Missere v. Gross

Decision Date31 March 2011
Docket NumberCase No. 09–CV–8183 (KMK).
Citation826 F.Supp.2d 542
PartiesAnthony MISSERE, Plaintiff, v. Joseph GROSS, in his individual capacity and as the Mayor of the Incorporated Village of Cornwall–on–Hudson, Incorporated Village of Cornwall–On–Hudson, Michael De Franco, Michael Kelly, Andrew Maroney, Robert Quillin, Peter Osinski, Horst Hoffman, in their capacities as Members of the Zoning Board of Appeals of the Incorporated Village of Cornwall–on–Hudson, William Lee in his capacity as Code Enforcement Officer of the Incorporated Village of Cornwall–on–Hudson, Raymond Yannone, Jr., and Storm King Associates, LLC, Defendants.
CourtU.S. District Court — Southern District of New York


Michael P. O'Connor, Esq., New City, NY, for Plaintiff.

Cynthia Dolan, Esq., Ostrer Rosenwasser LLP, Chester, NY, for Defendants Storm King Associates, LLC, and Raymond Yannone, Jr. Terry August Rice, Esq., Rice & Amon, Suffern, NY, for Defendants Incorporated Village of Cornwall–on–Hudson, Joseph Gross, Andrew Maroney, Horst Hoffman, Michael De Franco, Michael Kelly, Peter Osinski, Robert Quillin, and William Lee.


KENNETH M. KARAS, District Judge:

Love thy neighbor,

And you will find your labor

A great deal easier,

Life'll be breezier

If you love thy neighbor.

-Bing Crosby, Love Thy Neighbor (1934)

Breezier and less litigious; if only the Parties in this case had taken Bing to heart. In this neighborhood dispute, Plaintiff Anthony Missere, the owner of property in the Village of Cornwall–on–Hudson, New York, sues the Village, the members of its Zoning Board of Appeals, its Mayor, and its Code Enforcement Officer (the Village Defendants), as well as the owners of an adjoining building, Raymond Yannone, Jr., and Storm King Associates, LLC (the Storm King Defendants). Missere alleges favoritism in the enforcement of the Village's zoning code and a conspiracy among these Defendants to deprive him of his property rights. The two sets of Defendants—the Village and its employees, and Yannone and Storm King Associates—have filed separate motions to dismiss Missere's complaint. For the reasons stated herein, the motions are granted.

I. Background
A. Facts

Missere's Complaint alleges the following facts, assumed to be true for purposes of deciding Defendants' motions. Missere owns two adjoining properties in the Village of Cornwall–on–Hudson (the Village), numbers 3–5 River Avenue (“3 River Ave.”) and 7–9 River Avenue (“9 River Ave.”). (Compl. ¶ 2.) Missere operates the Riverbank Restaurant (“Riverbank”) at 3 River Ave. ( Id. ¶ 11.) After acquiring 9 River Ave. in September 2007, Missere initiated plans to expand Riverbank into 9 River Ave.'s ground floor. ( Id. ¶ ¶ 10, 12–13.) He began by filing a site plan application with the Village Planning Board on September 21, 2007. ( Id. ¶ 12.) About the same time, Missere also filed an application to move his garbage storage area from the back yard of 3 River Ave., to 9 River Ave. ( Id. ¶ 14.)

In the Village, the Central Business and Shopping District Zone (“CBS Zone”) is a district carved out of the SR Suburban Residential District.” Cornwall-on Hudson, N.Y., Code § 172–9(A).1 Restaurants are permitted uses within the CBS Zone, but not within the larger SR Suburban Residential District. (Compl. ¶ 13.) See Cornwall–on–Hudson, N.Y., Code §§ 172–8, 172–9 (describing permissible uses in the SR Suburban Residential District and “CBS Central Business and Shopping Subdistrict”). Missere's first site plan application was prepared by a surveyor who determined that 9 River Ave. was located within the CBS Zone. ( Id. ¶ 13; Aff. in Opp'n to Defs.' Mot. to Dismiss Pl.'s Compl. (“Missere Aff.”) (Dkt. No. 35) Ex. C (Cornwall–on–Hudson, N.Y., Zoning Map).) Missere's applications were also supported by a September 21, 2007 letter from the Village's former Code Enforcement Officer, Robert Gilmore, stating that 9 River Ave. “is located within the C.B.S. district” (the “Opinion Letter”). (Missere Aff. Ex. B; Compl. ¶ 15.)

Defendant Raymond Yannone, Jr., (Yannone) is Manager of Storm King Associates, LLC (Storm King) (collectively the “Storm King Defendants). Storm King owns 2 Idlewild Avenue (“2 Idlewild Ave.”), another property that physically adjoins 3 River Ave. There, Storm King operates a restaurant that competes with Riverbank. ( Id. ¶¶ 36–37.) While Missere's applications to expand Riverbank were pending, Yannone allegedly lobbied against Missere's applications to local officials and local newspapers, claiming that Missere's properties were not within the CBS Zone. ( Id. ¶ 17.) Also, while Missere's applications were pending, the Mayor of the Village, Defendant Joseph Gross (Gross), allegedly signed and certified an “Official Zoning Map” for the Village which erroneously indicated that neither 3 River Ave. nor 9 River Ave. was located in the CBS Zone. ( Id. ¶ 16.) Gross and Yannone took these actions, Missere alleges, in order to defeat his application to expand the Riverbank to 9 River Ave. and to close down Missere's restaurant altogether. ( Id.)

After his application to expand Riverbank was “adjourned” several times, the Planning Board on December 18, 2007 told Missere to get an “interpretation” of the Village zoning code from the Village Zoning Board of Appeals (ZBA). ( Id. ¶¶ 17, 19.) When Missere did this, the ZBA informed him in January 2008 that it lacked jurisdiction to make such an “interpretation.” ( Id. ¶ 20.) Missere returned to the Planning Board, which took no action and instead referred his application to the Village Board of Trustees. ( Id. ¶ 21.) The Complaint does not specify what action the Board of Trustees took.

Meanwhile, Yannone filed an “appeal” of the Code Enforcement Officer's September 21, 2007 Opinion Letter, which stated the Officer's determination that 3 and 9 River Ave. were located within the CBS Zone, with the Village ZBA. ( Id. ¶ 22.) The appeal was filed on January 23, 2008, over sixty days after the date of the Opinion Letter. ( Id.) Missere alleges that the appeal was therefore untimely, see N.Y. Vill. Law § 7–712–a(5)(b) (providing that appeals to zoning boards of appeals “shall be taken within sixty days after the filing of” the challenged administrative action), but the ZBA heard it anyway and overturned the Code Enforcement Officer's decision on May 20, 2008, concluding that 9 River Ave. was not within the CBS Zone. (Compl. ¶¶ 23–25; Missere Aff. Ex. D (decision of ZBA following April 8, 2008 meeting, dated May 2008).) 2 Missere challenged this decision in an Article 78 proceeding in New York Supreme Court; in an October 7, 2008 decision, the court rejected Missere's contentions, holding that the ZBA's decision to hear Yannone's appeal was within its discretion and that the ZBA's outcome on the merits was not “arbitrary [ ]or capricious.” (Defs.' Affirmation (“Dolan Aff.”) (Dkt. No. 34) Ex. D, at 4 (copy of decision in Missere v. Hoffman, No. 6090/08 (N.Y.Sup.Ct. Oct. 7, 2008).)

In May 2009, Missere went back to the Village Board of Trustees to seek a zone change for 9 River Ave. (Compl. ¶ 26.) The Trustees referred Missere to the ZBA to apply for a variance. ( Id. ¶ 27.) The ZBA rejected the variance application in June 2009 on the ground that the Board could only hear appeals of determinations of other administrative officers; the proper course was for Missere to apply for a building permit first, ( Id. ¶ 28.) See N.Y. Vill. Law § 7–712–a(4) (“Unless otherwise provided by local law, the jurisdiction of the board of appeals shall be appellate only....”); Cornwall–on–Hudson, N.Y., Code § 172–59(B)(1) (noting that the “powers and duties” of the ZBA included “authoriz[ing], upon appeal in specific cases ... variance from the terms of [the Village zoning code]). Missere did so. (Compl. ¶¶ 29–31.) The Complaint is vague about what happened next: Missere alleges that the resulting variance application was on the agenda for the ZBA's August 13, 2009 meeting, but the “application was not opened to a public meeting” due to a defect in the required public notice the Village had previously issued. ( Id. ¶ ¶ 31–32.) Missere does not allege what happened to his variance application.

In the meantime, while Missere was pursuing his restaurant expansion, in January 2008 a new Code Enforcement Officer, Defendant William Lee, granted Storm King a Certificate of Occupancy to operate its restaurant at 2 Idlewild Ave. ( Id. ¶¶ 38–39.) This Certificate of Occupancy was based on a November 13, 2007 Building Permit. (Dolan Aff. Ex. E, at 1 (copy of decision in Missere v. Hoffman, No. 6438/08 (N.Y.Sup.Ct. Oct. 27, 2008).) According to Missere, Storm King's application did not satisfy several of the requirements of the Village zoning code. (Compl. ¶ 38.) Among other things, Lee had determined that Storm King's application to open a restaurant did not require a site plan approval. ( Id.) Missere then discovered that Lee had issued six other Certificates of Occupancy to Yannone and Storm King on September 20, 2007. 3 Missere alleges that these Certificates were also improper, as they were based on expired Building Permits. ( Id. ¶¶ 41–42.) When Missere appealed the Certificates of Occupancy to the ZBA, in April and May 2008, the ZBA concluded that only Missere's appeal of the January 2008 Certificate was timely. On the merits, the ZBA determined that Yannone's application did not need a site plan because a site plan for a restaurant at 2 Idlewild Ave. had been approved some ten years earlier in 1998 and no one had since objected to it. ( Id. ¶¶ 38, 40, 43; Dolan Aff. Ex. E; Missere Aff. Ex. E (decision of ZBA following May 13, 2008 meeting dated May 2008); Reply Affirmation (Dolan Reply Aff.) (Dkt. No. 33) Ex. B (minutes of May 13, 2008 ZBA meeting).) When Missere appealed this ruling via a second Article 78 proceeding, the Supreme Court, in an October 27, 2008 decision, again dismissed his complaint, this time on the ground that any challenge to the ...

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