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G.I. Home Developing Corp v. John Weis

September 22, 2011

G.I. HOME DEVELOPING CORP.,
PLAINTIFF,
v.
JOHN WEIS, CHIEF ZONING INSPECTOR OF THE BUILDING DIVISION OF THE TOWN OF BROOKHAVEN, ARTHUR GERHAUSER, CHIEF BUILDING INSPECTOR, BUILDING DEPARTMENT OF THE TOWN OF BROOKHAVEN, ZONING BOARD OF APPEALS OF THE TOWN OF BROOKHAVEN, BRENDA A. PRUSINOWSKI, DEPUTY COMMISSIONER OF THE DEPARTMENT OF PLANNING, ENVIRONMENT AND LAND MANAGEMENT OF THE TOWN OF BROOKHAVEN, DAVID WOODS, COMMISSIONER OF THE DEPARTMENT OF PLANNING, ENVIRONMENT AND LAND MANAGEMENT OF THE TOWN OF BROOKHAVEN, THE DEPARTMENT OF PLANNING, ENVIRONMENT & LAND MANAGEMENT OF THE TOWN OF BROOKHAVEN, AND THE TOWN OF BROOKHAVEN, DEFENDANTS.



The opinion of the court was delivered by: Hurley, District Judge:

MEMORANDUM AND ORDER

Plaintiff G.I. Home Developing Corp. commenced this civil rights action asserting that defendants' alleged revocation of a Certificate of Zoning Compliance deprived it of its constitutionally protected property interest in violation of its Fourteenth Amendment due process rights. Defendants John Weis, Chief Zoning Inspector of the Building Division of the Town of Brookhaven, Arthur Gerhauser, Chief Building Inspector, Building Department of the Town of Brookhaven, Zoning Board of Appeals of the Town of Brookhaven, Brenda A. Prusinowski, Deputy Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven, David Woods, Commissioner of the Department of Planning, Environment and Land Management of the Town of Brookhaven, The Department of Planning, Environment & Land Management of the Town of Brookhaven, and the Town of Brookhaven (collectively, "defendants") have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, defendants' motion is granted and this case is dismissed in its entirety.

BACKGROUND

The following facts are taken from the pleadings, the parties' Local Civil Rule 56.1 Statements, and the papers submitted by the parties in connection with the motion.

The Property and the CZC

Plaintiff is a corporation that owns a parcel of real property at 16 Herkimer Street, Mastic, New York (the "Property"), which is located within the Town of Brookhaven (the "Town").*fn1

Plaintiff purchased the Property on March 11, 2004. Prior to the purchase, plaintiff's predecessors in ownership applied for, and were granted, a Certificate of Zoning Compliance (the "CZC"). The CZC, which is dated November 15, 1982, was issued by the Town Building Department and states:

One story block building appx. 36.1 x 26.7 irreg. as per Zoning Bd. of Appeals grant 11/3/82, Case #14 located at W side Herkimer Street, Distance Corner S of Classon Avenue Village Mastic, State of New York, Map Mastic Park, Section 4 Lot 3558-3562 is presumed to conform substantially with Zoning Ordinances in effect at the time of construction for such stated use . . .

Signed (illegible) Building Inspector. (Decl. of David H. Arntsen, Esq., dated Nov. 22, 2010 ("Arntsen Decl."), Ex. D.) By letter dated July 19, 1983, the Town amended the CZC in order to correct a clerical error. (Id., Ex. H.) The amended language of the CZC reads as follows: "One story block bldg appx 36.1 x 26.7 irreg. used as public garage as per ZBA 11-3-82, Case #14." (Id. (emphasis added)) The CZC stated that it would become "null and void if [the] building, structure or use is altered or used for any purpose other than which it is certified." (Id., Ex. D.)

Zoning of the Property

At all relevant times, the Property was "dual zoned," with one portion zoned as A-1 residential and the other portion zoned as J-2 commercial. The one-story building that is described in the CZC (the "Building") is located on the J-2 portion of the Property; no structure has ever existed on the A-1 portion. At the time plaintiff purchased the Property, the Building was used as a public garage. The use of a building as a public garage is generally not permitted in a J-2 zoned area; the CZC, therefore, permits the operation of a public garage in the Building as a nonconforming use of the Property.

Use of the Property and Building

Plaintiff is in the business of home building and improvement and, as of August 2009, operated its business office out of the Building. As early as 2007, and continuing as late as August 2009, the Building also housed "Mastic Discount Tires," d/b/a "Iacobelli's," which was a business dedicated to tire sales. At some point, an entity by the name of "J&J Auto" also operated at the Building as a car dealership. The parties agree that a car dealership is not a permitted use in a J-2 zoned area.

Overall, there is no dispute that several businesses operated out of the Building at various times both before and after plaintiff acquired title to the Property, and that these businesses engaged in uses that were not permitted in a J-2 zoned area, including: tire and rim sales, auto dealerships and detailing, and "sales and towing for motor clubs." (Defs.' 56.1 ¶ 14.) Plaintiff's Land Division Application

On October 29, 2004, plaintiff, through its agent, Michelle Janlewicz of AM PM Property Services, Inc., filed a Land Division Application with respect to the Property with the Town Planning Division. (Arntsen Decl., Ex. I.) The Land Division Application sought a "minor subdivision" of the Property into two separate lots and to construct a new two-story dwelling. (Id.) Plaintiff's intention was to use the new two-story structure as a residential home and to keep the public garage operating in the Building on the J-2 zoned portion of the Property. (See Iacobelli Dep. at 40-41.) The Land Division Application reflects that lot area variances would be required from the Town Board of Zoning Appeals ("BZA"). (See Arntsen Decl., Ex. I.)

On January 18, 2007, plaintiff, through its agent Janlewicz, filed Applications for Building and Zoning Permits with respect to its desired development of both the A-1 zoned portion and the J-2 zoned portion of the Property. (See id., Ex. J.) The application for the A-1 residential zoned area was assigned # 781468 and the application for the J-2 commercial zoned portion assigned # 781469. (Id.) The latter application for the J-2 zoned portion of the Property stated that the use and size of the proposed work would be: "Existing one story block bldg appx 36.1 x 26.7 irreg. used as public garage." (Id.) Both of the applications were denied on April 4, 2007 based upon the need for lot variances as well as front, rear, and side yard setbacks. (See id.)

Plaintiff subsequently filed a new Applications for Building and Zoning Permits, dated May 21, 2007. (Id., Ex. K.) The application for the A-1 residential zoned portion was assigned # 782130, and the application for the J-2 commercial zoned portion was assigned # 782131. (Id.) The new application for the J-2 zoned portion of the Property listed the use and size of the proposed work as: "Proposed two story building (commercial) 38' x 65'." (Id.) These applications were also denied based upon the need for front and rear set back variances, as well as a property area variance. Subsequently, although exactly when is unclear, plaintiff's agent filed applications with the BZA for the variances needed in case numbers 781469, 781468, and 782130.*fn2 (Id., Ex. L.)

The Weis Document

On June 27, 2007, John H. Weis, the Chief Zoning Inspector for the Town, produced and gave a document to plaintiff's agent (the "Weis Document"). (See id., Ex. Q.) Defendants describe the Weis Document as a memorandum, while plaintiff describes it as a letter. (See Defs.' Mem. at 9-11; Pl.'s Opp'n at 3-4.) The Weis Document appears to be on official Town letterhead and, at the bottom, lists Joseph F. Sauerwein as Commission of the Department of Building and Fire Prevention, and Arthur Gerhauser as Chief Building Inspector for the Division of Building. (Id.) The Weis Document states:

TO: GI Home Developing Corp.

RE: Certificate of Zoning Compliance #570, 14 Herkimer St. Mastic, N.Y.

The above referenced Certificate of Zoning Compliance for the "Usage as a Public Garage" has lost its nonconforming use and can no longer be considered one. This determination was made [following] several inspection[s] of the site for various violations and at no time was the site being used as a Public Garage.

As owner of the property you can make an application to the Board of Zoning Appeals and they can make a determination as to whether or not this usage can be reinstated. (Id.) The Weis Document ...


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