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June 10, 2005.

JOHN LYNN, individually, and JWL CONSTRUCTION CO., INC., Plaintiffs,

The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiffs John Lynn and JWL Construction Co., Inc. (collectively, the "plaintiffs") commenced this action against defendants the Village of Pomona (the "Village"), the Planning Board of the Village of Pomona (the "Planning Board"), and Joseph P. Corless, Michael Zrelack, Jr. and Herbert Marshall (collectively, the "defendants"). Plaintiffs seek relief under Title VIII of the Civil Rights Act of 1968 (the "Fair Housing Act" or "FHA"), as amended, 42 U.S.C. § 3612, the New York State Human Rights Law (the "NYSHRL"), N.Y. EXEC. LAW §§ 290 et seq., and the County Human Rights Law, alleging that defendants: (1) intentionally discriminated against plaintiffs by subjecting them to delays with respect to approvals necessary to complete single family homes in the Village because plaintiffs sold certain homes to minorities; and (2) retaliated against plaintiffs for filing a complaint with the United States Department of Housing and Urban Development ("HUD").*fn1 Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 to dismiss plaintiffs' Complaint in its entirety. For the reasons set forth below, defendants' motion for summary judgment is granted.


  I. The Parties

  Plaintiff John Lynn is a builder and developer and the President of Lynn Homes, Inc. d/b/a JWL Construction Co., Inc. ("JWL"), a New York corporation. (Complt. ¶¶ 8, 9.) In 2000, JWL purchased eighty parcels of land located in a housing development in the Village known as "High Gate Estates." (Defs. Rule 56.1 Stmt. ¶¶ 17, 18.) High Gate Estates is a large subdivision of single-family homes built on a mountain with sloping terrain. (Id. ¶ 16.) Corless is the Village engineer, Zrelack is the Village building inspector and Marshall is the Mayor of the Village. (Id. ¶¶ 7, 13.)

  Plaintiffs purchased the lots in High Gate Estates for approximately $64,000 each. To date, plaintiffs have sold all but twenty-three of the original eighty lots. (Id. ¶¶ 19, 20.) Lynn admits that he made some profit on all of the lots that have been sold, but maintains that he did not make as much profit as he should have due to the delays and obstruction allegedly caused by defendants. (Id. ¶ 24; Pls. Rule 56.1 Stmt. ¶ 24.)

  II. The Steep Slope Law

  In 1998, increasing concerns regarding the dangers associated with building homes on mountainous terrain caused the Village to enact a law known as the "Steep Slope Law" (the "Steep Slope Law" or the "Law"). (Defs. Rule 56.1 Stmt. ¶¶ 59, 62.) Specifically, the Village was concerned that rocks and other debris loosened in the construction of homes on the mountainside might create a danger to the existing homes below. (Id.) The Steep Slope Law was designed to establish a procedure for dealing with construction on some of the more dangerous steep slope areas in the Village. (Id. ¶ 60.) The stated intent of the Steep Slope Law is to "`incorporate the consideration of steep slope protection into the Village's existing land use and development approval procedures in conjunction with the procedures of the New York State Environmental Quality Review Act.'" (Id. ¶ 64 (quoting Village Code § 119-7).)

  The Steep Slope Law defines a steep slope as:
[a]ny geographical are [sic] proposed for disturbance, whether on a single lot or not, having a typographical gradient of 15% more or greater (ratio of vertical distance to horizontal distance), with a minimum horizontal dimension of 10 feet, and a minimum area as defined below, whether man-made or natural, and whether created by a retaining structure or not.
(Id. ¶ 68 (quoting Village Code § 119-1) (internal quotations omitted).) The Steep Slope Law categorizes slopes as either "moderately steep," "very steep" or "extremely steep," and provides guidelines for the issuance of a site development plan permit by the Village, which is necessary to obtain a building permit for homes situated on steep slope lots. (Id. ¶¶ 69, 70 (quoting Village Code §§ 119, 119-3).)
  According to the Steep Slope Law, a site development plan permit will be issued only if, inter alia, the proposed activity:
[can] be completed without increasing the possibility of creep or sudden slope failure and minimize additional erosion to the maximum extent possible; . . . will not adversely affect the preservation and protection of existing wetlands, water bodies, watercourses and floodplains; and . . . can be completed in such a way so as not to adversely affect existing, proposed or potential future wells or sewage disposal systems or any endangered species of flora or fauna.
(Id. ¶ 71 (quoting Village Code § 119-3).) The applicant has the responsibility of demonstrating that a particular site development plan complies with these review standards before a permit will be issued. (Id. ¶ 72.) The Planning Board has the authority to review site development plan permits for areas categorized as very steep and extremely steep slopes. (Id. ¶ 73 (quoting Village Code § 119-3).) Permit applications must contain a written statement summarizing the nature of the proposed activity and a site development plan. (Id. ¶ 74 (quoting Village Code § 119-5).) According to defendants, every site development plan must be prepared by a qualified professional and contain certain information including: "the topography, including areas of extremely, very and moderately steep slopes; location of proposed structures; location of proposed areas of disturbance; erosion and sediment control; proposed drainage systems, including special erosion control measures; and tree maps and landscape plans." (Id. ¶ 75.)*fn2
  In reviewing a site plan application, the Planning Board is charged with the following functions:
(a) determining if the application is complete; (b) holding a public hearing; (c) reviewing the application to determine whether the requirements have been met; (d) requiring posting of a letter of credit as a condition of approval to cover losses or damages resulting from work performed under the permit, in excess of that specified by the permit, or the failure to complete work specified by the permit ("escrow"); (e) approve, approve with conditions, or deny the application within a specified timeframe; and (f) establish conditions of approval deemed necessary by the Planning Board to satisfy the goals, objectives and review standards.
(Defs. Rule 56.1 Stmt. ¶ 76 (quoting Village Code § 119-7).)*fn3

  The Steep Slope Law enumerates twenty-two different categories of conditions that the Planning Board may impose for approval of site development plans, however, the Planning Board is not limited to these twenty-two categories. (Defs. Rule 56.1 Stmt. ¶¶ 77, 78 (quoting Village Code § 119-7).)*fn4 One condition that the Planning Board may require is phased site development plan review ("Phased Construction"), which involves dividing the site development plan for a particular property into phases, each requiring a separate written certificate of compliance.*fn5 (Id. ¶¶ 79, 80, 81.) Some of plaintiffs' lots required Phased Construction.

  The Steep Slope Law provides that the Village inspector is not permitted to issue a certificate of occupancy ("CO") until the Village engineer has verified that all work has been completed according to the site plan permit. (Id. ¶ 86 (quoting Village Code § 119-9).)*fn6 As part of this process, the applicant is required to submit a new plan reflecting the property as it was actually developed (the "as-built plan"), so that the engineer can verify whether the site plan complies with the Village Code. (Defs. Rule 56.1 Stmt. ¶ 87.)*fn7 The Law also provides that any proposed revision work or other changes to a site plan must be reviewed by the Village engineer. (Id.) If the Village engineer determines that the proposed changes are substantial, a new application must be submitted to the Planning Board. (Defs. Rule 56.1 Stmt. ¶¶ 88, 89 (quoting Village Code § 119-9).)*fn8

  According to the Steep Slope Law, the Planning Board has the authority to suspend or revoke a site plan permit if the applicant has failed to comply with any of its terms, has exceeded its authority or has failed to carry out the project in the manner set forth in the permit. (Defs. Rule 56.1 Stmt. ¶ 90 (quoting Village Code § 119-9).)*fn9 The Planning Board also has the authority to direct that a steep slope area be restored to the condition it was in prior to a violation of the Steep Slope Law. (Defs. Rule 56.1 Stmt. ¶ 91 (quoting Village Code § 119-9).)*fn10 The Steep Slope Law requires, as a safety precaution, that the Planning Board review site plans for lots with driveway slopes that exceed 12.5%, according to the as-built certification. (Defs. Rule 56.1 Stmt. ¶ 99.)*fn11

  The Steep Slope Law provides a civil penalty of up to $3,000 for anyone who undertakes a regulated activity within a steep slope area without a site plan permit, or who violates, disobeys or disregards any provision of the Law. (Defs. Rule 56.1 Stmt. ¶¶ 92, 93 (quoting Village Code § 119-11).)*fn12 In addition to a civil penalty, such persons will also be guilty of a Steep Slope Law violation which carries a penalty of up to $2,000, fifteen days imprisonment or both. (Defs. Rule 56.1 Stmt. ¶¶ 95, 96 (quoting Village Code § 119-11).) Any determination made pursuant to the Steep Slope Law may be reviewed in an Article 78 proceeding. (Id. ¶ 98 (quoting Village Code § 119-11).) The Village did not prosecute plaintiffs for any Steep Slope Law violations. (Id. ¶ 97.)

  III. Plaintiffs' Factual Allegations

  According to plaintiffs, prior to 2002 Lynn had "minor problems" with Corless, which he testified were the result of "a natural tension between a builder and the Village." (Pls. Mem. Opp. Summ J. at 2-3.) However, plaintiffs maintain that this tension multiplied after Lynn began to contract with minority home buyers in 2002. (Id. at 3.) For example, plaintiffs state that "where it used to take him [Lynn] a week to get a certificate of occupancy issued, it took months." (Id.) According to plaintiffs, Corless began to raise alleged safety concerns with respect to the homes purchased by Lynn's minority customers, but ignored the same with respect to the homes for non-minority purchasers. (Id.) Plaintiffs also maintain that Lynn's similarly situated non-minority purchasers were not required to submit as-built plans to the Planning Board, "nor were they given the `run-around' that minority purchasers were." (Id.)

  Plaintiffs allege that the Village delayed issuing COs for Lynn's minority purchasers for months, while his non-minority purchasers received their COs "in a matter of days," even though similar changes had been made to their homes. (Id.) Plaintiffs also allege that many of Lynn's minority purchasers were required to make multiple visits to the Planning Board where they were "treated so disrespectfully and unprofessionally that some of these home buyers broke down." (Id.) Plaintiffs allege that, after witnessing one such Planning Board meeting, Mr. Wendell Watford, an African-American member of the Planning Board resigned and referred to the allegedly disrespectful way the minority purchasers were treated as a "lynching." (Id.)

  According to plaintiffs, Lynn, frustrated with the allegedly disparate treatment between his minority and non-minority purchasers, filed a HUD complaint in October of 2002.*fn13 (Id.) Thereafter, plaintiffs allege that the Village began to make things more difficult for Lynn with respect to all of his lots, whether they were for minority or non-minority purchasers. (Id.) As a result of the HUD complaint, plaintiffs allege that Zrelack issued "Stop-Work Orders" at Corless's request and the Village subjected all of Lynn's purchasers to different standards than the other builders working in High Gate Estates. (Id. at 4.) On January 16, 2003, Lynn secretly taped a phone conversation between himself and Zrelack during which they discussed the recently issued Stop-Work Orders and Lynn's HUD complaint. (Id.) According to plaintiffs, during the conversation, Zrelack "admitted that if Mr. Lynn would drop his Title VIII Housing Complaint against the Village as part of his proposal, they would okay his proposal and he could get back to work." (Id.)

  According to plaintiffs, defendants' discrimination, retaliation and scrutiny had the effect of "impeding, delaying, and discouraging minority [home] buyers," causing plaintiffs' to suffer economic losses and Lynn to suffer ...

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