allegations of the complaint, the equal protection claim is not
sufficiently factually developed at this juncture for full
analysis. The court is therefore not willing to dismiss the equal
protection claim for failure to state a claim this early in the
proceedings. Accordingly, the court denies the motion at this
ii. The Due Process Claims
1. General Principles
While Section 1983 is often used as a vehicle to challenge
local land use decisions, federal judicial review of decisions in
such matters is extremely deferential. As often stated, federal
courts hearing civil rights cases do not sit as zoning boards of
appeal over local zoning decisions. Natale v. Town of
Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), quoting, Village
of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 39
L.Ed.2d 797 (1974) (Marshall, J., dissenting). This principle is
well demonstrated by the Second Circuit's adoption of the legal
standards discussed below.
Due process has both a procedural and substantive component.
Procedural due process requirements are generally satisfied where
the denial of plaintiff's request is preceded by notice and a
hearing and followed by a written explanation. Natale, 170 F.3d
at 262. Substantive due process, on the other hand, refers not to
particular hearing procedures, but circumscribes an "outer limit"
on permissible governmental action. Natale, 170 F.3d at 263.
Substantive due process rights are violated only by conduct "so
outrageously arbitrary as to constitute a gross abuse of
governmental authority." Natale, 170 F.3d at 263. The mere
violation of state zoning laws is not sufficient to demonstrate
conduct so outrageous as to violate the substantive component of
the due process clause. Natale, 170 F.3d at 262. Indeed, even a
state court ruling that state zoning laws have been violated is
not, standing alone, sufficient to constitute a substantive due
process violation. RRI Realty v. Incorporated Village of
Southampton, 870 F.2d 911, 912 (2d Cir. 1989), cert. denied,
493 U.S. 893, 110 S.Ct. 240, 107 L.Ed.2d 191 (1989).
To demonstrate a violation of due process rights based upon a
zoning decision, whether on procedural or substantive due process
grounds, a plaintiff must first demonstrate that he possesses a
federally protected property right to the relief sought. Lisa's
Party City, 185 F.3d at 16; Natale, 170 F.3d at 263; Penlyn
Development Corp. v. Incorporated Village of Lloyd Harbor,
51 F. Supp.2d 255, 261 (E.D.N.Y. 1999). It is only when such a right
is established that the court may turn to a discussion of whether
there has been a deprivation of that right without due process.
A protected property interest may, in limited circumstances,
include the right to use one's land in a certain way. In such
cases a "right," such as a right to a permit or a change in
zoning, may constitute a protected property right, the denial of
which implicates the protections of the due process clause. RRI
Realty, 870 F.2d at 915. Such a property right exists, however,
only if the plaintiff can show a "clear entitlement" to the
relief sought, Natale, 170 F.3d at 263; a mere "abstract need
or desire" is insufficient. RRI Realty, 870 F.2d at 915,
quoting, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972).
The question of entitlement turns on whether the local
authority has discretion to deny what is sought or, in the
alternative, whether relief must be granted based upon
objectively ascertainable criteria. Id. The issue to be
examined is not merely whether the rejection of plaintiff's
application was arbitrary and capricious. Instead, the issue is
whether, in the absence of the alleged due process violation,
there would have been "either a certainty or a very strong
likelihood that the application would have been granted." RRI
870 F.2d at 917, quoting, Yale Auto Parts, Inc. v. Johnson,
758 F.2d 54, 59 (2d Cir. 1985).
The Second Circuit has instructed that the Yale Auto Parts
"entitlement" test be applied with "considerable rigor." RRI
Realty, 870 F.2d at 918. Consistently emphasized is the
importance of considering the degree of discretion afforded the
local authority, rather than the "estimated probability" that the
local authority will act favorably upon plaintiff's application.
Id. Even if "objective observers would estimate that the
probability of [obtaining the relief sought] was extremely high,
the opportunity of the local agency to deny issuance suffices to
defeat the existence of a federally protected property interest."
RRI Realty, 870 F.2d at 918. A protected property interest will
be found only if the degree of discretion afforded the local
authority is so narrow that approval is "virtually assured."
The issue of whether a protected property interest exists is a
matter of law for the court to decide. Id. Although the
presence of discretion will almost certainly defeat the finding
of a protected property interest, every application that might
somehow be the subject of a discretionary decision is not removed
from constitutional protection. Thus, while the standard is
rigorous, a "theoretical possibility of discretionary action does
not automatically" remove the action sought from the realm of the
protected property interest. Sullivan v. Town of Salem,
805 F.2d 81, 85 (2d Cir. 1986).
Because the court considers the property right issue as a
threshold matter, a civil rights due process claims may be
rejected without the necessity of exploring whether the local
authority has acted in an arbitrary manner. Specifically, in
cases where there is no "entitlement," and therefore no protected
property interest, it will matter not how the regulator's actions
are characterized. The case may be dismissed at the outset based
upon the lack of a constitutionally protected property interest.
RRI Realty, 870 F.2d at 918.
2. Plaintiffs Do Not Have A Property Right to a Change in
The protected property right or "entitlement," forming the
basis of plaintiffs' due process challenge is the right to a
zoning change that would allow construction of the Tower.