S&R Development Estates, LLC v. Bass

• Decision Date: 26 September 2008
• Docket Number: No. 07 Civ. 11112(WCC).,07 Civ. 11112(WCC).
• Citation: 588 F.Supp.2d 452
• Parties: S&R DEVELOPMENT ESTATES, LLC and John Doe Nos. 1 Through 75, Plaintiffs, v. Steven BASS, Eddie Mae Barnes, Paul Feiner, Diana Juettner and Francis Sheehan, Constituting the Town Board of the Town of Greenburgh, Westchester County, New York; Steven Belasco, Malcolm Baumgartner, Eve Bunting-Smith, Nicholas Decicco, Lawrence Doyle, Rohan Harrison and Daniel Rosenblum, Constituting the Zoning Board of Appeals of the Town of Greenburgh, Westchester County, New York; Mark Stellato, Commissioner of the Department of Community Development and Conservation of the Town of Greenburgh; and John and Jane Doe, Defendants.
• Court: U.S. District Court — Southern District of New York

588 F.Supp.2d 452

S&R DEVELOPMENT ESTATES, LLC and John Doe Nos. 1 Through 75, Plaintiffs, v. Steven BASS, Eddie Mae Barnes, Paul Feiner, Diana Juettner and Francis Sheehan, Constituting the Town Board of the Town of Greenburgh, Westchester County, New York; Steven Belasco, Malcolm Baumgartner, Eve Bunting-Smith, Nicholas Decicco, Lawrence Doyle, Rohan Harrison and Daniel Rosenblum, Constituting the Zoning Board of Appeals of the Town of Greenburgh, Westchester County, New York; Mark Stellato, Commissioner of the Department of Community Development and Conservation of the Town of Greenburgh; and John and Jane Doe, Defendants.

No. 07 Civ. 11112(WCC).

United States District Court, S.D. New York.

September 26, 2008.

Bleakley Platt & Schmidt, LLP, White Plains, NY (William P. Harrington, of Counsel), for Plaintiffs.

Landman Corsi Ballaine & Ford P.C., New York, NY (James M. Woolsey, III, Jerry A. Cuomo, of Counsel),for Defendants.

OPINION AND ORDER

CONNER, Senior District Judge.

Plaintiffs, S & R Development Estates, LLC ("S & R") and John Doe Nos. 1 though 75 ("Doe plaintiffs"), bring this action under 42 U.S.C. § 1983 against defendants, Steven Bass ("Bass"), Eddie Mae Barnes ("Barnes"), Paul Feiner ("Feiner"), Diana Juettner ("Juettner") and Francis Sheehan ("Sheehan") (collectively the "Town Board defendants"); Steven Belasco, Malcolm Baumgartner, Eve Bunting-Smith, Nicholas DeCicco, Lawrence Doyle, Rohan Harrison and Daniel Rosenblum (collectively the "Zoning Board of Appeals (`ZBA') defendants"); Mark Stellato ("Stellato"), the Town of Greenburgh (the "Town") and John and Jane Doe, to obtain relief for defendants' actions that allegedly deprived plaintiffs of their property rights. Plaintiffs allege claims under the Due Process, Takings and Equal Protection Clauses of the United States Constitution; a claim for declaratory judgment pursuant to 28 U.S.C. § 2201; a claim pursuant to N.Y. C.P.L.R. Article 78 and a claim under the Fair Housing Act ("FHA"), 42 U.S.C. § 3601. Defendants moved to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the following reasons, defendants' motion is granted.

BACKGROUND

Plaintiffs allege the following in the Amended Complaint.

I. The Parties

S & R is a limited liability company in the Town of Harrison, New York. (Am. Complt.¶ 7.) The Doe plaintiffs are unidentified persons intended to represent the future residents of the multiple dwellings proposed to be constructed by S & R on the property at issue. (Id. ¶ 8.) Defendant Feiner is the Supervisor of the Town and a member of the Town Board. (Id. ¶ 10.) Defendants Bass, Barnes, Juettner and Sheehan are members of the Town Board. (Id. ¶ 11.) Defendant ZBA is the agency of the Town vested with the power to interpret and apply the Town's zoning ordinance. (Id. ¶ 12.) Defendant Stellato is the Commissioner of the Town's Department of Community Development and Conservation. (Id. ¶ 13.) The "Doe" defendants are unidentified persons or entities that engaged in unlawful conduct to deprive plaintiffs of their rights to the Property. (Id. ¶ 14.)

II. The Property

S & R acquired property (the "Property") on May 24, 2006 in Edgemont, an unincorporated area within the Town. (Id. ¶¶ 15, 17.) The Property was improved with one 3,200-square-foot single-family home and a swimming pool but is now vacant and undeveloped. (Id. ¶ 17.) It is situated at 1 Dromore Road a short distance east of Central Avenue, a heavily trafficked primarily commercial thoroughfare. (Id. ¶¶ 15, 16.) The Property is adjoined on the west by the Scarsdale Woods Condominiums, a 179-unit multi-family residential complex, and across Dromore Road to the north is the Nature Center property. (Id. ¶ 16.) At the time of acquisition, the Official Town of Greenburgh Zoning Map (the "Zoning Map") showed that the Property was in the Central Avenue Mixed Use Impact District (the "CA Zone"), which would allow development of a multi-family complex containing at least 82 bedrooms. (Id. ¶ 18.) According to the Greenburgh Town Code, the Zoning Map is "the final authority as to the current zoning classification of any land" in the Town. (Id. (citing Greenburgh Town Code § 285-7(A)).)

III. S & R's Pre-Acquisition Due Diligence

Before purchasing the Property, S & R's representatives examined copies of the Zoning Map from 1997, 2000, 2003 and 2006, all of which showed the Property situated in the CA Zone; no earlier versions of the Zoning Map were available. (Id. ¶¶ 19-21.) S & R's representatives met with Peter Gaito ("Gaito"), a licensed architect experienced with the Town's zoning ordinance, who confirmed that the Property was in the CA Zone and permitted use would include a multi-family development. (Id. ¶ 22.) S & R's representatives and Gaito met with Thomas Madden ("Madden"), the Town's Deputy Commissioner of Community Development and Conservation, at the Town Hall. (Id. ¶ 23.) Madden confirmed that the Property was zoned CA, reviewed the substantive zoning restrictions, stated that there should be no obstacles to development of a multi-family complex and expressed no concerns regarding the development's potential impact on the environment, open space, the Nature Center or water and sewer capacity. (Id. ¶¶ 24-25.)

S & R hired an appraiser, Howard Gelbtuch ("Gelbtuch"), who engaged Gary Spilatro ("Spilatro"), a licensed architect with zoning experience throughout Westchester County, to provide confirmation that the Property was in the CA Zone. (Id. ¶¶ 27-28.) Spilatro consulted the Official Zoning Map and was told by an employee in the Department of Community Development and Conservation that the map controls a parcel's zoning designation. (Id. ¶ 28.) Gelbtuch, based upon his own study and Spilatro's confirmation, valued the Property at $10,200,000 as of September 22, 2005. (Id. ¶ 29.) On May 24, 2006 S & R, closed on the Property, believing it was located in the CA Zone. (Id. ¶ 30.)

IV. Demolition and Development Plans

After acquiring the Property, S & R assembled a development team. Sullivan Architecture ("Sullivan"), the lead architect, conducted an independent review of the zoning designation and spoke with John Lucido ("Lucido"), the Town's Building Inspector, who confirmed that the Property was in the CA Zone. (Id. ¶¶ 31, 32.) On October 18, 2006, Sullivan advised S & R that a maximum of 75 one-bedroom apartments could be built on the Property. (Id. ¶ 33.) S & R proceeded with the demolition of the single-family home and swimming pool that were on the Property. To obtain the necessary demolition permit from the Town, S & R: hired Munson Company as surveyors to provide a new survey and topographical map; hired Galdun Frankel Environmental as environmental consultants to confirm that the Property contained no wetlands or water courses; retained Even Air, Inc. to perform necessary asbestos remediation and Testor Environmental Technologies, Inc. to perform air monitoring; had Consolidated Edison remove the electrical facilities; worked with the Town's Water and Sewer Department to perform a water-main disconnect; disconnected the phone and cable services; and had Robison Oil pump out the remaining oil in the above-ground oil tanks. (Id. ¶ 34.) The Town issued the Demolition Permit on December 1, 2006, demolition was conducted from December 6 through 12, 2006 and the Town issued a certificate of completion of demolition work on December 15. (Id. ¶ 36-37.)

Immediately after the demolition commenced, William Lawyer ("Lawyer"), the Executive Director of the Nature Center, told one of S & R's attorneys that the Nature Center would oppose any development of the Property containing more than one or two homes. (Id. ¶ 38.) Lawyer contacted Supervisor Feiner, who announced his opposition to development on the Property in a December 10, 2006 web log entry that stated his intention to "[i]nitiate effort to protect Greenburgh Nature Center from possible development [at] 1 Dromore Road." (Id. ¶ 39 (alterations in original).)

V. The Pre-Submission Meeting with the Town's Department of Planning and Conservation

On December 19, 2006, S & R's representatives, Sullivan, S & R's engineer and one of S & R's attorneys met with Commissioner Stellato and Deputy Commissioner Madden. (Id. ¶ 40.) S & R presented Stellato and Madden with an "as of right" development plan that would require no variances because it satisfied the requirements for development in the CA Zone. (Id. ¶ 41.) The plan was for a four-story building with 37 two-bedroom apartments that included generous "green corridors." (Id. ¶ 42.) The plan also called for indoor parking, which would increase construction costs and decrease the rentable square footage in the building, but would minimize any potential impact on neighboring properties. (Id. ¶ 43.) Neither Stellato nor Madden raised any objections or questions as to the Property's location in the CA Zone or as to the plan's compliance with the zoning ordinance; Stellato's only issue was that the plan needed 5,000 square feet of open space within the building envelope and Madden's concern was that "Type I" disturbances should be avoided. (Id. ¶ 44.) At the conclusion of the meeting, Stellato privately warned S & R's representatives that they should be aware of recent public comments by other Town officials in opposition to development of the Property. (Id. ¶ 46.)

After the meeting, S & R's representatives and development team met Supervisor Feiner in the hallway and Feiner suggested that S & R speak to the Nature Center about the development plan; S & R asked Feiner to arrange such a meeting and attend. (Id. ¶ 47.) That day S & R's representatives also met Lucido by chance, who advised them that the Town would delay S & R's progress toward approval of the development plan but eventually S & R would obtain the necessary approvals. (Id. 148.)

VI. The Proposed Moratorium

The Greenburgh Conservation Advisory Council voted on December 18, 2006 to...