Deepwells Estates v. Incorporated Village of Head, CV-96-5879 (ADS).
| Decision Date | 16 August 1997 |
| Docket Number | No. CV-96-5879 (ADS).,CV-96-5879 (ADS). |
| Citation | 973 F.Supp. 338 |
| Parties | DEEPWELLS ESTATES INC. and Nicholas Petervary, Plaintiffs, v. INCORPORATED VILLAGE OF HEAD OF THE HARBOR, Edward W. Hoffman, Daniel J. Shybunko, Glen G. Williams, Barbara Van Liew, David Sayre, Frank Zingale, Marie D. Wiese, each in their individual capacities and in their official capacities as members of the Board of Trustees of the Incorporated Village of Head of the Harbor and William C. Miller and Richard Wiedersum, both in their individual capacities and as Chairman of the Planning Board of the Incorporated Village of Head of the Harbor, Helen Kycia, in her individual capacity and as Chairman of the Architecture Board, and Jerry Harris, in his individual capacity and as Building Inspector for the Incorporated Village of Head of the Harbor and Other Unknown Defendants, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Weinberg & Kert, LLP, Garden City, NY (Arnold Kert, Alan C. Stein, of counsel), for Plaintiffs Deepwells Estates Inc. and Nicholas Petervary.
Certilman, Balin, Adler & Hyman, LLP, East Meadow, NY (Neil H. Angel, Robert J. Ciovacco, of counsel), for Defendants Incorporated Village of Head of the Harbor, Edward W. Hoffman, Daniel J. Shybunko, Glen G. Williams, Barbara Van Liew, David Sayre, Frank Zingale, Marie D. Wiese, William C. Miller, Richard Wiedersum, Helen Kycia and Jerry Harris.
This action arises from the claims of the plaintiffs, Nicholas Petervary ("Petervary") and his real estate developing company, Deepwells Estates Inc. ("Deepwells", collectively, the "plaintiffs"), pursuant to 42 U.S.C. §§ 1983 and 1985, that the defendants, the Incorporated Village of Head of the Harbor (the "Village"), and various officials and board members of the Village, in their individual and official capacities (collectively, the "defendants"), discriminated against the plaintiffs and caused the taking of Petervary's property without just compensation, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States. In addition, the plaintiffs allege deprivation of their property rights without due process, in violation of the Fourteenth Amendment. Presently before the Court is the defendants' motion to dismiss the plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted.
According to the complaint, the plaintiffs commissioned an engineer to draft a set of plans and a map which conformed to the zoning requirements of the Village. In July 1986, Petervary submitted a building application to the Village in order to build a subdivision of exclusive homes. Thereafter, in 1986, Petervary purchased a tract of land, consisting of 31.55 acres located within the Village which he and his corporation, Deepwells, intended to develop. In order to purchase the property, Petervary obtained a $1.3 million mortgage from the European American Bank. The relevant zoning requirements have not changed since the submission of the application. Upon information and belief, the building application has never been approved or denied.
Further, according to the complaint, after the passage of more than six years during which time the Village requested many verbal and a few written requests for modifications of the submitted plans, a meeting was held on February 28, 1992, in the basement of the house of the then Mayor, Edward W. Hoffman ("Hoffman"), which at that time was being utilized as the Village Hall. At this meeting attended by Petervary, Hoffman, and the Chairman of the Planning Board, William C. Miller ("Miller"), Petervary was advised that the Village was aware of his poor financial condition resulting from the large mortgage on his property. An ultimatum was then issued by the Village. Petervary was to convey to the Village approximately 4.68 acres of certain land and the small building which stood on that property, for no compensation and on Hoffman's terms, or Petervary could wait until "the cows come home to get an approval on the subdivision map." The Village agreed to waive a small amount of application fees in exchange for this coerced donation. At this meeting, Miller allegedly stated that Petervary had no choice and should comply with Hoffman's demands.
After several months of stalling, during which time he was harassed by the Village and by its police department, Petervary delivered the requested deed for the 4.68 acres of land, which included the building, to the Village. The deed was ultimately accepted by the Village in or about August 1992 and recorded on September 10, 1992.
In or about August 1993, the Village approved and filed its own proposed map (the "Village map") which provided for twenty-six mismatched lots ranging in size from one-half acre to six acres each, rather than the subdivision map proposed by Petervary which delineated twenty-seven evenly spaced lots comprising of one or two acres each. Shortly thereafter, the Village built a Village Hall on the 4.68 acres of land received from Petervary and utilized the remainder of the property for municipal purposes.
On May 19, 1993, Petervary signed the Village map. Subsequently, a representative of the defendants allegedly appended the following paragraph to the Village map without Petervary's consent:
The plaintiff did not learn of the above additional paragraph to the Village map until the beginning of 1994.
During 1993, the Village demanded that Petervary grant the Village an additional parcel of land adjacent to the parcel conveyed to the Village in 1992. The plaintiffs attempted to stall the Village for several months. However, the Village refused to approve the framing, plumbing and insulation of these homes until Petervary orally promised to convey the additional parcel of property.
Petervary attempted to avoid the transfer of this additional parcel, but after months of harassment by the Village and by its police department, he relented and transferred said second deed dated April 2, 1993, to the Village. On or after December 4, 1993, the Village, without further inspection, approved the plumbing and insulation of these homes.
Subsequent to the acceptance of the second deed, the plaintiffs received "a small hiatus from the harassment" during which time the Village approved the certificates of occupancy on seven homes. Thereafter, the Village placed a moratorium on the plaintiffs' property by "demanding the impossible" and refused to issue any other certificates of occupancy.
During these years the plaintiffs were allegedly harassed by various Village officials. Helen Kycia ("Kycia"), the chairman of the Architecture Board, allegedly used her position to harass the plaintiffs into making unnecessary changes on the homes built by the plaintiffs, attempted to require the plaintiffs to perform illegal tasks for which they were not bonded and attempted to require the plaintiffs to make changes to homes which were built and were being occupied. Kycia was motivated by her alleged desire to increase the value of her own property, which was located less than one mile from the plaintiffs' property and was to be developed. Richard Wiedersum ("Wiedersum"), the Chairman of the Planning Board, harassed the plaintiffs by requesting that they perform impossible tasks within unreasonable time constraints and by placing a moratorium on the grants of certificates of occupancy on the plaintiffs' property for over one and one-half years. Jerry Harris ("Harris"), the Building Inspector appointed by the Village, failed to approve work in progress and failed to inspect the homes being constructed by the plaintiffs during the moratorium, although all relevant requirements set forth by the Village were satisfied. Glen G. Williams ("Williams"), Barbara Van Liew ("Liew"), David Sayre ("Sayre"), Daniel J. Shybunko ("Shybunko"), Frank Zingale ("Zingale") and Marie D. Weiss ("Weiss"), all Trustees of the Village, furthered the conspiracies of Hoffman and Miller by: (1) causing unnecessary delays to the approval or denial of the plaintiffs' building applications; (2) taking private property without payment of just compensation; (3) requiring illegal tasks to be performed by the plaintiffs; and (4) placing a moratorium on the plaintiffs' property which was not promptly removed upon the plaintiffs' successful completion of the tasks requested.
During November 1996, Shybunko, the present Mayor of the Village, verbally requested the "donation" of another 1.09 acres to the Village. This request occurred contemporaneously with the Village's agreement to inspect two homes for certificates of occupancy for the first time in over one and one-half years. Concurrent with Petervary's refusal to deed the property to the Village, his certificates of occupancy were denied upon inspection on November 23, 1996.
The plaintiffs allege four causes of action, which are as follows:
1. The defendants coerced the involuntary transfer of two separate lots of property without just compensation, in violation of the Fifth and Fourteenth Amendments, and deprived the plaintiffs of procedural and substantive due process;
2. The defendants, acting under color of law, engaged in a concerted course of conduct to deprive the plaintiffs of his Constitutional and Civil Rights by attempting to, and taking, the plaintiffs' property for public use without just compensation and delaying the approval or denial of the plaintiffs' building application;
3. The defendants, collectively and individually, were negligent in failing to either approve or deny the plaintiffs' building application in a...
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