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In the Matter of A Proceeding Pursuant To Article v. the Town of Verona

September 27, 2011

IN THE MATTER OF A PROCEEDING PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES ANTHONY DEPERNO, INDIVIDUALLY AND ON BEHALF OF VICTORY SIGN, INC., PLAINTIFF,
v.
THE TOWN OF VERONA, TOWN OF VERONA, OWEN E. WALLER, INDIVIDUALLY AND AS SUPERVISOR THEREOF; GERALD ZIMMERMAN, DEPUTY SUPERVISOR, KENNETH REGNER, RICHARD RADOS, SCOTT MUSSACCHIO, INDIVIDUALLY AND COLLECTIVELY AS MEMBERS OF THE TOWN BOARD OF THE TOWN OF VERONA; THE TOWN OF VERONA ZONING BOARD OF APPEALS, RAYMOND ULRICH, CHAIRMAN, AND WALTER HOJNACKI, JEFFREY KAHLER, CHARLES WIRTENSON, AND HENRY GERWIG, INDIVIDUALLY AND COLLECTIVELY AS MEMBERS THEREOF; CHRIS CHILDS, INDIVIDUALLY AND AS THE TOWN OF VERONA CODES ENFORCEMENT OFFICER; AND PATRICIA E. NESTLE, INDIVIDUALLY AND AS THE TOWN OF VERONA TOWN CLERK, JOINTLY AND SEVERALLY, N A DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Anthony DePerno, individually and on behalf of Victory Sign, Inc., brings this action against The Town of Verona ("Town"), Owen. E. Waller, town supervisor, Gerald Zimmerman, deputy supervisor, Kenneth Regner, Richard Rados, and Scott Musacchio, individually and collectively as Town Board members, the Town of Verona Zoning Board of Appeals, Raymond Ulrich, Chairman of the Town Zoning Board of Appeals, and Walter Hojnacki, Jeffrey Kahler, Charles Wirtenson, and Henry Gerwig, individually and collectively as

members of the Town Zoning Board of Appeals, Chris Childs, Town Codes Enforcement Officer, and Patricia E. Nestle, individually and as Town Clerk (collectively "defendants"). Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his First and Fourteenth Amendment rights. Specifically, plaintiff alleges: (1) that defendants' refusal to "timely and fairly" consider plaintiff's permit application to erect a billboard violated his right to procedural due process; (2) that defendants refusal to grant plaintiff's permit to erect a billboard

"which was and is still in full compliance with the only valid Town zoning law" violated his right to due process and free speech; (3) defendants' failure to include a "purpose" clause in the text of the amendment to the zoning law prohibiting all "billboard or outdoor advertising", Local Law No. 1of 2009, violated the statutory requirements for the enactment of Local Laws and renders the amendment void, or, alternatively, is an unconstitutional restriction on free speech; and (4)that defendants acted intentionally and maliciously with "wanton and/or reckless disregard" to plaintiff's constitutional rights. In addition to an award of compensatory and punitive damages, costs, and attorneys' fees, plaintiff seeks an order declaring that Local Law No. 1 of 2009 is void, unenforceable, and unconstitutional and directing that his permit application be granted.

Presently before the Court is defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, alternatively, for summary judgment pursuant to Rule 56. Plaintiff opposes defendant's motion.

II. COMPLAINT

Accepting the factual allegations in the complaint, and its exhibits, as true, as the Court is required to do when considering a motion to dismiss, the facts are as follows: Plaintiff resides in Verona Beach, New York and operates Victory Sign, Inc., a New York Corporation located in

Canastota, New York. Compl. ¶ 2. In April 2008, seeking to "erect off-premises signs in the H[amlet,] C[ommercial and] R[esidential] District ["HCR"] on the west side of the four lane highway leading to the Turning Stone Casino" plaintiff hand delivered completed applications for building permits to Town Code Enforcement Officer Chris Childs. Compl. ¶ 5. On April 21, 2008, the Zoning Board of Appeals met, discussed and denied plaintiff's application. Compl. ¶ 6. The minutes from that meeting state: "Anthony DePerno, Signage - Mr. DePerno of Victory

Signs, Verona Beach, requested putting two billboards east of Joel's Steak House in Verona. He has approval from the NYSDOT. After much discussion, the board denied his request, per the zoning regulations." Compl., Ex. B. Plaintiff did not appeal that decision because "he lost the interested advertisers when they learned the Zoning Board of Appeals wouldn't permit off-premises signage in said District." Compl. ¶ 6.

On August 21, 2008, Town Clerk Patricia Nestle published a notice in the Rome Sentinel advising that a public hearing would be held on September 3, 2008 to consider, inter alia, changing provisions to the Town Zoning Ordinance of 2004, and that "the location and size of public signs and billboards" was "one of the text amendments up for discussion". Compl. ¶ 7. The notice also stated that the "'environmental significance of the proposed amendment will be reviewed at said public hearing.'" Compl. ¶ 7.

On September 3, 2008, the Town Board held a meeting. Compl. ¶ 8. Regarding the proposed amendment to the Zoning Ordinance of 2004, the minutes indicate that Chairman of the Zoning Board of Appeals stated that "signs in the town need to be smaller. Existing signs will be grandfathered. Signs will be varied in all districts and no billboard will be permitted." Compl. Ex. E. No other comments are recorded in the minutes. Compl. Ex. E. The Town Board then voted to adopt the amendments as proposed. Compl. Ex. E.

On September 22, 2008, plaintiff "hand delivered two separate and distinct Applications for Building Permits (for off-premises signage in the HCR District), to Defendant Childs for review and approval by the Zoning Board of Appeals at their upcoming October 20, 2008 monthly meeting". Compl. ¶ 9. Childs told plaintiff that "he doubted the ZBA would approve either application, as both the unamended ordinance and the new text amendments forbade off- premises signage in the HCR District." Compl. ¶ 9. Plaintiff responded that "off-premises signs were still permitted in the HCR District as the new amendments . . . had not (as of the date of Victory's application, September 22nd) been accepted by the Department of State for filing." Compl. ¶ 9 (emphasis omitted).

In a letter to Zoning Board of Appeals Chairman Ulrich, dated October 12, 2008, plaintiff's attorney wrote:

[O]n September 3, 2008, the town board discussed several amendments to the present sign law. In particular, whether or not - in the future - billboards will be permitted/prohibited on Route 365, in the HCR zone.

On September 22, 2008, before any amendment took effect, Victory submitted an application for a sign permit in the HCR zone that in all respects complied with the present law . . . .

Victory recognizes that henceforth, applications for sign permits may not be approved in that locale. In the meantime, Section 27.3 of the Municipal Home Rule Law of the State of New York specifically states "Notwithstanding the effective date of any local law, a local law shall not become effective before it is filed in the office of the Secretary of State".

I have been told by the Department of State that the town had not [as of the date Victory submitted its application] filed any amendment to the present sign law. Inasmuch as the town did not enact an emergency moratorium . . . . the ZBA has the right and the obligation to review Victory's application consonant with the then (and still current) local law.

Victory wants to work with the town, and is willing to address concerns, whether they be sign size, color, shrubbery, location and so forth, all to the end that the proposed sign be in harmony with the commercial flavor of the 365 corridor.

Compl. Ex. F.

The Zoning Board of Appeals held a meeting on October 20, 2008. Compl. ¶ 11. Plaintiff and his attorney, who had been scheduled to be out of town "on business" that day, did not attend. Compl. ¶ 10; see also Compl. Ex. G. The meeting minutes indicate that "Anthony DePerno was discussed regarding signage on Route 365." Compl. Ex. G.

On October 21, 2008, plaintiff "inquired of CEO Childs as to what action the ZBA took with regard to his applications." Compl. ¶ 12. Childs responded that the ZBA didn't take any action at its meeting on either application as (under the new amendments) off-premises signs weren't allowed in the HCR District." Compl. ¶ 12. Plaintiff told Childs that he believed he was being treated unfairly, that off-premises signage was a permissible use in the HCR District, that the ZBA had the obligation to review (and approve) his applications (or at the very least, tell him what he needed to do to conform his plans to the code), and that to the best of his knowledge, the new amendments still hadn't been filed with the Department of State.

Compl. ¶ 12.

On October 30, Town Clerk Nestle filed "Local Law No. 3, 2008" with the Department of State. Compl. Ex. H.

On November 17, 2008, plaintiff's attorney attended the ZBA's meeting "to argue that the ZBA had the prior obligation(at its October 20, 2008 meeting, before Local Law #3 of 2008 had been filed with the Department of State) to act on Plaintiff's applications". Compl. ¶ 14. Plaintiff's attorney further argued at the meeting that the ZBA was "obligated at that time to review same in accordance with the un-amended code (that clearly permitted off-premises

signage in the HCR district)." Compl. ¶ 14. ZBA Chairman Ulrich told plaintiff's attorney that off-premises signage and bill boards were not permitted in the HCR district under either the unamended or amended ordinance. Compl. ¶ 14. Plaintiff's attorney asked "what changes, if any," needed to be made to plaintiff's applications in order to obtain a permit for an off-premises sign in the HCR district under either the amended or unamended ordinance. Compl. ¶ 14. Chairman Ulrich responded that he did not have plaintiff's applications "in from of him, and

couldn't remember the particulars of either application". Compl. ¶ 14. Chairman Ulrich told plaintiff's attorney that plaintiff should meet with Codes Enforcement Officer Childs, "so that the ZBA could study the issue at its next meeting, in December." Compl. ¶ 14.

The minutes from the ZBA's November meeting state: Rocco DePerno, Sign Permit - Mr. DePerno of Verona Beach is requesting permission

for his son of Victory Signs to erect two signs on State Route 365. He has applied two time before and was refused the first time because of sign size and the second time for incorrect property use.

His son filled out the variance paperwork in September but never proceeded with the process. They would like to place a sign on North Main Street and West Main Street in Verona to face Route 365.

The Board told him that they need more information.

Compl. Ex. I.

In the complaint, plaintiff states that he "never filled out any application for a variance, and did everything a reasonable and prudent applicant could do in these types of recalcitrant and defiant settings." Compl. ΒΆ 15. Plaintiff claims that he did not need a variance since off-premises ...


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