Carminucci v. Pennelle

• Decision Date: 14 August 2020
• Docket Number: 18 CV 2936 (LMS)
• Parties: JOHN CARMINUCCI, et al., Plaintiffs, v. SAL PENNELLE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

JOHN CARMINUCCI, et al., Plaintiffs, v. SAL PENNELLE, et al., Defendants.

18 CV 2936 (LMS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 14, 2020

DECISION AND ORDER

LISA MARGARET SMITH, U.S.M.J.¹

Plaintiffs John Carminucci and Tin Can Holdings, LLC ("Plaintiffs") commenced this action by filing a complaint dated April 3, 2018, in the United States Court for the Southern District of New York. Complaint, ECF No. 1. Plaintiffs' Complaint included three claims:² (1) First Amendment retaliation pursuant to 42 U.S.C. § 1983; (2) violation of the Equal Protection Clause based on selective enforcement pursuant to 42 U.S.C. § 1983; and (3) an as-applied First Amendment challenge to the Town's sign regulation pursuant to 42 U.S.C. § 1983. Id. Defendants Sal Pennell, Beau P. DeSimone, and Town of Mount Pleasant ("Defendants") filed their Answer on May 30, 2018. Answer, ECF No. 19. Defendants have filed a motion for summary judgment. Mot. Summ. J., ECF No. 44. For the following reasons, the motion is granted in part and denied in part.

I. BACKGROUND³

Plaintiff Carminucci is the principal of Tin Can Holdings, LLC, which owns the property located at 989 Broadway ("the property") in the Town of Mount Pleasant. See Pltfs.' Reply to Defs.' R. 56.1 Statement and Counterstatement, ECF No. 52, pt. 2, ¶ 1.⁴ Since 2011, Plaintiff Carminucci has organized slates of candidates to run for positions within the Republican Town Committee to oppose officials loyal to both the Town Supervisor and Town Board members. Id. ¶¶ 134-35. Plaintiff Carminucci claims to have repeatedly confronted local elected officials at Town Board meetings with evidence of nepotism, accepting campaign contributions from persons and entities attempting to develop properties in the Town, and fraudulent petition-gathering practices. See id. ¶¶ 137-38.

Defendant Town of Mount Pleasant ("Town") is a municipal corporation governed by a Town Board. See id. ¶ 4. At all relevant times Defendant Pennelle served as the Building Inspector, and Defendant DeSimone⁵ served as the Assistant Building Inspector, for Defendant Town, unless otherwise noted. Id. ¶¶ 2-3. Defendant DeSimone reported to DefendantPennelle,⁶ who in turn reported to the Town Supervisor. See id. ¶¶ 5, 125, 186. Among their many roles, Defendants Pennelle and DeSimone enforced the Town Code. See id. ¶ 124.

A. Description of the Property

Plaintiff Carminucci purchased the property in 2002 and has since used it to operate an automotive repair garage. ECF No. 52, pt. 1, ¶¶ 4, 12. At the time of purchase, Plaintiffs submitted a detailed survey to the Building Department. ECF No. 52, pt. 2, ¶ 9. The Building Department subsequently certified the survey, noting that the property consisted of "[a] legal, non-conforming, one story, automotive repair shop, legal two-story two-family dwelling, one car garage (detached)," and that there were "no known violations on record for the premises." Id. ¶¶ 9, 19.

The property is an M-2 zone which designates "light industrial" properties, id. ¶ 8, and it is located on the corner of Broadway and Garrigan Avenue adjacent to residential homes on both sides. ECF No. 52, pt. 1, ¶¶ 2-3. At various times relevant herein, Plaintiff Carminucci storedvehicles⁷ and a boat⁸ on the property, and portions of the wooden fencing around the property had fallen down. Id. ¶¶ 12, 17, 19. Plaintiffs also rent a portion of the property to other businesses to store trucks. Defs.' Ex. H, at 382:21-387:21.

The area between the repair garage, Broadway, and Garrigan Avenue is paved with concrete.⁹ See ECF No. 52, pt. 1, ¶ 5; ECF No. 49 ¶ 53.5. The parties disagree on whether there are marked spaces on the paved property. ECF No. 52, pt. 1, ¶ 13. Other than a small, raised concrete, sidewalk-like area near the intersection of Broadway and Garrigan Avenue, there is nothing separating the paved portion of the property from the paved streets. Id. ¶ 6. At its closest point, the repair garage is set back 8.26 feet from Garrigan Avenue and 31.86 feet from Broadway. Id. ¶ 20. Thus, when Plaintiffs park vehicles on the Garrigan Avenue side, there is essentially no setback between vehicles and the roadway.¹⁰ Id. ¶ 21. The parties disagree as to how much space is available between Broadway and the parked vehicles.¹¹ Id. ¶ 22.

B. Relevant Town Code Provisions

Defendants submit that the property is governed by Chapter 218 of the Town Code ("the Zoning Ordinance") which regulates certain property uses. Id ¶ 42. Specifically, § 218-86 ("the Setback Law")¹² prohibits parking in any front yard unless granted a waiver by the Planning Board. Id. ¶ 26. Also relevant to this matter is § 218-23 ("the Special Use Permit Requirement") which requires that special use permit applications be submitted to the Zoning Board of Appeals ("ZBA") except where the Planning Board or Town Board is otherwise designated. Id. ¶ 44. Under § 218-33(H), special use permits shall be conditionally issued to motor vehicle repair garages for fifteen-year periods.¹³ Defs.' Ex. R, at 3-4. Furthermore, § 218-22 ("the Site Plan Requirement") requires that any special use permit application be accompanied by a site plan showing "the location of all buildings, parking areas, traffic access and circulation drives, open spaces, landscaping, topography, special features and any other pertinent information...." Id. ¶ 45.

Plaintiffs argue that the property is not subject to any of these standards because the property is grandfathered. Id. ¶¶ 42-45. Pursuant to § 218-88(A), "[s]tructures and land uses in existence ... at the time of the adoption of this chapter shall not be subject to the parking or loading space requirements of this chapter...." Defs.' Ex. M, at 1-2. The Town Code was enacted in 1958, see, e.g., Pltfs.' Ex. 67, at 1,¹⁴ and there is no dispute that the repair garage had been present on the property prior to the enactment of the Town Code.¹⁵ ECF No. 52, pt. 1, ¶ 8.

Additionally, the property is subject to Chapter 162 ("the Property Maintenance Law") of the Town Code which regulates the construction and maintenance of property, id. ¶ 54, and Chapter 176 of the Town Code ("the Sign Law") which regulates property signs. See Affirmation of Michael H. Sussman, ECF No. 51, Ex. 3.

C. History of the Property's Ownership

Prior to Plaintiff Carminucci purchasing the property, Walter Koch and Merge Essig operated a gas station and a motor vehicle repair shop on the property. ECF No. 52, pt. 1, ¶ 7. A gas station and repair garage were in existence on the property at the time that the Town Code was enacted, and therefore were both considered a legal, non-conforming uses. See id. ¶ 8. The gas pumps were located on the paved area between Broadway and the repair garage. Id. ¶ 11.Plaintiffs claim that the predecessors-in-title parked vehicles on both the Garrigan Avenue and Broadway sides of the repair garage. ECF No. 52, pt. 2, ¶¶ 11, 19.

On October 13, 1994, Mr. Koch appeared with counsel before the ZBA to apply to reinstate a special use permit for his motor vehicle repair shop. See ECF No. 52, pt. 1, ¶ 9; Defs.' Ex. B, at 1. During the hearing, counsel explained that Mr. Koch had discontinued the commercial gas station and removed all of the gas tanks except for a single tank meant for personal use.¹⁶ ECF No. 52, pt. 1, ¶ 9. The ZBA approved the special use permit application,¹⁷ and informed Mr. Koch that the permit was good for fifteen years and subject to the Town Code. See id. ¶¶ 46-47; see also Pltfs.' Ex. 67, at 1-2 (providing a copy of the special use permit).

After Plaintiff Carminucci purchased the property in 2002, he submitted a document labeled "site plan" to the Building Department as part of a building permit application. See ECF No. 52, pt. 1 ¶¶ 12, 45, 47-49.¹⁸ Defendants argue that this document was not submitted in conjunction with a special use permit to the ZBA, and therefore is not a site plan under the Site Plan Requirement. Id. ¶ 49. Plaintiffs respond that it was then-Building Inspector John Cuilla's job to bring the property into compliance with any required code provisions, and Mr. Cuilla did not advise Plaintiffs that they needed site plan approval from the ZBA or a special use permit. See id. Furthermore, Plaintiffs do not actually adhere to the parking arrangement depicted in thisdocument which shows vehicles parked along Broadway and between the repair garage and Broadway, and no parking between the repair garage and Garrigan Avenue. Id. ¶ 50.

D. Previous Town Code Litigation

Prior to the instant matter, Defendant Town inspected the property in response to several complaints. See Defs.' Ex. N, at 5-6, 13, 27, 49. These inspections resulted in several violation notices and arrests. Pltfs.' Exs. 2-4. On a few occasions, New York State courts have addressed zoning issues pertaining to the property.

In 2004, the Mount Pleasant Town Court convicted Plaintiff Tin Can Holdings, LLC, of violating three Town Code provisions pertaining to zoning. ECF No. 52, pt. 1, ¶ 25.

During or before March 2008, Plaintiff Carminucci petitioned the Westchester County Supreme Court to review the ZBA's determination as to whether the Setback Law applied to the property. Id. ¶ 27. Plaintiff Carminucci argued that it did not apply because the property was grandfathered. Id. The Court found that the predecessors-in-title had used the front yard along Broadway for a commercial gas pump. See Defs.' Ex. C, at 4. When the predecessors-in-title removed the gas pump, the predecessors-in-title effectively abandoned the grandfathered non-conforming use with respect to the gas pump and subjected the front yard along Broadway to the Setback Law.¹⁹ See id. In 2019, Plaintiff Carminucci admitted that he continued to parkvehicles in the setback even though this ruling subjected him to the Setback Law on Broadway. See Defs.' Ex. H, at 537:14-538:16

On March 21, 2011, Town Supervisor Joan Maybury filed a complaint²⁰ with the Building Department about...