LaTrieste Restaurant and Cabaret Inc. v. Village of Port Chester

• Decision Date: 21 November 1994
• Docket Number: No. 94-7479,D,No. 2495,2495,94-7479
• Parties: LaTRIESTE RESTAURANT AND CABARET INC., doing business as The Diamond Club, Plaintiff-Appellant, v. VILLAGE OF PORT CHESTER; Domenick Tamarro; James Savage; Christine Korff; Michael Antaki; Thomas Ceruzzi; Janusz Richards; Zoning Board of the Village of Port Chester; John Branca; Anthony Fontana; John Belfatto; and Carl Verrastro, Defendants-Appellees. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 587

40 F.3d 587

LaTRIESTE RESTAURANT AND CABARET INC., doing business as The Diamond Club, Plaintiff-Appellant, v. VILLAGE OF PORT CHESTER; Domenick Tamarro; James Savage Christine Korff; Michael Antaki; Thomas Ceruzzi; Janusz Richards; Zoning Board of the Village of Port Chester John Branca; Anthony Fontana; John Belfatto; and Carl Verrastro, Defendants-Appellees.

No. 2495, Docket No. 94-7479.

United States Court of Appeals Second Circuit.

Argued Aug. 8, 1994.

Decided Nov. 21, 1994.

Gerald Padian, New York City (Tashjian & Padian), for plaintiff-appellant.

George O'Hanlon, Port Chester (Aldo Vitagliano, Corp. Counsel), for defendants-appellees.

Before WINTER and LEVAL, Circuit Judges, SKRETNY, District Judge. ^*

LEVAL, Circuit Judge:

This is an appeal from a grant of summary judgment in favor of the defendants in the United States District Court for the Southern District of New York, Charles L. Brieant, Judge. LaTrieste Restaurant and Cabaret, Inc., now doing business as "The Diamond Club," brought the action under 42 U.S.C. Sec. 1983 to enjoin the Village of Port Chester, its mayor, police chief, and several other village officials, from enforcing a variety of laws and ordinances against it. LaTrieste alleged in its complaint that the defendants were enforcing these laws, and particularly a zoning classification that forbade it from operating as a cabaret, selectively and unconstitutionally, in order to prevent plaintiff from exercising its First Amendment right to have topless dancing on its premises.

Background

Port Chester's zoning ordinance prohibited the operation of a cabaret in the zone encompassing LaTrieste's site. In December 1989, the Port Chester Zoning Board of Appeals granted to Citrone Development Corporation, the previous occupant of the site, a use variance which permitted it to operate a cabaret--that is, to feature dancing and live entertainment--on its premises after its dinner hour ended. Under the terms of the variance, the "cabaret hours [were] to start no earlier than 10 p.m."

In February 1992, LaTrieste entered into a lease for the same property. From May 1992 until May 1993, LaTrieste operated a dinner/cabaret format on the premises. LaTrieste submitted undisputed evidence that during this period it openly operated as a cabaret prior to 10 p.m., with the full knowledge of village officials, and without the village ever seeking to enforce the restriction. ¹ Judge Brieant found it undisputed that during this period "[d]efendants knew LaTrieste was operating in violation [of the 10 p.m. restriction], but did nothing." (JA159) Because the Italian restaurant/cabaret format turned out to be financially unsustainable, LaTrieste switched to a sports bar/topless cabaret format in May 1993. LaTrieste alleges that when it began featuring topless entertainment, the village began a pattern of harassment designed to prevent LaTrieste from doing so. The harassment included summonses, arrests, fines, the sudden enforcement of a variety of ordinances and regulations, the issuance of numerous notices of violation, and a refusal to act on LaTrieste's applications for permits. ² In May 1993, the village sent LaTrieste notice that it was violating the 10 p.m. requirement of its variance, and that it must cease operating before 10 p.m. or face the revocation of its certificate of occupancy.

LaTrieste then petitioned the Zoning Board of Appeals to lift the 10 p.m. restriction on the grounds that its operation as a cabaret prior to 10 p.m. would not cause traffic congestion; a public hearing was held on the issue on May 25, 1993. Many Port Chester residents, including the mayor, spoke out against topless dancing at the meeting and urged the board to deny the request for a waiver. The board held that the time to appeal the restriction had expired thirty days after its issuance in 1989, and denied the request to lift the condition.

In September 1993, LaTrieste commenced a proceeding in New York State Supreme Court against the village's Zoning Board under Article 78 of the Civil Practice Law and Rules. LaTrieste's petition sought to vacate the zoning board's decision and to require it to lift the 10 p.m. restriction. Justice Lange held that because LaTrieste knew or should have known of the conditions of the variance when it leased the property, any hardship was self-created; he denied the petition. (JA58).

On January 14, 1994 and on February 16, 1994, LaTrieste received letters from the Port Chester police department stating that LaTrieste's certificate of occupancy would be revoked if it did not cease operating before 10 p.m.

On January 18, 1994, LaTrieste commenced this action. The complaint alleges that village officials, by a campaign of harassment intended to put LaTrieste out of business, are denying it equal protection of the laws and interfering with its First Amendment rights; it seeks an injunction barring the village from revoking its certificate of occupancy by reason of violation of the 10 p.m. restriction, and from unlawfully interfering with LaTrieste's right to allow topless dancing. The district court granted the defendants' motion for summary judgment, finding that LaTrieste was "collaterally precluded from once again litigating the same issue or fact [as previously litigated in the Article 78 proceeding], even if that subsequent litigation is based upon a different claim or legal theory." Because we agree with the plaintiffs that they have raised colorable issues of fact, and that the instant lawsuit is not barred by the Article 78 adjudication, we reverse the grant of summary judgment.

Discussion

It is well-settled that summary judgment may be granted only if there is "no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On summary judgment, all facts and inferences therefrom are to be construed in favor of the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and appellate review is de novo, Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir.1994).

LaTrieste's principal claim in the federal action is that the village officials have selectively enforced the laws in an attempt to prevent LaTrieste's exercise of protected expression by exhibiting topless dancing. Judge Brieant granted summary judgment for two reasons: First, that the right and duty of the village to enforce its zoning restrictions is not lost through continued prior failure to enforce (JA165); second, that LaTrieste was barred from litigating the question because of its earlier suit under Article 78 (JA164) We agree with Judge Brieant that principles of laches or estoppel do not bar a municipality from enforcing ordinances that have been allowed to lie fallow. City of Yonkers v. Rentways Inc., 304 N.Y. 499, 505, 109 N.E.2d 597 (1952); New York State Medical Transporters Assoc. v. Perales, 77 N.Y.2d 126, 130, 564 N.Y.S.2d 1007, 1010, 566 N.E.2d 134, 137 (1990). But that fails to address the heart of LaTrieste's claim, which is not only that the village previously failed to enforce the restrictions, but also that it is now enforcing them selectively, discriminatorily, and for an unconstitutional motive of suppressing free expression. A claim of selective enforcement rests on different principles from laches. Where a town enforces a previously dormant zoning regulation against only those of a certain race, religion, or political affiliation, it is the constitutional principle of equal protection that is violated (regardless whether the doctrine of laches is applicable). Although selective enforcement is a "murky corner of equal protection law in which there are surprisingly few cases," LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), we have ruled that a claim of selective enforcement may lie in a situation such as the one presented here. In LeClair, for example, we wrote that a violation of equal protection for selective enforcement would arise if:

(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

Id. at 609-10. See also 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 416 N.Y.S.2d 219, 389 N.E.2d 815 (1979); cf. Brady v. Town of Colchester, 863 F.2d 205, 216-17 (2d Cir.1988).

LaTrieste's proofs met the standard of LeClair. As to selective treatment, the appellees contend that because the use variance and restriction are specific to the appellant's premises and govern no other in the village, there can be no claim of selective enforcement. This argument is mistaken. While it may be true that there are no other covered establishments, the comparison of the town's enforcement of the 10 p.m. restriction against the same premises prior to the start of topless dancing with its enforcement afterwards, can provide an adequate basis of comparison. The village failed to enforce the 10 p.m. restriction against a restaurant that did not exhibit topless dancing and, very shortly thereafter, did enforce the restriction against a restaurant that did exhibit topless dancing. Cf. 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d at 696-97, 416 N.Y.S.2d at 225-26, ...