Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
RILEY v. TOWN OF BETHLEHEM
March 30, 1999
CAROLE H. RILEY, PLAINTIFF,
THE TOWN OF BETHLEHEM; BOARD OF APPEALS OF THE TOWN OF BETHLEHEM; SHEILA FULLER, TOWN SUPERVISOR; JOHN H. FLANIGAN, INDIVIDUALLY AND IN HIS CAPACITY AS TOWN BUILDING INSPECTOR FOR THE TOWN OF BETHLEHEM; MICHAEL HODOM; ROBERT WIGGAND; RICHARD LEWIS, JAMES MORGAN, MARJORY O'BRIEN, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF APPEALS OF THE TOWN OF BETHLEHEM; AND DIXON WELT, ATTORNEY FOR THE BOARD OF APPEALS OF THE TOWN OF BETHLEHEM, DEFENDANTS.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
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
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.
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
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
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.
On December 8, 1997, plaintiff filed a Complaint against
defendants, the Town of
Bethlehem (the "Town"); the BOA; Sheila Fuller ("Fuller"), Town
Supervisor; Flanigan, individually and in his capacity as the
Town Building Inspector; Dixon Welt ("Welt"). Attorney for the
BOA: and Michael Hodom ("Hodom"). Robert Wiggand ("Wiggand"),
Richard Lewis ("Lewis"), James Morgan ("Morgan"), and Marjory
O'Brien ("O'Brien"), individually and in their official
capacities as members of the BOA. The bedrock of the Complaint
is that defendants have selectively enforced the zoning code
against her because of her race. Specifically, the Complaint
alleges that adjacent white homeowners are openly conducting
businesses from their homes without interference from and with
the knowledge of the Town and the other defendants. The
Complaint presents a myriad of claims, pursuant to 42 U.S.C. § 1981,
1982, 1983, and 1985, for, inter alia, violations of
procedural due process, substantive due process, equal
protection, and the Commerce Clause. It also asserts a number
of pendent state-law claims.
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
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
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
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
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,
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 ...