OPINION AND ORDER
Plaintiffs, S&R Development Estates, LLC (“S & R”) and John Doe Nos. 1 though 75 (“Doe plaintiffs”), bring this action under 42 U.S.C. § 1983 against defendants, Steven Bass (“Bass”), Eddie Mae
BACKGROUND
Plaintiffs allege the following in the Amended Complaint.
I.The Parties
S & R is a limited liability company in the Town of Harrison, New York. (Am. CompltY 7.) The Doe plaintiffs are unidentified persons intended to represent the future residents of the multiple dwellings proposed to be constructed by S & R on the property at issue. (Id. ¶ 8.) Defendant Feiner is the Supervisor of the Town and a member of the Town Board. (Id. ¶ 10.) Defendants Bass, Barnes, Juettner and Sheehan are members of the Town Board. (Id. ¶ 11.) Defendant ZBA is the agency of the Town vested with the power to interpret and apply the Town’s zoning ordinance. (Id. ¶ 12.) Defendant Stellato is the Commissioner of the Town’s Department of Community Development and Conservation. (Id. ¶ 13.) The “Doe” defendants are unidentified persons or entities that engaged in unlawful conduct to deprive plaintiffs of their rights to the Property. (Id. ¶ 14.)
II. The Property
S & R acquired property (the “Property”) on May 24, 2006 in Edgemont, an unincorporated area within the Town. (Id. ¶¶ 15, 17.) The Property was improved with one 3,200-square-foot single-family home and a swimming pool but is now vacant and undeveloped. (Id. ¶ 17.) It is situated at 1 Dromore Road a short distance east of Central Avenue, a heavily trafficked primarily commercial thoroughfare. (Id. ¶¶ 15, 16.) The Property is adjoined on the west by the Scarsdale Woods Condominiums, a 179-unit multifamily residential complex, and across Dromore Road to the north is the Nature Center property. (Id. ¶ 16.) At the time of acquisition, the Official Town of Green-burgh Zoning Map (the “Zoning Map”) showed that the Property was in the Central Avenue Mixed Use Impact District (the “CA Zone”), which would allow development of a multi-family complex containing at least 82 bedrooms. (Id. ¶ 18.) According to the Greenburgh Town Code, the Zoning Map is “the final authority as to the current zoning classification of any land” in the Town. (Id. (citing Greenburgh Town Code § 285-7(A)).)
III. S & R’s Pre-Acquisition Due Diligence
Before purchasing the Property, S & R’s representatives examined copies of the Zoning Map from 1997, 2000, 2003 and 2006, all of which showed the Property situated in the CA Zone; no earlier versions of the Zoning Map were available.
(Id.
¶¶ 19-21.) S & R’s representatives
S&R hired an appraiser, Howard Gelbtuch (“Gelbtuch”), who engaged Gary Spilatro (“Spilatro”), a licensed architect with zoning experience throughout West-chester County, to provide confirmation that the Property was in the CA Zone. (Id. ¶¶ 27-28.) Spilatro consulted the Official Zoning Map and was told by an employee in the Department of Community Development and Conservation that the map controls a parcel’s zoning designation. (Id. ¶ 28.) Gelbtuch, based upon his own study and Spilatro’s confirmation, valued the Property at $10,200,000 as of Septembеr 22, 2005. (Id. ¶ 29.) On May 24, 2006 S & R, closed on the Property, believing it was located in the CA Zone. (Id. ¶ 30.)
IV. Demolition and Development Plans
After acquiring the Property, S&R assembled a development team. Sullivan Architecture (“Sullivan”), the lead architect, conducted an independent review of the zoning designation and spoke with John Lucido (“Lucido”), the Town’s Building Inspector, who confirmed that the Property was in the CA Zone. (Id. ¶¶ 31, 32.) On October 18, 2006, Sullivan advised S&R that a maximum of 75 one-bedroom apartments could be built on the Property. (Id. ¶ 33.) S&R proceeded with the demolition of the single-family home and swimming pool that were on the Property. To obtain the necessary demolition permit from the Town, S&R: hired Munson Company as surveyors to provide a new survey and topographical map; hired Gal-dun Frankel Environmental as environmental consultants to confirm that the Property contained no wetlands or water courses; retained Even Air, Inc. to perform necessary asbestos remediation and Testor Environmental Technologies, Inc. to perform air monitoring; had Consolidated Edison remove the electrical facilities; worked with the Town’s Water and Sewer Department to perform a water-main disconnect; disconnected the phone and cable services; and had Robison Oil pump out the remaining oil in the above-ground oil tanks. (Id. ¶ 34.) The Town issued the Demolition Permit on December 1, 2006, demolition was conducted from December 6 through 12, 2006 and the Town issuеd a certificate of completion of demolition work on December 15. (Id. ¶ 36-37.)
Immediately after the demolition commenced, William Lawyer (“Lawyer”), the Executive Director of the Nature Center, told one of S & R’s attorneys that the Nature Center would oppose any development of the Property containing more than one or two homes. (Id. ¶ 38.) Lawyer contacted Supervisor Feiner, who announced his opposition to development on the Property in a December 10, 2006 web log entry that stated his intention to “initiate effort to protect Greenburgh Nature Center from possible development [at] 1 Dromore Road.” (Id. ¶ 39 (alterations in original).)
V. The Pre-Submission Meeting with the Tоwn’s Department of Planning and Conservation
On December 19, 2006, S & R’s representatives, Sullivan, S & R’s engineer and
After the meeting, S & R’s representatives and development team met Supervisor Feiner in the hallway and Feiner suggested that S & R speak to the Nature Center about the development plan; S & R asked Feiner to arrange such a meeting and attend. {Id. ¶ 47.) That day S & R’s representatives аlso met Lucido by chance, who advised them that the Town would delay S & R’s progress toward approval of the development plan but eventually S & R would obtain the necessary approvals. {Id. 148.)
VI. The Proposed Moratorium
The Greenburgh Conservation Advisory Council voted on December 18, 2006 to assist the Nature Center in acquiring the Property in order to prevent development. {Id. ¶ 49.) After the New Year, the Town proposed a moratorium on development that was crafted to apply to the Property and virtually no other parcels, was not accompanied by land use studies necessary to justify a legitimate moratorium and was intended to coerce S & R to convey the Property to the Town or the Nature Center. {Id. ¶ 50.)
On January 1, 2007, on the Town’s web site, Supervisor Feiner reiterated his prior opposition to development of the Property, stating that his 2007 goals included presenting the Town Board with options to protect the Nature Center from development that can have a negative impact and reaching out for partners to establish a possible acquisition of the Property. {Id. ¶ 51.) On January 4, Feiner stated on his web log that he would ask that a resolution for a public hearing on a development moratorium be placed on the agenda for the Town Board’s January 12 meeting. {Id. ¶ 52.) The Scarsdale Inquirer, on January 5, reported that Board member Bass told Stellato in December to put the moratorium on the Board’s January agenda and urged the Nature Center to support the moratorium. {Id. ¶ 53.) On January 7, The Journal News published an article with a statement by Feiner that if S & R wanted too much money for the Property the Town could try to acquire it by eminent domain. {Id. ¶ 54.)
On January 8, Stellato submitted to the Town Board a recommendation for a moratorium that was based on a draft prepared by Michelle McNally (“McNally”), President of the Edgemont Community Council (“ECC”), an influential neighborhood association.
{Id.
¶ 55.) At the Town Board meeting on January 10, the following comments were made: Robert Bern
On January 17, S & R wrote to the Town Board to provide detailed objections to the moratorium. (Id. ¶ 60.) S & R’s representatives and S & R’s land-use counsel met with Feiner, Bass and several representatives of the Nature Center on January 18, 2007. (Id. ¶ 61.) S & R’s representative stated that S&R could not financially afford a long moratorium but a representative of the Nature Center stated that the Center supported the moratorium. (Id.) S&R then proposed the following compromise to reduce the scope of the development in the hope of avoiding the moratorium: there would be no moratorium; S&R would donate a portion of the Property to the Nature Center in the form of a conservation easement; S&R would grant the Nature Center an option to purchase the Property at S & R’s cost; and if thе Nature Center or the Town did not raise the funds to purchase the Property they would support S & R’s development often residential units on the Property. (Id.) A Nature Center board member rejected the proposal, insisting the moratorium be enacted and that S&R gift the conservation easement to the Nature Center immediately and trust the Center to raise the necessary funds to purchase the Property. (Id.)
On January 24, S & R wrote to the Town Board to request a meeting with the Board members and ask for a delay in enacting the moratorium. (Id. ¶ 62.) That day the Town Board had a public hearing on the moratorium at which: Stellato spoke in favor of the moratorium, indicating that residential development in the CA Zone should be 50% less dense; Bernstein statеd that there were enough multi-family dwellings in the Town, that he did not want an increase in school district enrollment and that he was concerned about infrastructure, traffic and taxpayer burdens; McNally spoke about the spike in school enrollment and proposed a moratorium only as to residential development in the CA Zone. (Id. ¶ 63.)
On January 27, S & R hosted a meeting attended by Bass, Sheehan, Bernstein, McNally and Nature Center President Sims. (Id. ¶ 64.) At the insistence of Bass, plaintiffs attorney was not informed of the meeting and, at the insistence of Sheehan, Feiner was not told about the meeting. (Id.) At the meeting the participants reached the following agreement in principle: the ECC would create a new park district that would accept a conservation easement over part of the Property; if this new district was unable to raise the purchase money for the Property at a price equal to S & R’s out-of-pocket costs, the Town and the ECC would support S & R’s development often residential homes on the Property and the Property would be excluded from the moratorium. (Id. ¶ 65.)
S&R wrote to the Town Planning Board on January 31, 2007 protesting the
On February 2, S & R’s application for Site Plan Approval for the Property, which called for 37 two-bedroom units on the Property, was formally submitted to the Town’s Department of Community Planning and Conservation. (Id. ¶ 69.) The next day S & R’s representatives hosted another meeting with Bass, Sheehan, Barnes, Juettner, Bernstein and McNally. (Id. ¶ 70.) At the meeting the parties reiterated the agreement reached at the January 27 meeting. (Id.) Bernstein stated that he would cause the ECC to purchase the property through a bond offering by an Edgemont Park District that he would create, and that the bond issue could be put to vote in September 2007. (Id. ¶ 71.)
At the February 7, 2007 Town Planning Board meeting, the moratorium was discussed and handouts were provided discussing the school district, student enrollment, population density, Central Avenue land use and vacant properties. (Id. ¶ 72.) On February 14, S & R’s representatives, one of S & R’s attorneys and two engineers met with Madden regarding the formal submission of S & R’s development plan. (Id. ¶ 73.) No questions were raised regarding the Property’s CA zoning classification. (Id.) On this day, S & R wrote to the Town Board again arguing that the moratorium should not be enacted and asking that the Board avoid “surrendering to political pressure and hysteria from certain members of the Edgemont community.” (Id. ¶ 74.) One week later S & R’s reрresentative received a call from Bass in which Bass stated that he wanted to arrange a referendum to be placed on the September ballot to approve a bond offering for the new Edgemont Park District to purchase the Property and expressed confidence that the offering would be approved. (Id. ¶ 75.) He asked S & R’s representative to “trust” him and make a gift of part of the Property immediately, which S & R’s representative declined to do. (Id.)
VII. The Property’s Zoning Designation
On February 26, 2007, Bass sent an email to subscribers of the Town’s email program stating that the Property was actually zoned R-20, which is classified as a “One Family Residence District” in the Town Code. (Id. ¶ 76.) On the same day, Stellato issued a determination stating that the Property was situated in an R-20 zone. (Id.) Stellato directed Michael Lepre (“Lepre”), the Town Engineer, to alter the Zoning Map to, among other things, change the zoning designation of the Property from CA to R-20. (Id. ¶ 77.) There was no notice, public hearing or action of the Town Board before the alteration of the Zoning Map. (Id. ¶ 78.) No further steps were taken by the Board to enact the proposed moratorium. (Id. ¶ 80.)
A March 2, 2007 article in
The Scarsdale Inquirer
reported that Sheehan discovered the zoning “mistake last week while tracing the map’s evolution over the years.”
(Id.
¶ 82.) Bernstein was also quoted as stating that he felt the “town [was] on solid legal ground” but S & R could argue that the erroneous map was still the official onе, and thus, the final authority.
(Id.)
Shortly after this Bass telephoned S
VIII. The ZBA Proceedings
By letter to the Town dated March 9, 2007, S & R’s attorneys requested documents pursuant to the New York Freedom of Information Law (“FOIL”), seeking all versions of the Town’s Official Zoning Map and all legislation relating to the CA Zone. (Id. ¶ 84.) The request was approved by the Town’s public information officer on March 25. (Id.) In April 2007, S&R timely initiated an appeal to the ZBA from Stellato’s determination that the Property was zoned R-20. (Id. ¶ 85.) On July 9, 2007, the deadline for submission of additional evidence in support of the appeal, S & R submitted an affidavit of its representative that recounted the meetings and hearings at which Town officials confirmed that the Property was in the CA Zone and the meetings with the Town, the Nature Center and the ECC regаrding a possible compromise solution. (Id. ¶ 86.) The Town, however, did not make any responsive documents available to S & R until July 11, two days after the deadline. (Id. ¶ 87.) The Town’s response to S & R’s FOIL request included the Zoning Maps from 1932,1952, 1957, 2000, 2006 and February 2007. (Id. ¶ 88.)
On October 19, 2007, the ZBA voted to sustain Stellato’s determination that the Property was zoned R-20, with five members voting in favor and one member dissenting. (Id. ¶ 89.) On November 9, the written decision was filed in the office of the Town Clerk. (Id. ¶ 90.) The decision held that the Zoning Map, which had been changed in February, indicated that the property was zoned R-20 and S&R had failed to present documentation that established the Property was ever zoned CA. (Id.) The dissenting opinion concluded that the Town had failed to fulfill its duty to preserve the maps and hаd lost documentation, and it was wrong to place the burden on S & R to produce documentation showing the Property had been zoned CA. (Id.)
S&R presented a notice of claim to the Town and on September 10, 2007 appeared for an examination under oath to testify to the relevant facts of the claim. (Id. ¶ 91.) More than 30 days lapsed between the presentation of the claim and the commencement of this action. (Id. ¶ 92.) Plaintiffs filed this action on December 7, 2007, alleging takings, due process, equal protection, declaratory judgment, Article 78 and FHA claims. Plaintiffs specifically allege that: S&R had a constitutionally protected property right to dеvelop the Property in accordance with the CA Zone regulations or to receive just compensation for the Property and defendants deprived it of those rights; the Town failed to provide S&R with reasonable notice of the zoning regulations applicable to owners and prospective purchasers of real property; defendants discriminated against S & R in the application of the Town’s zoning ordinance and the moratorium that was under consideration; S & R is entitled to a declaration that the Property is zoned CA; the ZBA decision was affected by an error of law, was arbitrary, capricious, irrational, unsupported by substantial еvidence and an abuse of discretion; and defendants violated the FHA.
DISCUSSION
I. Legal Standard
A motion brought under Fed.R.Civ.P. 12(b)(6) posits that the plaintiff has failed “to state a claim upon which relief can be granted.” On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well-pleaded facts and consider those facts in the light most favor
On a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6), the issue is “not whether a plaintiff will ultimately prevail but whether the claimant is еntitled to offer evidence to support the claims.”
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y.,
The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is “substantively identical” to the 12(b)(6) standard, except that thе plaintiff has the burden of establishing jurisdiction in a 12(b)(1) motion.
See Lerner v. Fleet Bank, N.A.,
II. Plaintiffs’ Constitutional Claims Are Not Ripe
Ripeness is rooted in Article Ill’s case or controversy requirement and the prudential limitations on the exercise of judicial authority.
See Murphy v. New Milford Zoning Comm’n,
Before commencing suit, a land developer must obtain a final decision — a definitive position as to how it can use the property from the entity chаrged with implementing the zoning regulations.
See id.
at 186,
A. Final Decision Requirement
A final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations.
See Goldfine v. Kelly,
S & R did not seek a variance to develop a multi-family housing project on the Property once the ZBA determined that the Property was in an R-20 zone. Plaintiffs argue that a variance is not necessary for finality, and S & R did obtain a final decision from the ZBA when it appealed the Town’s decision to alter the Zoning Map. (Pis. Mem. Opp. Mot. Dismiss at 7-8.) Plaintiffs argue that the Town “killed” S & R’s site plan application by re-zoning the Property and S&R appealed the change to the ZBA, which was the only legal remedy available.
{Id.
at 9.) Plaintiffs cite cases which they claim sustained constitutional land use claims under analogous circumstances.
(Id.
at 7-8 (citing
County Concrete Corp. v. Twp. of Roxbury,
The cases plaintiffs cite are either inap-posite
2
or not analogous to the present case. In
Lauderbaugh,
the plaintiffs claim was ripe because she appealed a formal revocation of her building pеrmit to the Township Zoning Hearing Board.
Even if, as plaintiffs argue, the Town “killed” S & R’s development plan by re-zoning the Property, S & R did not submit its plan to the ZBA for a determination as to whether it could obtain a variance. The government entity vested with implementing zoning regulations, the ZBA, has not issued a final determination as to the use of the Property.
See
Green-burgh Town Law § 285^8 (authorizing the ZBA to grant variances and special permits). Although plaintiffs are correct that the ZBA issued an opinion as to the zoning classification of the Property, it has not issued a final decision as to S & R’s development plan. Therefore, we do not know “whether the land retains any reasonable beneficial use.... ”
Goldfine,
1. The Futility Exception
The finality requirement is not meсhanically applied, and a property owner may be excused from obtaining a final decision if pursuing an appeal or seeking a variance would be futile, for example if the “zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.”
Murphy,
Plaintiffs argue that it would be a futile exercise to seek a variance to develop multi-family housing in a single-family zone. (Pis. Mem. Opp. Mot. Dismiss at 11.) First, plaintiffs point out that the factual record “could not be more well-developed.” (Id.) Next plaintiffs argue that the Town officials, the ZBA that the Town officials appointed, the Nature Center аnd the “local anti-housing Edgemont school group” have undermined and will continue to undermine S & R’s development plans. (Id.) Plaintiffs argue that forcing S & R to return to the ZBA will not further define the Town’s position with respect to the Property because the Town has made it clear that it opposes any form of multi-family development and they want S & R to donate the property to the Nature Center. (Id. at 11-12.) Finally, plaintiffs argue that it would be futile to pursue a variance because the ZBA has already applied different evidentiary standards to the Town and S&R, has declined to enforce S & R’s subpoena for Stellato and attempted to place the blame on S & R for the Town’s poor record-keeping practices. (Id. at 12.)
We do not agree that it would be futile for S & R to seek a variance or permit from the ZBA. Although S&R has faced opposition to its development plan from Town officials and influential Town groups, it has not shown that the prospect of rеfusal from the ZBA would be certain.
See Goldfine,
Plaintiffs have not shown that the ZBA “dug in its heels and made it clear that all such applications will be denied.”
Murphy,
Although we are not unsympathetic to plaintiffs’ complaints that the Town treated S & R with hostility and unfairly changed the zoning classification of the Property after S & R’s purchase and plans for the site, plaintiffs’ claims are not ripe for our review.
See Dougherty,
B. State Compensation Requirement
Seeking a “ ‘reasonable, certain and adequate provision for obtaining compensation,’ ” is required with respect to due process, equal protection and takings claims.
Goldfine,
III. Plaintiffs’ Declaratory Judgment and Article 78 Claims
An Article 78 proceeding must be brought in New York State court. See
Abato v. N.Y. City Off-Track Betting Corp.,
CONCLUSION
For all of the foregoing reasons, defendants’ motion to dismiss is granted. Plaintiffs’ claims are dismissed without prejudiсe.
SO ORDERED.
Notes
. Plaintiffs argue that courts are reluctant to withhold judicial review in the face of discriminatory municipal actions based upon a generally well-developed factual record, the actual harm experienced by the plaintiff in delaying judicial resolution and the relative lack of harm to a municipal defendant in defending its conduct. (Pis. Mem. Opp. Mot. Dismiss at 8.) However, because we find plaintiffs’ claims are not ripe we choose not to exercise judicial review over them, particularly because we do not think the record is well developed at this time as we do not have a decision from the ZBA on S & R's proposed plans and S&R has not been delayed long in the application process for their project.
. In
County Concrete,
the plaintiff alleged that the Town made false public accusations against it during the application process and made false accusations about its operations in order to prejudice the plaintiff's ability to obtain plan approval.