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October 19, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


This written decision memorializes an oral decision announced in open Court on September 23, 1999.

In March 1998, Peter Gottlieb and Jeri Riggs, husband and wife, purchased a piece of property in a previously-approved subdivision in the Village of Irvington, New York, with the intention of building their "dream house." They encountered hostility from their immediate neighbors, Barbara Fragomen and the Rancic family. There is no indication in this record that the hostility was motivated by anything other than the neighbors' desire not to have a house built on adjacent property — an all-too-frequent occurrence as the suburbs become more populous and correspondingly denser. The neighbors' opposition notwithstanding, Plaintiffs obtained a building permit from the Building Inspector of the Village of Irvington, based on architectural plans that included a driveway cut located along the border between their land and the Rancics' property. Armed with their permit, they commenced construction.

Over the course of the summer of 1998, the Village issued two stop work orders covering Plaintiffs' premises. The first related to an over-height retaining wall. Plaintiffs altered the design of the wall and the stop work order was promptly rescinded. The second stop work order, issued on August 11, 1998, led to the filing of this lawsuit.

Plaintiffs thereupon filed an appeal with the Village Zoning Board of Appeals ("ZBA"), which they contend entitled them to recommence construction pending the appeal under section 712(a)(6) of the New York Village Law. However, acting at the discretion of Village officials, police appeared at Plaintiffs' property and threatened to arrest them if construction were recommenced. Additionally, the Village ZBA chairman, according to Plaintiffs, refused to sign subpoenas to compel witnesses to attend their ZBA hearing.

Plaintiffs hypothesize that the Mayor took a particular interest in the matter of their house because he was interested in obtaining employment from the ex-husband of one of the complaining neighbors, Mrs. Fragomen. The record contains no evidence concerning the state of relations between the former spouses that might support any such inference. However, it is clear that the Mayor took an interest in developments on this piece of property. It is also possible to conclude, viewing the evidence most favorably to Plaintiffs, that Irvington officials engaged in somewhat unorthodox behaviors concerning this property.

In any event, the Village Administrator issued the stop work order, on the theory that the original building permit had been issued in error due to the erroneous location of the driveway cut. The stop work order was accompanied by a request that the Plaintiffs seek approval for the relocation of their driveway from the Irvington Planning Board, which had final authority to approve all matters relating to subdivision plans. Plaintiffs made no such application. Neither did they bring any proceeding challenging the official action as improper pursuant to New York Civil Practice Law and Rules Article 78.

Negotiations dragged on for several months. In October 1998, the Village filed an action against Plaintiffs in the New York State Supreme Court, Westchester County, by Order to Show Cause, seeking a declaratory judgment that the 1988 subdivision plan was enforceable by the Village. A month later, Plaintiffs commenced this action, alleging various violations of their constitutional rights because Irvington officials had allegedly prevented them from completing their house. In December 1998, the Village rescinded the stopwork order, but only upon notice to Plaintiffs that, if they proceeded, they did so at their own risk. Plaintiffs did not resume construction, however, preferring to litigate rather than build.

This Court first took note of the case when defendants made a motion to dismiss. Cognizant that the Second Circuit has instructed District Court judges not to become involved in local land use matters, even where a plaintiff asserts denial of federal due process, see Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), and aware that I might not be able to decide certain of Plaintiffs' constitutional claims without determining whether the Village's actions comported with applicable State laws and Village regulations, this Court stayed proceedings pending adjudication of the relevant land use issues in the action brought by the Village in the State Supreme Court. Unfortunately, a few weeks later, Justice Rosato — unconstrained by the Second Circuit's distaste for Federal interference in local land use matters — stayed his hand pending this Court's determination. Thus, I ordered the parties to complete discovery on an expedited basis. Defendants moved for summary judgment upon completion of discovery.

Having reviewed the papers submitted by the parties and heard oral argument, I grant the motion for summary judgment dismissing plaintiffs' federal claims and return them to the New York State Supreme Court — where they have belonged all along — to litigate their challenge to the actions of the local officials and the various zoning and planning issues implicated by this entire situation.

Substantive Due Process claim (First Cause of Action)

Plaintiffs first contend that their substantive due process rights were violated by the issuance of the stop work orders — in particular, the August 11 stop work order (the earlier one having been promptly rescinded). However, Plaintiffs have failed to make out such a claim, for three reasons: (1) they have no federally protectable property right in their building permit (which was never revoked, but was subject to a stop work order); (2) the Village's actions in issuing the stop work order was not "outrageously arbitrary" or a "gross abuse of governmental authority" and (3) there has been no final decision by the Village denying Plaintiffs the right to build the driveway in the desired location, so their claim is not yet ripe for adjudication.

Plaintiffs claim an arbitrary and capricious denial of their building permit by Village of Irvington officials. They rely on cases in which it was held that a party has a property interest in a building permit, so that revocation of same can give rise to a constitutional violation. See Town of Orangetown v. Magee, 88 N.Y.2d 41, 643 N.Y.S.2d 21, 665 N.E.2d 1061 (N.Y. 1996); Faymor Dev. Co., Inc. v. Bd. of Standards and Appeals of the City of New York, 45 N.Y.2d 560, 410 N.Y.S.2d 798, 383 N.E.2d 100 (N Y 1978); Temkin v. Karagheuzoff, 34 N.Y.2d 324, 357 N.Y.S.2d 470, 313 N.E.2d 770 (N.Y. 1974). However, Plaintiffs' building permit was never revoked, and the stop work order issued by the Village (the second, based on the driveway location issue) has been lifted by agreement of the parties.

Plaintiffs apparently want the Court to equate the Village's temporary interference with their right to continue building — because of the stop work order — with a denial or revocation of a building permit. Those two things cannot be equated, however. Under New York law, Plaintiffs, as holders of a building permit showing a non-conforming driveway location, did not have a vested property right (i.e., a clear entitlement, rather than a mere expectation) to build their house in conformity with those plans. See DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124 (2d Cir. 1998). Although their site plan — with the driveway in the location they wish to build it in — was approved by the Village, the Village later determined that the site plan was inconsistent with the subdivision plat and had, therefore, been erroneously approved by the Building Inspector. New York courts have repeatedly held that a landowner does not have a vested property right to a building permit issued erroneously by a building inspector, and that there can be no estoppel against the government in such a situation. See Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 525 N.Y.S.2d 176, 519 N.E.2d 1372 (1988); McGannon v. Board of Trustees of the Village of Pomona, 239 A.D.2d 392, 657 N.Y.S.2d 745 (2d Dept. 1997) (citing Parkview Assocs.). Therefore, Plaintiffs have not demonstrated that they were deprived of any federally-protected right.

Plaintiffs have clearly not shown that the Village's actions — even if erroneous — were outrageously arbitrary and a gross abuse of governmental authority. The record before me indicates that the Village discovered that Plaintiffs' driveway was being constructed in a place other than that provided for on the approved subdivision plat, issued a stop work order, and requested that Plaintiffs either construct the driveway in conformance with the subdivision plat or apply to the Village Planning Board for approval of the new location. The Village Administrator, who issued the stop work order, had authority under the Village Code to take issue such an order, and has provided a rational explanation for having done so. Whether or not plaintiffs could prevail on a lesser, arbitrary-and-capricious standard in an Article 78 is irrelevant; on this record, the higher constitutional standard has not been met.

Third, there has been no substantive due process violation because there has been no final decision by the Village in this case. See Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 200, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (holding that taking claim was not ripe because developer did not seek a variance from the determination of the planning commission to apply recently enacted density requirements reducing the development potential of the land); Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 86 (2d Cir. 1992) (holding that the "finality" requirement of Williamson applies also to substantive due process claims that governmental conduct was arbitrary and capricious), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993). Ripeness is an issue of law to be determined by the Court. See Southview Assocs., 980 F.2d at 95. Unless a court has a final decision before it, it cannot be determined whether the government conduct violated due process. See id. at 97; Taylor Investment Ltd. v. Upper Darby Township, 983 F.2d 1285, 1290 (3d Cir. 1993). In Southview, the Second Circuit held that the decision by a state environmental board not to permit a residential development because of its impact on wildlife was not final because the record indicated the board was amenable to considering a less intrusive, less intensive plan of development. And in Taylor, the Court of Appeals for the Third Circuit held that a landowner's substantive due process claim based on arbitrary and capricious revocation of its use permit by town officials was not ripe because the landowner never went to the zoning hearing board, which could have corrected matters and permitted the requested use.

In this case, Village officials repeatedly urged the Plaintiffs to apply to the Village Planning Board for approval of the sought change in the location of the driveway. The Village has made no final decision to deny or to grant such an application because the Plaintiffs have never made one. Thus, there is no final determination to challenge in this Court.

Plaintiffs assert that they did not apply to the Planning Board for approval of the change because they had "lost all trust" in the Board. (Ferdinand Gottlieb Dep. at 218.) However, the Plaintiffs have articulated nothing that would support a conclusion that an application to the Planning Board would have been futile.*fn1 Rather, Plaintiffs' depositions reveal that their decision not to make an appeal to the Planning Board was purely strategic. They wished to avoid the possibility of an adverse decision by the Board, and they wished to preserve their challenge to the stop work order for the courts (specifically, the federal courts). Ferdinand Gottlieb, Plaintiff Gottlieb's father, who designed Plaintiffs' house, testified as follows:

  Q. What would you have lost by going to the Planning
  Board to see if it would approve the driveway ...

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