Christian v. Town of Riga

• Decision Date: 17 August 2009
• Docket Number: No. 08-CV-6557.,08-CV-6557.
• Citation: 649 F.Supp.2d 84
• Parties: Valentin CHRISTIAN, Plaintiff, v. TOWN OF RIGA et al., Defendants.
• Court: U.S. District Court — Western District of New York

649 F.Supp.2d 84

Valentin CHRISTIAN, Plaintiff, v. TOWN OF RIGA et al., Defendants.

No. 08-CV-6557.

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

August 17, 2009.

COPYRIGHT MATERIAL OMITTED

Valentin Christian, Churchville, NY, pro se.

J. Michael Wood, Chamberlain D'Amanda, Rochester, NY, for Defendants.

DECISION and ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Plaintiff Valentin Christian ("Christian" and/or "plaintiff"), brings this action alleging various counts against numerous defendants¹ including the tort of trespass, common law fraud, mail fraud under 18 U.S.C § 1341, wire fraud under 18 U.S.C. § 1343, Official Misconduct claims under New York Penal Law § 195, Conspiracy claims under 18 U.S.C. § 241, denial of right under color of law pursuant to 18 U.S.C. § 242, denial of due process and equal protection rights under 42 U.S.C. § 1983, false advertising in violation of New York State Penal Law § 190.20 and RICO claims under 18 U.S.C. §§ 1961-1968. In twenty-four causes of action, plaintiff alleges that defendants engaged in various acts of illegal behavior. Defendants now move to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim or alternatively for a more definite statement under Rule 12(e). Plaintiff moves to amend his Amended Complaint. For the reasons set forth below, defendants' motion to dismiss is granted and plaintiff's motion to amend is denied as moot. Accordingly, plaintiff's Amended Complaint is dismissed.

BACKGROUND

Unless otherwise noted, the facts as set forth in this Decision and Order are drawn from plaintiff's Amended Complaint, as is appropriate on consideration of a Rule 12(b)(6) motion to dismiss, including documents incorporated by reference or upon which plaintiff relied in drafting the complaint, as well as from public documents. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (When determining sufficiency of plaintiff's claim for Rule 12(b)(6) purposes, consideration is limited to factual allegations in amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff's possession or of which plaintiff had knowledge and relied on in bringing); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 511 (S.D.N.Y.1997).

On or about December 7, 2005, plaintiff submitted an application for a permit to build a 149 foot tall tower on his property with a wind turbine and antenna attached to general electricity to his residence and radio waves to his ham radio located therein. See Am. Comp., Statement of Claim, ¶ 10. The proposed location for this tower was on farmland adjacent to plaintiff's residence. See id. Later that same day, plaintiff met with Building Inspector Timothy McElligott ("McElligott") who expressed several concerns regarding the application including the fact that windmills and wind turbines are controversial, the proposed site for the wind turbine tower was on a parcel separate from plaintiff's residential lot and that McElligott's reading of the Riga Town Zoning Code did not explicitly permit electricity generating wind turbines or windmills. See id., ¶ 11. On December 9, 2005 plaintiff submitted a second application for a permit. See id., ¶ 12. This application was different from the first in that it specified the tower's location to be on the residential parcel of land. See id.

Following discussions with plaintiff, McElligott determined that a special use permit was required and denied the application for that reason in a letter dated December 19, 2005 and subsequently December 29, 2005. See id., ¶¶ 13-15. According to the Amended Complaint, McElligott determined that the wind turbine was a "utility" that required a special use permit. See id., ¶ 15. Plaintiff appealed McElligott's December 19, 2005 decision on February 17, 2006 to the Town of Riga Zoning Board of Appeals ("ZBA") of which he was a member, and requested an interpretation. See id., ¶ 18. In essence, plaintiff appealed McElligott's interpretation that the law required a special use permit before the issuance of a building permit. On March 2, 2006, the ZBA accepted plaintiff's appeal at its hearing and adjourned the application to May 4, 2006 with knowledge of an impending proposed Public Law moratorium on all wind turbine towers, which moratorium would be considered at the next Town Board meeting to be held on March 14, 2006. See id., ¶¶ 19-27.²

On March 10, 2006, plaintiff made four additional applications for similar towers which differed in size, cost, location and foundation. See id., ¶ 28. Building Inspector Stephen Trenton ("Trenton") indicated by phone to the plaintiff that he would not be responding to any permit requests until after the ZBA ruled on the matter. See id., ¶ 29. However, plaintiff's four new applications were denied by Trenton on March 17, 2006 for the same reason as the original application. See id., ¶ 34. On March 14, 2006, prior to plaintiff's hearing date of May 4, 2006 (which was the adjourned date set by the ZBA), the Town Board passed a local law declaring a moratorium effective immediately on the filing or issuance of permits for turbine towers in the Town of Riga. See id., ¶ 32. On May 4, 2006 a public hearing was held before the ZBA wherein the ZBA reversed the Building Inspector's interpretation and declared that a special use permit was not required for the issuance of the plaintiff's requested building permit to construct a tower with a combined wind turbine and antenna. See id., ¶ 39-40.

According to the Amended Complaint, the Town Board of Riga at a meeting held on August 8, 2006 extended the moratorium for an additional 120 days effective August 22, 2006. See id., ¶¶ 49-50. Plaintiff did not file any further permits until December 21, 2006. See id., ¶ 53.³ On that day plaintiff submitted a letter to Building Inspector Matthew Chapman ("Chapman") noting the expiration of the moratorium and requesting issuance of the building permit which plaintiff initially applied for in December 2005. See id., ¶ 53. On December 21, 2006, acting upon plaintiff's demand for a permit during the lapse of the moratorium, Chapman issued via fax and mail a denial of the permit until he received additional information including requirements for site plan distance, soil certifications, insurance coverage during construction and architectural approval, which had not been contained in the original application, nor previously requested by the prior Building Inspectors, and not stated as a basis for the prior denial. See id., ¶ 54.

Plaintiff alleges that on December 26, 2006, Chapman issued an additional letter citing applicable town code and/or state standards upon which the Building Inspector relied and stating that "the construction of the wind and antenna towers require that a building permit be obtained." See id., ¶ 55. As previously mentioned, on December 28, 2006, the Town Board reinstated the moratorium for an additional sixty days until February 28, 2007. On January 16, 2007, plaintiff sought relief as an aggrieved person from the moratorium by appealing to the Town Board pursuant to Article V, Section 401 and which plaintiff entitled "Appeal per Wind Moratoria Local Law of 2006." See id., ¶ 60.⁴ Article V, Section IV states that the application process and time for hearing such appeal was to be "in conformance with the procedural requirements and standards of the Town Zoning Ordinance." See id., ¶ 56. However, no action was taken on plaintiff's application i.e. the Riga Town Board failed to respond to the appeal. See id., ¶ 61. On January 11, 2008, plaintiff submitted a letter to the Riga Town Board requesting a response regarding his appeal. See id., ¶ 62. Plaintiff received no response to his letter. See id., ¶ 63. Plaintiff submitted another letter on February 22, 2008 and again received no response. See id., ¶¶ 64-65. Accordingly, it was approximately one year (January 11, 2008 and February 22, 2008) after the February 28, 2007 moratorium date had expired that the plaintiff demanded that the Town Board of Riga act on his prior application.

DISCUSSION

I. Motion To Dismiss Standard

Defendants have moved to dismiss plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint generally need only contain a "short and plain statement of the claim showing that the plaintiff is entitled to relief" to satisfy federal notice pleading requirements. See Fed.R.Civ.P. 8(a); Gregory v. Daly, 243 F.3d 687, 692 (2d Cir.2001). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A court's belief or disbelief in a complaint's factual allegations or its belief that a "recovery is very remote and unlikely" does not factor into a decision under Rule 12(b)(6). See id. Furthermore, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citation omitted). Therefore, the Court must read plaintiff's Amended Complaint liberally. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (as plaintiff is proceeding pro se, the Court must read his pleadings liberally to state the strongest claims they suggest).

To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007))....