Cunney v. Bd. of Trs. of Grand View

• Citation: 56 F.Supp.3d 470
• Decision Date: 29 September 2014
• Docket Number: No. 08–CV–9507 KMK.,08–CV–9507 KMK.
• Parties: Brendan CUNNEY, Plaintiff, v. BOARD OF TRUSTEES OF the VILLAGE OF GRAND VIEW, New York; Zoning Board of Appeals for the Village of Grand View, New York; Atzl, Scatassa & Zigler Land Surveyors ; John R. Atzl, Individually; and Joseph W. Knizeski, as Building Inspector of the Village of Grand Viewon–Hudson, Defendants.
• Court: U.S. District Court — Southern District of New York

56 F.Supp.3d 470

Brendan CUNNEY, Plaintiff

v.BOARD OF TRUSTEES OF the VILLAGE OF GRAND VIEW, New York; Zoning Board of Appeals for the Village of Grand View, New York; Atzl, Scatassa & Zigler Land Surveyors ; John R. Atzl, Individually; and Joseph W. Knizeski, as Building Inspector of the Village of Grand Viewon–Hudson, Defendants.

No. 08–CV–9507 KMK.

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

Signed Sept. 29, 2014.

Dennis E.A. Lynch, Esq., Feerick Lynch MacCartney, Esq., South Nyack, NY, for Plaintiff.

Mary Elizabeth Brady Marzolla, Esq., MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, NY, for Plaintiff.

Lewis R. Silverman, Esq., Jennifer H. Pymm, Esq., Samantha Velez, Esq., Rutherford & Christie, LLP, New York, NY, for Defendants.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

This is a case that demonstrates that law, like life, can be a game of inches. Plaintiff Brendan Cunney brought the instant Complaint against Defendants Board of Trustees of the Village of Grand View, New York (“Board”); Zoning Board of Appeals for the Village of Grand View, New York (“ZBA”); and Joseph Knizeski, in his official capacity as Building Inspector of the Village of Grand View–on–Hudson (“Knizeski”) (collectively, “Defendants” or “Village”), alleging multiple claims arising out of Defendants' application of a height-restriction zoning ordinance to Plaintiff's property.¹ Before the Court is Defendants' Motion for Summary Judgment. For the following reasons, the Court grants Defendants' Motion in part and denies it in part.

I. BACKGROUND

A. Factual Background

Gladstone Estates, LLC (“Gladstone”) is a New York limited-liability company that Plaintiff and his brother formed in mid–2005. (See Pl.'s Resp. to Defs.' Local Rule 56.1 Statement (“Pl.'s 56.1 Statement”) ¶¶ 1, 3 (Dkt. No. 69).) On October 28, 2005, Gladstone, which is not a party in this Action, took title to a piece of property within the Village of Grand View–on–Hudson, NY. (See Decl. in Support (“Defs.' Decl.”) Ex. N, at unnumbered 2 (Dkt. No. 58) (unofficial copy of recorded deed).) Since at least September 30, 2005, when Plaintiff accepted a proposal from John Atzl (“Atzl”), made on behalf of Atzl, Scatassa & Zigler Land Surveyors, P.C. (“ASZLS”), for “surveying and planning services,” Plaintiff intended to develop this piece of property for residential use. (See Defs.' Decl. Ex. P (Atzl proposal, submitted on August 29, 2005, and accepted by Plaintiff on September 30, 2005).)

Of the two “residential districts” within the Village, the subject property was located in “Zone B,” also known as “R–10.” (See Defs.' Decl. Ex. L, at unnumbered 3 (excerpt of the village's zoning law); Defs.' Local Rule 56.1 Statement (“Defs.' 56.1 Statement”) ¶ 16 (Dkt. No. 65).) The requirements applicable to that zone are contained in Chapter IX of the Village of Grand View–on–Hudson Zoning Law (“Village Zoning Law”). (See Aff. in Opp'n (“Pl.'s Decl.”) Ex. A (“Village Zoning Law”) (Dkt. No. 67).) At the time Gladstone took title to the property, and at all relevant times during this litigation, section E of that chapter (“section E”) contained a restriction on the height of any building constructed within Zone B:

It being the purpose of this section, among others, to preserve as nearly as practicable the remaining views [of] the Hudson River from River Road, no building shall be erected in Zone B ... which shall rise more than two stories in height nor more than four and one-half ... feet above the easterly side of River Road. Where the lot lies substantially at the same level as River Road, no building or construction shall rise more than one story or fifteen feet in height.

(Id. at IX.E.) Moreover, the Village Zoning Law separately defined “easterly side of River Road” to mean “the point at which the road surface of River Road intersects with the easterly curb adjacent to River Road,” adding that the referenced “point of intersection is commonly referred to as the ‘gutter.’ ” (Defs.' Decl. Ex. L, at 4.)²

In addition to outlining the requirements applicable to houses constructed within Zone B, the Village Zoning Law also outlined the procedures a property owner had to follow in order to build, and then occupy, a house. First, to commence construction, the owner had to obtain site-plan approval and a building permit. (See Village Zoning Law, at XII.A.1, XIV.D.1(c)(1).) To obtain the former, the owner had to submit an application to the Village's Planning Board (“Planning Board”). (See id. at XIV.D.1(c)(2).) The Planning Board then had to hold a public hearing, after which it would approve or disapprove the application. (See id. at XIV.D.1(c)(3)-(5).) Having received site-plan approval, the owner, or “the agent, architect, landscape architect, engineer or builder employed in connection with the proposed work,” had to submit an application for a building permit to the Village's Building Inspector—who was, at all relevant times, Defendant Knizeski—along with copies of relevant building plans, site plans, surveys, and supporting documents. (See id. at XII.A.2–5.) The Building Inspector could then, in his discretion, approve the application, at which point construction could commence. (See id. at XII.C.1.)

Second, after constructing but before occupying a house, the owner had to obtain a certificate of occupancy (“CO”). (See id. at XII.H.) To do so, “[t]he owner or his/her agent” had to “make [an] application.” (Id. at XII.H.4.) Prior to issuing a CO, the Building Inspector was required to “examine or cause to be examined all buildings, structures and sites for which an application for a Building Permit ... has been filed.” (Id. at XII.I.) Thereafter, the Building Inspector would determine whether “the proposed work ha[d] been completed in accordance with the applicable building codes, local laws, rules and regulations, and also in accordance with the application, plans[,] and specifications filed in connection with the issuance of the Building Permit.” (Id. at XII.J.1.) Upon finding that the work was completed “in accordance” with these requirements, the Building Inspector was required to issue the CO. (See id. (“When ... it is found that the proposed work has been completed in accordance with the applicable [requirements], the Building Inspector ... shall issue a [CO].” (emphasis added)).) However, if the Building Inspector “found that the proposed work ha[d] not been properly completed,” he was required to deny the application. (See id. at XII.J.1–2 (“If it is found that the proposed work has not been properly completed, a [CO] ... shall not be issued ....” (emphasis added)).)

Plaintiff first sought approval a site plan for the subject property in early 2006. At a February public hearing before the Planning Board, Atzl (the surveyor) presented a proposal that involved construction of a two-story home and relocation of a “small home” that was already on the site and that Plaintiff wished to use as a pool house. (See Defs.' Decl. Ex. I, at 1 (Planning Board hearing minutes).) The Planning Board voted to “grant preliminary site plan approval” subject to the condition that Plaintiff obtain a height variance from the ZBA. (Id. at 4.) However, at an April hearing, the ZBA denied Plaintiff's request. Atzl testified that he had determined that “[t]he elevation at the bottom of the curb at the edge of River Road [was] 29.1 feet,” meaning that, to comply with section E, the proposed house could be no taller than 33.6 feet-four-and-a-half feet above River Road. (Defs.' Decl. Ex. J, at unnumbered 1 (ZBA April 2006 hearing minutes).)³ Atzl then testified that the “height of the highest point of the highest roof” of the proposed house was 43.7 feet, meaning that Plaintiff was requesting a variance of 10.1 feet. (Id. ) Initially, one of the ZBA members noted that “the primary issue is where the measurement was taken,” because “[t]he elevation of River Road varie[d] significantly along the boundary of the [subject] property”—from 30 feet at the southern end to 24 feet at the northern end. (Id. ) Atzl testified that “he measured from the middle of the lot,” where the elevation was 29.1 feet, because “there is no statement [in the code] as to where the height is derived.” (Id. at unnumbered 2.) One ZBA member offered an interpretation of section E that appeared to support Atzl, stating that the measurement should be taken “at any given point above River Road.” (Id. at unnumbered 9.) However, another member stated that “[t]he height should be measured at the lowest point of the road” because “the ordinance was written to protect the views of the community along River Road.” (Id. ) A third member appeared to support this interpretation, which would effectively require applicants to obtain “the maximum variance.” (Id. ) Applying that interpretation to Plaintiff's application, that member calculated that the elevation at the lowest point of the road was 24 feet, triggering an allowable height of 28.5 feet, and thus requiring Plaintiff to obtain a 15.2–foot variance (53 percent higher than the allowed height) for his 43.7–foot–high house. (See id. ) Ultimately, although the ZBA did not appear to adopt a particular interpretation of section E, the hearing minutes indicate that the ZBA construed Plaintiff's application to request a 53 percent variance (implying that the ZBA measured from the lowest point of the road), and that it unanimously denied the application so construed. (See id. at unnumbered 10.)⁴

Plaintiff then sought approval of a revised site plan at a Planning Board hearing held on September 14, 2006. Although the Planning Board did not grant approval at that hearing, it ultimately granted approval after Plaintiff made necessary changes. (See Defs.' 56.1 Statement ¶ 33.) Apparently, none of the changes related to the height of the proposed house, and Plaintiff did not have to request a height variance. Notably, Defendants concede that this site plan “was within the height and size restrictions of the ...