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Savino v. Town of Southeast

United States District Court, S.D. New York

October 21, 2013

VITO SAVINO and SAVINO, INC., Plaintiffs,
v.
TOWN OF SOUTHEAST and CHARLES TESSMER, CODE ENFORCEMENT OFFICER, TOWN OF SOUTHEAST, sued in his individual capacity, Defendants

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[Copyrighted Material Omitted]

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For Vito Savino, Savino, Inc., Plaintiffs: Michael Howard Sussman, LEAD ATTORNEY, Sussman & Watkins, Goshen, NY.

For Town of Southeast, Charles Tessmer, Code Enforcement Officer, Town of Southeast, sued in his individual capacity, Defendants: Ralph L. Puglielle, Jr., Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, NY.

OPINION

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OPINION AND ORDER

NELSON S. ROMÁN, United States District Judge.

Plaintiffs Vito Savino and Savino, Inc. commenced the instant action pursuant to 42 U.S.C. § 1983 against the Town of Southeast (" Town" ) and Charles Tessmer (" Tessmer" ), a former town zoning code enforcement officer, seeking monetary damages for violating Plaintiffs' Fourteenth Amendment right to equal protection under the law. In their amended complaint, Plaintiffs allege that Defendants discriminatorily applied the facially neutral zoning laws on the basis of Savino's national origin, and alternatively that Defendants selectively enforced the zoning laws against Plaintiffs. Plaintiffs' state law malicious prosecution claim, also asserted in the amended complaint, has been withdrawn.

Defendants now move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment, asserting there is no genuine dispute of material fact and Defendants are entitled to judgment on Plaintiffs' selective enforcement claim as a matter of law. Defendants aver that Plaintiffs were not selectively treated compared with similarly situated property owners, that Plaintiffs cannot demonstrate impermissible considerations for selective treatment, and that Defendant Tessmer is entitled to qualified immunity. For the following reasons, Defendants' motion for summary judgment is denied.

I. THE FACTS

The facts are gleaned from the parties' 56.1 statements, affidavits, and exhibits submitted with this motion, and are not in dispute except where noted.

Plaintiff Vito Savino was born in Italy in 1946. Since 1974 he has lived in the Town with his wife, Gloria. Plaintiff Savino, Inc., a New York corporation formed in 1985 and currently owned by Vito Savino's four children, owns commercial real property located at 1011 Route 22, Brewster, New York (the " Property" ) and within the Town of Southeast. Neither party provides a history of ownership for Savino, Inc. The Property is in a prominent location in the Town, being near the junction of major highways. The Property is currently leased to an unrelated third party.

Defendant Town of Southeast is a municipal corporation located in the County of Putnam. Defendant Tessmer has lived in the Town since August of 1986. Since that time Tessmer has driven by the Property about seven or eight times per week. Tessmer was a member of the Town Planning Board from 1988 until September or

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October of 2006, and the Town's Zoning Enforcement Officer from October 2006 until December 2010. Tessmer's wife of 43 years is of Italian national origin.

Savino claims that in 1975 he purchased a towing business operating on the Property, but Defendants insist non-party Savino Towing, Inc. was the purchaser. The towing business was operated by Savino Towing, Inc. Incident to the towing business, Savino claims he would store and sell vehicles on site. Savino asserts that in 1983 he purchased the Property, upon which was already built gasoline pumps and a car repair facility with two service bays. Defendants dispute that Savino purchased the Property instead of Savino, Inc. (which was formed two years later), and assert that Savino has no ownership interest in Savino, Inc., though they point to nothing in the record showing Savino was not previously a shareholder of Savino, Inc. Since at least the 1960s and up until 1991, the Property was used as a gas station, to repair and sell vehicles, for towing, and to store vehicles incident to the towing and sales. At some point, Savino, Inc. began renting U-Haul trucks on site.

In 1991, Savino, Inc. sought approval from the Town Planning Board to convert the service bays into a convenience store. In addition to parking spaces for convenience store customers, the Site Plan specified parking spaces for the U-Haul trucks and outside storage of a dumpster. For the U-Haul trucks and dumpster, the Planning Board determined that Plaintiffs would need a variance from the Town Zoning Board. Plaintiffs' revised Statement of Use acknowledged that the proposed convenience store would sell basic consumer goods, delicatessen foods, and gasoline from the existing pumps; that the gasoline sales would require a special permit; and that parking the U-Haul trucks would require a variance. The Statement of Use did not mention towing or storage and sales of cars on the Property. According to the transcript of a Zoning Board meeting, Plaintiffs' engineer represented that there would be no towing business, while Savino mentioned that his towing had been effectively put out of business by the change in ownership of Interstate 84. However, Savino testified at his deposition that he only meant he was ceasing his heavy duty towing business and that he continued towing cars and selling them on the Property. On September 28, 1992, the Town Zoning Board approved the Site Plan. Defendants contend that Savino, Inc. abandoned the Property's pre-existing uses of towing, car storage, and car sales by not including them in the Site Plan. On May 14, 1993, upon completion of the construction project to convert the service bays into the convenience store, the Town's building inspector issued a Certificate of Occupancy and Compliance allowing occupation of the building and its use as a convenience store. Defendants argue that this Certificate of Occupancy identifies the use of the Property in its entirety.

From 1993 through 2005, non-party Savino Towing, Inc. operated the convenience store. In 2000, Plaintiffs ceased renting U-Haul trucks because Savino needed more space on the Property for his activities. On November 1, 2005, Savino Towing, Inc. leased the convenience store to non-party Prestige Petroleum, which currently operates the store and gas pumps under a 25-year lease. The lease agreement does not reserve any part of the Property for use by Savino Towing, Inc. or Plaintiffs. Plaintiffs removed all their records from the Property. After leasing the property, the parties dispute whether Plaintiffs' and Savino Towing, Inc.'s income was solely from leasing the Property to Prestige or also included towing and car sales through early 2008, when Savino says he ceased those uses after Defendants began

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citing him for zoning code violations. Defendants provide quarterly state and local tax filings by non-party Savino Towing, Inc. showing no income from December 2006 through November 2007, March 2008 through May 2011, and December 2011 through November 2012.

In December 2007, Tessmer in his capacity as Zoning Enforcement Officer claims he noticed that Savino, Inc. had unlicensed and unregistered vehicles stored on the Property, including one with a " for sale" sign. Tessmer asserts that he reviewed the Planning Board and Building Department files concerning the Property and saw the 1992 Site Plan approval of uses for gasoline sales, the convenience store, and U-Haul rental truck parking. On December 27, 2007, Tessmer issued Savino, Inc. a courtesy warning advising that the unregistered vehicles were parked on the Property in violation of Zoning Code § 138-13(E) and that failure to cure could result in formal enforcement action. On January 22, 2008, as the vehicles had not been removed, Tessmer issued Savino, Inc. an information alleging a violation of § 138-13(E), which prohibits " outside storage of inoperative, unlicensed and/or unregistered automotive vehicles." On the same day, Tessmer issued another information alleging a violation of § 138-58(E)(1), which prohibits " car, truck or trailer rentals or sales" at service stations. At the time, Savino admitted there were inoperative, unlicensed and/or unregistered vehicles and vehicles for sale parked on the Property.

Plaintiffs did not remove the vehicles in question after receiving the January 22 informations. Subsequently, on or about February 19, 2008, Tessmer issued a third information alleging a continuing violation of § 138-13(E). On March 13, 2008, Tessmer issued a fourth information alleging a continuing violation of § 138-13(E). Savino admitted that the inoperative, unlicensed and/or unregistered vehicles remained on the Property.

On May 12, 2008, upon seeing a car-towing trailer on the Property, Tessmer issued a fifth information, this time alleging a violation of § 138-13(C), which prohibits " [t]he placement or use of a trailer or shipping container . . . unless . . . used as a temporary office or storage facility in connection with an ongoing construction project." At the time, Savino admitted that the trailer in question was parked on the Property.

A court proceeding in the Town of Southeast ensued. Savino, Inc. moved pretrial to dismiss the informations because, inter alia, under CPL § 170.30(1)(f) there were legal impediments to conviction: namely, proof of registration and insurance, and a pre-existing nonconforming use of the Property for towing, car sales, and car storage. However, because the registration card was missing information, and because there were issues of fact concerning the pre-existing uses, the Town Court denied Savino, Inc.'s motion on February 23, 2009.

A bench trial commenced on November 9, 2009. After the Town rested its case that day, Savino, Inc. again moved for dismissal. Savino, Inc. argued that under CPL § 290.10 the Town's evidence was legally insufficient and that under CPL § 170.30(1)(f) the Town failed to disprove the pre-existing use defense beyond a reasonable doubt. On April 8, 2010, the Town Court partially granted the motion. As to the legal sufficiency argument, the Town Court dismissed the fourth information (second continuing violation), because there was no evidence presented as to a violation after February 2008, and the fifth information (trailer storage), because the trailer in question did not fit the definition of " trailer" in the Town Zoning Code. As

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to the pre-existing use argument, the Town Court noted that it was Savino, Inc.'s burden to prove the defense by a preponderance of the evidence and found that, based solely on the cross-examination of Tessmer, Savino, Inc. had not yet proven pre-existing use.

On May 12, 2010, during the pendency of the bench trial, Tessmer issued Savino, Inc. two informations for having an RV stored on the Property. The remainder of the bench trial occurred June 8 and 9, 2010. On July 16, 2010, the Town Court found Savino, Inc. " not guilty" of the three original informations. The Town ...


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