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24 Franklin Ave. R.E. Corp. v. Heaship

United States District Court, S.D. New York

March 30, 2017

24 FRANKLIN AVE. R.E. CORP. and MARC CASTALDI, Plaintiffs,
v.
THOMAS HEASHIP as a member of the Planning Board of the Town/Village of Harrison, ALICE AURUTICK as a member of the Planning Board of the Town/Village of Harrison, ANTHONY SPANO as a member of the Planning Board of the Town/Village of Harrison, RAYMOND A. KRAUS as a member of the Planning Board of the Town/Village of Harrison, NONIE REICH as a member of the Planning Board of the Town/Village of Harrison, MARSHALL DONAT as a member of the Planning Board of the Town/Village of Harrison, MARK RINALDI as a member of the Planning Board of the Town/Village of Harrison, STEPHEN MALFITANO as a member of the Board of Trustees of the Town/Village of Harrison, JOHN CANNELLA as a member of the Board of Trustees of the Town/Village of Harrison, ROBERT PALADINO as a member of the Board of Trustees of the Town/Village of Harrison, THOMAS SCAPPATICCI as a member of the Board of Trustees of the Town/Village of Harrison, PAT VETERE as a member of the Board of Trustees of the Town/Village of Harrison, STEPHEN MALFITANO individually, and as Supervisor/Mayor of the Town/Village of Harrison, and ROBERT W. FITZSIMMONS as Building Official of the Town/Village of Harrison, Defendants.

          Joseph C. Messina, Esq. Law Office of Joseph C. Messina Mamaroneck, NY Counsel for Plaintiffs

          David S. Klausner, Esq. Law Office of David S. Klausner, PLLC White Plains, NY Counsel for Plaintiffs

          Mark N. Reinharz, Esq. Richard S. Finkel, Esq. Bond, Schoeneck & King, PLLC Garden City, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

         Plaintiffs 24 Franklin Ave. R.E. Corp. and Marc Castaldi (together, “Plaintiffs”), bring this Action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that Defendants violated the substantive and procedural due process and equal protection clauses of the Fourteenth Amendment. (See generally Am. Compl. (Dkt. No. 1.)[1] Four of Plaintiffs' § 1983 causes of action, and Plaintiffs' § 1988 cause of action, are asserted against Defendants Thomas Heaship, Alice AuRutick, Anthony Spano, Raymond A. Kraus, Nonie Reich, Marshall Donat, and Mark Rinaldi as members of the Planning Board of the Town/Village of Harrison, against Defendants Stephen Malfitano, Joseph Cannella, Robert Paladino, Thomas Scappaticci, and Pat Vetere as members of the Board of Trustees of the Town/Village of Harrison, and against Defendant Stephen Malfitano as Supervisor/Mayor of the Town/Village of Harrison, and Defendant Robert W. Fitzsimmons as Building Official of the Town/Village of Harrison (collectively, “Defendants”).[2] Plaintiffs' remaining § 1983 cause of action is asserted against Malfitano individually.[3] Both Plaintiffs and Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). (Dkt. Nos. 72, 77.) For the reasons given below, Plaintiffs' Motion is denied and Defendants' Motion is granted.

         I. Background

         A. Factual Background

         While there is much in dispute in this case, the Parties clearly do agree on certain facts.

         Plaintiffs own real property in Harrison, New York. (Pls.' Rule 56.1 Statement of Undisputed Facts (“Pls.' 56.1”) ¶ 1 (Dkt. No. 73); Defs.' Resp. to Pls.' Rule 56.1 Statement (“Defs.' 56.1 Resp.”) ¶ 1 (Dkt. No. 82); Defs.' Rule 56.1 Statement (“Defs.' 56.1”) ¶¶ 1-2 (Dkt. No. 79); Pls.' Resp. to Defs.' Rule 56.1 Statement (“Pls.' 56.1 Resp.”) ¶¶ 1-2 (Dkt. No. 87).) When Plaintiffs purchased the properties located at 24 and 30 Franklin Avenue, they were each improved by a single-family dwelling and had a total frontage of 150 feet, and a depth of 100 feet. (Pls.' 56.1 ¶¶ 5-6; Defs.' 56.1 Resp. ¶¶ 5-6.) At the time of acquisition, the properties were zoned B-Two Family. (Pls.' 56.1 ¶ 4; Defs.' 56.1 Resp. ¶ 4.) The B-Two Family classification requires minimum lot sizes measuring 50 feet by 100 feet. (Pls.' 56.1 ¶ 7; Defs.' 56.1 Resp. ¶ 7.) On or about February 27, 2007, Plaintiffs filed a subdivision application with the Town/Village of Harrison Planning Board (“Planning Board”) to turn the two existing lots at 24 and 30 Franklin Avenue into three new lots measuring 50 feet by 100 feet. (Pls.' 56.1 ¶ 8; Defs.' 56.1 Resp. ¶ 8; Defs.' 56.1 ¶ 6; Pls.' 56.1 Resp. ¶ 6.)[4] The subdivision application went before the Planning Board for sketch plan and State Environmental Quality Review Act (“SEQRA”) review. (Pls.' 56.1 ¶ 10; Defs.' 56.1 Resp. ¶ 10.) The Parties do not dispute that the subdivision application indicated that the single-family dwelling at 24 Franklin Avenue was to remain. (Pls.' 56.1 ¶ 13; Defs.' 56.1 Resp. ¶ 13; Defs.' 56.1 ¶ 26; Pls.' 56.1 Resp. ¶ 26.)

         With the application pending before the Planning Board, on June 1, 2007, Plaintiffs submitted drawings to the Architectural Review Board (“ARB”) for a new two-family dwelling to be located at 24 Franklin Avenue. (Pls.' 56.1 ¶ 13; Defs.' 56.1 Resp. ¶ 13.) Plaintiffs did not amend their subdivision application to reflect the intended construction of a new building at 24 Franklin Avenue. (Pls.' 56.1 ¶ 13; Defs.' 56.1 Resp. ¶ 13; Defs.' 56.1 ¶ 26; Pls.' 56.1 Resp. ¶ 26; see also Pls.' 56.1 ¶ 14; Defs.' 56.1 Resp. ¶ 14.)

         On June 20, 2007, the Planning Board held a hearing on Plaintiffs' subdivision application, during which members of the public voiced concerns about Plaintiffs' application and the proposed construction, including concerns about, among other things, parking, landscaping, and “transient” renters. (Pls.' 56.1 ¶¶ 15-16; Defs.' 56.1 Resp. ¶¶ 15-16.) It was suggested at the meeting that if the public wished to change the neighborhood zoning allowing the construction of two-family dwellings, the issue should be raised with the Town Board of Trustees. (Pls.' 56.1 ¶ 18; Defs.' 56.1 Resp. ¶ 18.) The Planning Board meeting was then adjourned until July 24, 2007. (Pls.' 56.1 ¶ 18; Defs.' 56.1 Resp. ¶ 18.)

         On July 6, 2007, Plaintiffs filed applications for building permits for the construction of two-family dwellings at 24 and 30 Franklin Avenue, (Pls.' 56.1 ¶ 19; Defs.' 56.1 Resp. ¶ 19; Defs.' 56.1 ¶ 32; Pls.' 56.1 Resp. ¶ 32), and on July 18, 2007 applied for a demolition permit for the existing structure at 30 Franklin Avenue, (Pls.' 56.1 ¶ 20; Defs.' 56.1 Resp. ¶ 20).

         On July 12, 2007, neighborhood homeowners presented a petition to the Board of Trustees formally requesting that the area be rezoned to restrict development of two-family dwellings. (Pls.' 56.1 ¶ 21; Defs.' 56.1 Resp. ¶ 21.)

         On July 24, 2007, the hearing before the Planning Board was continued, at which time the Planning Board issued Resolution 2007/33, a final approval on Plaintiffs' subdivision application (“Final Subdivision Plat Approval”). (Aff. of Mark N. Reinharz, Esq. (“Reinharz Aff.”) Ex. 12 (“Final Plat Approval Resolution”) (Dkt. No. 80).) The Final Subdivision Plat Approval granted Plaintiffs permission to subdivide the parcel into three new lots and retain the existing structure on lot number one, 24 Franklin Avenue. (Defs.' 56.1 ¶ 22; Pls.' 56.1 Resp. ¶ 22.) That approval was conditioned on no changes being made to the plans without prior approval of the Planning Board. (Final Plat Approval Resolution 2-3.) The Planning Board also adopted a negative declaration pursuant to SEQRA on Plaintiffs' application. (Pls.' 56.1 ¶ 29; Defs.' 56.1 Resp. ¶ 29; Defs.' 56.1 ¶ 21; Pls.' 56.1 Resp. ¶ 21; Reinharz Aff. Ex. 11, at 2 (“Negative SEQRA Decl.”).)[5]

         On July 31, 2007, the Planning Board issued Resolution PB2007/28, positively recommending the zoning amendment which would prohibit the construction of two-family homes on Plaintiffs' land. (Pls.' 56.1 ¶ 31; Defs.' 56.1 Resp. ¶ 31.)

         On August 14, 2007, the ARB approved the proposed structures for 24 and 30 Franklin Avenue. (Pls.' 56.1 ¶ 33; Defs.' 56.1 Resp. ¶ 33.)[6]

         On September 5, 2007, Plaintiffs applied for a demolition permit for the existing structure at 24 Franklin Avenue and on September 9, 2007, received the requested permit. (Pls.' 56.1 ¶ 40; Defs.' 56.1 Resp. ¶ 40.) The structure was demolished on September 10, 2007. (Pls.' 56.1 ¶ 40; Defs.' 56.1 Resp. ¶ 40.)

         On September 19, 2007, Plaintiffs received a letter from Robert Fitzsimmons, the Town's Building Official, denying the building permit for the proposed structure at 24 Franklin Avenue and instructing Plaintiffs that “[w]ith the removal completed of the existing structure that was known as 24 Franklin Ave, [Plaintiffs] now need to amend both the filed subdivision plat and the S-1 and S-2 site plans dated March 5, 2007 to reflect said change.” (Pls.' 56.1 Resp. ¶ 37; see also Defs.' 56.1 ¶ 37; Reinharz Aff. Ex. 6, ¶ 61.)

         On September 20, 2007, the Board of Trustees passed a resolution adopting Local Law No. 4, which rezoned Block 52, the location of the lots, from “B” (two-family residences) to “R-50” (one-family residences). (Pls.' 56.1 ¶ 32; Defs.' 56.1 Resp. ¶ 32; Defs.' 56.1 ¶ 29; Pls.' 56.1 Resp. ¶ 29.) Local Law No. 4 would not permit construction of two-family dwellings in the absence of a zoning variance. (Defs.' 56.1 ¶ 41; Pls.' 56.1 Resp. ¶ 41.)

         On September 21, 2007, Plaintiffs submitted a building permit application for a two-family dwelling at 28 Franklin Avenue. (Defs.' 56.1 ¶¶ 38-39; Pls.' 56.1 Resp. ¶¶ 38-39; Reinharz Aff. Ex. 19.) On September 24, 2007, Plaintiffs received a letter from Building Official Fitzsimmons, informing them that their permit application was denied because

[t]he property is located in a R-50 Zoning District and pursuant to § 235-9A the Table of Use Regulations of the Code of the Town/Village of Harrison that were amended on September 20, 2007 changing the Zoning District from a “B” one or two family zone to a R-50 zone allowing only one family residences. The application for the new two family residence will require a use variance to be granted.

(Reinharz Aff. Ex. 20.) Plaintiffs did not seek a variance, (Defs.' 56.1 ¶ 42; Pls.' 56.1 Resp. ¶ 42), and instead filed an action in New York State Supreme Court in November 2007, (Defs.' ...


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