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Fox Auto Group, Inc. v. Town of Erwin

March 6, 2007

FOX AUTO GROUP, INC., AND W.A.B. MANAGEMENT, LLC, PLAINTIFFS,
v.
TOWN OF ERWIN, RITA MCCARTHY, TOWN MANAGER OF THE TOWN OF ERWIN, DOUGLAS C. WICKS, CHIEF CODE ENFORCEMENT OFFICER OF THE TOWN OF ERWIN, AND ZONING BOARD OF APPEALS, OF THE TOWN OF ERWIN, DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiffs Fox Auto Group, Inc. ("Fox") and W.A.B. Management, LLC ("W.A.B.") bring this action against defendants Town of Erwin, Rita McCarthy, ("Mcarthy") the Town Manager of the Town of Erwin, Douglas C. Wicks, ("Wicks") the Chief Code Enforcement Officer of the Town of Erwin, and the Zoning Board of Appeals of the Town of Erwin (the "ZBA") pursuant to 42 U.S.C. § 1983, 28 U.S.C. § § 1331 and 2201, and Article 78 of the New York CPLR claiming that the defendants violated their rights under the United States Constitution by requiring removal of two existing advertising signs located on W.A.B.'s property which advertise Fox's auto dealership. Plaintiffs allege that the defendants acted unlawfully in requiring the signs to be removed, and further violated their rights by preventing the plaintiffs' from appealing the denial of their application for a variance from the zoning law which prohibits the continued display of the signs.

Defendants move to dismiss plaintiffs' complaint on grounds that the plaintiffs have failed to state a cause of action upon which relief can be granted. Specifically, the defendants contend that plaintiffs are unable to establish violations of their substantive or procedural due process rights, or that their property has been taken without just compensation. Defendants further contend that plaintiffs are not entitled to the declaratory relief they seek pursuant to 28 U.S.C. § § 1331 and 2201, and are not entitled to relief pursuant to Article 78 of the New York CPLR. For the reasons set forth below, I grant defendants' motion to dismiss the Complaint.

BACKGROUND

Plaintiff Fox Auto Group owns and operates an auto dealership in the Town of Erwin, New York. Fox leases the property on which its dealership is located from plaintiff W.A.B. Management. In April 2001, the Town of Erwin amended its zoning laws, and prohibited the use of large freestanding "pole signs" in certain areas of the Town, including the area in which Fox's dealership is located. Fox had two such pole signs on its property.

Pursuant to the terms of the amended zoning law, Fox was required to remove the signs within three years. Fox, however, did not remove the signs nor did Fox request a variance. In April, 2004, three years after the amendments had passed, defendant Douglas Wicks, the Town's Chief Code Enforcement Officer, notified Fox in writing that its signs were not in compliance with the new zoning regulations, and that the signs would have to be removed. Thereafter, in 2004, Fox applied for and was denied a variance. Fox appealed the denial of its request for a variance to the Board of Zoning Appeals for the Town of Erwin, which affirmed the denial, but granted Fox an additional grace period until March 2005 in which to remove the signs. Fox did not appeal the Zoning Board's determination.

As of March 2005, the signs had still not been removed, and defendant Wicks informed W.A.B. in writing that if the signs were not removed by April 12, 2005, the plaintiff's would receive a notice of violation.

As of October, 2005, plaintiffs had still not removed the signs, and defendant Rita McCarthy, the Town Manager of the Town of Erwin, notified Fox that unless Fox could produce a contract providing for the removal of the signs, Fox would receive an Appearance Ticket and Notification of a Zoning Violation. The plaintiffs failed to produce such a contract, and defendant Wicks issued a Notice of Violation to the plaintiffs.

Following the issuance of the Notice of Violation, plaintiffs filed a second application for a variance for its continued use of its pole signs. However, the Town Attorney for the Town of Erwin, by letter dated January 16, 2006, informed the plaintiffs that the Zoning Board of Appeals would not consider plaintiff's request for a variance on grounds that the Board had previously considered and denied plaintiffs' request in 2004. Thereafter, on February 14, 2006, the plaintiff's filed the instant action alleging violations of their civil rights.

DISCUSSION

I. Defendants' Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the complaint where the plaintiff has failed to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau, 11 F.3rd 21, 22 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994). The court may grant a Rule 12(b)(6) motion only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support ...


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