Sacher v. Vill. of Old Brookville
| Decision Date | 04 September 2013 |
| Docket Number | No. CV 12–6110.,CV 12–6110. |
| Citation | 967 F.Supp.2d 663 |
| Parties | Howard and Jacqueline SACHER, Plaintiff, v. VILLAGE OF OLD BROOKVILLE, Village Of Old Brookville Board Of Trustees, Village Of Old Brookville Planning Board, Village of Old Brookville Zoning Board of Appeals, Bernard D. Ryba (Mayor), Michael Dergarabedian, Richard Shaper, Matthew Schamroth, Marilyn Genoa (Board of Trustees), Laurence M. Werfel, James Farrell William Clark, Dr. Kevin Glassman (Planning Board), Lisa Larocca, Dorothy Young Davidow, Eileen Farrell (Zoning Board of Appeals), Matthew Moed (Building Inspector), John Chase (Village Attorney), Defendants. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Angelo G. Ferlito, Esq., Copiague, NY, Attorney for Plaintiff.
Sokoloff Stern, LLP, by: Steven C. Stern, Esq., Mark Radi, Esq., Carle Place, NY, Attorneys for Defendants.
Plaintiffs Howard and Jacqueline Sacher (“Plaintiffs” or the “Sachers”) bring this civil rights action alleging that actions taken by Defendants in connection with Plaintiffs' zoning applications violated their Constitutionally protected civil rights. The Sachers are homeowners in the Village of Old Brookville (the “Village”). The local entities named as Defendants are the Village, its Planning Board and the Village Zoning Board of Appeals (the “ZBA”). Also named as Defendants are individual members of the Village entities named, as well as Village Mayor Bernard D. Ryba, Matthew Moed, the Village building inspector and Village Attorney John Chase.1
Plaintiff's Amended Complaint (hereinafter “Complaint”) sets forth two federal causes of action pursuant to 42 U.S.C. § 1983 (“Section 1983”). Those claims allege violation of the Sachers' Constitutionally protected rights to equal protection and due process of law. Presently before the court is Defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Complaint for failure to state a claim. For the reasons that follow, the motion is denied in part and granted in part.
The facts set forth below are drawn from the Complaint and construed in the light most favorable to Plaintiffs. Also considered are other documents properly before the court in the context of this motion, including the decisions of the Village ZBA, and that of the Supreme Court of the State of New York, County of Nassau. See Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993) ().
The Sachers are owners of a home which sits on a three acre parcel of land located within the Village. The home includes various improvements including a pool, pool house and squash court. In 2008 or 2009, Plaintiffs constructed, without seeking a building permit or other approval, an addition to a pre-existing accessory cottage located on their property (the “Cottage”). The additions to the Cottage included adding to the square footage of the first floor as well as construction of a new second story. The newly expanded Cottage was built in the violation of various Village zoning codes, including those specifying the allowable amount of floor coverage and setback requirements. Since its expansion, Plaintiffs' daughter has resided in the Cottage with her family.
After completion of the Cottage, Plaintiffs sought to legalize the construction by seeking several variances and rulings with respect to both the building and their daughter's occupancy therein. With respect to the residency issue, Plaintiffs acknowledged that their daughter's permanent residency violated current zoning rules, but sought to establish that the Cottage was continually used as a residence, and therefore the residency was permissible as a vested nonconforming use.
The Village ZBA held a hearing on Plaintiffs' applications and members of that board visited the Cottage. At a hearing on Plaintiffs' applications, the ZBA heard the testimony of Plaintiffs' next-door neighbor who stated that since the addition of the second story, he could see the Cottage from his property. He testified further that the enlarged Cottage significantly altered the character, nature and ambiance of the Village, was detrimental to the character of the neighborhood and was visually offensive to his surroundings. Defendant Village Trustee Richard Shaper (“Shaper”) and Defendant ZBA members Lisa LaRocca (“LaRocca”) and Eileen Farrell (“Farrell”) visited the Sachers' property to observe the Cottage. LaRoccanoted its large size, and that the Cottage could be seen from the neighbor's property. Shaper agreed that the Cottage was visible from the neighbor's property. Farrell noted that the Cottage was prominently visible from the street.
The ZBA also heard testimony and reviewed documents with respect to the necessity for adding a second story to the Cottage, and the Sachers' right to maintain the structure as a permanent residence. As to the necessity of the second story, Howard Sacher testified that it was needed to provide storage space in a building with no basement. The ZBA noted the availability of storage space throughout the Sacher property, including the 6,840 square foot main house, and a three car garage that was stated to having been used for storage. With respect to the residency issue, the Sachers attempted to show, as noted, that the Cottage was continually used as a residence in a manner sufficient to allow it to be maintained as such as a vested non-conforming use. The ZBA considered documents and testimony regarding the residency issue, the substantial nature of the requested variances, the impact upon physical or environmental conditions, and the self-created nature of the Sachers' zoning predicament.
The Sachers' application was granted in part and denied in part. Specifically, the ZBA granted all variances necessary for the Sachers to maintain the first floor additions to the Cottage. While the ZBA denied the Sachers' claim of a vested right to continual residential nonconforming use, it allowed a variance for the continued use of the Cottage as a permanent residence by Plaintiffs' daughter and her family. While the ZBA thus allowed the requested variances with respect to the first floor and residency of the Cottage, it denied those that would have legalized the second story addition thereto. The Defendant–ZBA members LaRocca, Farrell and Dorothy Young Davidow voted in favor of the foregoing decision of the ZBA.
In a proceeding commenced pursuant to Article 78 of the New York CPLR, the Sachers appealed the decision of the ZBA. On December 5, 2012, Supreme Court, Nassau County (the “Article 78 Court”) issued a decision affirming that of the ZBA. The Article 78 Court stated first the standard of review to be applied, noting that the determination of the ZBA would not be disturbed so long as it properly weighed the benefits of granting the requested variances against any detriment to the health, safety and welfare of the community. Affirming the ZBA decision, the Article 78 Court stated that there was no evidence that the ZBA did not properly apply the correct balancing test, and that it had a rational basis, supported by sufficient evidence, to support its decision.
First, the Article 78 Court held that there was substantial evidence to support the denial of the claim of a vested continual non-conforming use of the Cottage. With respect to the variance sought for the second story addition, the Article 78 Court held that the ZBA properly considered the detriment to the Sachers' neighbors' property, the lack of support for the claimed need for additional storage space, and the substantial nature of the variance sought. That court further noted that the Sachers' difficulties were self-created by their failure to obtain pre-construction building permits and approvals, a factor entitled to be given “considerable weight.” After recitation of all factors, the Article 78 Court denied the Sachers the relief requested and dismissed the proceeding. On January 9, 2013, the Sachers filed a notice of appeal of the decision of the Article 78 Court. The court is informed that the appeal is pending, but has not yet been fully briefed before the Appellate Division of the Supreme Court, Second Department.
The Complaint sets forth two claims pursuant to 42 U.S.C. § 1983 (“Section 1983”). The first Section 1983 claim asserts a violation of Plaintiffs' right to equal protection of the law. The second asserts a violation of procedural due process. Plaintiffs' equal protection claim alleges disparate treatment pursuant to a “class of one” theory. Specifically, Plaintiffs allege that the decisions of the ZBA: (1) denying a variance to allow the second story Cottage addition to remain, and (2) denying the Sachers' claim of a vested non-conforming right to use the Cottage as a residence, were made “at the behest of” the Defendant Mayor of the Village, Bernard D. Ryba (“Mayor Ryba”). According to the complaint, Mayor Ryba harbors a personal animus toward the Sachers who “zealously supported” another candidate for the mayoralty. This animus is alleged to have resulted in secret meetings between Mayor Ryba, the Village Attorney and its Chief Building Inspector. During those meetings, the Mayor and Village Attorney are stated to have acted to prevent the grant of the variances sought and are alleged to have pressured ZBA members to vote against the Sacher applications.
In support of the allegation that their variance applications were singled out for disparate treatment, the Complaint states that “[o]ther...
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