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Barbara Tomlins v. Village of Wappinger Falls Zoning Board of

July 8, 2011


The opinion of the court was delivered by: Seibel, J.


Before the Court is Defendants' Motion for Summary Judgment. (Doc. 27.)


The following facts are undisputed except where noted. Plaintiff Barbara Tomlins owns a house in the Village of Wappingers Falls (the "Village"), in Dutchess County, New York,*fn1 (Defs.' 56.1 ¶ 1; Pl.'s 56.1 ¶ 1),*fn2 in which for many years she resided and operated a day care facility, (Pl.'s 56.1 ¶¶ 12--15). From 1975 through 1988, Plaintiff obtained building permits to make various alterations to the house that resulted in a larger geographic footprint. (Id. ¶ 11.) Since 1988, however, the house's footprint has remained constant. (Id.)

In June 2004, Plaintiff obtained a building permit to expand the house vertically and to add the necessary accompanying plumbing and electrical fixtures. (Id. ¶ 18; see Sussman Aff. Ex. 1.)*fn3 Shortly after construction began, a neighbor appealed the issuance of the building permit to Defendant Village of Wappingers Falls Zoning Board of Appeals (the "ZBA"), and in July 2004 the building inspector ordered Plaintiff to cease and desist ongoing construction pending the ZBA's decision on the appeal. (Pl.'s 56.1 ¶ 19.) While awaiting the appeal, the unprotected structure flooded with rainwater, prompting the village to deem the house unsafe to inhabit. (Id. ¶¶ 23--24.) After making necessary fortifications, however, Plaintiff was permitted to re-inhabit the house. (Id. ¶¶ 25--30.) In October 2004, the ZBA heard the appeal and decided to revoke not only the building permit but also the certificate of occupancy for Plaintiff's house. (Id. ¶¶ 34--37.) Plaintiff thereafter vacated the house and began living with her daughter. (Id. ¶ 43.) Plaintiff commenced a proceeding under N.Y. C.P.L.R. Article 78 in the Dutchess County Supreme Court for an order vacating the ZBA's October 2004 decision, and in March 2005 the court upheld the ZBA's revocation of the building permit and directed Plaintiff to obtain a new permit to complete construction, but vacated the ZBA's revocation of the certificate of occupancy as "arbitrary and capricious." (Id. ¶¶ 44, 46; see Sussman Aff. Ex. 17.)

In 2005 and 2006, Plaintiff submitted several engineers' reports and building permit applications that Village officials rejected because, among other reasons, she had failed to convince the Village that the house was structurally sound. (Pl.'s 56.1 ¶¶ 47, 51--53, 55.) In July 2006, Plaintiff submitted a permit application with an accompanying survey map, (id. ¶ 57; see Sussman Aff. Ex. 25), and the Village code enforcement officer subsequently denied the application on the basis that the house's lot coverage and setback measurements did not conform to the Village zoning code, and that the code prohibited the enlargement of structures that did not conform thereto, (id. ¶ 58; Sussman Aff. Ex. 26). He indicated that in order to continue with construction, Plaintiff would need to apply to the ZBA for variances to the zoning code. (Pl.'s 56.1 ¶ 58; Sussman Aff. Ex. 26.)

Several rounds of variance applications and ZBA meetings followed beginning in August 2006 and continuing through July 2007. (Pl.'s 56.1 ¶¶ 59--60, 63, 76, 78, 83, 86.) During this time, the ZBA granted Plaintiff a variance for the size of her lot, but denied variances for lot coverage and setbacks because, among other reasons, Plaintiff failed to provide the ZBA with sufficient information to grant the variances.*fn4 (Id. ¶¶ 72, 80, 94; see Sussman Aff. Exs. 34, 40.) Also during this time, a major concern arose regarding whether the newly constructed attic would function as an additional story in the house, thereby rendering the house nonconforming with respect to Village zoning regulations regarding maximum allowable stories.*fn5 (See Pl.'s 56.1 ¶¶ 66, 75, 78, 84--85; Sussman Aff. Exs. 30, 40, 44.)

In May 2007, Defendant John Fenton took over as the Village's new permanent code enforcement officer and building inspector. (Pl.'s 56.1 ¶ 90; Davignon Aff. Ex. DD, at 22.) In July 2007, an engineer hired by Plaintiff wrote to Fenton that he believed the house was safe enough for construction to continue. (Pl.'s 56.1 ¶ 95; Sussman Aff. Ex. 47.) That same month, Fenton inspected the house and subsequently removed the order of unsafe condition, but only to permit Plaintiff to enter the house to clean it, weatherproof it, and perform cosmetic work-not to continue construction. (Pl.'s 56.1 ¶¶ 96, 100; Sussman Aff. Ex. 48.) Fenton was accompanied on his inspection by a code compliance specialist from the New York State Division of Code Enforcement and Administration. (Pl.'s 56.1 ¶ 98.) The state officer opined that the house was unsafe and warned that the attic could easily be converted to a habitable space and thus qualify as a nonconforming story. (Sussman Aff. Ex. 50.) He suggested measures that could be taken to ensure that the attic would remain a non-habitable space, such as scheduling regular inspections by the Village or imposing limitations on attic insulation, lighting, and/or outlets. (Id.)

In November 2007, Fenton issued a stop-work order on Plaintiff's house.*fn6 (Sussman Aff. Ex. 55.) That same month, Plaintiff submitted another building permit application to be able to continue construction, (Pl.'s 56.1 ¶ 109; see Sussman Aff. Ex. 56), and Fenton denied the application, once again due to fact that Plaintiff lacked the required variances from the Village zoning code-not only for lot coverage and setback, but also for lot depth, (Pl.'s 56.1 ¶ 110; see Sussman Aff. Ex. 57). Plaintiff again sought variances from the ZBA, and in December 2007 the ZBA denied them on the ground that Plaintiff failed to present it with any new information not included in previous applications. (Sussman Aff. Ex. 59.) Also in December 2007, Fenton posted the house as unsafe, preventing Plaintiff from occupying it. (Id. Ex. 62.)*fn7

In the summer of 2008, Plaintiff again applied to Fenton for a building permit, and Fenton again denied the request. (Id. Ex. 68.)*fn8 Despite this, Fenton indicated to Plaintiff that the revised plans she submitted with her application had "satisfied" him and were a "substantial change in what [he was] looking for to get her back in front of the ZBA." (Davignon Aff. Ex. DD, at 26.) Plaintiff again appeared before the ZBA in October 2008 to request the necessary variances. (Pl.'s 56.1 ¶¶ 131--32.) The ZBA concluded that the variance would result in an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would have an adverse impact on the physical or environmental conditions in the neighborhood. (Sussman Aff. Ex. 71, at 1.) It also concluded, however, that the benefit to Plaintiff would outweigh the detriment to the neighborhood because the house was in disrepair and issuing a building permit would allow Plaintiff to finish construction. (Id. Ex. 71, at 2.) It therefore granted the requested variances on the following conditions: (1) Plaintiff must remove all unregistered vehicles and resolve all property maintenance code violations; (2) Plaintiff must not occupy the house until she obtains a certificate of occupancy; (3) a professional engineer must certify the structural integrity of the building; (4) Plaintiff must remove all outdoor storage sheds; and (5) Plaintiff must remove insulation above the attic floor level or stairs ascending to the attic. (Id. Ex. 71, at 2; Defs.' 56.1 ¶ 20; Pl.'s 56.1 ¶¶ 20, 133.)*fn9

Plaintiff filed the Complaint in the instant case on November 13, 2008, asserting causes of action under 42 U.S.C. § 1983 ("Section 1983") against the ZBA and Fenton for violating her substantive due process rights; against Fenton for denying her equal protection of the law under the Fourteenth Amendment to the U.S. Constitution; and against the ZBA and Fenton for retaliating against her for her prior use of the courts under the First Amendment to the U.S. Constitution. (Doc. 1.) The causes of action are based upon Defendants' denial of a building permit to Plaintiff for construction to her house. (Id. ¶¶ 42--44.) Because, as the record demonstrates, the ZBA did not deny Plaintiff a building permit, but rather denied her, and later conditionally granted her, area variances necessary to obtain a building permit, the Court construes Plaintiff's claims against ZBA as directed at their decisions with respect to the variances Plaintiff sought. On September 13, 2010, Defendants moved for summary judgment. (Doc. 27.)


A.Summary Judgment Standard

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986)). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. Moreover, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and she "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).

"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials . . . ." Fed. R. Civ. P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, they "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008).

B.Quasi-Judicial Immunity

Defendants contend that they are immune from the instant claims under the doctrine of quasi-judicial immunity, which is a form of absolute immunity that applies to non-judicial officers when they perform judicial functions. In order to qualify, "[t]he proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity." Antoine v. Byers & Anderson, 508 U.S. 429, 432 (1993). Absolute immunity protects judges and certain other judicial officials from civil liability for "acts undertaken in furtherance of their judicial functions." Quitoriano v. Raff & Becker, LLP, 675 F. Supp. 2d 444, 449 (S.D.N.Y. 2009) (citing Austern v. Chi. Bd. Options Exch., Inc., 898 F.2d 882, 885 (2d Cir. 1990)). The Supreme Court "has extended absolute immunity to certain others ...

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