Vill. Green At Sayville, LLC v. Town of Islip

• Decision Date: 27 September 2019
• Docket Number: 2:17-CV-7391 (DRH)(ARL)
• Parties: VILLAGE GREEN AT SAYVILLE, LLC, Plaintiff, v. THE TOWN OF ISLIP, THE TOWN BOARD OF THE TOWN OF ISLIP, THE PLANNING BOARD OF THE TOWN OF ISLIP, ANGIE M. CARPENTER, individually and in her official capacity as Member of the Town Board of the Town of Islip, STEVEN J. FLOTTERON, individually and in his official capacity as Member of the Town Board of the Town of Islip, TRISH BERGIN WEICHBRODT, individually and in her official capacity as Member of the Town Board of the Town of Islip, JOHN C. COCHRANE, JR., individually and in his official capacity as Member of the Town Board of the Town of Islip, MARY KATE MULLEN, individually and in her official capacity as Member of the Town Board of the Town of Islip, EDWARD FRIEDLAND, individually and in his official capacity as Member of the Planning Board of the Town of Islip, KEVIN BROWN, individually and in his official capacity as Member of the Planning Board of the Town of Islip, ANTHONY MUSUMECI, individually and in his official capacity as Member of the Planning Board of the Town of Islip, JOSEPH DE VINCENT, individually and in his official capacity as Member of the Planning Board of the Town of Islip, DONALD FIORE, individually and in his official capacity as Member of the Planning Board of the Town of Islip, DANIEL DELUCA, individually and in his official capacity as Member of the Planning Board of the Town of Islip, and MICHAEL KENNEDY, individually and in his official capacity as Member of the Planning Board of the Town of Islip, Defendants.
• Court: U.S. District Court — Eastern District of New York

VILLAGE GREEN AT SAYVILLE, LLC, Plaintiff, v. THE TOWN OF ISLIP, THE TOWN BOARD OF THE TOWN OF ISLIP,THE PLANNING BOARD OF THE TOWN OF ISLIP, ANGIE M. CARPENTER,individually and in her official capacity as Member of the Town Board of the Town of Islip,STEVEN J. FLOTTERON, individually and in his official capacityas Member of the Town Board of the Town of Islip,TRISH BERGIN WEICHBRODT, individually and in her official capacityas Member of the Town Board of the Town of Islip,JOHN C. COCHRANE, JR., individually and in his official capacityas Member of the Town Board of the Town of Islip,MARY KATE MULLEN, individually and in her official capacityas Member of the Town Board of the Town of Islip,EDWARD FRIEDLAND, individually and in his official capacityas Member of the Planning Board of the Town of Islip,KEVIN BROWN, individually and in his official capacityas Member of the Planning Board of the Town of Islip,ANTHONY MUSUMECI, individually and in his official capacityas Member of the Planning Board of the Town of Islip,JOSEPH DE VINCENT, individually and in his official capacityas Member of the Planning Board of the Town of Islip,DONALD FIORE, individually and in his official capacityas Member of the Planning Board of the Town of Islip,DANIEL DELUCA, individually and in his official capacityas Member of the Planning Board of the Town of Islip,and MICHAEL KENNEDY, individually and in his official capacityas Member of the Planning Board of the Town of Islip, Defendants.

2:17-CV-7391 (DRH)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 27, 2019

MEMORANDUM AND ORDER

APPEARANCES

LAW OFFICES OF MARK A. CUTHBERTSON

Attorneys for Plaintiff

434 New York Ave.

Huntington, NY 11743

By: Mark A. Cutherbertson, Esq.

Matthew Joseph DeLuca, Esq.

SINNREICH & KOSAKOFF LLP

Attorneys for Defendants

267 Carleton Ave.

Central Islip, NY 11722

By: Timothy F. Hill, Esq.

Lisa Angela Perillo, Esq.

Vincent J. Messina, Esq.

ISLIP TOWN ATTORNEY'S OFFICE

Attorney for Defendant

655 Main St.

Islip, NY 11751

By: John Ryan DiCioccio, Esq.

HURLEY, Senior District Judge:

INTRODUCTION

Plaintiff Village Green at Sayville, LLC ("Plaintiff") brought the instant action against Defendants the Town of Islip ("Town"), the Town Board of the Town Of Islip ("Town Board"), the Planning Board of the Town of Islip ("Planning Board"), Angie M. Carpenter, individually and in her official capacity as Member of the Town Board, Steven J. Flotteron, individually and in his official capacity as Member of the Town Board, Trish Bergin Weichbrodt, individually and in her official capacity as Member of the Town Board, John C. Cochrane, Jr., individually and in his official capacity as Member of the Town Board, Mary Kate Mullen, individually andin her official capacity as Member of the Town Board, Edward Friedland, individually and in his official capacity as Member of the Planning Board, Kevin Brown, individually and in his official capacity as Member of the Planning Board, Anthony Musumeci, individually and in his official capacity as Member of the Planning Board, Joseph De Vincent, individually and in his official capacity as Member of the Planning Board, Donald Fiore, individually and in his official capacity as Member of the Planning Board, Daniel Deluca, individually and in his official capacity as Member of the Planning Board, and Michael Kennedy, individually and in his official capacity as Member of the Planning Board (together with the other individuals, the "Individual Defendants;" collectively with the Town, the Town Board, and the Planning Board, "Defendants"). Plaintiff brings claims for violations of the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"), as well as 42 U.S.C. §§ 1981, 1982, 1983, and 2000d, the Fourteenth Amendment of the United States Constitution, and the New York State Human Rights Law ("NYSHRL") N.Y. Exec. L. § 296. Plaintiff asserts that Defendants acted unlawfully by "disallowing, delaying, blocking, and otherwise interfering with Plaintiff's attempts to construct a housing development[.]" (Am. Compl. [ECF No. 19] ¶ 1.)

Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to Fed. R. Civ. P. ("Rule") 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons discussed below, the motion to dismiss is granted and all claims are dismissed.

BACKGROUND

The following relevant facts come from the Amended Complaint ("Am. Compl.") and are assumed true for purposes of the motions to dismiss.

Plaintiff is the owner of certain real property located in Sayville, New York within the Town of Islip in Suffolk County, New York (the "Property"). (Am Compl. ¶¶ 1, 3.) Plaintiff intended to build a housing project on the Property. In 2006, the Town Board granted Plaintiff's application to re-zone the Property from Business One to Residence CA. (Id.) This re-zoning was conditioned on Plaintiff accepting certain covenants and restrictions ("C&Rs") including, among other things, that the permitted condominiums would be owned by those dwelling in the units. (Id. ¶ 4.) In other words, the property could not be a rental property. A Residence CA zoning district generally allows rental properties as a matter of right. (Id. ¶ 12.) The C&Rs also required connection to an off-site sanitary treatment plant ("STP"). (Id. ¶ 4.)

Plaintiff alleges that connection to an STP "became impossible, in part due to the Town and local school district's refusal to grant a required easement and the Town's subsequent approval of a project that utilized the remaining capacity of the only off-site STP to which Plaintiff could connect." (Id.) As a result, in May 2014, Plaintiff filed an application with the Town Board to modify the C&Rs to eliminate the covenants requiring condominiums owned by the unit dwellers and an off-site STP. (Id. ¶ 5.) The Town Board adopted a resolution to refer Plaintiff's application to the Planning Board for a report thereon. (Id. ¶ 48.) The Planning Board scheduled a public hearing on the application for November 13, 2014, at which a "vocal and hostile crowd" made racist comments such as "we are not talking about what's on the outside, we're talking about what might be on the inside." (Id. ¶ 51.) The Planning Board did not consider a resolution recommending approval of the application until nearly 18 months after the initial public hearing, a delay out of sync with the normal procedure. (Id. ¶ 48¹ at 15.) On May 4, 2016, the Planning Department staff gave the Planning Board a report that explained thatapartments were appropriate for the Property and that concerns expressed by the opposition concerning traffic impacts, wetlands, and diminution of property values had all been satisfactorily addressed by Plaintiff. (Id. ¶ 49 at 15-16.) The Planning Board ultimately failed to pass the motion; the Vice Chairman recused himself and the vote was a 3-3 tie. (Id. ¶ 53.) The vote was deemed a non-action. (Id.)

Due to this non-vote, Plaintiff further modified its application to reduce its application to amend the C&R from the originally proposed 64 rental units down to 59 units, with half of those being age-restricted. (Id. ¶ 54.) The Town Board held its first meeting on Plaintiff's application on June 30, 2016. (Id. ¶ 55.) The meeting was well-attended by similarly hostile Town residents. (Id. ¶¶ 55-56.)

"On November 3, 2016, the Plaintiff's application was placed on the Planning Board agenda as a recommendation item." (Id. ¶ 59.) Consideration of the application was adjourned on that date "because, upon information and belief, one of the application's most outspoken opponents . . . was out of town." (Id.) On November 17, 2016, the Town Board placed Plaintiff's application on the agenda for a vote. (Id. ¶ 60.) At the meeting, the Planning Department staff and Plaintiff's counsel made presentations in support of Plaintiff's application, following which the Town Supervisor made a motion to approve Plaintiff's application. (Id. ¶ 63.) No other Town Board member seconded the motion, and no vote was held. (Id.) Plaintiff claims that the Town "caved into hostile opposition from Sayville residents." (Id. ¶ 6.) Apparently, "the hostility was such that the Town Supervisor had to threaten to suspend the meeting." (Id. ¶ 7.) During the meeting, several Town residents made "comments evidencing animus to [m]inorities." (Id.) For example, one resident stated that

We don't know what type of element is going to be moving into these apartments and what they're going to leave behind . . . [whether there is]going to be any drug activity, crime, prostitution, murder . . . . It's going to be the murder capital of Suffolk.

(Id.) Certain residents even threatened political retaliation against the Town Board members if they approved Plaintiff's application. (Id. ¶ 58.)

That same night, the Town Board unanimously approved the application of Renzon Concepcion ("Renzon") "to modify a similar C&R that required 30 condominium units to instead allow 44 rental apartments." (Id. 71.) Renzon, like Plaintiff, was a developer that owned undeveloped real property in the Town that was zoned Residential CA, subject to a C&R that required condominiums and prohibited apartments. (Id. ¶ 10.) Plaintiff believes that the "key difference" between Plaintiff's development and Renzon's development is that the latter is located in the hamlet of Brentwood, which has a predominantly minority population. (Id. ¶¶ 10-11.)

A month after the Town Board meeting, Plaintiff's attorney, Joseph Buzzell, had a conversation with the Town Attorney, John DiCioccio, who said that "the Town is treating the failed motion to approve as a denial of the [Plaintiff's] application, and that no further proceedings before the Town Board, Planning Board, or any other Town Agency would be held." (Id. ¶ 67.) Plaintiff's attorney then sent Mr. DiCioccio a letter summarizing their conversation and asking Mr. DiCioccio to...