Zahra v. Town of Southold

• Decision Date: 21 February 1995
• Docket Number: No. 1746,D,1746
• Parties: Charles ZAHRA, Plaintiff-Appellant-Cross-Appellee, v. TOWN OF SOUTHOLD, Victor Lessard, Curtis Horton and Vincent R. Wieczorek, Defendants-Appellees-Cross-Appellants. ocket 93-9067.
• Court: U.S. Court of Appeals — Second Circuit

Page 674

48 F.3d 674

Charles ZAHRA, Plaintiff-Appellant-Cross-Appellee, v. TOWN OF SOUTHOLD, Victor Lessard, Curtis Horton and Vincent

R. Wieczorek, Defendants-Appellees-Cross-Appellants.

No. 1746, Docket 93-9067.

United States Court of Appeals, Second Circuit.

Submitted May 26, 1994.

Decided Feb. 21, 1995.

Joseph C. Savino, Mattituck, NY (Janet Geasa, Wickham, Wickham & Bressler, P.C., of counsel), for plaintiff-appellant-cross-appellee.

Francis J. Yakaboski, Riverhead, NY (Douglas R. DeFeo, Smith, Finkelstein, Lundberg, Isler & Yakaboski, Riverhead, NY, of counsel), for defendants-appellees-cross-appellants.

Before: VAN GRAAFEILAND, PIERCE, and ALTIMARI, Circuit Judges.

PIERCE, Senior Circuit Judge:

Plaintiff Charles Zahra appeals from a final judgment entered in the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge ), following a jury trial. Zahra brought this action under 42 U.S.C. Sec. 1983 against the Town of Southold, Victor Lessard, Curtis Horton and Vincent R. Wieczorek (collectively "defendants"), alleging substantive due process and equal protection violations arising from defendants' revocation of a building permit and initial refusal to perform an insulation inspection. Zahra appeals from so much of the court's judgment as (1) dismissed his substantive due process claims against the Town of Southold and Wieczorek, (2) dismissed his equal protection claim, and (3) limited his damages claims. Defendants cross-appeal the denial of their motion for judgment as a matter of law on the ground of, inter alia, qualified immunity.

We reverse the district court's denial of judgment as a matter of law in favor of defendants based on qualified immunity, remand to the district court for entry of judgment as a matter of law in favor of defendants on the ground of qualified immunity, and affirm in all other respects.

BACKGROUND

Zahra is the owner of various parcels of real property located in the Town of Southold On September 18, 1986, Zahra entered into an agreement to purchase a two-story building known as the "Coffee Pot" located in the Town. The agreement was contingent upon Zahra's obtaining a building permit to renovate the Coffee Pot into a first floor restaurant and second floor apartment. Zahra submitted an application along with drawn plans to the Building Department, and was granted a building permit on October 27, 1986, signed by Lessard. He then closed title and commenced renovations the following Spring. Soon thereafter, Zahra encountered structural problems on the second floor of the Coffee Pot, such as dry rot and inadequate spacing of the studies, which required him to remove the balance of the second floor. Although he informed Lessard of his plans and received oral approval to do whatever was necessary, he did not submit new plans to the Building Department reflecting a one-story building. Subsequently, on September 22, 1987, Horton issued an order to remedy to Zahra directing him to "STOP ALL WORK NOT IN CONFORMITY WITH THE PROVISIONS OF THE PLANS OR SPECIFICATIONS OF THE BUILDING PERMIT." The following day, Zahra returned to the Coffee Pot to secure the job site and Horton issued him an appearance ticket charging a criminal offense of disobeying the stop work order. The charge was later dismissed, but the stop work order remained in effect.

New York ("the Town"). Defendants are the Town and three individuals employed by the Town's Building Department ("Building Department"), namely, Lessard, the principal building inspector, Horton, a building and ordinance inspector, and Wieczorek, an ordinance inspector.

On November 5, 1987, Horton issued a second order to remedy to Zahra, which revoked the Coffee Pot's building permit for "not following plans, did not comply with a stop work order." This second order was issued on the same day that Zahra sought to review the Building Department's public records to determine if other property owners in the Town working on similar projects were being treated differently. Thereafter, Zahra continued to inspect the Building Department's records, and, using copies of some of the inspected files, applied to the Town's Zoning Board of Appeals ("ZBA") for reinstatement of the building permit. On April 14, 1988, the ZBA upheld the revocation, finding that Zahra "proceeded with work in excess of the plans submitted to the Building Department."

On August 8, 1988, the Town Board held a work session to review certain files that Zahra alleged proved that others were being treated differently. Several of the files were referred to the ZBA for an opinion as to whether the Southold Town Zoning Code ("Town Code") had been complied with. The ZBA found some improprieties regarding the files, but from the record, it is unclear what, if any, action was taken. At Zahra's urging, the Town later hired an attorney, Barry L. Warren, to investigate the allegations. Warren's investigation consisted of reading a transcript and speaking to Zahra and some of the Town's employees. He then rendered an oral status report to the Town Board, which was not made public.

Nine days after the Town Board's August 8, 1988 work session, on August 17, 1988, Wieczorek issued two more orders to remedy to Zahra relating to other properties that he owned in the Town--one charged violations for "(1) No Building Permit for Pool Deck, (2) Using Swimming Pool without a Certificate of Occupancy"; the other charged violations for "(1) Manufacturing is not a permitted use in a B-1 district[,] (2) Failure to obtain site plan approval for (2) two manufacturing businesses." On September 28, 1988, Wieczorek served Zahra with appearance tickets in connection with these two orders. Both actions were ultimately dismissed.

Zahra, in the meantime, sought reinstatement of the revoked building permit by commencing an Article 78 proceeding in the New York State Supreme Court, Suffolk County, against the ZBA. On November 17, 1988, Judge Melvyn Tanenbaum reversed the ZBA's affirmance of the revocation and ordered the building permit reinstated. Zahra v. Southold Town Board of Appeals, No. 7725-88, slip op. at 3 (N.Y.Sup.Ct. Nov. 17, 1988). Judge Tanenbaum found that the evidence failed to support the ZBA's findings, and instead showed that Zahra "made efforts Thereafter, Zahra resumed his renovations of the Coffee Pot, and received favorable inspections for the foundation, framing, and plumbing. After having insulation installed on both the first and second floors, he sought to have the Building Department perform an insulation inspection. Lessard refused to order the inspection, and, on July 10, 1989, wrote a letter to Zahra directing him not to proceed with further renovations until he obtained approvals from the Health Department and the New York State Board of Review, as well as a satisfactory determination from the ZBA. Upon receiving the letter, Zahra commenced a second Article 78 proceeding against the Town and Lessard, in the nature of mandamus, seeking an order compelling them to perform the inspection. On December 15, 1989, Judge Tanenbaum granted Zahra's petition and ordered Lessard to conduct the inspection, finding that Lessard's decision to not inspect was "tantamount to a stop work order since renovations [could not] continue without the required insulation inspection." Zahra v. Town of Southold, No. 15798-89, slip op. at 3 (N.Y.Sup.Ct. Dec. 15, 1989). Judge Tanenbaum further found:

to renovate and add to the building in a sound, workmanlike manner in accordance with the plans submitted to the Town," id. at 2, and the ZBA's decision "effectively prevented him from conducting his restaurant business," id. at 3. He made no determination as to whether Zahra could continue to use the second floor apartment and remanded that issue to the ZBA. Id.

[Zahra] has the right to renovate his building in accordance with the submitted plans so that he may conduct his restaurant business. [Lessard's] discovery of state code violations concerning the use of the second floor as an apartment cannot prevent [Zahra] from completing his first floor restaurant and the exterior shell of the building. In this regard the building inspector has a legal duty to conduct timely inspections and his refusal to do so violates [Zahra's] rights and is therefore arbitrary and capricious. To refuse to act under these circumstances violates the lawful duties imposed upon the office of a town building inspector. Therefore mandamus must issue since the inspector is required by law to conduct such inspections and to take appropriate action.

Id. at 3-4 (citations omitted). Judge Tanenbaum left the question regarding the second floor apartment for administrative resolution. Id. at 4. The Town appealed to the New York State Supreme Court, Appellate Division, which affirmed on June 10, 1991. Zahra v. Town of Southold, 174 A.D.2d 626, 573 N.Y.S.2d 870 (App.Div.1991). The insulation inspection was later scheduled, and reinstatement for the second floor apartment was subsequently granted.

On September 28, 1990, Zahra commenced the present action pursuant to 42 U.S.C. Sec. 1983 asserting, inter alia, substantive due process claims against all defendants based on their earlier revocation of the building permit and initial refusal to perform the insulation inspection, and an equal protection claim against the Town, Lessard and Wieczorek due to alleged selective and discriminatory prosecution of the Town Code. Approximately two and one-half years later, on January 15, 1993, Zahra sought leave to amend his complaint because of "new developments." He alleged improprieties involving the Health Department relating to the Coffee Pot's sanitary system and water supply; he cited to newspaper articles suggesting that certain actions were taken against him due to personal grudges; and he alleged that the Town withdrew all of its funds from a local bank upon being made aware that the bank granted Zahra a...