Defalco v. Dechance

• Decision Date: 13 June 2013
• Docket Number: No. 11–CV–05502 (ADS)(ETB).,11–CV–05502 (ADS)(ETB).
• Citation: 949 F.Supp.2d 422
• Parties: Michael DeFALCO and William Matthews, Plaintiffs, v. Paul M. DECHANCE, in his capacity as Chairman of the Board of Zoning Appeals for the Town of Brookhaven, the Board of Zoning Appeals, and the Town of Brookhaven, Defendants.
• Court: U.S. District Court — Eastern District of New York

949 F.Supp.2d 422

Michael DeFALCO and William Matthews, Plaintiffs,

v.Paul M. DECHANCE, in his capacity as Chairman of the Board of Zoning Appeals for the Town of Brookhaven, the Board of Zoning Appeals, and the Town of Brookhaven, Defendants.

No. 11–CV–05502 (ADS)(ETB).

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

June 13, 2013.

William D. Wexler, Esq., North Babylon, NY, for Plaintiff.

Robert F. Quinlan, Brookhaven Town Attorney, by Daniel Belano Todd M. Lewis, Sr., Assistant Town Attorneys, Farmingville, NY, for Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This action arises out of the denial by the Defendant Board of Zoning Appeals for the Town of Brookhaven of the Plaintiff Michael DeFalco's application for a variance on his property in Brookhaven. On November 30, 2011, DeFalco and William Mathews (“the Plaintiffs”) filed an amended complaint against the Defendants Paul M. Dechance Chairman of the Board of Zoning Appeals for the Town of Brookhaven, the Board of Zoning Appeals, and the Town of Brookhaven (collectively the “Defendants”), alleging violations of their substantive and procedural due process rights and equal protection rights under the United States Constitution. Presently pending before the Court are a motion by the Defendants for judgment on the pleadings pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 12(c) and a motion by the Plaintiffs pursuant to Fed.R.Civ.P. 56 for partial summary judgment on the due process causes of action. For the reasons that follow, the Defendants' motion for judgment on the pleadings is granted; the Plaintiffs' motion for partial summary judgment is denied as moot; and the complaint is dismissed in its entirety.

I. BACKGROUND

For purposes of the motion for judgment on the pleadings, the following facts are drawn from the amended complaint and construed in a light most favorable to the Plaintiffs.

The Plaintiffs are the owners of certain improved real property on Fire Island located on the south side of Ocean Walk, 165 feet east of Nautilus Walk, Fire Island Pines in the Town of Brookhaven. The Defendant Paul M. DeChance (“DeChance”) is the Chairman of the Board of Zoning Appeals for the Town of Brookhaven (“the Board”). Pursuant to the Town Law of the State of New York, the Board is charged with hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determinationmade by the administrative official charged with the enforcement of any ordinance or local law.

The property at issue, measuring 6,600 feet, is improved with a two-story wood frame. In 1996, the Plaintiffs obtained title to the property for use as a summer home. The existing dwelling measures 1,224 square feet and accounts for 19% of the lot occupancy. Existing amenities account for an additional 23.6% lot occupancy for a total of 42.6% lot coverage. All existing structures are recognized in valid certificates of occupancy.

In 2010, DeFalco applied to the Board seeking certain variances, including: front yard setback and minimum and total yard side variance; a proposed second-story balcony and second-story residence addition; minimum and total side yard variances for a proposed south side second-story balcony and proposed deck addition; and an eight-foot high fence on both side yards. Lastly, DeFalco sought permission to exceed the 35% lot occupancy. In particular, DeFalco proposed to remove decking on the east and west side of the dwelling and replace it with the proposed decking on the south side of the dwelling and was therefore proposing to maintain the same 42.6% lot occupancy.

At a public hearing, DeFalco's agent testified in support of his application. DeFalco's request was opposed by a neighboring property owner, Craig Schlossberg. The Board also received letters from the Fire Island Pines Property Owners Association; the Department of the Interior; and the Brookhaven Division of Environmental Protection, which were read into the record.

On May 12, 2011, the Board granted the application in part with respect to the proposed second story residence addition and second story balcony. However, as to the lot coverage request, the Board found as follows:

A. Applicant submitted no evidence of prior grants in the area maintaining 42.6% lot coverage. As the applicant is seeking to significantly alter the existing dwelling, the lot occupancy that currently exists on the subject lot is no longer protected by the Town of Brookhaven certificates described above. As such, the Board finds that the request is outside the nature and character of the community and would have a negative and precedent setting effect if granted.

B. Applicant requests permission to maintain 42.6% lot coverage where 35% is permitted. The Board finds this excessive coverage to be a substantial request when compared to the Code and what presently exists on the ground.

C. The applicant can feasibly conform to the Code's requirements without losing any of the dwelling space, as the existing structure accounts for only 19% of the lot occupancy. Allowing for some relief in lot occupancy, at 37%, would provide the applicant approximately one thousand square feet of accessory structures on the subject parcel. The Board finds that the applicant, in constructing the decks to the side yard setbacks described above, could feasibly provide adequate accessory area while maintaining lot occupancy at 37%. This would be in close conformity to the Code requirement of 35% than the 42.6% requested herein.

D. The Board finds that the precedent setting nature of 42.6% lot coverage would set a negative precedent and would create a cumulative effect which would have a negative impact on the sensitive physical and environmental conditions of the neighborhood.

E. Though the Board recognizes that the applicant is seeking to maintain the same lot coverage as presently exists in the parcel, the Board finds that the applicant's hardship is self-created in nature as the applicant is proposing structural alterations to the dwelling as defined by the Code but choosing not to return the parcel to the Code required lot coverage of 35%.

As such, the Board finds that the applicant's request to maintain 42.6% lot coverage, where 35% is permitted, is not the minimum relief necessary and would have a negative effect on the health, safety and welfare of the community. The Board further finds that this detriment will be mitigated by the granting of 37% lot coverage as an alternative to the applicant's request.

(Def.'s Reply Exh. 6).

A. State Court Action

Prior to the filing of this federal action, DeFalco commenced a proceeding, DeFalco v. DeChance, Index No. 11–17102, in the New York State Supreme Court, Suffolk County, pursuant to Article 78 of the New York State Civil Practice Law and Rules (CPLR) against the Defendants and related parties. As relevant here, DeFalco challenged the Board's decision to the extent it required him to reduce his lot coverage from 42.6% to 37%. In this regard, DeFalco contended that the Board's determination revoked his existing certificates of occupancy and compliance with respect to the existing dwelling and structures on his property, thereby effecting an unconstitutional taking of his property and violating his due process right to a hearing.

By decision dated September 4, 2012, Supreme Court, Suffolk County (Lasalle, J.), rejected this argument, reasoning that “[the Board]'s determination did not affect [DeFalco']s right to continue to live on his property with the dwelling and structures thereon as is.” (Def.'s Reply, Exh. 2). Rather, the court observed, “[the Board] merely determined that if [DeFalco] decided to make his proposed alterations on the property, he would have to bring his lot occupancy and side yard setbacks into closer conformity with the current zoning requirements” ( Id.). The court further opined that “[t]o the extent that [DeFalco] argues that his current certificates of occupancy and compliance in certain structures on the property establish his vested right in those structures, it has been held that a landowner's ‘vested right [ ] in a nonconforming structure existing at the time a prohibitory code provision is enacted, does not extend to subsequent construction.’ ” ( Id., citing Matter of Rembar v. Board of Appeals of Vil. Of E. Hampton, 148 A.D.2d 619, 620, 539 N.Y.S.2d 81 (2d Dept. 1989)).

In the interim, Schlossberg brought an Article 78 proceeding against the Defendants, DeFalco, and Matthews, to annul the May 12, 2011 Board decision on the basis that the Board failed to comply with the State Environmental Quality Review Act (“SEQRA”). In particular, Schlossberg contended that the Board failed to conduct an environmental review in connection with DeFalco's application for a variance.

By decision dated August 6, 2012, Supreme Court (1) granted Schlossberg's petition; (2) annulled the May 12, 2011 Board's decision; and (3) remanded the matter to the Board for a new determination. By order dated March 20, 2013, on remand and upon a SEQRA determination that “lot coverage reduction to 37% would not alter the character of the community or impact physical or environmental condition,” the Board adopted its findings outlined in the May 12, 2011 decision.

By separate order dated December 20, 2012, in the DeFalco state proceeding, the Supreme Court vacated its prior decision dated September 4, 2012 and denied DeFalco's petition as moot.

B. The Present Action

As stated above, on November 30, 2011, the Plaintiffs filed an amended complaint against the Defendants pursuant to 42 U.S.C. § 1983, alleging violations of their substantive and procedural due process rights as well as their equal protection rights. The Plaintiffs also sought a judgment pursuant to 28 U.S.C. § 2201 declaring the certificates of occupancy valid and legal and “that the variances should not be subject to plaintiffs' reducing the lot coverage of their property.”...