The opinion of the court was delivered by: Hurley, District Judge
This civil rights action arises out of the alleged revocation of a Certificate of Zoning Compliance. Plaintiff G.I. Home Developing Corp. ("Plaintiff") asserts that the alleged revocation resulted in a deprivation of a constitutionally protected property interest and violated its rights to due process. Defendants John Weis, Chief Zoning Inspector of the Building Division of the Town of Brookhaven, Arthur Gerhauser, Chief Building Inspector, Building Department of the Town of Brookhaven, Zoning Board of Appeals of the Town of Brookhaven, Brenda A. Prusinowski, Deputy Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven, David Woods, Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven, The Department of Planning, Environment & Land Management of the Town of Brookhaven, and the Town of Brookhaven (collectively, "Defendants") move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) or, in the alternative, Rule 12(b)(1), Rule 12(d) or Rule 56. Plaintiff cross-moves to amend the Complaint pursuant to Rule 15.
For the reasons that follow, the Court (1) finds that it has subject matter jurisdiction over the subject dispute, (2) declines to convert Defendants' Rule 12(b)(6) motion to a motion for summary judgment pursuant to Rule 56, (3) denies Defendants' Rule 12(b)(6) motion, and (4) grants Plaintiff's cross-motion to amend its Complaint.
Plaintiff is a corporation that owns a parcel of real property located at 16 Herkimer Street, Mastic, New York*fn1 (the "Property"). (Compl. ¶ 16.) The Property is located in the Town of Brookhaven (the "Town"). (Id. ¶ 24.) Plaintiff purchased the Property in 2004. (Id. ¶ 13.)
Prior to the purchase, Plaintiff's predecessors in ownership appeared before the Zoning Board of the Town (the "Zoning Board") on November 3, 1982 and applied for a Certificate of Zoning Compliance*fn2 (the "Certificate"). (Id. ¶ 24.) Upon review, the Zoning Board determined that the application was for a pre-existing, nonconforming use and granted the Certificate. (Id.) The Zoning Board issued the Certificate on November 15, 1982. (Id.) The Certificate stated:
One story block building appx. 36.1 x 26.7 irreg. As per Zoning Bd. of Appeals grant 11/3/82, Case #14 located at W side Herkimer Street, Distance Corner S of Classon Avenue Village Mastic, State of New York, Map Mastic Park, Section 4 Lot 3558-3562 is presumed to conform substantially with Zoning Ordinances in effect at the time of construction for such stated use . . .
Signed (illegible) Building Inspector. (Id. ¶ 28.) The Certificate specified the premise's legal use as a public garage. (Id. ¶ 30.)
Pursuant to the Certificate, the building remained unchanged and was continuously used as an auto repair and service shop. (Id. ¶ 25.) From 1982 to the present, the Town adopted numerous ordinances which rezoned the Property for partial residential and partial business use. (Id. ¶ 27.) The public garage was located on the business portion of the Property. (Id.) Throughout this time, the Town permitted the owners of the Property to use the premises as a public garage pursuant to the Certificate. (Id. ¶ 28.)
From the time Plaintiff obtained title to the Property to the present, Plaintiff invested substantial sums of money to make nonstructural improvements in order to use it as an automotive facility for repairs, tire sales, body work and the like. (Id. ¶ 30.)
On June 20, 2007, John H. Weis, the Chief Zoning Inspector for the Town, sent a letter to Plaintiff revoking the Certificate for certain unspecified violations (hereinafter the "letter"). (Id. ¶¶ 31-33.) In the letter, Weis stated that the nonconforming use of the Property as a public garage was lost and informed Plaintiff that as owner of the Property he could make an application to the Board of Zoning Appeals to reinstate the nonconforming use. (Id. at ¶¶ 3, 5, 31-33.) Apart from the letter, Defendants gave Plaintiff no notice of the revocation nor did they provide Plaintiff with a hearing in connection with the revocation. (Id.)
Plaintiff commenced an Article 78 proceeding in Supreme Court, Suffolk County on August 1, 2007, seeking an injunction to prevent the Town from canceling the Certificate or a declaration that Plaintiff had a vested right in a pre-existing nonconforming use. (Id. ¶¶ 8, 35; Arntsen Decl., Ex. E.) On August 23, 2007, Plaintiff withdrew its pending Article 78 proceeding, and on October 2, 2007, Plaintiff commenced the instant action under 42 U.S.C. § 1983 ("Section 1983"). (Compl. ¶ 37.)
The Complaint asserts three claims. First, Plaintiff claims that it had a vested property interest in the Certificate issued by the Town, and Defendants violated Plaintiff's due process rights under the Fourteenth Amendment of the United States Constitution when they revoked Plaintiff's right to maintain a legal, nonconforming use of its property without notice and an opportunity to be heard. (Compl. ¶¶ 39-46.) Next, Plaintiff seeks attorney's fees pursuant to 42 U.S.C. § 1988. (Id. ¶¶ 47-50.) Finally, Plaintiff seeks declaratory and injunctive relief affirming that the prior Certificate was still in effect and still afforded Plaintiff the status of a legal, nonconforming public garage and enjoining Defendants from taking any action against Plaintiff based upon the use of the premises. (Id. ¶¶ 51-58.)
Defendants now move to dismiss the Complaint under Rule 12(b)(6) or, in the alternative, Rule 12(b)(1), Rule 12(d) or Rule 56 on the grounds that (i) Plaintiff was not deprived of due process because there was no revocation of Plaintiff's property right to the Certificate; and (ii) even assuming arguendo that there was a revocation of a property interest, because Defendants subsequently retracted the revocation there is no longer an "actual controversy" pending before the Court. In addition, the Individual Defendants move to dismiss the claims against them in their individual capacities on the ground that they are entitled to qualified immunity.
Plaintiff now cross-moves to amend the Complaint pursuant to Rule 15 to add new facts in support of its existing claims. After outlining the applicable legal principles the Court will consider the merits of the motions.
A complaint is subject to dismissal under Rule 12(b)(6) where it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The test is whether the plaintiff is entitled to offer evidence to support his claim, not whether he is ultimately likely to prevail. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). A court must liberally construe the claims and "accept all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor." ATSI Commcn's, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court recently addressed the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative ...