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Joseph and Donna Nemeth v. Village of Hancock

January 7, 2011


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983 asserting that Defendants violated their constitutional rights to due process and the equal protection of the law by failing to enforce the Village of Hancock's zoning regulations against a neighbor. Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the action. Plaintiffs have opposed the motion. For the reasons that follow, the motion is granted.


Since the 1970s, the Kuehns have operated a tool and dye business from their property located in the Village of Hancock, New York ("the Village"). When the Village adopted zoning ordinances in 1983 placing this property in a residential zone, the Kuehns' business was designated a legal non-conforming use. See Aug. 11, 2010 Decision & Order, p. 2, Nemeth & Garcia v. K-Tooling, Kuehn Manufacturing Co., Perry Kuehn, 2008-0821 (N.Y.S. Sup. Ct., Delaware Cty.)("State Court Decision")(Def. Ex. B). *fn2 *fn3 The Village zoning ordinances prohibit unapproved expansions of non-conforming uses. In 2001, in order to accommodate the growth of their business, the Kuehns built an additional structure on their property. Id. *fn4

In 2002, Ms. Garcia and her late-husband purchased a residential property on the west side of the Kuehns' property. In 2004, the Nemeths purchased a residential property on the east side of the Kuehns' property. Mr. Nemeth was aware of the operation of the Kuehns' business when he purchased his property, testifying in the state court proceeding that "he was aware of the industrial fans located on both sides of both factory buildings [on the Kuehns' property], and that the fans faced his property previous to his purchase of it." Id.

Plaintiffs allege that "[i]n the period 2006-07, the Kuehns substantially expanded their operation, as measured by increased hours of operation, machinery, revenues and employees." Compl. ¶ 18. In August 2007, "Joseph Nemeth spoke at the Village Board meeting and requested that the Village enforce the municipal zoning ordinance and curtail Kuehns' non-conforming use." Id. ¶ 20. Plaintiffs allege that the then-Mayor instructed the Village Attorney, Defendant Robert Davis, to conduct an investigation into the claim but that nothing was done because Attorney Davis also represented the Kuehns. Compl. ¶¶ 19-24. Plaintiffs assert that "[t]his failure [to investigate and enforce its zoning ordinances] has permitted the Kuehns to continue to impose externalities, including industrial noise and odors, upon the plaintiffs, adversely affecting the use and enjoyment of their premises." Id. ¶ 26.

Contrary to this allegation, however, the evidence at the Nemeths and Garcia's state court trial revealed that after Mr. Nemeth complained to the Village Board, "the investigation was in fact conducted, and that the Village saw no reason to take any action against [the Kuehns]." State Court Decision, p. 3. The investigation included two visits to the Kuehns' property by the Village of Hancock Health Officer, Richard E. Berg, DO, who found no evidence of noxious odors or noise emanating from the property. Id. pp. 5-6. Moreover, the evidence at the state court trial (including Justice Fitzgerald's mutually-agreed tour of the business) established that the noise coming from the business was "minimal." Id. p. 6.

Plaintiffs also assert that the former and present Village of Hancock Code Enforcement Officers, James Rotzler and Michael Salvatore, enforced the Village Zoning Code against Ms. Garcia "and another neighbor on East Front Street," Compl. ¶ 27, yet failed to enforce the Code against the Kuehns. In this regard, Plaintiffs allege that the Code Enforcement Officers prevented Ms. Garcia from erecting a fence without a building permit although a building permit was not required, see Compl. ¶¶ 28-31, and, in the case of the unidentified neighbor, required the neighbor to tear down "part of an addition" because there was not the required "ten foot setback from the neighboring property owner." Id. ¶ 32. "Yet, when the Nemeths sought to enforce the same provision against the Kuehns, defendants refused to enforce the setback requirement." Id. ¶ 33. Plaintiffs contend that the actions and inactions of the Code Enforcement Officers were motivated by the fact that "the Kuehns are long-time residents of the Village of Hancock and the Nemeths/Garcias are relative newcomers to the Village." Id. ¶34. *fn5

Plaintiffs contend that by failing to enforce the Zoning Code against the Kuehns, Defendants' deprived them of their constitutional rights to due process and equal protection of the law.


"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99 (1957)). "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 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by factual allegations. Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).

With this standard in the mind, the Court will address the pending ...

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