The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs, Amanda Bain and Robert Cantwell (Bain), filed a civil rights action pursuant to 42 U.S.C. § 1983 alleging that the defendants violated their due process rights when they revoked a building permit. Pending is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 8. The defendants claim that misapplication of a zoning law cannot form the basis for a due process violation and that plaintiffs have failed to exhaust their administrative remedies. For the reasons that follow, the motion is denied.
On January 19, 2006, Bain filed a complaint pursuant to 42 U.S.C. § 1983.See Compl. ¶40; Dkt. No. 1. On March 21, defendants filed their motion to dismiss, and a response and reply followed. See Dkt. Nos. 8, 14, 15, 16, 20.
On May 25, 2005, Amanda Bain and Robert Cantwell (Bain) purchased property in the Town of Argyle intending to replace two pre-existing mobile homes with new ones. See Compl. ¶11; Dkt. No. 1. Prior to the purchase, Town Supervisor, Andrew Williamson, informed Bain that her plan to replace the older homes would be permissible as a pre-existing, non-conforming use under the local law.*fn1 See id. at ¶¶12,13. After the sale, Bain completed her building permit application which stated that the proposed construction sought to "demolish and dispose of existing mobile homes and replace with two newer mobile homes." See id. at ¶18. As a prerequisite to the approval of the building permit, Williamson issued a certificate of compliance, stating that the proposed construction was valid under the local laws. See id. at ¶19.
In July, Bain's application for a building permit was approved upon the condition that she obtain further approval for septic and foundation requirements. See id. at ¶21. In August, Bain received approval for the septic and foundation plans and was issued a second building permit. See id. at ¶22. From August to November, Bain made improvements to the property and incurred substantial expenses in reliance on the issued permits. See id. at ¶23. On November 9, Williamson notified Bain that the Town was withdrawing its certificate of compliance, which, in effect, revoked her previously issued building permits. See id. at ¶24. The written revocation directed Bain to immediately cease work on the premises. See id. Bain alleges that the Williamson illegally revoked the certificate for purely political reasons after complaints were received from Argyle residents. See id. at ¶30.
A. Motion to Dismiss Standard
Rule 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6) if "it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief." Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir. 2005) (internal quotation marks and citation omitted). "A court's task in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003) (internal quotation marks and citation omitted). Therefore, in reviewing a motion to dismiss, a court "must accept the facts alleged in the complaint as true and construe all reasonable inferences in [the plaintiff's] favor." Fowlkes v. Adamec, 432 F.3d 90, 95 (2d Cir. 2005) (citation omitted).
B. Failure to State a Claim under § 1983
Defendants argue that the complaint fails to state a claim under § 1983, specifically contending that a misapplication of zoning law is insufficient to establish a due process violation.
At this juncture, the court must consider whether the allegations in the complaint sufficiently state a claim under § 1983. Under § 1983, "a municipality may not be held liable...for actions alleged to be unconstitutional by its employees below the policymaking level solely on the basis of respondeat superior." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (citing Monell v. Dep't of Soc. Services, 436 U.S. 658, 691 (1978)). To plead a claim for such an action the plaintiff must allege an official policy or custom that subjected plaintiff to a denial of a constitutional ...