plaintiff's property and the approximately 90 other businesses
located in residentially zoned districts within the Town,
Pryor's testimony that only three use variances had been
granted, Flanigan's variable statements with respect to how he
came to investigate plaintiff's property, plaintiff's averments
that white homeowners openly operate the identified businesses
in residentially zoned areas, and drawing all reasonable
inferences in favor of the plaintiff, I find that plaintiff has
offered sufficient evidence to create a factual dispute with
respect to the selective enforcement prong of her equal
protection claim against Flanigan.
The remaining question is whether plaintiff has presented
sufficient evidence to support her claim that such selective
enforcement was based on impermissible considerations of race.
In light of the above circumstances, I find that plaintiff has
assembled facts adequate to raise a plausible inference that
Flanigan selectively enforced the zoning code against her
because of her race. Accordingly, I deny defendants' motion to
dismiss the claim of selective enforcement against Flanigan.
B. Remaining defendants
Plaintiff has provided no evidence, however, that any of the
remaining defendants were personally involved in the
enforcement of the zoning code against her. See Taylor v.
Brentwood Union Free Sch. Dist., 143 F.3d 679, 685 (2d Cir.
1998) (stating that § 1983 plaintiff must prove that defendant
caused the deprivation of his or her rights); Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (stating that
defendant's personal involvement in the constitutional
deprivation is required for § 1983 liability); Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994); Moffitt v. Town of
Brookfield, 950 F.2d 880, 886 (2d Cir. 1991).
Accordingly, these claims against the remaining defendants in
their personal capacities are dismissed.
(ii) Zoning Variance Events
A. The BOA Defendants
Turning next to the zoning variance events, plaintiff claims
that defendant members of the BOA violated her rights to equal
protection by denying her applications to use her property as a
home office on account of her race.
In support of summary judgment, the BOA members submitted
affidavits stating that plaintiff's application for a use
variance was denied because she did not satisfy the statutory
requirements. Specifically, each notes that public hearings
were held in connection with plaintiff's application on April
16, 1997 and September 17, 1997, at which plaintiff had the
opportunity to present evidence. Each also avers that on
October 15, 1997, at a regularly scheduled public meeting,
plaintiffs' application was discussed and unanimously denied
because plaintiff did not meet the requirements of section
267-b(2) for the granting of a use variance. Further, each
avers that he or she reached this decision freely and
independently based upon the information presented by the
plaintiff at the public hearings and that at no time did anyone
attempt to coerce or influence his or her decision relative to
plaintiff's application. See Hodom Aff.; Wiggand Aff.; Lewis
Aff.; O'Brien Aff. and Exh. A attached thereto; Morgan Aff.
Plaintiff, by contrast, has offered no evidence in support of
her equal protection claim that the BOA members treated
plaintiff differently than other similarly situated
use-variance applicants. Specifically, she has provided no
evidence that the BOA granted use variances to others similarly
situated. See Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st
Cir. 1995) (dismissing selective enforcement claim against
members of zoning board because plaintiff "fail[ed] to present
any evidence that any of their neighbors were either required
to seek a variance or actually made such a request of the
Board"). Nor has she presented any evidence that the
BOA members applied the Town Code and its criteria for a use
variance more stringently on account of her race. She also has
offered no evidence to substantiate her allegation that the BOA
treated her differently by conspiring against her in an attempt
to induce her departure from the Town. Accordingly, I grant
defendants' motion for summary judgment seeking dismissal of
plaintiff's claim that the individual BOA members violated her
equal protection rights in connection with her application for
a use variance.*fn6
B. Remaining Defendants
It is not clear whether plaintiff brings an equal protection
claim against the remaining individual defendants in connection
with the events surrounding her use variance application. To
the extent that she does, her claims against them must be
dismissed for the same reason — that there is no evidence that
defendants treated plaintiff differently than similarly
situated applicants. Even more fundamentally, however, her
claim must be dismissed because she has presented no evidence
that they were personally involved in the decision to deny her
a use variance or otherwise selectively treated her because of
her race in connection with her application. See Black 76
F.3d at 74; Wright 21 F.3d at 501; Moffitt, 950 F.2d at
(b) Substantive Due Process
Plaintiff also brings a substantive due process claim against
"Substantive due process protects only those interests that are
implicit in the concept of ordered liberty." Local 342 Long
Island Public Serv. Employees, UMD, ILA, AFL — CIO v. Town Bd.
of the Town of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994)
("Local 342"). To properly state a substantive due process
claim, a plaintiff must identify a property interest and
explain how it has been interfered with by the government. See
Greene v. Town of Blooming Grove, 935 F.2d 507, 510 (2d Cir.),
cert. denied, 502 U.S. 1005, 112 S.Ct. 639, 116 L.Ed.2d 657
(1991). A plaintiff must also allege that this deprivation was
arbitrary or not reasonably related to a legitimate government
interest. See Brady v. Town of Colchester, 863 F.2d 205, 215
(2d Cir. 1988). When considering a due process claim for the
denial of a rezoning application, I am "mindful of the general
proscription that `federal courts should not become zoning
boards of appeal to review nonconstitutional land use
determinations by . . . local legislative and administrative
agencies.'" Zahra, 48 F.3d at 679-80 (quoting Sullivan v.
Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986)).
(i) Property Interest
Defendants assert that plaintiff has no property interest in a
zoning variance. "This Circuit uses a strict entitlement' test
to determine whether a party's interest in land-use regulation
is under the Fourteenth Amendment. . . . The analysis focuses
on the extent to which the deciding authority may exercise
discretion in arriving at a decision, rather than on an
estimate of the probability that the authority will make a
specific decision." Zahra, 48 F.3d at 679; see also Crowley
v. Courville, 76 F.3d 47, 52 (2d Cir. 1996); Ellentuck v.
Klein, 570 F.2d 414, 429 (2d Cir. 1978); Cedarwood Land
Planning v. Town of Schodack, 954 F. Supp. 513, 524 (N.D.N Y
1997); Scales v. Village of Camden, 1990 WL 152068, *4-*6
(N.D.N.Y. Oct.5, 1990).
Here, the Town Zoning Code vests the BOA with considerable
discretionary authority. See Town Code §§ 128-100 and
262-2(b). Furthermore, one of the criterion for a use variance
is that the hardship was not self-created. Plaintiff admits,
however, that she knew upon purchase that her property was
zoned A residential but that her broker and attorney led her to
believe that her proposed home office use would be permitted.
Thus, plaintiff cannot persuasively argue that she had an
entitlement to a use variance when her zoning predicament may
be interpreted as self-created. Similarly, plaintiff cannot
plausibly assert that the zoning board had no discretion to
deny her application on that or other grounds. In short, this
lack of entitlement prevents plaintiff's expectation of success
from rising to the level of certainty required to give rise to
a cognizable property right. See, e.g., Crowley, 76 F.3d at
52 (finding that because Zoning Board had wide discretion in
granting variance, landowner had no property interest); Orange
Lake Assoc., Inc. v. Kirkpatrick, 21 F.3d 1214, 1224 (2d Cir.
Plaintiff attempts to avoid this result by recasting her
property interest as the "right to the use of her residence for
home professional purposes and consistent with the zoning laws
and the custom, use and practice of the Town in allowing white
homeowners to use their dwellings for home professional use
with employees unhindered in residential A and AA zones." See
Memorandum of Law of Plaintiff, at 11-12. This vague argument,
however, sounds more like a claim seeking to enforce the right
to equal protection of the laws — which I have discussed above.
At any rate, plaintiff has no property right to employ
approximately eight persons at her property in violation of the
Town zoning code, which is not irrational or arbitrary on its
Accordingly, because plaintiff has failed to identify a
protected property interest, her substantive due process claim
is without merit.
(c) Procedural Due Process
Plaintiff also claims that defendants violated her due process
rights by failing to conduct fair and unbiased hearings.
To state a claim for a violation of procedural due process, a
plaintiff must (1) identify a property interest; (2)
demonstrate that the governmental action with respect to the
property right amounted to a deprivation; and (3) show that the
deprivation was without due process of law. Local 342, 31
F.3d at 1194.
In this case, plaintiffs due process claim fails because she
has no property interest in a land use variance. See
discussion supra; RR Village Ass'n, Inc. v. Denver Sewer
Corp., 826 F.2d 1197, 120102 (2d Cir. 1987) ("[I]f state law
makes the pertinent official act discretionary, one's interest
in a favorable decision does not rise to the level of a
property right entitled to procedural due process protection").
Defendants also correctly note an alternative basis for
dismissal — that plaintiff could have sought meaningful review
of the BOA's decision within the state judicial system, but
chose instead to commence the present action. The availability
of such recourse precludes finding that the defendants' conduct
violated plaintiff's rights to procedural due process. See
Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 68
L.Ed.2d 420 (1981) (deprivations of property attributable to
unauthorized conduct of state officials do not violate Due
Process Clause if state law provides adequate post-deprivation
Accordingly, plaintiff's procedural due process claim is
2. 42 U.S.C. § 1985 Claim
To state a claim for relief under section 1985(3), a plaintiff
must show: "(1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal privileges and
immunities under the laws; (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right of a citizen of the
United States." Mian v. Donaldson, Lufkin, & Jenrette
Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Moreover,
a "plaintiff must do more than make vague, general or
conclusory accusations in order to establish the existence of a
conspiracy actionable under section 1985(3)." Mass. v.
McClenahan, 893 F. Supp. 225, 231 (S.D.N.Y. 1995) (citing
Williams v. Reilly, 743 F. Supp. 168, 17374 (S.D.N.Y. 1990));
see also Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.
1997) ("`[A] complaint containing only conclusory, vague, or
general allegations of conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss.'")
(quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993));
X-Men Security, Inc. v. Pataki, 983 F. Supp. 101, 115
(E.D.N.Y. 1997) ("A conspiracy claim under section 1985 must be
pled with some degree of specificity.").
In this case, plaintiff's section 1985(3) claim against the BOA
members, Welt and Fuller fails because she has provided no
flesh to her bare-bone allegations of a conspiracy. See
Boddie, 105 F.3d at 862; Mass, 893 F. Supp. at 231. In turn,
her conspiracy claim against defendant Flanigan fails because
she does not allege that Flanigan conspired with anyone other
than these defendants. See Complaint, at ¶¶ 44, 55 and 101.
Simply stated, the lynchpin for a conspiracy — an agreement
between two or more persons — is missing. See
42 U.S.C. § 1985(3).
3. Interstate Commerce Claim, Freedom of Association Claim,
42 U.S.C. § 1981 and 42 U.S.C. § 1982
Defendants also seek dismissal of plaintiff's claims under the
Interstate Commerce Clause, under the First Amendment for
violation of her right to freedom of association, and her
claims brought pursuant to 42 U.S.C. § 1981 and 1982.