The opinion of the court was delivered by: Seybert, District Judge
Pending before the Court are two motions for summary judgment, one filed by Defendant William Mees, and the other by the remaining defendants ("Southampton Defendants"). For the foregoing reasons, Mr. Mees' motion is GRANTED. The Southampton Defendants' motion is GRANTED IN PART AND DENIED IN PART.
On August 15, 1997, Richard Alfaro ("Mr. Alfaro"), a Hispanic male, began leasing the premises located at 674 Montauk Highway in East Quogue, New York ("the Property") through Alfaro Motors 35th Avenue Inc., a corporation he controlled. Southampton Def. Stmt. ¶ 1. Mr. Alfaro leased the Property so that he could open and operate an automobile repair shop. Compl. ¶ 8. The Property is zoned "Village Business District," a zoning designation which usually prohibits the operation of an automobile repair shop. Southampton Def. Ex. C. However, Southampton permits new owners and lessees to continue pre-existing non-conforming uses of a property. And here, the Property came with a Certificate of Occupancy dated November 20, 1984, which listed "one concrete block repair garage" as a permitted non-conforming use. Southampton Def. Ex. E. Accordingly, Mr. Alfaro believed that he had a right to operate an automobile repair shop on the Property.
The Property abuts a business known as Hampton Brake and Muffler, which Defendant William Mees owns. Across the street is an automobile shop known as Automagic East. And diagonal to the Property is a repair shop called Loper's Equipment. Like the Property, both Hampton Brake and Muffler and Automagic East lack proper zoning but have Certificates of Occupancy that permit non-conforming uses. Hampton Brake's Certificate of Occupancy permits "Major Repair of autos and trucks, in wheels, frame, body, brake alignment & mufflers," while Automagic East's permits an "automobile service station." Southampton Def. Exs. Q, R. Mr. Alfaro claims that Hampton Brake and Muffler also operates an on-site junkyard, which Mr. Mees lacks a proper Certificate of Occupancy for. Alfaro Tr. 25:7. Despite this alleged junkyard, Hampton Brake and Muffler, like Automagic East, operates without interference from the town. Loper's Equipment apparently operates without an appropriate Certificate of Occupancy and has correspondingly received numerous zoning-related citations and complaints. Southampton Def. Ex. U.
Mr. Alfaro's problems with Southampton began shortly after his lease commenced. In or about September 1997, Southampton sent Building Inspector Defendant Jonathan Erwin*fn1 to inspect the Property. Compl. ¶ 50. Mr. Erwin informed Mr. Alfaro that his inspection resulted from a complaint filed with the Southampton Police Department reporting that Mr. Alfaro had illegally changed the Property's use. Compl. ¶ 51. Mr. Erwin's inspection took place before Mr. Alfaro had commenced operation of a repair garage, or any business at all, on the Property. Compl. ¶ 58.
Nevertheless, and despite the Property's Certificate of Occupancy permitting the use of "one concrete block repair garage," on October 3, 1997, Southampton issued Mr. Alfaro a Notice of Violation for using "a cement block building . . . as a repair garage." Southampton Def. Ex. F. Although Mr. Mees opposed Mr. Alfaro's plans to use the Property as a repair garage, he did not have any conversations or other communications with Mr. Erwin concerning Mr. Alfaro or the Property. Mees Stmt. ¶ 13. However, Mr. Mees and Mr. Erwin did know each other, and Mr. Erwin had patronized Mr. Mees' business three or four times over the past fifteen to twenty years. Mees Stmt. ¶ 6.
On October 23, 1997, Mr. Alfaro, through his attorney, wrote to the Southampton Building Department to object to the Notice of Violation and to note that the Property's Certificate of Occupancy covered the Property's allegedly improper use as a repair garage. Southampton Def. Ex. G. On October 27, 1997, the Southampton Building Department responded, stating that: (1) the Certificate of Occupancy "further clarifies the repair garage as an accessory to the produce operation"; and (2) this non-conforming use "is abandoned . . . if the use has been discontinued" for a specified time period. Southampton Def. Ex. H (emphasis supplied). But the Southampton Building Department's response did not explain:
(1) how the Certificate of Occupancy "clarifies" the Property's use as a repair garage (its plain text contains no such "clarification"); or (2) whether the Property's non-conforming use had, in fact, been abandoned for the necessary time period.
On November 26, 1997, Mr. Alfaro was issued a citation for operating an auto repair business without a proper Certificate of Occupancy. Southampton Def. Ex. J. ¶ 8. This citation resulted in Mr. Alfaro pleading guilty pursuant to a plea bargain. Id. ¶ 9. As part of that plea bargain, Mr. Alfaro was required to submit an application to the Zoning Board of Appeals ("ZBA"). Id. Thus, in January of 2000, Mr. Alfaro filed such an application with the ZBA seeking: (1) an appeal from the Building Inspector's determination of a violation; and (2) a use variance if the appeal was denied. Id. ¶¶ 1, 9.
The ZBA, consisting of Defendants Barbara Labador, Beth Wickey, Ann Nowak, Hubert Phillips and Keith Tuthill, held three hearings on Mr. Alfaro's application. Id. ¶ 1. Mr. Mees and two elderly women opposed Mr. Alfaro's application for a special use permit. Southampton Def. Stmt. ¶ 66. Mr. Mees retained attorney Doug Penny to assist him with his opposition. Mees Stmt. ¶ 26. In connection with this representation, Mr. Penny wrote to Defendant Paul Houlihan, Southampton's Chief Building Inspector, and testified at the ZBA hearings. Houlihan Tr. 53:22-55:3. Mr. Mees contends that he opposed Mr. Alfaro's application solely due to his own economic interest, because Mr. Alfaro would have competed with him, and denies ever making any racial slurs towards Mr. Alfaro.
Mees Stmt. ¶¶ 25, 27. Mr. Alfaro contends that Mr. Mees was motivated by racial animus, as evidenced by Mr. Mees allegedly referring to Mr. Alfaro as a "F'in spic" and a "spic bastard." Pl. Resp. to Mees Stmt. ¶ 25; Compl. ¶ 45. For purposes of this motion, the Court takes judicial notice of the fact that the term "F'in" is shorthand for a profanity, and that the term "spic" is a derogatory term for Hispanic.
On May 17, 2001, the ZBA made its findings. The ZBA concluded that the Building Inspector correctly interpreted the Certificate of Occupancy, because the Property had only been used to repair the produce business' trucks and the owner's personal vehicles, and had never been used to operate a commercial auto repair business. Southampton Def. Ex. J. ¶ 23. In addition, the ZBA concluded that, even if the Certificate of Occupancy did permit a commercial auto repair business, the Property's use as a repair garage had been abandoned for seven years, precluding the Property's continued non-conforming use as a repair garage. Id. at ¶¶ 24-25. The ZBA then denied Mr. Alfaro's application for a use variance. Id. ¶ 26.
In June 2001, Mr. Alfaro brought an Article 78 challenge to the ZBA's decision in New York Supreme Court, Suffolk County. Southampton Def. Ex. K. On April 16, 2002, the Hon. John JJ Jones, Jr. denied Mr. Alfaro's Article 78 challenge. Southampton Def. Ex. L. On June 3, 2003, the New York Appellate Division, Second Department, affirmed Justice Jones' decision.
In June 2001, Mr. Alfaro was issued another citation for occupying and using the Property without a proper Certificate of Occupancy, this time by Defendant Steven Frano. Southampton Def. Ex. W. During Mr. Frano's investigation, Mr. Frano obtained permission to park on Mr. Mees' property, and the property of another adjacent owner, for the purposes of observing Mr. Alfaro's activities. Southampton Def. Stmt. ¶¶ 49, 50. Mr. Frano and Mr. Mees were "friendly acquaintence[s]" who sometimes played softball together, and Mr. Frano had patronized Mr. Mees' shop three to five times over the past fifteen to twenty years. Mees Stmt. ¶ 7; Pl. Resp. to Mees Stmt. ¶ 15. Mr. Frano and Mr. Mees apparently discussed the Alfaro case, with Mr. Mees asking him what he was "doing about [it]," but Mr. Frano simply replied that the investigation was on-going. Frano Tr. 84:10-85:15. Mr. Tuthill, a ZBA member and a client of Mr. Mees, also went to observe the Property during this period. Pl. Stmt. ¶ 2. Mr. Mees himself kept a diary detailing Mr. Alfaro's daily activities at the Property, which he later turned over to Southampton. Pl. Stmt. ¶ 3.
On or about April 9, 2003, upon Mr. Frano's application, the Town Justice issued a search warrant for the Property. Southampton Def. Stmt. ¶ 51. On April 10, 2003, Southampton executed the search warrant. Southampton Def. Stmt. ¶ 52. Southampton officials, including Mr. Frano, conducted a four to five hour search, but were only able to seize stamps, papers belonging to Mr. Alfaro's son, tools, and $300 in cash. Pl. Stmt. at ¶ 4. Southampton has never subjected any other property to the execution of a search warrant or a police raid due to alleged building or zoning code violations. Id. at ¶¶ 5, 6.*fn2 Mr. Mees was present during the raid, and smiled as it took place. Pl. Resp. to Mees Stmt. ¶ 61b.
Life continued while these legal proceedings took place. During the lease term, Mr. Alfaro used the premises to perform certain motor vehicle repair work and towing operations. Southampton Def. Stmt. ¶ 3. The Southampton Defendants claim that Mr. Alfaro also used the property to store antique cars, but have failed to cite any evidence to that effect. Id. In December 1999, Mr. Alfaro exercised his option to purchase the Property. Compl. ¶ 70. Following his purchase of the Property, Mr. Alfaro used it to repair his own antique cars. Alfaro Tr. at 62:23. Mr. Alfaro also took phone calls at the Property, through which he helped to operate his businesses at other locations. Alfaro Tr. 64:15-21. Mr. Alfaro also moved his friend's vehicle to the Property, following his friend's automobile accident at a nearby location. Pl. Resp. to Southampton Def. Stmt. ¶ 67. And Mr. Alfaro received some windshield deliveries at the Property, and had those windshields put "in." Southampton Def. Stmt. ¶ 68. But Mr. Alfaro is not aware of any other activity taking place at the Property. Alfaro Tr. 67:8. Mr. Alfaro sold the Property in June 2004. Southampton Def. Stmt. ¶ 54.
In March 2006, Mr. Alfaro commenced this case, pleading claims under § 1983 for racial discrimination (Count I), personal animus against him (Count II), lack of due process by delaying his ZBA hearing (Count III), deprivation of property without due process (Count IV), and conspiracy (Count V). On March 28, 2007, the Court ...