United States District Court, S.D. New York
[Copyrighted Material Omitted]
For Plaintiff: Dennis E. A. Lynch, Esq., Feerick Lynch MacCartney, Esq. South Nyack, NY.
For Plaintiff: Mary Elizabeth Brady Marzolla, Esq., MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, NY.
For Defendants: Lewis R. Silverman, Esq., Jennifer H. Pymm, Esq., Samantha Velez, Esq., Rutherford & Christie, LLP, New York, NY.
OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
This is a case that demonstrates that law, like life, can be a game of inches. Plaintiff Brendan Cunney brought the instant Complaint against Defendants Board of Trustees of the Village of Grand View, New York (" Board" ); Zoning Board of Appeals for the Village of Grand View, New York (" ZBA" ); and Joseph Knizeski, in his official capacity as Building Inspector of the Village of Grand View-on-Hudson (" Knizeski" ) (collectively, " Defendants" or " Village" ), alleging multiple claims arising out of Defendants' application of a height-restriction zoning ordinance to Plaintiff's property. Before the Court is Defendants' Motion for Summary Judgment. For the following reasons, the Court grants Defendants' Motion in part and denies it in part.
A. Factual Background
Gladstone Estates, LLC (" Gladstone" ) is a New York limited-liability company that Plaintiff and his brother formed in mid-2005. ( See Pl.'s Resp. to Defs.' Local Rule 56.1 Statement (" Pl.'s 56.1 Statement" ) ¶ ¶ 1, 3 (Dkt. No. 69).) On October 28, 2005, Gladstone, which is not a party in this Action, took title to a piece of property within the Village of Grand View-on-Hudson, NY. ( See Decl. in Support (" Defs.' Decl." ) Ex. N, at unnumbered 2 (Dkt. No. 58) (unofficial copy of recorded deed).) Since at least September 30, 2005, when Plaintiff accepted a proposal from John Atzl (" Atzl" ), made on behalf of Atzl, Scatassa & Zigler Land Surveyors, P.C. (" ASZLS" ), for " surveying and planning services," Plaintiff intended to develop this piece of property for residential use. ( See Defs.' Decl. Ex. P (Atzl proposal, submitted on August 29, 2005, and accepted by Plaintiff on September 30, 2005).)
Of the two " residential districts" within the Village, the subject property was located in " Zone B," also known as " R-10." ( See Defs.' Decl. Ex. L, at unnumbered 3 (excerpt of the village's zoning law); Defs.' Local Rule 56.1 Statement (" Defs.' 56.1 Statement" ) ¶ 16 (Dkt. No. 65).) The requirements applicable to that zone are contained in Chapter IX of the Village of Grand View-on-Hudson Zoning Law (" Village Zoning Law" ). ( See Aff. in Opp'n (" Pl.'s Decl." ) Ex. A (" Village Zoning Law" ) (Dkt. No. 67).) At the time Gladstone took title to the property, and at all relevant times during this litigation, section E of that chapter (" section E" ) contained a restriction on the height of any building constructed within Zone B:
It being the purpose of this section, among others, to preserve as nearly as practicable the remaining views [of] the Hudson River from River Road, no building shall be erected in Zone B . . . which shall rise more than two stories in height nor more than four and one-half
. . . 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.
( Id. at IX.E.) Moreover, the Village Zoning Law separately defined " easterly side of River Road" to mean " the point at which the road surface of River Road intersects with the easterly curb adjacent to River Road," adding that the referenced " point of intersection is commonly referred to as the 'gutter.'" (Defs.' Decl. Ex. L, at 4.)
In addition to outlining the requirements applicable to houses constructed within Zone B, the Village Zoning Law also outlined the procedures a property owner had to follow in order to build, and then occupy, a house. First, to commence construction, the owner had to obtain site-plan approval and a building permit. ( See Village Zoning Law, at XII.A.1, XIV.D.1(c)(1).) To obtain the former, the owner had to submit an application to the Village's Planning Board (" Planning Board" ). ( See id. at XIV.D.1(c)(2).) The Planning Board then had to hold a public hearing, after which it would approve or disapprove the application. ( See id. at XIV.D.1(c)(3)-- (5).) Having received site-plan approval, the owner, or " the agent, architect, landscape architect, engineer or builder employed in connection with the proposed work," had to submit an application for a building permit to the Village's Building Inspector--who was, at all relevant times, Defendant Knizeski--along with copies of relevant building plans, site plans, surveys, and supporting documents. ( See id. at XII.A.2-5.) The Building Inspector could then, in his discretion, approve the application, at which point construction could commence. ( See id. at XII.C.1.)
Second, after constructing but before occupying a house, the owner had to obtain a certificate of occupancy (" CO" ). ( See id. at XII.H.) To do so, " [t]he owner or his/her agent" had to " make [an] application." ( Id. at XII.H.4.) Prior to issuing a CO, the Building Inspector was required to " examine or cause to be examined all buildings, structures and sites for which an application for a Building Permit . . . has been filed." ( Id. at XII.I.) Thereafter, the Building Inspector would determine whether " the proposed work ha[d] been completed in accordance with the applicable building codes, local laws, rules and regulations, and also in accordance with the application, plans[,] and specifications filed in connection with the issuance of the Building Permit." ( Id. at XII.J.1.) Upon finding that the work was completed " in accordance" with these requirements, the Building Inspector was required to issue the CO. ( See id. (" When . . . it is found that the proposed work has been completed in accordance with the applicable [requirements], the Building Inspector . . . shall issue a [CO]." (emphasis added)).) However, if the Building Inspector " found that the proposed work ha[d] not been properly completed," he was required to deny the application. ( See id. at XII.J.1-2 (" If it is found that the proposed work has not been properly completed, a [CO] . . . shall not be issued. . . ." (emphasis added)).)
Plaintiff first sought approval a site plan for the subject property in early 2006. At a February public hearing before the Planning Board, Atzl (the surveyor) presented a proposal that involved construction of a two-story home and relocation of a " small home" that was already on the site and that Plaintiff wished to use as a pool
house. ( See Defs.' Decl. Ex. I, at 1 (Planning Board hearing minutes).) The Planning Board voted to " grant preliminary site plan approval" subject to the condition that Plaintiff obtain a height variance from the ZBA. ( Id. at 4.) However, at an April hearing, the ZBA denied Plaintiff's request. Atzl testified that he had determined that " [t]he elevation at the bottom of the curb at the edge of River Road [was] 29.1 feet," meaning that, to comply with section E, the proposed house could be no taller than 33.6 feet--four-and-a-half feet above River Road. (Defs.' Decl. Ex. J, at unnumbered 1 (ZBA April 2006 hearing minutes).) Atzl then testified that the " height of the highest point of the highest roof" of the proposed house was 43.7 feet, meaning that Plaintiff was requesting a variance of 10.1 feet. ( Id.) Initially, one of the ZBA members noted that " the primary issue is where the measurement was taken," because " [t]he elevation of River Road varie[d] significantly along the boundary of the [subject] property" --from 30 feet at the southern end to 24 feet at the northern end. ( Id.) Atzl testified that " he measured from the middle of the lot," where the elevation was 29.1 feet, because " there is no statement [in the code] as to where the height is derived." ( Id. at unnumbered 2.) One ZBA member offered an interpretation of section E that appeared to support Atzl, stating that the measurement should be taken " at any given point above River Road." ( Id. at unnumbered 9.) However, another member stated that " [t]he height should be measured at the lowest point of the road" because " the ordinance was written to protect the views of the community along River Road." ( Id.) A third member appeared to support this interpretation, which would effectively require applicants to obtain " the maximum variance." ( Id.) Applying that interpretation to Plaintiff's application, that member calculated that the elevation at the lowest point of the road was 24 feet, triggering an allowable height of 28.5 feet, and thus requiring Plaintiff to obtain a 15.2-foot variance (53 percent higher than the allowed height) for his 43.7-foot-high house. ( See id.) Ultimately, although the ZBA did not appear to adopt a particular interpretation of section E, the hearing minutes indicate that the ZBA construed Plaintiff's application to request a 53 percent variance (implying that the ZBA measured from the lowest point of the road), and that it unanimously denied the application so construed. ( See id. at unnumbered 10.)
Plaintiff then sought approval of a revised site plan at a Planning Board hearing held on September 14, 2006. Although the Planning Board did not grant approval at that hearing, it ultimately granted approval after Plaintiff made necessary changes. ( See Defs.' 56.1 Statement ¶ 33.) Apparently, none of the changes related to the height of the proposed house, and Plaintiff did not have to request a height variance. Notably, Defendants concede that this site plan " was within the height and size restrictions of the Village Zoning
Law," but it is unclear, from the record, how the Planning Board made this determination. ( See id.)
Subsequently, Knizeski approved Plaintiff's building-permit application on October 19, 2006, ( see Defs.' Decl. Ex. Q, at unnumbered 3 (building permit); see also Pl.'s Decl. Ex. K, at unnumbered 2 (Letter from Knizeski to Plaintiff, Oct. 19, 2006)), and construction began. Within a month of granting the building permit, and then approximately two weeks after that, Knizeski conducted discretionary on-site inspections of the property and reported " satisfactory results." ( See Defs.' Decl. Ex. K, at unnumbered 1-2 (Knizeski's " daily log entries" related to Plaintiff's property); Defs.' Decl. Ex. R, at unnumbered 3-4 (inspection reports).) Then, in January 2007, apparently after a neighboring property owner alerted him to a potential issue with the house's height, Knizeski requested that Atzl submit a letter certifying that the house would comply with section E. ( See Defs.' Decl. Ex. K, at unnumbered 2; Defs.' Decl. Ex. S (Letter from Knizeski to Plaintiff, Jan. 17, 2007 (" [B]e advised that a letter from your engineer will be required as soon as possible to certify that the height of your new house does not exceed that as stated in [section E]." ).) Five days later, Atzl submitted the requested letter, noting that his office " performed an 'under construction' survey of the home" and that " [t]he elevations taken [were] in conformance with the approved site [p]lan," in that " [t]he elevation of the highest part of the roof line [would] not be more than [four-and-a-half] feet of the easterly side of River Road." (Defs.' Decl. Ex. T (Letter from Atzl to Knizeski, Jan. 22, 2007).) Knizeski received the letter, but no further action was taken until May 23, 2007, when, at a Department Chair meeting attended by Knizeski, the Planning Board Chair, the ZBA Chair, the Village Clerk, and the Village Attorney, the Village Clerk promised to ask John Collazuol (" Collazuol" ), the Village Engineer, to confirm Atzl's height certification. ( See Defs.' Decl. Ex. K, at unnumbered 2; Defs.' 56.1 Statement ¶ 57.)
Collazuol conducted his own survey and reported the results in a July 2007 letter to the Village Clerk, which stated that " the roof ridge of the new dwelling [was] [four feet nine inches] above the high point of pavement on the easterly side of River Road. Therefore, the ridge of the building [was] [three inches] greater than allowed." (Defs.' Decl. Ex. U, at unnumbered 1 (Letter from Collazuol to Village Clerk, July 17, 2007).) The Parties do not dispute that, in making this determination, Collazuol measured from the highest point of River Road. ( See Defs.' 56.1 Statement ¶ 59; Defs.' Decl. Ex. U, at unnumbered 2 (survey drawing, indicating that Collazuol used an elevation of 30 feet and measured a roof-ridge height of 34.75 feet); see also Defs.' Decl. Ex. DD, at 15 (Collazuol Dep.)
Plaintiff submitted an application for a CO on August 29, 2007. ( See Defs.' 56.1 Statement ¶ 61; Defs.' Decl. Ex. Q, at unnumbered 15 (CO application, submitted by Plaintiff and his wife).) Shortly thereafter,
on September 13, the Planning Board Chair sent a letter to Collazuol requesting " a survey of the roof heights at . . . [five] locations" Atzl used in the site plan as measurement reference points. (Defs.' Decl. Ex. V (Letter from Planning Board Chair to Collazuol, Sept. 13, 2007).) Collazuol completed the survey on October 22 and thereafter submitted his results to the Village Clerk in an October 30 letter. According to Collazuol,
[t]he [as-built] roof heights . . . [were] somewhat consistent with the site plan . . . except for at [one of the five stations]. . . . However, due to the circumstances [he found] that the building and roofs [had] been constructed substantially in accordance with the plans submitted by the Architect in that the building [was] no greater in height than that as proposed.
(Defs.' Decl. Ex. U, at unnumbered 3 (Letter from Collazuol to Village Clerk, Oct. 30, 2007).) Furthermore, Collazuol recommended that " [t]he diminimous [sic] difference in roof height should be neglected as [it fell] within typical building tolerances, ie. [sic] 0.90 ft. or 10 inches." ( Id.)
In his letter, Collazuol also included a finding " that the elevations of the road surface [were] inconsistent with the site plan and are lower than previously indicated." ( Id.) This statement referred to an error in the site plan that Atzl discovered in an as-built survey he completed on September 18, 2007. ( See Defs.' 56.1 Statement ¶ 71.) In short, although Atzl had conducted field measurements of the road elevations when he prepared the site plan, in the final site plan he unintentionally used data from Rockland County topographical maps that turned out to be incorrect. ( See Defs.' Decl. Ex. J, at unnumbered 17-18 (ZBA February 2008 hearing minutes).) This resulted in a two-foot discrepancy between the site-plan elevations and the real-world elevations, such that the allowable height was two feet lower than expected. ( See id. at unnumbered 18.) Atzl reported his error to Collazuol before Collazuol submitted his October 30 letter, but Collazuol's finding that the house exceeded the height restriction by 10 inches did not account for the error. ( See Defs.' 56.1 Statement ¶ ¶ 75-78.)
In response to Collazuol's letter, the Planning Board Chair requested a meeting with Collazuol to discuss his findings. ( See Defs.' Decl. Ex. V, at unnumbered 2 (Letter from Planning Board Chair to Collazuol, Nov. 9, 2007).) At that meeting, which was also attended by the ZBA Chair and the Village Attorney, it was determined that Collazuol would prepare a new report based on the real-world elevation measurements. ( See Defs.' 56.1 Statement ¶ ¶ 82-85.)
Collazuol submitted that report on December 11, 2007, in a letter to Knizeski. ( See Defs.' Decl. Ex. U at unnumbered 5-6 (Letter from Collazuol to Knizeski, Dec. 11, 2007).) A " Grade Sheet" attached to the letter contained Collazuol's final measurements for the road elevations and as-built roof elevations at the same five measurement stations used in the site plan and in his October 30 report. ( See id. at unnumbered 6.) According to Collazuol's calculations, at the two stations measuring garage-roof elevations, the as-built elevation was lower than the planned elevation, and the as-built elevation fell below the allowable elevation under section E. ( See id.) However, at the other three stations, all of which measured a roof elevation at the " highest ridge," the as-built elevation was higher than the planned elevation, and the as-built elevation exceeded the allowable elevation by between 0.83 inches and 2.95 inches. ( See id.) In the letter, Collazuol explained that " [t]he as-built difference in the chart shows that at [one of the
five stations], the dimension of 2.95 ft. is greater than allowed," and he noted that " [t]his [was] the maximum difference of all the locations." ( Id. at unnumbered 5.) He further explained that the " roof elevation" at that station was " 0.25 ft. greater than the allowable when measured from the edge of River Road along the south property line projected (which elevation [was] 29.25 ft.)." ( Id.) Based entirely on this report, Knizeski sent a letter to Plaintiff on December 12, 2007, informing him that, " [a]t this time, [his] Application for Certificate of Occupancy must be denied based on the Report received from [Collazuol] . . . that confirms that the elevation of roof height exceeds that as described in [section E]." (Defs.' Decl. Ex. Q, at unnumbered 17 (Letter from Knizeski to Plaintiff, Dec. 12, 2007).)
Plaintiff appealed Knizeski's denial of the CO to the ZBA, requesting that the Village either grant his CO application or grant a height variance. ( See Defs.' Decl. Ex. J, at unnumbered 12-14.) Notably, with regard to the former, Plaintiff's specific request was " for an interpretation of the definition of 'height' in the Zoning Law." ( Id. at 12.) The ZBA held two hearings, one on February 26, 2008, and the other on April 7, 2008, to consider Plaintiff's appeal. ( See Defs.' Decl. Ex. J, at unnumbered 12, 25.) At the second hearing, in response to Plaintiff's request for an interpretation of 'height,' the ZBA unanimously passed a motion finding that
the Zoning Law is not ambiguous with respect to the manner in which building height is measured in the R-10 Zoning District for the reasons that the definition of " Height" in the Zoning Law states that buildings are measured vertically and, when read together with the definition of " Easterly Side of River Road" clearly requires that to determine whether a building height exceeds [four-and-a-half] feet above River Road, the measurement is taken from the point at which the road surface intersects with the curb vertically to the highest point of the roof. The word " vertical" in Webster's New World Dictionary is defined as " perpendicular, or at a right angle, . . . upright, straight up or down, . . ."
( Id. at unnumbered 35.) In this context, the ZBA also found that Plaintiff " [did] not have standing to raise the question of ambiguity inasmuch as he and his consultants measured the height of the building in accordance with the Zoning Law definition." ( Id.) In other words, the ZBA found that the methodology Plaintiff employed was consistent with the Village Zoning Law.
The ZBA then proceeded to consider Plaintiff's request, in the alternative, for " a variance from [section E] to permit the maintenance and use of a single family
dwelling having a height of 7.5 feet above the easterly side of River Road instead of the maximum permitted of 4.5 feet." ( Id. at unnumbered 12.) In light of Plaintiff's argument that lowering the roof would be too costly and disruptive, the ZBA considered whether Plaintiff would agree to move his pool house to a different part of the property, and thereby open up a view to the river. ( See id. at unnumbered 21). Plaintiff's attorney stated that " [Plaintiff] would agree to this," and noted that it would be " less expensive than re-configuring the top of the house." ( Id. at unnumbered 36.) The ZBA also asked Plaintiff whether it would be less expensive to demolish the pool house instead of moving it, but Plaintiff noted that " it would still be costly." ( Id. at unnumbered 37.) Plaintiff's wife then testified that " it [was] financially devastating to [her and her husband] to carry two homes" and, in an apparent effort to achieve a quick resolution of the dispute, Plaintiff stated that " he would remove the pool house from its current location to mitigate the view if the height variance [were] granted." ( Id. at unnumbered 37-38.) The ZBA then moved to close the hearing. ( Id. at unnumbered 38.)
Ultimately, the ZBA unanimously granted Plaintiff's request for a variance, subject to three conditions:
1. That the [pool house] shall be removed from its present location prior to issuance of a [CO] for the residence;
2. That there shall be an open and unobstructed view on the northerly side of the property for the entire northerly side yard plus an area running in a diagonal line from the northeasterly corner of the residence through the northeasterly corner of the existing pool, then to the River . . . ;
3. That no structures shall be constructed at any time within the open, unobstructed area described in [the paragraph outlining the second condition] . . . .
( Id. at unnumbered 40.) The ZBA also made findings necessary to support their decision, including that " although the variance [was] substantial, the removal of the poolhouse [sic] and maintenance of the unobstructed river view mitigates the negative impact of the height of the residence," that " the removal of the poolhouse [sic] is a feasible alternative to requiring the applicant to remove three feet from the height of the house," and that " the benefit to [Plaintiff] by not requiring the removal of three feet of the height of the house [was] great and the detriment to the community [was] lessened by the" variance's conditions. ( Id. at unnumbered 41.)
B. Procedural History
Although at the ZBA hearing Plaintiff appeared to indicate that he would agree to the conditions the ZBA ultimately imposed, Plaintiff ultimately did not comply with the conditions, and he therefore did not obtain either the variance or the CO. Instead, Plaintiff initiated lawsuits in state and federal court challenging the Village's denial of his CO application.
1. State Court
On October 9, 2008, Plaintiff filed an Article 78 Petition in New York Supreme Court, alleging that, procedurally, the ZBA's decision failed to comply with New York state laws and that, substantively, the ZBA's " imposition of conditions" on Plaintiff was " unreasonable," " outside of [ZBA's] jurisdiction," and was " not consistent with the spirit and intent of the zoning local law." ( See Defs.' Decl. Ex. D (petition).) On March 31, 2009, the court issued an order denying the petition on the substantive ground, finding that " there [was] nothing irrational or unreasonable about the ZBA's interpretation of the term
'height' in the Village's zoning code," and that there was " nothing impermissible about the conditions [the ZBA] imposed" on Plaintiff's variance. ( See Defs.' Decl. Ex. E, at unnumbered 1 (Supreme Court decision).) However, the court granted the petition with regard to one of Plaintiff's procedural arguments, holding that the ZBA violated New York's Open Meetings Law, N.Y. Pub. Off. Law § § 100 et seq., because the ZBA " vot[ed] on the resolution in question in closed session at the April 7, 2008 meeting." ( Id. at unnumbered 2.) The court then " annulled" the ZBA's decision and remanded the matter to the ZBA " for formal decision in open session on the petitioner's application for a variance." ( Id. at unnumbered 1.)
Defendants appealed that decision, and on April 20, 2010, the Appellate Division reversed the Supreme Court's judgment on the procedural ground, holding that the lower court correctly found that the ZBA violated the Open Meetings Law, but that the court " improperly annulled the ZBA's determination on th[at] basis." (Defs.' Decl. Ex. F, at 2-3 (Appellate Division decision).) The court therefore " confirmed" the ZBA's determination and " dismissed [the proceeding] on the merits." ( Id. at 2.)
2. Federal District Court
On the same day that Plaintiff filed his Article 78 Petition, he filed a civil action in New York Supreme Court against Defendants and against Atzl and Atzl's firm (" Atzl Defendants" ), alleging that section E was unconstitutionally vague, both on its face and as applied to Plaintiff, and that Defendants deprived him of substantive due process, entitling him to damages under 42 U.S.C. § 1983, and alleging that Atzl Defendants " were negligent in the performance of surveying" Plaintiff's land, entitling him to damages under state law. ( See Compl. ¶ ¶ 22-40 (Dkt. No. 1).) Defendants removed the action to federal court on November 5, 2008. ( See Dkt. No. 1.)
The case was originally assigned to Judge Conner, who allowed Plaintiff to file a Motion for Summary Judgment against Defendants in January 2009. ( See Dkt. No. 6.) In addition to opposing that Motion, Defendants filed a Motion To Dismiss in February 2009. ( See Dkt. No. 13.) Before Judge Conner decided those motions, the case was reassigned to this Court in July 2009. ( See Dkt. No. 27.) Shortly thereafter, the case was again reassigned, this time to Judge William Young, a judge from the District of Massachusetts who was sitting by designation in the Southern District of New York. ( See Dkt. No. 28.)
After holding oral argument on the Parties' motions in October 2009, Judge Young issued an Order, on December 18, 2009, granting summary judgment for Defendants in full. ( See Mem. & Order (Dkt. No. 31).) First, Judge Young rejected Plaintiff's as-applied claim, holding that " a person of reasonable intelligence could discern what activities are prohibited," ( id. at 8), and recognizing that " the ordinance could encourage potentially arbitrary or ad hoc enforcement," ( id. at 11), but nevertheless holding that Plaintiff's property " [fell] within the core goals of [section E]" and that it " fell squarely within the proscribed height" as defined by the statute's " core meaning," ( id. at 11-12). Second, Judge
Young rejected Plaintiff's facial claim, holding that Plaintiff could not meet his burden to show that section E " is impermissibly vague in all of its applications" where he had failed to show that section E was impermissibly vague in his own application. ( See id. at 14-15.) Finally, Judge Young rejected Plaintiff's substantive-due-process claim, holding that Plaintiff had no constitutionally protected property interest in the CO " [b]ecause the property was not in compliance with a zoning law," and thus Knizeski " used his discretion to properly deny the [CO]." ( Id. at 16.) Accordingly, Judge Young granted summary judgment for Defendants and he entered an Order dismissing the case. ( See Dkt. No. 32 (Judgment, filed Dec. 21, 2009).)
Shortly after Judge Young entered the judgment, Plaintiff filed what Judge Young interpreted to be a motion for reconsideration, arguing that Judge Young should not have dismissed the entire case because the Parties' motions addressed only Plaintiff's claims against Defendants, and thus the court's order should not have dismissed Plaintiff's claim against Atzl Defendants. ( See Dkt. No. 33).) Judge Young granted Plaintiff's Motion, and on January 20, 2010, he entered an amended judgment vacating the prior judgment in full, entering judgment " in favor of the Village defendants only," and remanding the case " to the New York Supreme Court for the state law malpractice claim against [Atzl Defendants]." (Dkt. No. 34 ...