Kabrovski v. City of Rochester

• Decision Date: 03 December 2015
• Docket Number: 15-CV-6030 CJS
• Citation: 149 F.Supp.3d 413
• Parties: John Kabrovski and Michelle McQuay, Plaintiffs, v. City of Rochester, New York, Heidi Zimmer-Meyer, Eugenio Marlin, David L. Watson, Steven B. Rebholz, Helen B. Hogan, City of Rochester Planning Commission, Defendants.
• Court: U.S. District Court — Western District of New York

149 F.Supp.3d 413

John Kabrovski and Michelle McQuay, Plaintiffs,

v.City of Rochester, New York, Heidi Zimmer-Meyer, Eugenio Marlin, David L. Watson, Steven B. Rebholz, Helen B. Hogan, City of Rochester Planning Commission, Defendants.

15-CV-6030 CJS

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

Signed December 3, 2015

R. Brian Goewey, Esq., 45 Exchange Boulevard, Suite 716, Rochester, New York 14614, for Plaintiffs.

John M. Campolieto, Esq., City of Rochester Law Department, City Hall, Room 400-A, 30 Church Street, Rochester, New York 14614-1295, for Defendants.

DECISION AND ORDER

CHARLES J. SIRAGUSA

, United States District Judge

INTRODUCTION

Plaintiffs, who operate a restaurant in the City of Rochester, commenced this action pursuant to 42 U.S.C. § 1983

after the defendant City of Rochester Planning Commission restricted their ability to present live outdoor amplified music. Now before the Court is Defendants' motion (Docket No. [#6] ) to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6)

. The application is granted.

BACKGROUND

At the outset the Court must determine what facts it may consider when ruling upon Defendants' motion. It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited in what it can consider. See, e.g., Vasquez v. City of New York , No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y. Sep. 24, 2012)

(“[T]he [general] rule [is] that documents outside the pleadings cannot be considered in a 12(b)(6) motion.”). On a 12(b)(6) motion,

the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.

Chambers v. Time Warner, Inc. , 282 F.3d 147, 152–153 (2d Cir.2002)

(citations omitted). In determining whether a document is “integral” to the complaint, “a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.” Id ., 282 F.3d at 153 (citation and footnote omitted).

In this action the Complaint references decisions by the City of Rochester's Planning Commission, as well as portions of the City Code. These documents are integral to the Complaint, and accordingly, the Court considers them in ruling upon Defendants' motion. Plaintiffs also filed an unsuccessful Article 78 proceeding in New York State Supreme Court, Monroe County, concerning the same subject matter, and the Court takes judicial notice of Supreme Court's Decision and Order dismissing that action, even though Plaintiffs omitted any reference to that lawsuit from their Complaint.¹

In 2004, Plaintiffs began operating the New Orleans Louisiana Waterfront Barbeque, under the name Nolas BBQ (“Nolas”), in the City of Rochester. Nolas is located at 4769-4775 Lake Avenue, near Ontario Beach Park. Residential neighborhoods are located to the South and West of Nolas. Between 2004 and 2014, Nolas has applied for and been granted several special use permits allowing outdoor musical performances. Such special use permits were granted by the City Planning Commission, pursuant to the Rochester City Zoning Code, § 120-192(B).

Initially, beginning in 2005, the special use permits allowed Nolas to have live outdoor amplified entertainment on any day of the week, until 10 pm. In 2007, the City issued Nolas a special use permit that limited outdoor amplified entertainment to Wednesdays, Fridays and Saturdays until 10 pm, and Sundays until 9 pm. The 2007 permit also allowed Nolas to have outdoor amplified entertainment on five additional days (Monday, Tuesday or Thursday) until 10 pm. The 2007 permit was for a term of five years, and expired at the end of 2012. During that five-year period, Plaintiffs made certain improvements to Nolas, including adding a patio, outdoor stage and a deck overlooking the stage. These improvements were financed, in part, by a $15,000 grant from the City of Rochester.

When the aforementioned permit expired, Nolas applied for a new five-year special use permit. However, by that time, the City had received “dozens of letters, emails, photos and videos” from citizens, complaining that “the outdoor music [at Nolas] ha[d] become too loud.”² The record indicates that in response to such complaints, Nolas “offered to limit the hours of its outdoor music and to install sound panels on the west and south side[s] of the property.” On May 2, 2013, the City issued a four-month permit, which reduced Nolas' ability to provide outdoor amplified musical entertainment. Specifically, the permit provided, in pertinent part, that Nolas could have “acoustic music only (no amplification)” on Sundays and Wednesdays between 3 pm and 10 pm, and “amplified music” on Fridays and Saturdays between 3 pm and 10 pm. The permit prohibited “outdoor music” on Mondays, Tuesdays and Thursdays. The permit further required Nolas to “install sound panels” on the South and West sides of the property. The Commission indicated that Nolas would need to return to the Commission in October 2013, “to assess the impacts of the live entertainment with the new mitigation measures.”

On June 20, 2013, the Planning Commission amended its decision, to clarify that on Sundays and Wednesdays, when “acoustic music” was allowed, vocalists and instrumentalists could use microphones attached to “small speakers,” but instruments could not be plugged directly into amplifiers. Neither the May 2013 decision nor the amended June 2013 decision mentioned the City's noise ordinance.

Plaintiffs subsequently challenged the Commission's ruling by filing an Article 78 proceeding in New York State Supreme Court, Monroe County. Specifically, Plaintiffs alleged that the Commission's ruling was arbitrary, capricious and lacking a substantial basis. However, on January 23, 2014, Supreme Court denied the application, finding that the Commission's decision was supported by substantial evidence and was not arbitrary, capricious or an abuse of discretion.³

Plaintiffs, meanwhile, applied for a new special use permit. On January 24, 2014, the Commission issued Plaintiffs a three-year permit that further reduced Plaintiffs' ability to present live outdoor amplified music. In that regard, the permit eliminated the ability to have amplified music on Fridays and Saturdays, and instead indicated that all music on Friday, Saturday, Sunday and Wednesday had to be acoustic music, though Plaintiffs could apply to have up to five outdoor amplified events on Fridays and/or Saturdays. Additionally, the permit indicated that music on Sundays and Wednesdays had to end by 8 pm.⁴ As part of its decision, the Planning Commission reiterated that it had received “numerous complaints” about outdoor amplified music at Nolas, including some from neighbors who indicated that music from Nolas caused their homes to shake and prevented them from sleeping even when their windows were closed. The Commission further indicated that Plaintiffs had completed only “some of the mitigation measures” that had been required in the earlier permit (emphasis in original), and that Plaintiffs had also violated the earlier permit on some occasions by allowing musicians to plug their instruments into amplifiers on nights that were supposed to have only acoustic music.

The Commission's 2014 decision contained three references to the City's noise ordinance. First, the decision noted that, “it is evident that the previous mitigation efforts did not bring the use into compliance with the noise ordinance.”⁵ Second, the decision indicated that if Plaintiffs wanted to apply for additional permits for amplified music on Friday or Saturday nights, they would have to present to the Commission, “with adequate time for review by an expert, a mitigation plan that details all efforts to adhere to Chapter 75 of the Municipal Code.”⁶ Lastly, the decision's closing paragraph, which summarized the Commission's ruling, reiterated that if Plaintiffs wanted to have more than five amplified events they would need to submit a mitigation plan detailing their “efforts to adhere to [the noise ordinance].”⁷

Plaintiffs did not file an Article 78 proceeding concerning the 2014 permit. Instead, on January 16, 2015, Plaintiffs commenced this action pursuant to § 1983

, asserting the following six causes of action p: 1) “First Amendment Violation” concerning the City's noise ordinance; 2) “[Fourteenth] Amendment Due Process Violation—1”; 3) “[Fourteenth] Amendment Equal Protection Violation”; 4) “[Fourteenth] Amendment Due Process Violation—2”; 5) “[Fourteenth] Amendment Due Process Violation—3”; and 6) “Violation of the [Fifth] Amendment Takings Clause.” On April 17, 2015, Defendants filed the subject motion to dismiss. The motion was fully briefed, and on October 13, 2015, counsel for the parties appeared before the undersigned for oral argument.

DISCUSSION

Defendants have moved to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

. The legal principles applicable to such a motion are clear:

Federal Rule of Civil Procedure 8(a)(2)

requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the...