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Witt v. Village of Mamaroneck

United States District Court, S.D. New York

March 31, 2014

THE VILLAGE OF MAMARONECK, THE VILLAGE OF MAMARONECK PLANNING BOARD and ROBERT MELILLO, individually and in his official capacity as the Building Inspector, Defendants

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[Copyrighted Material Omitted]

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For David Witt, Kinuyo Gochaku Witt, Plaintiffs: Debra Sue Cohen, LEAD ATTORNEY, Randolph M. McLaughlin, Newman Ferrara LLP, New York, NY.

For The Village of Mamaroneck, The Village of Mamaroneck Planning Board, Robert Melillo, Individually and in his Official Capacity as the Building Inspector, Defendants: Terry August Rice, LEAD ATTORNEY, Rice & Amon, Suffern, NY.

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Edgardo Ramos, U.S.D.J.

This case arises out of the efforts of a Westchester County couple to repair their home after it was rendered uninhabitable by Hurricane Irene. Plaintiffs David Witt and Kinuyo Gochaku Witt (together, " Plaintiffs" ) are residents of the Village of Mamaroneck (the " Village" ) who purchased their home in April 2009. Less than three years later, Hurricane Irene caused the Mamaroneck River to overflow, flooding Plaintiffs' home and causing substantial damage. Then followed a series of events, described in detail below, that prevented Plaintiffs from successfully completing the necessary repairs: they were initially issued a building permit but subsequently received a verbal stop-work order, after which they were required to seek a variance exempting them from certain local land use requirements. The end result was that Plaintiffs ran out of money to complete repairs, defaulted on their mortgage, and had foreclosure proceedings brought against them.

Plaintiffs bring suit, pursuant to 42 U.S.C. § 1983 (" Section 1983" ), against the Village, the Village of Mamaroneck Planning Board (the " Board" ) and Building Inspector Robert Melillo (" Melillo" ) (collectively, " Defendants" ). Doc. 4. Melillo is named both individually and in his official capacity. Id. Plaintiffs allege causes of action for equal protection, substantive due process, and procedural due process violations, along with a Monell claim against the Village.[1] Id. They also seek punitive damages from Melillo. Id. The gravamen of Plaintiffs' claims is that Defendants enforced arbitrary and burdensome legal requirements with respect to their repair efforts that had not been imposed on similarly situated homeowners. Presently before the Court is Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 8.

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For the reasons discussed below, Defendants' motion to dismiss is GRANTED.

I. Factual Background

The following facts are based on the allegations in the Amended Complaint, which the Court accepts as true for purposes of the instant motion. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).

Plaintiffs purchased their home for $366,500 in April 2009. Am. Compl. ¶ ¶ 14, 16. The home consisted of two stories and an unfinished basement. Id. ¶ 26. It was located across the street from the Mamaroneck River; there were homes on the other side of the street with backyards abutting the river. Id. ¶ 17.

In August 2011, the Village issued an evacuation notice in anticipation of Hurricane Irene. Id. ¶ 23. Plaintiffs evacuated, but their home--like most homes in the neighborhood-- suffered severe flood damage when the river overflowed. Id. ¶ ¶ 23-25. The flooding reached the first floor of the home, and the resultant damage rendered it uninhabitable. Id. ¶ ¶ 26-27.

Plaintiffs applied for a building permit on September 29, 2011. Id. ¶ 34. The process was delayed because Plaintiffs' flood insurance carrier required that an engineering inspection be performed before the claim could be processed, thus preventing them from hiring a contractor to begin repairs. Id. ¶ 35. Once the inspector's report was filed, Plaintiffs' contractor submitted plans for review by the Village's Building Department. Id. ¶ 37. The Village approved the building permit on November 29, 2011, by which point Plaintiffs' neighbors has " substantially completed" their own repairs. Id. ¶ ¶ 40-41.

Work on Plaintiffs' home began on December 5, 2011 and continued for four weeks, during which time the Village conducted three inspections of the property without incident. Id. ¶ ¶ 43-44. The entire project was expected to take eight to ten weeks and cost approximately $115,000. Id. ¶ 38. After the first four weeks, with approximately fifty percent of the repair work having been completed, Melillo visited the site and subsequently issued a verbal stop work order to Plaintiffs' contractor. Id. ¶ ¶ 45, 48-49. He did not provide an explanation or issue a written order stating the grounds for halting the project. Id. ¶ 50. Shortly thereafter, however, Melillo spoke to David Witt and indicated that he had issued the order because Plaintiffs' building permit had been issued in error. Id. ¶ 51.

Melillo informed Plaintiffs that he was deeming their repair work to be a " substantial improvement" under Chapter 186 of the Village Code. Id. ¶ 56.[2] In relevant part, the code defined " substantial improvement" as follows:

Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement. Substantial improvement also means " cumulative substantial improvement." The term includes structures which have incurred substantial damage, regardless of the actual repair work performed.

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Id. ¶ 57.[3] If a home was located in a flood plain, sustained " substantial damage" and required repairs that the Building Inspector deemed to be a " cumulative substantial improvement," the owners were required to reconstruct and elevate the foundation unless they obtained a variance from the Board. Id. ¶ 58. Though not discussed in any detail in the Amended Complaint, the apparent effect of Chapter 186 on Plaintiffs was that, by requiring the foundation to be elevated, the cost to repair the home was increased to an amount that Plaintiffs could not afford. The Board was authorized to grant variances upon (1) a showing of good cause, (2) a determination that the applicant would suffer exceptional hardship if the variance was not granted, and (3) a determination that the variance would not lead to increased flood heights, additional public safety threats, extraordinary public expense, nuisances, fraud on or victimization of the public, or conflicts with existing laws. Id. ¶ 63.

Initially, Melillo told David Witt that Plaintiffs needed to obtain a New York State variance prior to making their application to the Board. Id. ¶ 64. A state official, however, indicated that she did not think the repairs fell within Chapter 186's definition of " substantial improvement," such that a state variance would not be required. Id. ¶ ¶ 65-66. A site visit in late January 2012 confirmed that Plaintiffs did not need a state variance. Id. ¶ 67.

Melillo rejected Plaintiffs' offer to limit the work being done on their home so that the cost would not qualify as a " substantial improvement." Id. ¶ 71. When asked why the other residents in the neighborhood had been able to complete their repairs without a permit or a variance, Melillo told Plaintiffs that those residents had performed the work illegally or failed to file for permits, adding that Plaintiffs were " being punished for doing the right thing." Id. ¶ ¶ 72-73 (internal quotation marks omitted). Days later, Melillo informed David Witt that he had spoken to the Board and that Plaintiffs would " have a hard time getting this variance." Id. ¶ 76 (internal quotation marks omitted).

Plaintiffs submitted their variance application on January 27, 2012 and made a mandatory $2,000 escrow deposit to cover the Board's consultant fees. Id. ¶ 78. They also spoke with Village Manager Richard Slingerland, asking him why no other homes on their block had been required to obtain a variance. Id. ¶ 79. Slingerland told them that the other homes had obtained permits but that the work had been performed illegally and the Village was taking corrective measures. Id.

On February 6, 2012, Plaintiffs attended a meeting with Melillo and the Board's consultant, Susan Favarte. Id. ¶ 80. Favarte indicated that Plaintiffs would be eligible for a variance on the basis of hardship, but Melillo again indicated that it would be difficult for them to obtain a variance, explaining that he was " getting beat up by all these agencies and [the Federal Emergency Management Agency (" FEMA" )]." Id. ¶ ¶ 81-82 (internal quotation marks omitted).

Plaintiffs appeared before the Board on February 8, 2012. Id. ¶ 85. At the meeting, the Board's attorney told the Board that their decision could have ramifications because " other agencies" were monitoring the Village and the way it was handling Chapter 186. Id. ¶ 90. Plaintiffs were told to submit a Floodplain Development Permit Application and to meet with Melillo and the Village Engineer to identify the

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specific code sections from which they were requesting a variance. Id. ¶ 92. Melillo initially told them to apply for a variance from Chapter 186 in its entirety, but he subsequently contradicted this instruction and provided them with a written list of specific variances to request. Id. ¶ ¶ 93, 95. Plaintiffs did so, and the Board considered their application at a special meeting on February 15, 2012. Id. ¶ ¶ 97, 98. The Board's tone at the meeting was " antagonistic," with members expressing concern for future owners of the home but not for the hardships Plaintiffs were currently facing. Id. ¶ 99. The Board ultimately approved the variance with conditions that made subsequent purchasers responsible for elevating the foundation and required Plaintiffs to add notice of this restriction to the deed. Id. ¶ 101. At the same meeting, Melillo told Plaintiffs that certain variances still had to be obtained from New York State, a four- to six-month process. Id. ¶ 102. The Board voted on the variance at the end of that meeting and formally adopted it at a meeting held the following week. Id. ¶ 103.

By this point, Plaintiffs had run out of money to pay for the necessary repairs or to pay their mortgage. Id. ¶ 105. They defaulted on the mortgage, foreclosure proceedings commenced, and their credit was ruined. Id.

Plaintiffs filed suit on December 4, 2012 and amended their Complaint on February 15, 2013. Docs. 1, 4. They allege that, after ignoring other homeowners' unauthorized and non-compliant repair work, Defendants selectively enforced Chapter 186 against them in order to convince state and federal authorities that the Village was remedying its past failure to enforce flood-zone regulations. Am. Compl. ¶ 116.[4] Melillo allegedly told Plaintiffs that their variance was delayed, in part, because FEMA was conducting an audit and Plaintiffs' property was the claim being used to demonstrate how the Village handled variance applications. Id. ¶ 119.[5] According to Plaintiffs, they were singled out because they " lacked the local ties and political influence of many other homeowners," [6] and because of their delayed repair schedule. Id. ¶ ¶ 120, 122.

Defendants ask the Court to dismiss the Amended Complaint in its entirety. Doc. 8.

II. Ripeness Analysis Under Rule 12(b)(1)

Defendants' threshold argument in favor of dismissal is that Plaintiffs' federal claims are not ripe to the extent they are based on Melillo's stop work order or his determination that a variance and/or a floodplain permit was required. See Defs.' Mem. of Law in Supp. at 2-4. Because ripeness is a jurisdictional issue, it is properly considered under Rule 12(b)(1). See ...

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