The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff DC3, LLC ("DC3") brings the instant action, seeking to invalidate Local Law #3 of 2009 (the "Local Law"), passed by the Town of Geneva (the "Town"), which altered the residential zoning classification of certain real property owned by DC3.
DC3 generally claims that in passing the Local Law, the Town failed to comply with a number of procedural requirements and state regulations, and violated DC3's federal and state constitutional rights to equal protection, due process of law and freedom from the taking of private property without just compensation.
On May 22, 2010, the Town moved to dismiss the plaintiff's federal and state constitutional claims pursuant to Fed. R. Civ. Proc. 12(b)(6) (Dkt. #3), on the grounds that plaintiff has failed to state a plausible claim. DC3 cross moved for summary judgment on its state law claims, but did not offer any argument opposing the Town's motion to dismiss DC3's federal and New York State constitutional claims (Dkt. #7). For the reasons set forth below, the Town's motion to dismiss (Dkt. #3) is granted, the Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, and the complaint is dismissed.
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the court's review is limited to the complaint, as well as to documents attached to it or incorporated therein by reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). In weighing the motion, the Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). However, "a plaintiff's obligation . . . 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 level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
I. Plaintiff's Due Process Claim
In order to state a claim for a due process violation, a plaintiff must initially allege that he possesses a cognizable property interest. "When a landowner alleges that he has been deprived of property in violation of the due process clause by the actions of a state zoning authority, we begin our inquiry by determining whether . . . the applicant has a clear entitlement to the [action] sought from the government official or administrative body." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (internal quotations omitted). "In assessing whether a plaintiff has a 'clear entitlement' . . . [courts] focus primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case."
Id. (internal quotations omitted). Thus, where the alleged property interest involves decision-making by an agency or official that is entirely discretionary, there can be no clear entitlement, because "the opportunity of the local agency to deny [the relief sought by the plaintiff] suffices to defeat the existence of a federally protected property interest." Bower Assocs.v. Town of Pleasant Valley, 2 N.Y.3d 617, 628 (2004), quoting RRI Realty Corp. v. Village of Southampton, 870 F.2d 911, 918 (2d Cir. 1989). See also Clubside, Inc. v. Valentin, 468 F.3d 144, 153 (2d Cir. 2006) ("this standard appropriately balances the need for local autonomy, with recognition of constitutional protection at the very outer margins of municipal behavior. . . . It also recognizes that the Due Process Clause does not function as a general overseer of arbitrariness in state and local land-use decisions; in our federal system, that is the province of the state courts"), quoting Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir. 1995).
In New York, a Town Board possesses virtually unfettered discretion with respect to the assignment of zoning designations for real property within its territorial jurisdiction. See generally Frooks v. Town of Cortlandt, 997 F. Supp. 438, 450 (S.D.N.Y. 1998) (collecting cases), aff'd, 182 F.3d 899 (2d Cir. 1999). Thus, federal courts applying New York law have routinely concluded that due to Town Boards' vast discretion to assign, change or decline to change zoning designations, property owners do not possess a cognizable property interest in the zoning designation of their property. See DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130-131 (2d Cir. 1998); Ellentuck v. Klein, 570 F.2d 414, 429 (2d Cir. 1978); Sag Harbor Port Assocs. v. Village of Sag Harbor, 21 F. Supp. 2d 179, 183 (E.D.N.Y. 1998), aff'd, 182 F.3d 901 (2d Cir. 1999); Frooks, 997 F. Supp. 438 at 450. An exception may exist where a property owner's right to zoning status becomes "vested," typically through "substantial expenditures prior to the enactment of the more restrictive zoning ordinance," however, "[where] there has been no construction or other change to the land itself, a property owner has no right to complete a project permitted under an earlier zoning classification." DLC Mgmt., 163 F.3d 124 at 130 (internal quotations and citations omitted).
Here, plaintiff makes no factual allegations upon which a finding could be made that its interest in the zoning designation of its property was vested. Plaintiff does not allege that it engaged or invested in any significant construction or other land development in reliance upon the prior zoning designation. As such, plaintiff has failed to allege a cognizable interest in the zoning designation of its property, and thus has not alleged a plausible due process claim.
II. Plaintiff's Claim of Taking Without Just Compensation
In order to state a federal constitutional claim for taking, the challenged regulation must have the effect of extinguishing "all economically beneficial use" of the subject property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-1029 (1992). Likewise, to state a taking claim under the New York State constitution requires that the economic value of the property be entirely dissolved. See Gazza v. New York State Dep't of Envtl. Conservation, 89 N.Y.2d 603, 618-619 (Ct. App. N.Y.), cert. den., 522 U.S. 813 (1997). Determination of whether the property has been completely devalued requires analysis of the property as a whole: it "does not divide a single parcel into discrete ...