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Donovan Realty, LLC v. Davis

May 27, 2009

DONOVAN REALTY, LLC; AND ZERTECK, INC., PLAINTIFFS,
v.
LEE DAVIS, TOWN OF NEW BALTIMORE PLANNING BOARD CHAIRPERSON; JAMES COE, TOWN OF NEW BALTIMORE PLANNING BOARD VICE CHAIR; JOHN MURRAY, TOWN OF NEW BALTIMORE PLANNING BOARD SECRETARY; KENNETH KUDER, TOWN OF NEW BALTIMORE PLANNING BOARD MEMBER; ERIC HOGLAND, TOWN OF NEW BALTIMORE PLANNING BOARD MEMBER; HOWARD GOLDSON, TOWN OF NEW BALTIMORE PLANNING BOARD MEMBER; ALTA TURNER, TOWN OF NEW BALTIMORE PLANNING BOARD MEMBER; AND TOWN OF NEW BALTIMORE, DEFENDANTS.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiffs Donovan Realty, LLC and Zerteck, Inc. ("plaintiffs") brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants, the Town of New Baltimore and six members on its Planning Board ("defendants"), violated plaintiffs' constitutional rights under the Fifth and Fourteenth Amendments concerning plaintiffs' use of a portion of their property. Compl. (Docket No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Docket No. 27. Plaintiffs oppose the motion and alternatively move for leave to amend their complaint. Docket No. 33. For the reasons which follow, defendants' motion is granted and plaintiffs' motion to amend is denied.

I. Background

The facts are related in the light most favorable to plaintiffs as the non-moving parties. See subsection II(A) infra.

Donovan Realty owns a parcel of property in New Baltimore which is leased to Zerteck. Compl. ¶¶ 17-18; Geiger Aff. (Docket No. 33-3) §§ 2-3. Zerteck uses the property as a retail facility for the sale and service of boats and recreational vehicles ("RVs"). Compl. ¶¶ 18-19; Geiger Aff. § 3. In order to stock the business properly, Zerteck uses an overflow parking lot on Donovan's parcel to maintain sold units and make room for new inventory. Compl. ¶¶ 21-22; Geiger Aff. §§ 4-6. Generally, units sold in the off-season (Fall, Winter, and Spring) are transported and held in the overflow lot until the buyers take delivery of their merchandise. Compl. ¶¶ 22-24; Geiger Aff. ¶ 7.

Pursuant to approved site plans, the intended use for the overflow lot was "an area to be used solely for RV 'camping' sites." Docket No. 27-21 at 2. This differs from plaintiffs' current use as a storage lot for purchased vehicles in the off-season. On March 27, 2006, defendants notified plaintiffs that their current use of the overflow lot violated the approved site plans of 2002 and 2004 and requested that plaintiffs remove the units from the lot. Davis Aff. (Docket No. 27-8) ¶ 3; Docket No. 27-21; see also Geiger Aff. ¶ 8. The notice detailed the history of the plans, including the most recent amendment which had terminated on March 11, 2006. Docket No. 27-21 at 1.*fn1

On July 10, 2007, plaintiffs requested that defendants place them on the agenda to make an informal presentation of "its plans for filing an amended site plan for the facility." Docket No. 27-19. Plaintiffs were included on the agenda for the meeting on July 12. Davis Aff. ¶ 6. On July 12, 2007, plaintiffs reported their progress to defendants and "discuss[ed] plans to apply for an amendment to the site plan to allow storage of boats and RV's in areas not [currently] authorized . . . ." Davis Aff. ¶ 7; see also Coe Aff. (Docket No. 27-10) ¶ 3; Kuder Aff. (Docket No. 27-11) ¶ 3; Hogland Aff. (Docket No. 27-12) ¶ 3; Turner Aff. (Docket No. 27-13) ¶ 3; Geiger Aff. § 10. Minutes from the meeting indicate that (1) defendants were pleased with the completed landscaping, (2) defendants were not interested in granting piecemeal amendments to the site plans concerning the usage of the overflow lot, (3) defendants felt that the current storage of purchased boats and RVs was unsightly given the original plans for that area to be green space, (4) plaintiffs expressed their need to maintain storage in the overflow lot to remain competitive and continuing to operate a successful local business, and (5) both parties agreed to meet at plaintiffs' property in a few days to attempt to resolve the conflict between defendants' aesthetic concerns and plaintiffs' need for the overflow lot. Docket No. 27-16 at 2-3, 5-7, 9-10, 14-15.

On July 13, 2007, Sgambettera cancelled defendants' site visit. Docket No. 27-23. Sgambettera cited the "board's position that members will 'under no circumstances allow my client to park vehicles in the overflow parking lot on the property' regardless of [the] . . . proposed amendment to the existing site plan." Id. On August 27, 2007, plaintiffs filed the present action. Compl.

On August 22, 2008, during a conference with the Court, defendants indicated that despite a six-month retention policy for all town meeting recordings, the recording of the July 12, 2007 meeting could not be located and may have been destroyed. Sgambettera Aff. (Docket No. 33-2) at 1-4; Docket No. 33-2, Ex. A. Sgambettera requested information on the location and existence of the tape, but his requests went unanswered until October 21, 2008 when the tape was discovered. Sgambettera Aff. ¶¶ 6-9; Docket No. 33-2, Exs. B, C. After reviewing the tape and transcript, Sgambettera concluded that the recording had been altered and was not a true copy of the July 12, 2007 meeting which he had attended. Id. ¶¶ 10-11; Geiger Aff. ¶¶ 15-17. "Specifically, the recording and transcript do not contain [defendant] Davis' statement that under no circumstances would the Planning Board ever consider granting the Plaintiffs' request for a site plan amendment at their New Baltimore property." Sgambettera Aff. ¶ 11; see also Geiger Aff. ¶¶ 11-13. Defendant Davis, as well as other board members who attended that meeting, deny Davis ever made such a statement. Davis Aff. ¶ 11; Coe Aff. ¶ 3; Kuder Aff. ¶ 3; Hogland Aff. ¶ 3; Turner Aff. ¶ 3. It is undisputed that plaintiffs never filed a site plan application or application for modification of the approved site plan. Loux Aff. (Docket No. 27-9) ¶ 4.

II. Discussion

Plaintiffs assert that denial of the site plan permit amendment was a taking without just compensation in violation of both their substantive and procedural due process rights. Defendants contend that this issue is not ripe for review because plaintiffs failed to exhaust their administrative remedies and because plaintiffs' claims lack merit.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. ...


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