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Brendan Cunney v. Board of Trustees of the Village of Grand View

October 19, 2011

BRENDAN CUNNEY, PLAINTIFF-APPELLANT,
v.
BOARD OF TRUSTEES OF THE VILLAGE OF GRAND VIEW, NEW YORK, ZONING BOARD OF APPEALS FOR THE VILLAGE OF GRAND VIEW, NEW YORK, JOSEPH W. KNIZESKI, AS BUILDING INSPECTOR OF THE VILLAGE OF GRAND VIEW-ON-HUDSON, DEFENDANTS-CROSS-CLAIMANTS-APPELLEES.*FN1



The opinion of the court was delivered by: Hall, Circuit Judge:

10-0485-cv

Cunney v. Bd. of Trs. of Vill. of Grand View

Argued: January 3, 2011

Before: KEARSE, WINTER, and HALL, Circuit Judges.

Plaintiff-Appellant Brendan Cunney appeals from the December 18, 2009 order and the January 20, 2010 amended judgment of the United States District Court for the Southern District of New York (Young, J.),*fn2 dismissing his complaint against the Board of Trustees of the Village of Grand View-on-Hudson, the Zoning Board of Appeals for the Village, and Joseph W. Knizeski, in his capacity as the Village's building inspector (collectively, the "Village Defendants"). We hold that the relevant provision of the Village Zoning Law as applied to Cunney's property is unconstitutionally vague. For the reasons that follow, we REVERSE the district court's grant of summary judgment in favor of the Village Defendants on Cunney's void- for-vagueness claim, and we direct the court to enter summary judgment in favor of Cunney on this claim. In addition, we VACATE the district court's grant of summary judgment in favor of the Village Defendants on Cunney's substantive due process claim, and REMAND for further proceedings consistent with this opinion.

Reversed in part, vacated in part, and remanded.

Plaintiff-Appellant Brendan Cunney appeals from the December 18, 2009 order and the January 20, 2010 amended judgment of the United States District Court for the Southern District of New York (Young, J.), dismissing his complaint against the Board of Trustees of the Village of Grand View-on-Hudson (the "Board"), the Zoning Board of Appeals for the Village (the "ZBA"), and Joseph W. Knizeski, in his capacity as the Village's building inspector (collectively, the "Village Defendants"). Cunney brought this action against the Village Defendants alleging a violation of his constitutional rights as a result of the ZBA's denial of his application for a certificate of occupancy ("CO") for his newly-built home. Specifically, Cunney asserted that Village Zoning Law, Chapter IX, Section E ("section E" or "the ordinance") is void for vagueness and that the Village Defendants violated his substantive due process rights by denying him a CO. The district court granted summary judgment in favor of the Village Defendants on both claims. Cunney v. Bd. of Trs. of Vill. of Grand View, NY, 675 F. Supp. 2d 394, 403 (S.D.N.Y. 2009). The court concluded that Cunney's vagueness claim failed because a reasonable person could discern that section E prohibited the building of structures that rise more than four and one-half feet above the easterly side of River Road. Id. at 399. Despite the district court's subsequent determination that section E encouraged arbitrary or ad hoc enforcement, it nonetheless found the ordinance constitutional because its application to Cunney's property coalesced with the ordinance's core goal--to preserve the remaining views of the Hudson River from River Road. Id. at 400-01. The court also determined that Cunney's substantive due process claim failed because Cunney did not possess a legitimate claim of entitlement to a CO. Id. at 402.

We hold that section E of the Village Zoning Law is unconstitutionally vague as applied to Cunney's property because it provides inadequate notice of the elevation point on River Road from which Cunney should measure the height of his house to determine compliance, and because it authorizes arbitrary and discriminatory enforcement. Furthermore, we hold that the ordinance's constitutionality is not otherwise saved by its core meaning because a reasonable enforcement officer could find that the height of Cunney's house is in compliance with section E's restrictions. We therefore reverse the district court's grant of summary judgment in favor of the Village Defendants on Cunney's void-for-vagueness claim, and direct the court to enter summary judgment in favor of Cunney on this claim. In addition, we vacate the grant of summary judgment in favor of the Village Defendants on Cunney's substantive due process claim, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The following facts are undisputed. Cunney owns one half acre of property that lies adjacent to the Tappan Zee Bridge within the Village of Grand View-on-Hudson in Rockland County. The property is bounded by the Hudson River to the east and River Road to the west, and slopes downward from the road to a flat area where the home in question has been constructed. The elevation of River Road varies along its 149-foot shared boundary with the Cunney property--at the southern end of the property the elevation is approximately 30 feet above the Hudson River, while at the northern end it is approximately 24 feet above the river. Section E of the zoning law sets out the relevant height requirements for certain residential homes in the Village:

It being the purpose of this section, among others, to preserve as nearly as practicable the remaining views o[f] the Hudson River from River Road, no building shall be erected in Zone B (R-10) which shall rise more than two stories in height nor more than four and one-half (4 1/2) feet above the easterly side of River Road. Where the lot lies substantially at the same level as River Road, no building or construction shall rise more than one story or fifteen feet in height.

The Village defines "easterly side of River Road" as "the point at which the road surface of River Road intersects with the easterly curb adjacent to River Road." Zone B (R-10), where Cunney's property is located, comprises the area between River Road and the mean high water mark of the Hudson River running north-south to the Village's limits.

A. The 2006 ZBA Decision

In 2006, Cunney desired to improve his property and applied to the Village for the requisite permits. Given the house's proposed height and floor area ratio, Cunney's initial site development plan for the construction of a single family residence required variances from the Village Zoning Law. Because Cunney's property is located within Zone B (R-10), Cunney's proposed development triggered section E limiting the highest point of his house to an elevation that is no more than four and one-half feet above the easterly side of River Road. A hearing was held before the ZBA on April 4, 2006 to consider Cunney's variance requests. At the hearing, John Atzl, Cunney's surveyor, stated that section E is ambiguous with respect to the elevation point on River Road adjacent to the property from which the height of the house should be measured. Specifically, he questioned whether the terms of section E required measurement from the road's highest or lowest grade. Atzl reported that, given the ambiguity, he measured the house's highest roof elevation from the middle of the Cunney lot adjacent to the east edge of River Road. In response, the ZBA acknowledged that the primary issue concerning the house's compliance with section E was from which point on River Road should the height of the house be measured. In fact, even the Village's attorney agreed that section E was ambiguous and that the ZBA should clarify its terms.

Notwithstanding the apparent consensus that section E was vague and required clarification, the ZBA declined to interpret it. Having apparently determined that Cunney's proposal would require a height variance regardless of where on River Road the house height measurement was taken, the ZBA denied the variance requests finding them "substantial," and noted that "feasible alternatives" existed.

Despite the ZBA's refusal to act as a body to interpret section E, three of the five members of the ZBA nonetheless offered on the record their own interpretations of the proper elevation point on River Road from which the height of a house should be measured in determining its compliance with section E. ZBA member Tom Wolzien suggested that "any given point above River Road" can be used as the elevation point from which to measure the height of the house, while ZBA member David Kaliff stated that the "ordinance was written to protect the views of the community along River Road" and thus required the house height to be measured "at the lowest point of the road." ZBA Chairperson Dr. Maria Chamberlin-Hellman opined that the code should be interpreted to require measurement from the "lowest point along River Road to the highest point of the house" so that "the maximum variance would be needed." In light of the ZBA's denial of his variance requests and the three members' differing interpretations of section E, Cunney was forced back to the drawing board to revise his site plan and to speculate how the ZBA would, in a future proceeding, enforce the height restriction against him.

B. The Village Approves Construction of Cunney's House

In September 2006, the Village Planning Board conditionally approved Cunney's revised site plan. Due to the lingering confusion stemming from the ZBA hearings, this plan included road elevation levels and house height measurements from five different stations (0, 0, 0, 0, and 0.5) located in the northern half of Cunney's lot. At each station on the plan, Atzl indicated both the road's elevation at a precise point as well as the height of the house at a corresponding point on the roof line 90° from the road. Relying upon the difference between height of the house and elevation of the road at these five stations, Atzl concluded that the proposed project was in compliance with section E.

In measuring the elevation points on River Road, Atzl used data from both a Rockland County topographical map as well as from a field survey his office had completed. He conducted the field survey because he was aware that there frequently were inaccuracies contained in county maps. In drafting the site plan, however, Atzl did not substitute his field survey road elevation levels for the county map elevation levels. The site plan Cunney submitted to the Village thus reflected only the road elevation levels as found on the county map. In October 2006, Joseph W. Knizeski, the Village building inspector, issued Cunney a building permit. In January 2007, Knizeski requested a letter from Atzl certifying that the height of Cunney's house complied with section E's restrictions. In response, Atzl performed an "under ...


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