Missere v. Gross
826 F. Supp. 2d 542
S.D.N.Y.2011Background
- Missere owns 3-5 River Avenue and 7-9 River Avenue in Cornwall-on-Hudson and operates Riverbank Restaurant at 3 River Ave.
- He seeks to expand Riverbank into 9 River Ave, filing a site plan with the Planning Board and an adjoining-property relocation of garbage storage.
- The CBS Zone (vs. SR District) governs permitted uses; Missere contends 9 River Ave is in CBS, while Defendants dispute this.
- Yannone (Storm King) allegedly lobbied officials and press against Missere, while the Mayor purportedly certified an official zoning map showing 3 and 9 River Ave outside CBS.
- ZBA hearings and decisions, including untimeliness challenges, led to a May 2008 ruling that 9 River Ave was not within CBS; later Article 78 proceedings upheld some decisions and rejected others.
- In 2008-2009, Village issued Certificates of Occupancy and a fence permit for adjacent properties under allegedly improper processes, and Missere alleges selective enforcement and a targeting of his restaurant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness of due process claim | Missere should be allowed to pursue due process unless final decision exists. | Ripeness requires final decision and, here, variance/final relief was not obtained. | Missere's due process claim unripe; dismissed. |
| Existence of a protectable property interest | Missere had entitlement to expand to 9 River Ave via CBS inclusion or variance. | Discretionary zoning and site-plan processes negate entitlement. | No constitutionally protected property interest; claims fail on the merits. |
| Equal Protection: selective enforcement vs class-of-one | Storm King and Village selectively enforced zoning against Missere. | No substantial similarity or discriminatory intent proven; claims fail. | Equal Protection claims dismissed; unsupported by pleadings. |
| Joint action/Color of state law against Storm King Defendants | Storm King and Village acted in concert to deprive Missere of rights. | Private actions do not amount to state action absent concert or plan. | Dismissed; no viable joint-action theory established. |
Key Cases Cited
- Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (U.S. 1985) (two-step ripeness for takings claims; final decision required)
- Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002) (finality prong applicable to land use equal protection claims)
- Gagliardi v. Vill. of Pawling, 18 F.3d 188 (2d Cir. 1994) (property interest in land use arises only with entitlement)
- Crowley v. Courville, 76 F.3d 47 (2d Cir. 1996) (local zoning boards have broad discretion in variances)
- Clubside, Inc. v. Valentin, 468 F.3d 144 (2d Cir. 2006) (lack of entitlement to site plan approval where discretion exists)
- Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (U.S. 2008) ( Engquist; scope of class-of-one claims in discretionary state action)
- Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010) (Engquist not universal bar to class-of-one claims; discretionary action context)
- Ruston v. Town Bd. of the Town of Skaneateles, 610 F.3d 55 (2d Cir. 2010) (high standard for class-of-one similarity in equal protection claims)
- Hollman v. Cnty. of Suffolk, 2011 WL 280927 (E.D.N.Y. 2011) (not included; placeholder avoided due to WL citation)