Kelly v. Town of Southold

• Docket Number: 21-CV-3215 (JMA) (LGD)
• Decision Date: 07 June 2023
• Parties: FRANCIS J. KELLY and ELIZABETH G. KELLY, Plaintiffs, v. TOWN OF SOUTHOLD, SOUTHOLD TOWN BOARD, Southold Town Ordinance Inspector LESTER BAYLINSON, Southold Town Ordinance Inspector NICOLE BUCKNER, TRUSTEES OF THE TOWN OF SOUTHOLD, and DOES 1-10, all individually and in their official capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

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FRANCIS J. KELLY and ELIZABETH G. KELLY, Plaintiffs, v. TOWN OF SOUTHOLD, SOUTHOLD TOWN BOARD, Southold Town Ordinance Inspector LESTER BAYLINSON, Southold Town Ordinance Inspector NICOLE BUCKNER, TRUSTEES OF THE TOWN OF SOUTHOLD, and DOES 1-10, all individually and in their official capacities, Defendants.

No. 21-CV-3215 (JMA) (LGD)

United States District Court, E.D. New York

June 7, 2023

REPORT AND RECOMMENDATION

LEE G DUNST, UNITED STATES MAGISTRATE JUDGE

Since June 7, 2021, plaintiffs Francis J. Kelly (“Mr Kelly”) and Elizabeth J. Kelly (together with Mr Kelly, “Plaintiffs”) have pursued this federal action alleging that the Town Of Southold (“Town”) and certain related individuals and entities violated the United States Constitution and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et. seq. by restricting Plaintiffs' use of their real property within the Town (specifically, a marina located on the North Fork of Long Island). See generally Electronic Case File Number (“ECF No.”) 1. Prior to the filing of this federal lawsuit, Plaintiffs had been involved in numerous New York State court proceedings going to back to 2014 regarding this same property that is the subject of the pending federal litigation. Presently before the Court, pursuant to the referral from the Honorable Joan M. Azrack for a Report and Recommendation, is the motion by all defendants to dismiss Plaintiffs' latest operative pleading: the [First] Amended Complaint at ECF No. 49 (“FAC”). See ECF No. 67 (“Motion”). For the reasons set forth below, the undersigned respectfully recommends that the Court (1) dismiss sua sponte with prejudice all claims against defendants Southold Town Board and Trustees Of The Town Of Southold, and (2) grant the Motion by (a) dismissing with prejudice the FAC's Counts III and VII, and (b) dismissing without prejudice the balance of the FAC.

I. FACTUAL BACKGROUND^[1]

A. The Parties And Nonparty Southold Town Zoning Board Of Appeals

Plaintiffs are married “avid mariners” who live in East Islip, New York. FAC ¶ 5. The Town is located in Suffolk County, New York. Id. ¶ 6. Defendant Southold Town Board (“Board”) is the Town's “governing and legislative body, and is composed of the Town Supervisor and 5 other councilperson members.” Id. ¶ 7. Defendant Trustees Of The Town Of Southold (“Trustees”) is “the governing body” for the Town's “waterways and land which is located within 100' of the shorelines.” Id. ¶ 10. Defendants Lester Baylinson (“Baylinson”) and Nicole Buckner (“Buckner” and together with Baylinson, “Individual Defendants”) were at all relevant times “Ordinance Inspector employee[s]” for the Town. Id. ¶¶ 8-9. Doe Defendants 1-10 “are meant to refer to other individuals who acted independently or together with the other named defendants in the events and occurrences described” in the FAC. Id. ¶ 11. Each of the Individual Defendants is sued both individually and in his or her official capacity. This Report and Recommendation refers to all defendants named in the FAC collectively as “Defendants.”

Nonparty Southold Town Zoning Board Of Appeals (“ZBA”) is “a quasi-judicial body” composed of five members appointed by the Board.^[2] Id. ¶ 22. “The ZBA is authorized under New York Town Law to hear appeals of applications that have been reviewed and issued a denial (Notice of Disapproval) by the Building Inspector under Chapter 280 (Zoning) of the Town Code.” Id. “The ZBA also has original jurisdiction to consider uses specifically permitted under Chapter 280 (Zoning) by Special Exception application . . . when all requirements referred to in the Town Code and New York Town Laws have been met.” Id.

B. Plaintiffs' 2014 Acquisition Of The Property

In June 2014, Plaintiffs acquired the marina within the Town located at 1900 Peconic Bay Boulevard in Laurel, New York (“Property”). Id. ¶ 21. Since 1983, the Property has been zoned as “M-1,” which “allows a very broad variety of commercial uses for marina property in close proximity to the water.” Id. ¶ 25; see also id. ¶ 21 (explaining that the Property “abuts Brushes Creek which flows into the Peconic Bay”). When Plaintiffs acquired the Property, they reportedly were unaware that (1) “the County of Suffolk had designed a plan to revitalize a parcel of land in the surrounding areas as a county park for hiking trails and archery,” (2) “the local residents and the neighborhood community near the P[roperty] maintained a close affiliation and influence with local county and town officials” and reportedly “sought to effectuate some manner of control over local government regulation,” and (3) “members within the community” believed local residents “were entitled to public access along the Brushes Creek waterways using the boat ramp located on the P[roperty].” Id. ¶¶ 2324.

C. The 2014 Prosecution Of Plaintiffs For Impermissible Use Of The Property, The ZBA's 2016 Restricted Use Authorization For A Marina, And Plaintiffs' Unsuccessful 2016 Article 78 Proceeding Challenging Those Restrictions

In 2014, the Town prosecuted Mr. Kelly for “lack of a ‘site plan approval' and other related local code violations” on the Property (“2014 Prosecution”). FAC ¶ 27. In “early 2016,” the ZBA authorized the Property to be used as a marina, for a vessel of no more than 20 feet, with use of a “gravel parking lot without building structures” (“ZBA Authorization”). Id. ¶¶ 22, 26. In doing so, the ZBA found that “no site plan approval was required” for Plaintiffs' “pre-existing use [of the Property] as a small watercraft marina.” Id. ¶ 26. On August 24, 2016, Mr. Kelly commenced an action against the ZBA in New York Supreme Court, Suffolk County captioned Kelly v. Zoning Board Of Appeals for the Town Of Southold, No. 8320/2016 (“2016 Article 78 Proceeding”) to set aside the restrictions in ZBA Authorization “as arbitrary and capricious.” ECF No. 67-5. In “late November 2016,” the 2014 Prosecution was dismissed in light of the ZBA Authorization. FAC ¶ 27. On May 20, 2019, the 2016 Article 78 Proceeding was dismissed with prejudice. ECF No. 67-5.

D. The Town's Successful 2015 Enforcement Action Enjoining Plaintiffs From Using The Property As A Recreational Vehicle Park

On August 27, 2015, the Town commenced an action against Plaintiffs in New York Supreme Court, Suffolk County, captioned Town of Southold v. Kelly, No. 15142/2015 (“2015 Enforcement Action”), to enjoin Plaintiffs' use of the Property “as a tourist and trailer camp and/or recreational vehicle park” without the requisite permits.^[3] Town of Southold v. Kelly, No. 15142/2015, 2018 WL 1558797, at *3 (N.Y. Sup. Ct. Mar. 21, 2018). On March 21, 2018, the Court issued an order that (1) permanently enjoined Plaintiffs and all others acting on their behalf “from operating a Tourist Camp and/or Recreational Vehicle Park, as those terms are defined and regulated in Chapter 253 of the Code of the Town of Southold” at the Property unless “all necessary certificates of occupancy, permits and/or approvals for such use are obtained from the Town of Southold”; and (2) directed Plaintiffs to comply with “Southold Town Code Section 280-115” such that “no single automobile trailer or house car may be located on the Premises unless authorized by the [Board] and subject to such conditions as may be prescribed by [the Board].” Id. at *2. Plaintiffs did not appeal that order.

E. Mr. Kelly's Unsuccessful 2017 Malicious Prosecution Case

On November 25, 2017, Mr. Kelly “commenced a civil rights lawsuit for malicious prosecution” against the Town in New York Supreme Court, Suffolk County captioned Kelly v. Town Of Southold, No. 622655/2017 (“2017 Malicious Prosecution Action”). FAC ¶ 27. In that action, Mr. Kelly asserted that the Town “wrongfully deprived him of his property” when the Town brought the 2014 Prosecution. Kelly v. Town of Southold, No. 622655/2017, 2021 WL 11448947, at *1 (N.Y. Sup. Ct. Dec. 08, 2021); see also id. (explaining that “the crux” of the 2017 Malicious Prosecution Case was that the Town “knew that plaintiff's activities were lawful and that it acted willfully, wantonly, maliciously and recklessly with the intent to injure plaintiff.”). On December 8, 2021, the Court dismissed the 2017 Malicious Prosecution Action because Mr. Kelly willfully failed to comply with the Town's discovery demands and multiple court orders. See id. at *1-2.

F. Plaintiffs' 2018 Unsuccessful Application To Use Their RV On The Property

The Board passed “a resolution in 1996” that contained a policy providing limited circumstances in which the Board would permit RVs to be parked outside of approved parks. FAC ¶ 31; see ECF No. 67-9 (copy of the December 23, 1996 Board resolution). That resolution provides that the Board would allow RVs to be parked outside of approved parks only in specified circumstances, including for use (1) by a watchman when there is a sufficient history of security violations on the site, (2) as a temporary residence during construction, and (3) as seasonal farm labor housing. ECF No. 67-9. Plaintiffs contend that the policy was “never promulgated into law.” FAC ¶ 31; but see Southold Town Code § 280-115(B) (providing that an automobile trailer or house car may not be located outside a tourist camp unless “authorized by the Town Board and subject to such conditions as may be prescribed by the Town Board”).

Plaintiffs own an RV that reportedly “has New York State handicapped license plates, issued . . . under NY VTL §385 because Mr. Kelly and Mrs. Kelly have medical issues that necessitate those plates and permissions.” FAC ¶ 30. Further, Mr. Kelly “has a ‘handicapped' parking permit issued by the Town of Islip” that reportedly “legitimately documents his lawful parking status in handicapped parking spots all over...