Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Joseph Kowalczyk and Alil Pericic v. John Barbarite

September 25, 2012

JOSEPH KOWALCZYK AND ALIL PERICIC, PLAINTIFFS,
v.
JOHN BARBARITE, SUE FLORA, GORDON JENKINS, AND THE VILLAGE
OF MONTICELLO, A MUNICIPALITY OF THE STATE OF NEW YORK, DEFENDANTS.



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

OPINION AND ORDER

Plaintiffs Joseph Kowalczyk ("Kowalczyk") and Alil Pericic ("Pericic," and collectively "Plaintiffs") bring this action against Defendants John Barbarite ("Barbarite"), Gordon Jenkins ("Jenkins"), and the Village of Monticello (the "Village," and collectively "Defendants"),*fn1 alleging violations of their substantive due process and equal protection rights pursuant to 42 U.S.C. §§ 1981 and 1983, and alleging that Defendants engaged in a conspiracy to interfere with their civil rights pursuant to 42 U.S.C. §§ 1985 and 1986. Plaintiffs also state a cause of action for declaratory relief pursuant to 42 U.S.C. § 1983 and pursuant to New York law. Plaintiffs' final cause of action arises pursuant to 42 U.S.C. § 1988(b) for attorneys' fees. Kowalczyk now moves for partial summary judgment on his substantive due process claim and a purported procedural due process claim on the issue of liability only, and Defendants cross-move for summary judgment in full. For the reasons stated below, Plaintiff Kowalczyk's motion is DENIED and Defendant's cross-motion is GRANTED.

I.Factual Background

The following facts are undisputed unless otherwise indicated below.

A.Plaintiff Kowalczyk's Property at 37-39 High Street

Joseph Kowalczyk, a Polish-born naturalized U.S. citizen, and a resident of Stamford, Connecticut, purchased real property located at 37-39 High Street*fn2 in the Village on November 7, 2001, for $48,500. Compl. ¶ 1(b); Kowalczyk's Stmt. Undisputed Facts in Supp. of Mot. for Summ. J. Pursuant to Local Rule 56.1 ("Kowalczyk's 56.1 Stmt.") ¶¶ 1-2; Defs.' Stmt. Undisputed Facts in Supp. of Mot. for Summ. J. Pursuant to Local Rule 56.1 (Defs.' 56.1 Stmt.")

¶ 4. The property consisted of two buildings (the "front building" and the "back building"). Kowalczyk's 56.1 Stmt. ¶ 3. The front building originally consisted of two residential units and the back building originally consisted of six residential units and two commercial units. Doc 68, Ex. PP at 7; see Doc. 78, Ex. V. 37-39 High Street was, for a certain period of time before Kowalczyk bought it, a lawful multiple dwelling nonconforming use. See Doc. 68, Ex. S; Doc. 56-2, Ex. P. The controversy surrounding his development of the property is rooted in whether it was still a lawful nonconforming use at the time he purchased it pursuant to Village Code § 280-43, which provides that "[t]he vacation of a nonconforming building or use for a consecutive period of one year shall be deemed a permanent vacation, and thereafter the building shall not be reoccupied except in conformity with the regulations of the district in which it is located, and the use shall not be resumed." Doc. 68; Ex. T.

On December 9, 2001, Kowalczyk applied for a building permit to build stores and renovate eight apartments. Doc. 80, ¶ 9. On January 16, 2002, James Artale ("Artale"), the then Village Code Enforcement Officer, issued a permit to Kowalczyk for purposes of renovating two apartments in the back building. Defs.' 56.1 Stmt. ¶ 5; Doc. 56-1, Ex. D. Artale further sent Kowalczyk a letter on the same date, stating that the building permit was issued for the renovation of only two apartments in the back building and that no other work on the property was permitted. Doc. 68, Ex. L.

On March 15, 2002, the remainder of Kowalczyk's December 9, 2001 application-to renovate the remaining residential and commercial units at 37-39 High Street-was officially denied by Richard Sush ("Sush"), the then Village Manager. Doc. 68, Ex. N. The denial was issued because Village Code required twelve parking spaces for the apartments and three parking spaces for the proposed store, but Kowalczyk's plan provided for only a total of five parking spaces. Id. Sush advised Kowalczyk that he could appeal the denial to the Zoning Board of Appeals and gave instructions on how to do so. Id. Indeed, on March 31, 2002, Kowalczyk filed an application for a zoning variance, requesting permission to have fewer parking spaces than required by Village Code for his proposed improvements to 37-39 High Street. Doc. 68, Ex. O. A public hearing was scheduled in connection with Kowalczyk's request for May 9, 2002. Id. Ex. O, Ex. P.

On May 9, 2002, Sharon Jankiewicz ("Jankiewicz"), the Village Attorney, sent a letter to Artale, stating that she had reviewed the denial of Kowalczyk's application for a building permit and his subsequent application for a zoning variance. Doc. 56-2, Ex. P. In her opinion, Kowalczyk's applications were to "renovate an existing nonconforming use structure," and that it would be "improper to deny [either] application for renovations . . . based on insufficient parking." Id. She believed such a use was permissible under Village Code § 280-42, which states that a "nonconforming building or use may be continued but may not be changed to another nonconforming use." Id. Jankiewicz's letter suggests her belief that 37-39 High Street had not been left vacant for a period of time in excess of one year and that Plaintiff was merely rehabilitating-not expanding-the lawful nonconforming use, and therefore that Village Code § 280-43 was inapplicable. Thus, believing that Jankiewicz's letter meant it was unnecessary to obtain a zoning variance for 37-39 High Street, Kowalczyk withdrew his application to the Zoning Board of Appeals. Doc. 78 ¶ 18.

On May 14, 2002, Plaintiff received an additional building and zoning permit, which renewed the permit issued on January 16, 2002 as to two apartments in the back building, and granted Kowalczyk permission to rehabilitate four apartments in the front building, which originally consisted of only two apartments. Kowalczyk's 56.1 Stmt. ¶ 5; Doc. 56-1, Ex. E; Doc. 68, Ex. PP at 7. On July 14, 2002, Defendant Barbarite, before he became Deputy Village Manager, in his capacity as a private citizen, told Sush that he believed an illegal conversion, pursuant to Village Code §280-43, had occurred at 37-39 High Street. Doc. 69, Ex. E; Doc. 68, Ex. T. Sush replied to Barbarite that 37-39 High Street had been continuously occupied and was being maintained as a lawful nonconforming use. Doc. 68, Ex. S.

Throughout 2005 and 2006, Sue Flora ("Flora"), the then Village Code Enforcement Officer, made several inspections of the construction at 37-39 High Street. Defs.' 56.1 Stmt. ¶¶ 13-14. On December 21, 2006, Flora inspected the premises and issued a conditional certificate of occupancy to Kowalczyk for the four apartments in the front building, which was to expire on March 22, 2007. Doc. 56-1, Ex. F.*fn3 Additionally, on December 21, 2006, Kowalczyk received a building permit to renovate "four existing apartments [in the] rear portion of [the] building." Doc. 56-1, Ex. G.

Barbarite has been a resident of the Village since 1979, and resides within close proximity to 37-39 High Street. Doc. 69 ¶¶ 1, 12. He was appointed Deputy Village Manager in February 2007, and soon thereafter he visited 37-39 High Street while Kowalczyk was renovating apartments in the back building. Kowalczyk's 56.1 Stmt. ¶ 11. Barbarite told Kowalczyk that despite the fact that he had been issued a building permit, the work being performed was nonetheless in violation of various provisions of the Village Code and Multiple Residence Laws. Id.; Doc. 69 ¶ 19.

On February 27, 2007, Barbarite sent a letter to Kowalczyk advising him that the conversion of the property into a multiple residence was in violation of law. Doc. 56-1, Ex. H. Barbarite informed Kowalczyk that he would be required to submit plans by a licensed engineer if he wished to use the buildings as multiple dwellings, which would be subject to Planning Board approval. Id. On April 24, 2007, Barbarite sent another letter to Kowalczyk, stating that he had notified Kowalczyk on numerous occasions that all work at 37-39 High Street must cease until the necessary approvals were obtained, and threatened criminal charges if he did not stop construction. Id., Ex. I. Barbarite claims to have personally observed evidence of continued construction work at 37-39 High Street after the issuance of both such letters. Doc. 69 ¶ 24.

Defendant Barbarite was terminated as Deputy Village Manager in February 2008. Id. ¶ 25. In April 2008, one month after Defendant Jenkins was elected Mayor of the Village, Barbarite was appointed as Village Manager. Id.; Defs.' 56.1 Stmt. ¶ 28.*fn4 On May 7, 2008, Flora sent a letter to Kowalczyk stating that 37-39 High Street was in violation of the Multiple Residence Law, The Village Zoning Ordinances, and the New York State Building Code, and that the building would be vacated within thirty days due to unsafe conditions. Doc. 68, Ex. HH. The letter stated that the violations included an illegal conversion of vacant property to multiple residences and a warehouse into a residence without an approved building and zoning permit. The propert[y] conversions have several deficiencies and code violations causing the dwellings to be [un]inhabitable and unsafe to the occupants.

Id. She further communicated that Kowalczyk was required to submit a report and plans from a licensed engineer or architect within thirty days showing how the property would be brought into compliance to prevent the property from being vacated. Id.

Rather than submit the necessary plans, on May 19, 2008, Kowalczyk filed an application for renewal of the December 21, 2006 building permit he had been issued. Doc. 68, Ex. KK; see Doc. 56-1, Ex. G. On May 23, 2008, a meeting was held to discuss Kowalczyk's application, at which Kowalczyk, Barbarite and Jenkins were present, along with other Village officials. Doc. 69, Ex. H. Village representatives stated that Kowalczyk's property was in violation of the Multiple Residence Law and the Village Code because it had been vacant for several years at the time he purchased it, but Kowalczyk insisted that he had the right to make repairs. Id. Village officials stated that if he did not hire an engineer or architect to bring the property into compliance within a reasonable period of time, the Village "would take the necessary steps to order the buildings demolished." Id. Kowalczyk then filed a complaint in the instant matter before this Court on August 5, 2008.

Sometime before June 15, 2009, Kowalczyk submitted a site plan for his property to the Planning Board. Doc. 68, Ex. OO. Defendant Jenkins reviewed the proposed site plan, and found it to be deficient in various respects. Id. He also concluded that 37-39 High Street could not be a lawful nonconforming use, as the property had been vacated and unoccupied for a period in excess of one year as evidenced by water department records. Id. On June 23, 2009, the Planning Board convened to review Kowalczyk's proposed site plan. Id., Ex. PP. Counsel for Kowalczyk appeared before the Planning Board in an attempt to negotiate a compromise through which Kowalczyk's property could be "grandfathered" in as a multiple dwelling nonconforming use. Id., Ex. PP at 7. However, Members of the Planning Board responded that the Board could not approve a site plan that was not in compliance with the zoning code, and that Kowalczyk would be required to apply for a variance to the Zoning Board of Appeals. Id. at 8-9. Consequently, Kowalczyk's site plan for 37-39 High Street was rejected. Id. at 9. Nowhere in the record before the Court is there any evidence that Kowalczyk subsequently applied to the Zoning Board of Appeals for a variance.

Despite the Planning Board's rejection of his site plan, on November 30, 2009, James Carnell ("Carnell"), the then Code Enforcement Official for the Village, issued Kowalczyk a building permit and a certificate of occupancy for four apartments and an office space for property management, all located in the front building. Doc. 56-1, Ex. J, Ex. K. On December 11, 2009, Carnell issued Kowalczyk another building permit to renovate two existing apartments in the back building, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.