Frooks v. Town of Cortlandt
| Citation | 997 F.Supp. 438 |
| Decision Date | 11 March 1998 |
| Docket Number | No. 93 Civ. 7372(WCC).,93 Civ. 7372(WCC). |
| Parties | George FROOKS, Joan Maskell, Mohegan Plaza, Inc. and George Frooks d/b/a Frooks Realty, Plaintiffs, v. TOWN OF CORTLANDT, Linda D. Puglisi, individually and in her capacity as Town Supervisor, Vincent F. Nyberg, P.E., R.A., individually and in his capacity as Director of Code Enforcement and Deputy Town Engineer, Barbara K. Miller, individually and in her capacity as Deputy Director of Code Enforcement, Harriet L. Boyle, individually and in her capacity as Town Clerk, Anthony Turco, individually and in his capacity as a member of the Department of Code Enforcement and Building Inspector, John Hamilton, individually and in his capacity as a member of the Department of Code Enforcement and Town Fire Inspector, Jack Gaffney, individually and in his capacity as Town Supervisor, Robert Conlon individually and in his capacity as Fire Inspector, and John T. Felt, individually and in his capacity as Director, Department of Planning and Community Improvement, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Ginsberg, Katsorhis & Fedrizzi, Flushing, NY, for Plaintiffs; Kerry J. Katsorhis, Linda F. Fedrizzi, of counsel.
Landman Corsi Ballaine & Ford, Newark, NJ, for Defendants; John A. Bonventre, Jerry A. Cuomo, Ruth D. Kirshner, of counsel.
Plaintiffs George Frooks, d/b/a Frooks Realty ("Frooks"), Joan Maskell, and Mohegan Plaza, Inc. brought this action against defendants the Town of Cortlandt, New York (the "Town"); and Linda Puglisi, Town Supervisor; Vincent Nyberg, Director of Code Enforcement and Deputy Town Engineer, now deceased; Barbara Miller, Deputy Director of Code Enforcement; Harriet Boyle, Town Clerk; Anthony Turco, Town Building Inspector; John Hamilton, Town Fire Marshall and Assistant Building Inspector; Jack Gaffney, Town Supervisor; Robert Conlon, Fire Inspector and Assistant Building Inspector; and John Felt, Town Planner (collectively, the "Town employees"), alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986, 18 U.S.C. § 1961 et seq., the First, Fourth, Sixth and Fourteenth Amendments of the United States Constitution, unspecified provisions of the New York State Constitution, and New York common law. Defendants now move for summary judgment, and plaintiffs cross-move for partial summary judgment. For the reasons discussed below, defendants' motion is granted and plaintiffs' motion is denied.
The parties assault the following facts.1 Plaintiffs have owned, during all relevant times, thirty-eight acres of land in the Town (the "property"). Approximately 9.4 acres are zoned CD-commercial ("commercial") and the remainder is zoned R-40, single-family residential ("residential"). The property is mostly vacant, with the exception of a few, old wood frame buildings, some of which are occupied by plaintiffs, and others which are rented to residential and commercial tenants. The property fronts Route 6, a main road.
In February, 1989, Frooks applied to the Town to re-zone four acres of the property from residential to commercial in order to build a shopping mall. Accordingly, pursuant to the State Environmental Quality Review Act ("SEQRA"), N.Y. Envtl. Conserv. Law § 8-0103 et seq. (McKinney's 1984) ("ECL"),2 the Town directed Frooks to submit a Draft Environmental Impact Statement ("DEIS") and deposit $5,500 into an escrow account to cover the review of the DEIS. Plaintiffs claim that prior to his submission of the DEIS, Town employees told Frooks that his application was compatible with the Town's Master Plan. Defendants maintain that John Felt, Town Planner, and Ken Verschoor, Deputy Town Planner, told Frooks that it was difficult to obtain a zoning change, and that applications for re-zoning were seldom granted.
In September, 1990, the Town's expert issued comments on the DEIS and by resolution, the Town directed Frooks to address them. In February, 1991, Frooks submitted a revised DEIS and deposited an additional $4,842 into the escrow account. By letter, the Town's expert advised Frooks that the revised DEIS did not address all of the expert's concerns. Accordingly, the Town rejected the revised DEIS. Frooks maintains that the Town Board never reviewed the revised DEIS, because Felt did not submit it.
In June, 1991, Frooks met with Felt. While the parties' recollection of that meeting differs, they agree that Felt informed Frooks that he would need to submit additional site plans and escrow deposits in order for the Town to pursue his application.
In July, 1991, Frooks sent a letter to Felt stating the following:
I believe I have, in good faith, tried to go along with you and your consultants. Your latest suggestions that I should finance yet another meeting because of problems caused by your consultants' noncompliance with the SEQRA ... is out of the question.
Accordingly, I see no reason to proceed. Please refund the balance of my account.
Defs.' Ex. A (emphasis added). The parties disagree whether Frooks, by this letter, meant to withdraw his application for rezoning or merely to cancel a previously scheduled meeting between Frooks and Felt.
By letter dated August 20, 1991, Frooks requested the Town either to issue further objections to the DEIS, or accept it, so that a public hearing could be held. On August 21, 1991, Felt sent Frooks a check representing the balance of his escrow account, accompanied by the following statement: "This closes [your] Planning Board File." The following Fall, Thomas Wood, the Town's attorney, sent multiple letters to Frooks stating that Frooks had withdrawn his re-zoning application, and that Frooks would have to re-file the application for the Town to consider it. Frooks answered this correspondence, stating that his application had not been withdrawn.
On or about July 23, 1993, approximately two years after plaintiff's Planning Board File had been deemed closed, the Town issued a new Master Plan proposing the changes Frooks had requested in his application. The Master Plan was the subject of public hearings, which Frooks did not attend. The plan that the Town ultimately adopted did not include Frooks' proposals, because according to the Town, there was public outcry over the prospect of increased traffic along Route 6.
One of the buildings on plaintiffs' property has housed a "bar/disco" since the 1930s. That building received a certificate of occupancy in 1981, under the New York State Construction Code, formerly N.Y.Exec. Law §§ 370-387 (the "Construction Code"). In 1984, the Construction Code was superseded by the New York State Uniform Fire Prevention and Building Code, N.Y.Exec. Law § 373 et seq. (McKinney's 1993) (the "Uniform Code" or the "Code"). The Uniform Code requires certain minimum training and enforcement standards for the fire protection, construction and maintenance of buildings. See id., § 371(b). The Code also requires a municipality to petition the State if the municipality wishes to enact more restrictive standards than those prescribed by the Code. See id., § 379(2).
On June 18, 1985, the Town Board adopted an ordinance providing for the licensing of "cabarets," defined as "any room, place or space in the town where for gain or profit, live or mechanically reproduced music is provided in connection with dancing or where, for gain or profit, any musician, group of musicians, floor show or similar live entertainment is provided." Local Law No. 4, Cortlandt Code § 23-2 (the "Cabaret Law"). The Cabaret Law required, among other things, that all such establishments have sprinklers and smoke detectors in "each storage room, attic, basement, cellar [or] other concealed location[ ]." See id., § 23-12 K. Moreover, the law required any licensed cabaret to apply for a supplemental license whenever there was a change in ownership or management. See id., §§ 23-7B; 23-4A(3), (4), (5), (20). Plaintiffs allege that these requirements were significantly more restrictive than the provisions of the Uniform Code, and that the Town enacted the Cabaret Law without first petitioning the State for permission, in violation of the Code. Plaintiffs further allege that they were "forced to make ... concessions to keep the premises rented," due to the law's requirements.
In 1987, plaintiffs' tenant, Michael Tommorello, d/b/a Omega Entertainment or Foxes, applied for a cabaret license. The Town granted the application under the condition that a sprinkler system would be installed on the premises. Accordingly, Frooks submitted a $10,000 security deposit to the Town, in the form of a passbook, to cover potential damage to the water main beneath Route 6.
In early 1990, plaintiffs leased the premises to new tenants, JoAnn DiConstanzo and Anthony Brucculeri, d/b/a Cousin's Entertainment or Alibi's ("Cousin's or Alibi's"). The lease provided that Cousin's would install a sprinkler system on the premises.
On April 4, 1990, defendant John Hamilton, Town Fire Marshall and Assistant Building Inspector, observed what he believed to be construction debris, including a header from a door or window, behind Alibi's. Hamilton entered the bar and determined that structural alterations were being made. Hamilton then issued a stop work order prohibiting Cousin's from completing any work until it had obtained a building permit. Plaintiffs claim that Cousin's was merely redecorating Alibi's and that no building permit was required.
On April 12, 1990, defendants Hamilton, Vincent Nyberg, Director of Code Enforcement, and Anthony Turco, Town Building Inspector, inspected the bar and the remainder of the building. Plaintiff Frooks, Anthony Miraglia, Frooks' handyman and Charles DeFeo, Frooks' engineer, were present. Defendants...
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