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R & V Development, LLC v. Town of Islip

January 3, 2007

R & V DEVELOPMENT, LLC, PLAINTIFF,
v.
TOWN OF ISLIP AND TOWN OF ISLIP ZONING BOARD OF APPEALS, DEFENDANTS.



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

MEMORANDUM AND ORDER

This suit arises out of the denial of an application for a zoning variance. Plaintiff R & V Development, LLC ("Plaintiff") asserts that the denial resulted in an unconstitutional taking of its property without just compensation and violated its rights to due process. Defendants Town of Islip and Town of Islip Zoning Board of Appeals ("ZBA") (collectively, "Defendants") move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). For the reasons that follow, Defendants' motion is granted.

BACKGROUND

Plaintiff is a contract vendee to a contract for the purchase of a parcel of real property located at 180 Philip Street, Holbrook, New York (the "Property"). (Compl. ¶ 7.) The Property is located in the Town of Islip. (Id.)

Prior to Plaintiff entering into a contract to purchase the Property, three applications were filed with Defendants by "other entities that had no connection with .. . Plaintiff" (id. ¶ 13), seeking the granting of a zoning variance approving the construction of a single-family residence on the Property (id.). By decisions dated April 3, 1973, January 15, 1974, and August 5, 1975, all three applications were denied. (Id.) Although Defendants approved the use of the Property for the construction of a single-family residence, they disapproved of the design plans for the single-family residence proposed to be constructed in each application. (Id.)

On October 25, 2004, Plaintiff, as a contract vendee, submitted an application to Defendants seeking the granting of a zoning variance so that he could construct a single-family residence on the Property. (Id. ¶ 9.) Plaintiff claims that its application is for the same single-family residential use that was approved on the three prior occasions but that its proposed design plans are "completely different and distinct from the design plans that Defendants disapproved in their prior decisions." (Id. ¶15.)

On November 30, 2004, Defendants mailed Plaintiff their final decision in the form of a letter which stated, inter alia, "[y]our request for a rehearing is denied." (Id. ¶ 10.) Plaintiff alleges that this letter referred to a "rehearing" despite the fact that this was Plaintiff's first application for a zoning variance on the Property. (Id. ¶ 11) Plaintiff further claims that he was never afforded a hearing in connection with this application (id.), and that Defendant never considered the merits thereof (id. ¶ 10). According to Plaintiff, the fair market value of the Property absent the granting of the variance is $5,000; the fair market value of the Property with the granting of the variance is $100,000. (Id. ¶ 12.)

Plaintiff alleges that he "utilized, without success, the procedures provided under New York law for seeking just compensation for the Defendants' taking of the Property . . . but . . . Plaintiff was denied just compensation through that procedure." (Id. ¶ 19.) In their motion papers, Defendants explain that Plaintiff commenced an Article 78 proceeding in Supreme Court, Suffolk County on March 30, 2005, seeking a judgment granting mandamus requiring the ZBA to review Plaintiff's application or declaring that the ZBA effectuated a taking of the Property. (Defs.' Mem. at 2.) On July 21, 2005, this proceeding was dismissed on statute of limitations grounds. (Decl. of Jessica Klotz, dated June 2, 2006 ("Klotz Decl."), Ex. H.)

The Complaint asserts two causes of action. First, Plaintiff alleges that Defendants' conduct effectuated an unconstitutional taking of Plaintiff's property, without just compensation, in violation of the Fifth and Fourteenth Amendments of the United States Constitution. (Compl. ¶ 20.) Next, Plaintiff claims that Defendants denied it of its right to substantive due process in violation of the Fifth and Fourteenth Amendments of the United States Constitution. (Id. ¶ 23.) Defendants, which have filed an Answer in this case, move to dismiss the Complaint under Rule 12(c). For the reason stated below, their motion is granted in its entirety and this case is dismissed.

DISCUSSION

I. Standard of Review

A plaintiff's claims can be dismissed for failure to state a claim only if a court finds that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In Swierkiewicz v. Sorema, 534 U.S. 506 (2002), the Supreme Court emphasized that at the pleading stage, a plaintiff need only meet the standard set forth in Rule 8(a), which requires only a "'a short and plain statement of the claim showing that the pleader is entitled to relief.'" See id. at 512 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, dismissal of a complaint pursuant to Rule 12(b)(6) is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" set forth therein. Id. at 514 (citation and internal quotation marks omitted); see also Amron v. Morgan Stanley Inv., 464 F.3d 338, 343 (2d Cir. 2006) ("'All complaints must be read liberally; dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory.") (quoting Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005)); Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006) ("[A] plaintiff is required only to give a defendant fair notice of what the claim is and the grounds upon which it rests."). This is not to say, however, that a plaintiff bears no pleading burden. Rather "[a] plaintiff must allege, as the Supreme Court has held, those facts necessary to a finding of liability." Id. (citing Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346-47 (2005)).

II. Plaintiff's Unconstitutional Taking Claim is Dismissed

In United States Olympic Comm. v. Intelicense Corp., S.A., 737 F.2d 263 (2d Cir. 1984), the Second Circuit held that "[o]nly the owner of an interest in property at the time of the alleged taking has standing to assert that a taking has occurred." Id. at 268 (citing United States v. Dow, 357 U.S. 17 (1958) and Lacey v. United States, 595 F.2d 614 (Ct. Cl. 1979)). According to the Complaint, at the time of the alleged taking, Plaintiff was a "contract vendee to a contract for the purchase of [the Property]." (Compl. ΒΆ 7.) As such, he lacks standing to assert a takings claim. See United States Olympic Comm., 737 F.2d at 268; cf. United States v. 21.5 Acres, No. 83 Civ. 5047, 1985 WL 107, at *2 (S.D.N.Y. Nov. 22, 1985) ("At the time of the taking, defendants Boniello and Kamhi ...


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