misleading real estate listing.

On February 7, 1997, the Town Building Inspector, John Flanigan, investigated plaintiff's property for suspected zoning noncompliance. Upon investigation, Flanigan noticed a large dumpster on the property with construction materials in it and kitchen equipment stored in the garage. He also noticed construction work to the house, which a construction worker informed him was being renovated for home office use. After receiving a tour of the property by the construction worker, Flanigan returned to his office and drafted a letter to plaintiff informing her that use of the property as a home office violated the zoning code. The letter directed her to cease and desist using the property as a home office.

According to plaintiff, she first learned that her home office presented a zoning problem after Flanigan visited the property and subsequently sent her the cease and desist letter. Thereafter, she retained counsel, and on February 27, 1997, applied to the defendant Board of Appeals of the Town of Bethlehem (the "BOA") for a use variance "to permit [her] to maintain home offices (14 employees) and 2 separate apartments."*fn1 While her application was pending, plaintiff was permitted to continue using the property as a home office.

On April 16, 1996, a hearing was held, at which plaintiff and her attorney, Robert Wakemen, were present. At that time, both Wakemen and plaintiff made arguments in support of her use variance application. Among other things, plaintiff testified that she desired to continue using the property for home office purposes in connection with her Pizza Hut business. She stated that she employed approximately 7 others at the house, excluding herself and her partner. She also admitted that she holds monthly staff meetings with her employees at the property, during which approximately 18 to 20 persons from her restaurants are present. She also testified that she made no changes to the interior or exterior of the building or the property, except for electrical work to accommodate her computers. At the tailend of the hearing, the following exchange took place between Riley and defendant Lewis, a BOA member:

  Mr. Riley: There is a hardship if I have to lose a $500,000
   investment because —
  Mr. Lewis: I understand that but now I go on the second point
   and say, the alleged hardship has not been selfcreated. Could
   you address that?
  Ms. Riley: I made a mistake but I relied on the representations
   that were made to me by . . . [my listing real estate agent]
   . . . and my attorney who did not make a representation but
   obviously failed to do the proper research that would uncover
   the fact that we have a situation.

After hearing plaintiff's testimony, and at the BOA's suggestion and plaintiff's concurrence, the BOA adjourned the matter to allow plaintiff the opportunity to gather and submit additional evidence and to address the concerns raised by the BOA. On July 9, 1996, plaintiff filed a supplemental application with the BOA requesting that she be permitted, absent a variance, to use the property as a home office pursuant to § 128-35*fn2 of the Town Code.

A second hearing was held on September 17, 1997. Plaintiff was present with her new attorney, Peter Pryor. Once again, plaintiff testified in support of her applications. Following her testimony, Edward Kleinke, a licensed landscape architect, testified on plaintiff's behalf that other homeowners within the Town have home offices in residentially zoned areas. Specifically, he identified two businesses within 500 feet of plaintiff's property that are zoned A residential — the Slingerlands Fire Hall and the medical office of Joanne Van Woert, M.D. Freinke also identified 4 businesses in zoned "AA residential" areas located more that 500 feet but less than 1000 feet from plaintiff's property — Youngblood Law Offices, Coventry Construction, Gialli Interiors and SpectrProbe Consulting. In addition, he identified 19 businesses in residentially zoned districts more than 1000 feet but less than 4000 feet from plaintiff's property. He also testified that after reviewing the business listings in the local telephone directory, he identified approximately 90 other businesses in the Town of Bethlehem that are located in a residentially zoned districts. In reply, Flanigan testified that the Slingerlands Fire Hall was exempt from the zoning law and that the Van Woert office had been granted a use variance.

At a regularly scheduled public hearing on October 15, 1997, the BOA unanimously voted to deny plaintiff's application. At that time, the BOA directed defendant Dixon Welt, the Town attorney, to draft a resolution denying the application. Welt drafted and presented the resolution denying plaintiff's use variance application, which the BOA passed on November 5, 1997. According to the Resolution and the affidavits of the defendant BOA members, the BOA denied her a use variance because she did not satisfy, the statutory requirements. The BOA also denied plaintiff's supplemental application during the November 5, 1997 public hearing.

B. Procedural History

Presently before the Court are two motions. First, defendants O'Brien and Morgan move in their individual capacities to dismiss the Complaint pursuant to FED. R.Civ.P. 12(b)(1) and (6), or, alternatively, for summary judgment pursuant to FED. R.CIV.P. 56. Second, the remaining defendants and O'Brien and Morgan in their official capacities move to dismiss the Complaint for failure to state a claim pursuant to FED R.CIV.P. 12(b)(6), or, alternatively, for summary judgment pursuant to FED.R.CIV.P.56.*fn3


A. The Eleventh Amendment

Defendants Morgan and O'Brien move in their personal capacities to dismiss the claims against them on the ground of Eleventh Amendment immunity.

The Eleventh Amendment of the United States Constitution bars suits against a state in federal court unless the state consents to be sued, or Congress enacts legislation, pursuant to section 5 of the Fourteenth Amendment, overriding the state's Eleventh Amendment immunity.*fn4 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The "state" for purposes of the Eleventh Amendment generally includes state agencies and state officials sued in their official capacities, but not political subdivisions. See, e.g., Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Here, the BOA of the Town, of which Morgan and O'Brien are members, is plainly not an arm of the state. See Mancuso v. New York State Thruway Auth., 86 F.3d 289, 292-96 (2d Cir.) (listing six factors as relevant to whether an entity is an arm of the state), cert. denied, ___ U.S. ___, 117 S.Ct. 481, 136 L.Ed.2d 375 (1996); see also Owen v. City of Independence, Missouri, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). Moreover, it is hornbook law that even state officers sued in their personal capacities may be sued in federal court because such suits are not against the state, but rather assert liability against the individual. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1688, 40 L.Ed.2d 90 (1974); Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir. 1990) ("The Eleventh Amendment . . . provides no immunity for state officials sued in their personal capacities.").

Accordingly, Morgan and O'Brien do not have Eleventh Amendment immunity.

B. Standard for Summary Judgment

All of the defendants next move to dismiss the Complaint for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6), or, in the alternative, for summary judgment pursuant to FED.R.CIV.P. 56. In support of their motions, defendants submitted numerous matters outside of the pleadings, including affidavits from members of the BOA, plaintiff's affidavits to the BOA, transcripts from the BOA hearings and various other exhibits. In opposition to defendants' motions, plaintiff likewise submitted various affidavits and exhibits. Because I have considered these submissions from both parties in addressing defendants' motions, and because plaintiff was on notice that defendants' motions were in the alternative for summary judgment, I will treat defendants' motions as ones for summary judgment.

The standard for summary judgment is well-settled. Under FED.R.CIV.P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting FED. R.CIV.P. 56(c)). The initial burden is to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct.2548.

Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348. A dispute regarding a material fact is genuine if a reasonable jury could return a verdict for the non-moving party; that is, whether the non-movant's case, if proved at trial, would be sufficient to survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When reasonable minds, however, could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

Although the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991) (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the nonmoving ...

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