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Sacher v. Vill. of Old Brookville

United States District Court, E.D. New York

September 4, 2013

HOWARD AND JACQUELINE SACHER, Plaintiff,
v.
VILLAGE OF OLD BROOKVILLE, VILLAGE OF OLD BROOKVILLE BOARD OF TRUSTEES, VILLAGE OF OLD BROOKVILLE PLANNING BOARD, VILLAGE OF OLD BROOKVILLE ZONING BOARD OF APPEALS, BERNARD D. RYBA (Mayor), MICHAEL DERGARABEDIAN, RICHARD SHAPER, MATTHEW SCHAMROTH, MARILYN GENOA (Board of Trustees), LAURENCE M. WERFEL, JAMES FARRELL WILLIAM CLARK, DR. KEVIN GLASSMAN (Planning Board), LISA LAROCCA, DOROTHY YOUNG DAVIDOW, EILEEN FARRELL (Zoning Board of Appeals), MATTHEW MOED (Building Inspector), JOHN CHASE (Village Attorney), Defendants

For Plaintiff: ANGELO G. FERLITO, ESQ., Copiague, New York.

For Defendants: STEVEN C. STERN, ESQ., MARK RADI, ESQ., SOKOLOFF STERN, LLP, Carle Place, New York.

OPINION

Page 664

MEMORANDUM AND ORDER

LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE.

Plaintiffs Howard and Jacqueline Sacher (" Plaintiffs" or the " Sachers" ) bring this civil rights action alleging that actions taken by Defendants in connection with Plaintiffs' zoning applications violated their Constitutionally protected civil rights. The Sachers are homeowners in the Village of Old Brookville (the " Village" ). The local entities named as Defendants are the Village, its Planning Board and the Village Zoning Board of Appeals (the " ZBA" ). Also named as Defendants are individual members of the Village entities named, as well as Village Mayor Bernard D. Ryba, Matthew Moed, the Village building inspector and Village Attorney John Chase.[1]

Page 665

Plaintiff's Amended Complaint (hereinafter " Complaint" ) sets forth two federal causes of action pursuant to 42 U.S.C. § 1983 (" Section 1983" ). Those claims allege violation of the Sachers' Constitutionally protected rights to equal protection and due process of law. Presently before the court is Defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Complaint for failure to state a claim. For the reasons that follow, the motion is denied in part and granted in part.

BACKGROUND

I. Factual Background

The facts set forth below are drawn from the Complaint and construed in the light most favorable to Plaintiffs. Also considered are other documents properly before the court in the context of this motion, including the decisions of the Village ZBA, and that of the Supreme Court of the State of New York, County of Nassau. See Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993) (when considering motion to dismiss court properly considers factual allegations of complaint as well as documents incorporated by reference, matters of which judicial notice may be taken, and documents known to and relied upon by plaintiff).

A. The Plaintiffs' Home and the Cottage

The Sachers are owners of a home which sits on a three acre parcel of land located within the Village. The home includes various improvements including a pool, pool house and squash court. In 2008 or 2009, Plaintiffs constructed, without seeking a building permit or other approval, an addition to a pre-existing accessory cottage located on their property (the " Cottage" ). The additions to the Cottage included adding to the square footage of the first floor as well as construction of a new second story. The newly expanded Cottage was built in the violation of various Village zoning codes, including those specifying the allowable amount of floor coverage and setback requirements. Since its expansion, Plaintiffs' daughter has resided in the Cottage with her family.

B. Plaintiffs' Variance Requests and the ZBA Hearing

After completion of the Cottage, Plaintiffs sought to legalize the construction by seeking several variances and rulings with respect to both the building and their daughter's occupancy therein. With respect to the residency issue, Plaintiffs acknowledged that their daughter's permanent residency violated current zoning rules, but sought to establish that the Cottage was continually used as a residence, and therefore the residency was permissible as a vested non-conforming use.

The Village ZBA held a hearing on Plaintiffs' applications and members of that board visited the Cottage. At a hearing on Plaintiffs' applications, the ZBA heard the testimony of Plaintiffs' next-door neighbor who stated that since the addition of the second story, he could see the Cottage from his property. He testified further that the enlarged Cottage significantly altered the character, nature and ambiance of the Village, was detrimental to the character of the neighborhood and was visually offensive to his surroundings. Defendant Village Trustee Richard Shaper (" Shaper" ) and Defendant ZBA members Lisa LaRocca (" LaRocca" ) and Eileen Farrell (" Farrell" ) visited the Sachers' property to observe the Cottage. LaRocca

Page 666

noted its large size, and that the Cottage could be seen from the neighbor's property. Shaper agreed that the Cottage was visible from the neighbor's property. Farrell noted that the Cottage was prominently visible from the street.

The ZBA also heard testimony and reviewed documents with respect to the necessity for adding a second story to the Cottage, and the Sachers' right to maintain the structure as a permanent residence. As to the necessity of the second story, Howard Sacher testified that it was needed to provide storage space in a building with no basement. The ZBA noted the availability of storage space throughout the Sacher property, including the 6,840 square foot main house, and a three car garage that was stated to having been used for storage. With respect to the residency issue, the Sachers attempted to show, as noted, that the Cottage was continually used as a residence in a manner sufficient to allow it to be maintained as such as a vested non-conforming use. The ZBA considered documents and testimony regarding the residency issue, the substantial nature of the requested variances, the impact upon physical or environmental conditions, and the self-created nature of the Sachers' zoning predicament.

C. The Decision of the ZBA

The Sachers' application was granted in part and denied in part. Specifically, the ZBA granted all variances necessary for the Sachers to maintain the first floor additions to the Cottage. While the ZBA denied the Sachers' claim of a vested right to continual residential nonconforming use, it allowed a variance for the continued use of the Cottage as a permanent residence by Plaintiffs' daughter and her family. While the ZBA thus allowed the requested variances with respect to the first floor and residency of the Cottage, it denied those that would have legalized the second story addition thereto. The Defendant-ZBA members LaRocca, Farrell and Dorothy Young Davidow voted in favor of the foregoing decision of the ZBA.

D. Article 78 Appeal of the Decision of the ZBA

In a proceeding commenced pursuant to Article 78 of the New York CPLR, the Sachers appealed the decision of the ZBA. On December 5, 2012, Supreme Court, Nassau County (the " Article 78 Court" ) issued a decision affirming that of the ZBA. The Article 78 Court stated first the standard of review to be applied, noting that the determination of the ZBA would not be disturbed so long as it properly weighed the benefits of granting the requested variances against any detriment to the health, safety and welfare of the community. Affirming the ZBA decision, the Article 78 Court stated that there was no evidence that the ...


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