Riley v. Town of Bethlehem

• Decision Date: 30 March 1999
• Docket Number: No. 97-CV-1788.,97-CV-1788.
• Citation: 44 F.Supp.2d 451
• Parties: Carole H. RILEY, Plaintiff, v. The TOWN OF BETHLEHEM; Board of Appeals of the Town of Bethlehem; Sheila Fuller, Town Supervisor; John H. Flanigan, Individually and In His Capacity as Town Building Inspector for the Town of Bethlehem; Michael Hodom; Robert Wiggand; Richard Lewis, James Morgan, Marjory O'Brien, Individually and In Their Capacities as Members of the Board of Appeals of the Town of Bethlehem; and Dixon Welt, Attorney for the Board of Appeals of the Town of Bethlehem, Defendants.
• Court: U.S. District Court — Northern District of New York

44 F.Supp.2d 451

Carole H. RILEY, Plaintiff, v. The TOWN OF BETHLEHEM; Board of Appeals of the Town of Bethlehem; Sheila Fuller, Town Supervisor; John H. Flanigan, Individually and In His Capacity as Town Building Inspector for the Town of Bethlehem; Michael Hodom; Robert Wiggand; Richard Lewis, James Morgan, Marjory O'Brien, Individually and In Their Capacities as Members of the Board of Appeals of the Town of Bethlehem; and Dixon Welt, Attorney for the Board of Appeals of the Town of Bethlehem, Defendants.

No. 97-CV-1788.

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

March 30, 1999.

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Law Offices of Peter M. Pryor, Albany, New York, for plaintiff; Peter M. Pryor, of counsel.

Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany, New York, for defendants; Jeffrey E. Hurd, of counsel.

Galvin & Morgan, Delmar, New York, for defendants Marjory O'Brien, and James E. Morgan in their individual capacities; Madeline Sheila Galvin, of counsel.

MEMORANDUM — DECISION & ORDER

McAVOY, Chief Judge.

This action has its genesis in the enforcement of a zoning code against plaintiff. The gravamen of the Complaint is that defendants selectively enforced the zoning code against plaintiff because of her race. Plaintiff brings claims, inter alia, that defendants violated her constitutional rights to procedural due process, substantive due process, and equal protection.

Defendants now move to dismiss pursuant to FED.R.CIV.P. 12(b)(1) and (6), or, alternatively, for summary judgment pursuant to FED.R.CIV.P. 56. For the reasons that follow, I grant in part and deny in part defendants' motions.

I. BACKGROUND

A. Facts

In the spring of 1996, Plaintiff Carole H. Riley, an African-American female, moved to the Albany, New York area to pursue her Pizza Hut franchisee business. At the outset, she retained a real estate agent to find her a home residence that could also serve as a home office. She viewed one property, which she ultimately did not pursue because of zoning concerns. In August 1996, she purchased real property located at 1545 New Scotland Road in Bethlehem, Albany County, New York (the "property"). According to plaintiff, while she understood that the property was (and remains) zoned "A residential," her real estate agent led her to believe that the property could also be used as a home office. See Plaintiff's Statement of Material Facts, at ¶ 15. That understanding also appears to have stemmed from poor legal advice and a misleading real estate listing.

After moving in, plaintiff began using the property as both a residence and home office. Her business partner, Kelli Givens, an African-American female, also stayed in the house on the property. Plaintiff and Givens are the majority stockholders in Horizon Collective, Inc. ("Horizon"), which owns approximately 47 franchises for Pizza Hut restaurants in upstate New York and western portions of Massachusetts. Horizon leases a portion of the property as its designated home office. According to plaintiff, though she employed approximately 7 persons at her home, her home office involved only the administrative aspects of the Horizon/Pizza Hut business.

On February 7, 1997, the Town Building Inspector, John Flanigan, investigated plaintiff's property for suspected zoning noncompliance. Upon investigation, Flanigan noticed a large dumpster on the property with construction materials in it and kitchen equipment stored in the garage. He also noticed construction work to the house, which a construction worker informed him was being renovated for home office use. After receiving a tour of the property by the construction worker, Flanigan returned to his office and drafted a letter to plaintiff informing her that use of the property as a home office violated the zoning code. The letter directed her to cease and desist using the property as a home office.

According to plaintiff, she first learned that her home office presented a zoning problem after Flanigan visited the property and subsequently sent her the cease and desist letter. Thereafter, she retained counsel, and on February 27, 1997, applied to the defendant Board of Appeals of the Town of Bethlehem (the "BOA") for a use variance "to permit [her] to maintain home offices (14 employees) and 2 separate apartments."¹ While her application was pending, plaintiff was permitted to continue using the property as a home office.

On April 16, 1996, a hearing was held, at which plaintiff and her attorney, Robert Wakemen, were present. At that time, both Wakemen and plaintiff made arguments in support of her use variance application. Among other things, plaintiff testified that she desired to continue using the property for home office purposes in connection with her Pizza Hut business. She stated that she employed approximately 7 others at the house, excluding herself and her partner. She also admitted that she holds monthly staff meetings with her employees at the property, during which approximately 18 to 20 persons from her restaurants are present. She also testified that she made no changes to the interior or exterior of the building or the property, except for electrical work to accommodate her computers. At the tailend of the hearing, the following exchange took place between Riley and defendant Lewis, a BOA member:

Lewis: Ms. Riley, one of our problems is what you're asking for is a use variance and our ability to what I call wiggle room, is very limited. For instance, one of the things is, that no such use variance should be granted by a[BOA] without a showing by the Applicant that the applicable zoning regulations and restrictions have caused unnecessary hardship and that the alleged hardship has not been self-created.

Mr. Riley: There is a hardship if I have to lose a $500,000 investment because —

Mr. Lewis: I understand that but now I go on the second point and say, the alleged hardship has not been self-created. Could you address that?

Ms. Riley: I made a mistake but I relied on the representations that were made to me by ... [my listing real estate agent] ... and my attorney who did not make a representation but obviously failed to do the proper research that would uncover the fact that we have a situation.

After hearing plaintiff's testimony, and at the BOA's suggestion and plaintiff's concurrence, the BOA adjourned the matter to allow plaintiff the opportunity to gather and submit additional evidence and to address the concerns raised by the BOA. On July 9, 1996, plaintiff filed a supplemental application with the BOA requesting that she be permitted, absent a variance, to use the property as a home office pursuant to § 128-35² of the Town Code.

A second hearing was held on September 17, 1997. Plaintiff was present with her new attorney, Peter Pryor. Once again, plaintiff testified in support of her applications. Following her testimony, Edward Kleinke, a licensed landscape architect, testified on plaintiff's behalf that other homeowners within the Town have home offices in residentially zoned areas. Specifically, he identified two businesses within 500 feet of plaintiff's property that are zoned A residential — the Slingerlands Fire Hall and the medical office of Joanne Van Woert, M.D. Freinke also identified 4 businesses in zoned "AA residential" areas located more than 500 feet but less than 1000 feet from plaintiff's property — Youngblood Law Offices, Coventry Construction, Gialli Interiors and Spectr-Probe Consulting. In addition, he identified 19 businesses in residentially zoned districts more than 1000 feet but less than 4000 feet from plaintiff's property. He also testified that after reviewing the business listings in the local telephone directory, he identified approximately 90 other businesses in the Town of Bethlehem that are located in a residentially zoned districts. In reply, Flanigan testified that the Slingerlands Fire Hall was exempt from the zoning law and that the Van Woert office had been granted a use variance.

At a regularly scheduled public hearing on October 15, 1997, the BOA unanimously voted to deny plaintiff's application. At that time, the BOA directed defendant Dixon Welt, the Town attorney, to draft a resolution denying the application. Welt drafted and presented the resolution denying plaintiff's use variance application, which the BOA passed on November 5, 1997. According to the Resolution and the affidavits of the defendant BOA members, the BOA denied her a use variance because she did not satisfy the statutory requirements. The BOA also denied plaintiff's supplemental application during the November 5, 1997 public hearing.

B. Procedural History

On December 8, 1997, plaintiff filed a Complaint against defendants, the Town of Bethlehem (the "Town"); the BOA; Sheila Fuller ("Fuller"), Town Supervisor; Flanigan, individually and in his capacity as the Town Building Inspector; Dixon Welt ("Welt"), Attorney for the BOA; and Michael Hodom ("Hodom"), Robert Wiggand ("Wiggand"), Richard Lewis ("Lewis"), James Morgan ("Morgan"), and Marjory O'Brien ("O'Brien"), individually and in their official capacities as members of the BOA. The bedrock of the Complaint is that defendants have selectively enforced the zoning code against her because of her race. Specifically, the Complaint alleges that adjacent white homeowners are openly conducting businesses from their homes without interference from and with the knowledge of the Town and the other defendants. The Complaint presents a myriad of claims, pursuant to 42 U.S.C. § 1981, 1982, 1983, and 1985, for, inter alia, violations of procedural due process, substantive due process, equal protection, and the Commerce Clause. It also asserts a number of pendent state-law claims.

Presently before the Court are two motions. First, defendants O'Brien and Morgan move in their individual capacities to dismiss the Complaint pursuant to FED. R.CIV.P. 12(b)(1) and (6), or, alternatively,...