Casciani v. Nesbitt
| Decision Date | 06 October 2009 |
| Docket Number | No. 08-CV-6162L.,08-CV-6162L. |
| Parties | John CASCIANI, Plaintiff, v. Ronald NESBITT, Town Board Supervisor, In his Individual and Official capacity, Town of Webster, Defendants. |
| Court | U.S. District Court — Western District of New York |
Christina A. Agola, Rochester, NY, for Plaintiff.
Joshua Isaac Feinstein, Adam W. Perry, Hodgson Russ LLP, Buffalo, NY, for Defendants.
DECISION AND ORDER
Plaintiff, John Casciani, commenced this action under 42 U.S.C. § 1983 against defendants the Town of Webster, New York ("the Town") and Webster Town Board Supervisor Ronald Nesbitt, alleging that defendants violated plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution. Specifically, this action arises out of defendants' enactment of an ordinance ("the ordinance") prohibiting any private aircraft from taking off or landing anywhere within Webster, a suburb of Rochester, N.Y. Plaintiff is a Webster resident who owns a helicopter that he has, in the past, flown from and to a landing pad that he has constructed on his property.
Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. # 10). Plaintiff has cross-moved to amend his complaint pursuant to Rule 15(a) (Dkt. #13).
On April 17, 2009, the Court issued an order ("Rule 12(d) Order") (Dkt. #21) notifying the parties of the Court's intention to convert defendants' motion to dismiss to a Rule 56 motion for summary judgment, under Rule 12(d) of the Federal Rules of Civil Procedure. Pursuant to that order, the parties have submitted additional evidence and other papers. See Dkt. ## 22-28.
Having reviewed all the motion papers and the evidence before me, I conclude that defendants are entitled to summary judgment. Defendants' motion is therefore granted, plaintiff's cross-motion to amend his complaint is denied, and the complaint is dismissed.
In 2003, plaintiff purchased a helicopter for his personal use. To accommodate that use, plaintiff constructed a fourteen-square-foot concrete landing pad on his residential property in Webster.
When plaintiff bought and began flying his helicopter, the Town of Webster Code contained no provisions expressly dealing with private aviation or private airports within the Town. A state statute, however, New York General Business Law § 249, did provide in part that "[n]o person shall ... establish a privately-owned airport ... except by authorization of the governing body of the city, village or town in which such airport or any part thereof is proposed to be established or improved." For purposes of the statute, an "airport" is "any locality ... which is used or intended to be used for the landing and take-off of aircraft...." See N.Y. Gen. Bus. L. § 240(4), (5) ().
Plaintiff alleges that shortly after he began operating his helicopter on his property, George Winter, the Town's code enforcement officer, cited plaintiff for over a dozen code violations, mostly for matters that were not directly or explicitly related to plaintiff's helicopter, such as having unregistered motor vehicles parked on his property. Plaintiff alleges that other, similarly situated Webster residents were not so charged. According to plaintiff, the purpose of the citations was to harass him because of plaintiff's continued use of his helicopter.
Plaintiff alleges that in November 2004, the Town's attorney, Charles Genese, asked plaintiff to "come down and make [the use of his helicopter] legal," apparently meaning that plaintiff should seek the Town's authorization to operate a private airport under § 249. Amended Complaint ¶ 34. Although plaintiff asserted that he was in compliance with all applicable laws, Genese responded that some Town officials disagreed, and he again asked plaintiff to attend an upcoming Town Board meeting to "make it legal." Amended Complaint ¶ 39.
Plaintiff did attend a meeting of the Town Board in January 2005. In advance of the meeting, plaintiff prepared a "heliport proposal," which he describes as "an extremely supportive document regarding Plaintiff's use of his helicopter on his personal land." Amended Complaint ¶ 47. The proposal included letters from some of plaintiff's neighbors, as well as the local fire, police and highway departments, "all attesting to the benefits of the helicopter." Amended Complaint ¶ 48.
At the meeting, plaintiff distributed copies of his proposal to the Board members. Plaintiff alleges, however, that after publicly "humiliating, ridiculing, harassing and belittling" plaintiff for two and a half hours, then-Town Supervisor Cathryn Thomas declared that a public hearing would be held, at a local auditorium, for the express purpose of addressing plaintiff's operation of his helicopter. Amended Complaint ¶ 52.
Subsequent to the January meeting, Genese spoke again with plaintiff, and allegedly asked plaintiff to "withdraw [Plaintiff's] application [under § 249]." Amended Complaint ¶ 53. Since that appears to be the first mention made in the complaint of any such application, it is not clear if that was a reference to plaintiff's "heliport proposal," or if plaintiff had previously submitted a formal application for authorization of an "airport" pursuant to § 249.
In any event, Genese allegedly told plaintiff that the Town was preparing to draft an ordinance of some kind regulating the operation of private aircraft within Webster, but he assured plaintiff that plaintiff would be "grandfathered in," and that plaintiff would be allowed to continue flying his helicopter. Based on Genese's assurances, plaintiff withdrew his application.
The Town then formed a committee to establish zoning laws regulating the use of private aircraft and airports within Webster. For the next year, while the zoning law committee was drafting the proposed regulations, plaintiff continued to fly his helicopter as before, and, according to him, he continued to be harassed as before through the Town's selective enforcement of various property ordinances.
In February 2006, defendants completed a proposed ordinance concerning private aircraft and airports within Webster. As then drafted, the proposed ordinance provided for the creation of restricted districts within which aircraft could operate, for special use permits, and for variances with respect to aircraft use. See Pl. App. vol. I, Ex. R. Public notice of the proposed ordinance was given and a public hearing was scheduled for March 2, 2006.
Plaintiff and his then-attorney attended the hearing, and voiced their opposition to the proposed ordinance. Although the proposed ordinance would have allowed for private heliports in certain areas, and in other areas with a special use permit, plaintiff apparently believed that the ordinance was unduly restrictive in certain respects. Through his attorney, plaintiff objected to a number of aspects of the proposal, including its prohibition of commercial aircraft operation within Webster, and the process for obtaining the Town's approval of operation of a private heliport, which plaintiff considered too cumbersome and time-consuming. See Minutes of Mar. 2, 2006 Town Board Meeting, Pl. App. vol. I, Ex. S, at 89. Plaintiff also voiced numerous other objections to many details of the proposed ordinance. Id. at 89-96.
Plaintiff alleges that Ronald Nesbitt (who had succeeded Thomas as the town supervisor) then "sua sponte legislated from the Webster Town [sic] by proposing a motion that prohibited the flying and landing" of all private aircraft with the exception of "ultralite/sport experimental aircraft." Amended Complaint ¶ 71. According to plaintiff, Nesbitt's proposals were significantly more restrictive than the ordinance that had been proposed by the zoning committee. Plaintiff alleges that Nesbitt's proposed "ban on all private airplane and helicopter landings and a ban on all private airports and heliports was [sic] not part of the proposed law that was before the public on March 2, 2006." Amended Complaint ¶ 73.
Following that meeting, the Board drafted a new ordinance based on Nesbitt's proposals. Plaintiff alleges that the Town Board then "convened a much smaller meeting," and passed the new ordinance on April 6, 2006. Amended Complaint ¶ 74.
The new ordinance—the stated purpose of which is to "address the operation of private airports and heliports and the operation of private aircraft in the Town of Webster and to provide for the protection of the health, safety, and welfare of the residents of the Town," Dkt. #6 Ex. A at § 76-3—added Chapter 76 to the Town of Webster Code. That chapter, entitled "Aircraft, Airports, and Heliports, Private," provides in part that "[e]xcept as provided otherwise in this chapter, no private airplanes, private helicopters, private balloons, private hang-gliders, or private rotorcraft of any kind shall be permitted to take off or land or discharge or take on passengers within the boundaries of the Town of Webster." Dkt. #6 Ex. A at § 76-4. The ordinance also provides that "[n]o private heliport or airport will be permitted to be built within the boundaries of the Town of Webster." Id. at § 76-5. Plaintiff does not dispute that the operation of his helicopter and the maintenance of his landing pad fall within the scope of the prohibitions set forth in the ordinance.
The ordinance does contain several exemptions from its general prohibitions against the operation of private aircraft and airports. Specifically, the ordinance does not apply to the landing of private "ultralight aircraft,"1 to aircraft landing or taking off from publicly owned airports, or to publicly owned and operated airports themselves. Id. at §§ 76-7, 76-8. No exemption is made for helicopters, nor was plaintiff "grandfathered in," as he had allegedly been promised by Genese.
Plaintiff...
To continue reading
Request your trial
-
Augusto Fernandes, Maria Fernandes, Acf Family Holding Corp v. Moran
...v. Gross, 826 F. Supp. 2d 542, 553 (S.D.N.Y. 2011) (taking judicial notice of Cornwall-on-Hudson zoning code); Casciani v. Nesbitt, 659 F. Supp. 2d 427, 451 n.11 (W.D.N.Y. 2009) (taking judicial notice of Webster Town Code), aff'd, 392 F. App'x 887 (2d Cir. 2010); Nelson v. City of Rocheste......
-
Soundview Assoc.s v. Town Of Riverhead
...is permitted to take judicial notice of provisions of the Riverhead Town Code on a motion to dismiss. See, e.g., Casciani v. Nesbitt, 659 F.Supp.2d 427, 451 n. 11 (W.D.N.Y.2009) (taking judicial notice of Webster Town Code); Nelson v. City of Rochester, 492 F.Supp.2d 282, 284 n. 1 (W.D.N.Y.......
-
Batchelor v. City of N.Y.
...for inferring that this belief is true. Plaintiff's bare allegation expressing her belief is insufficient. See Casciani v. Nesbitt, 659 F.Supp.2d 427, 463–64 (W.D.N.Y.2009) (finding that the plaintiff's “subjective beliefs and naked allegations, unsupported by any facts, of a generalized an......
-
Sloup v. Loeffler
...is not simply the act of singling out, but rather that the singling out is done in such an arbitrary way.” Casciani v. Nesbitt, 659 F.Supp.2d 427, 435 (W.D.N.Y.2009) (quoting Flying J Inc. v. City of New Haven, 549 F.3d 538, 547 (7th Cir.2008)). There was sufficient evidence from which the ......