South Nassau Building Corp., Plaintiff, against Town Board of the Town of Hempstead and Town of Hempstead Landmarks Preservation Commission, Defendants.
21-cv-00715 (ERK) (AYS)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
August 17, 2022
KORMAN, J.
Case 2:21-cv-00715-ERK-AYS Document 35 Filed 08/17/22 PageID #: 1269
KORMAN, J.:
A two-story, single-family house (the “House“) stands at 3171 Elm Place, on the corner of Jones Avenue, in the hamlet of Wantagh (population: 18,613)1 in the Town of Hempstead, New York (the “Town“). The House was built in 1925 in the Colonial Revival style of architecture. By all accounts, it is an attractive home. But the House‘s attractive appearance is not the issue in this case, which challenges the House‘s designation as a landmark. Rather, the question here is whether the plaintiff‘s allegations and other record materials plausibly suggest that the defendants improperly interfered with its rights with respect to the House and the
Against this backdrop, I proceed to discuss the allegations in the complaint. Plaintiff South Nassau Building Corp. purchased the property at 3171 Elm Place (the “Property“) in March 2020 for about $1,000,000. ECF No. 1 ¶¶ 28, 32 (“Compl.“). Four months later, on July 30, 2020, “[p]laintiff filed an application with the Nassau County Planning Commission [(“Planning Commission“)] for minor subdivision approval, seeking to subdivide the Property into two lots” in order to build two houses. Id. ¶ 33. The application was necessitated by the Town‘s zoning ordinance, which apparently permits one lot to be used for only one “[s]ingle-family detached dwelling.”
While plaintiff‘s application was pending, Joan Kemnitzer, a neighbor of the Property, applied to the Town‘s Landmarks Preservation Commission (“Landmarks Commission“) requesting that the House be designated a landmark. Compl. ¶ 45; ECF No. 20-5 at 7-12. Pursuant to the Town‘s code (the “Town Code“), a landmark is “[a]ny place, structure or building of historical value or aesthetic interest by reason of its antiquity or uniqueness of architectural design or as part of the development, heritage or cultural characteristics of the town, county, state or nation.”
On September 17, 2020, the Planning Commission passed a resolution approving plaintiff‘s subdivision application. ECF No. 9 at 3-5. The resolution noted that an application for landmark designation for the House had been submitted. Id. at 4. This had allegedly prompted the Planning Commission to “investigate[] the Property‘s potential for designation as a historical landmark and determine[] that the Property [did not] present any evidence of any historical or architectural significance
In addition, Bob Meagher, the vice president of the Wantagh Preservation Society (“Preservation Society“), “which typically preserves homes that are 200 to 300 years old,” told Newsday, “We don‘t believe [the House] has any historical value,” although “[i]t‘s a beautiful home.” Newsday Article; see Compl. ¶ 39. Similarly, Thomas Watson, the president of the Preservation Society, would later explain that, although “the Society was aware of the house,” ECF No. 32 at 1, “when the residents first contacted the Wantagh Preservation Society[,] . . . [he] and many of the Trustees were not aware of the historical significance of the house and [he] really didn‘t even know what . . . the Colonial Revival [style] . . . was,” ECF No. 20-7 at 84.
Unwilling to accept defeat, Kemnitzer continued to press her application before the Landmarks Commission. In advance of the October 2020 hearing before the Landmarks Commission, Kemnitzer, along with Patricia Emanuel and Heather
The applicants’ report also explained the history of the occupants of the House—the Van Tuyl family, the Verity family, and the Motschwiller family. ECF No. 20-5 at 38-59, 83-88. According to the report, W. Harold Van Tuyl built the House and helped found a lumber yard, which “supplied the lumber for most of the
In the hearings it held, the Landmarks Commission heard testimony and took evidence from parties opposing and supporting landmark designation. By the time of the hearings, the Preservation Society had decided to support a landmark designation. But while “[t]he Society helped a group of Wantagh residents navigate the process for landmarking[,] . . . it was the residents who did the heavy lifting.” ECF No. 32 at 1. The applicants also noted that they circulated a petition to “save
As indicated above, the applicants submitted a report from Paul Daley, an architectural historian. ECF No. 20-8 at 118-27. Plaintiff submitted a letter from architect Robert Ferraro, who opined that the Property did not merit landmark status. ECF No. 20-7 at 25-27. Ferraro wrote that the House “does not have any visible architectural details” because it had undergone a number of alterations that “negat[ed] any preservation value.” Id. at 26. These included: “aluminum and vinyl trim and siding” that “covered over” any previously “visible architectural details;” “an aluminum storm door, not in keeping with its era[, which] was installed at the flat roof exterior door location;” the “architectural asphalt shingle” design of the roof; “vinyl sid[ing] with imitation shake shingles;” “windows [that were] replaced with Anderson Vinyl clad double hung windows with snap in grills;” “vinyl or plastic” “outside shutters;” “imitation aluminum” “vertically fluted columns;” and a “Greenhouse addition added (in 1988) to the front of the House.” Id. All in all, Ferraro explained, the House was “no different than hundreds and hundreds of similar homes on Long Island.” Id.
Daley conceded that the House had the features that Ferraro described and did not contest that these alterations diminished the House‘s historical value to some extent. Indeed, he acknowledged that the House had been altered in no fewer than
On February 2, 2021, the Town Board held a public hearing to review the Landmarks Commission‘s recommendation, at which the Town Board heard comments in favor of and opposed to that recommendation. ECF No. 20-11 at 14. The realtor who sold the House to plaintiff noted that one of the Motschwillers subdivided the Property in 1992, and “a new house was built” with “[n]o one rais[ing] any objections that [the House] was some landmark.” Id. at 36. This new home was built at 3163 Elm Place, next door to the property on which the House stands. Yet this new house was not built in the Colonial Revival style and has a two-
It was three and a half months later, on May 25, 2021, that the Town Board provided the reasoning for its decision in a written resolution. ECF No. 21-1. The Town Board noted the community support for the landmark application. Id. at 7. Of obvious significance to the Town Board was the fact that the applicants’ “expert,” Paul Daley, “performed a quantitative comparison to previously landmark designated houses which show[ed] how favorably this property compares.” Id. In the same breath, the Town Board set forth a paragraph-long summary of Daley‘s
“[A]dopt[ing] the factual conclusions expressed by” those who supported a landmark designation and their “expert, Mr. Daley,” and agreeing with the Landmarks Commission, the Town Board found:
[T]he subject home on the Subject Property, constructed in 1925, uniquely exemplifies the Colonial Revival style of architecture so important a century ago, particularly during the early phase of suburbanization of the Town; that this unique home has a significant historical connection to the Wantagh community, as well as the Town as a whole, through the lives of the families who constructed this unique home, as well as those that later lived in, and made this their home, while significantly contributing to the early establishment, and then growth, of the Town and the Wantagh community. We also take note of the role this unique historical home plays in the historical, architectural, and cultural “streetscape” of the entire surrounding neighborhood.
STANDARD OF REVIEW
The Landmarks Commission and Town Board move to dismiss the complaint pursuant to
“To survive a motion to dismiss [under
DISCUSSION
I. Claims Against the Landmarks Commission
The Landmarks Commission is correct that it is not an entity subject to suit. Under New York law, “a department of a municipal entity is merely a subdivision of
II. Ripeness and Finality
The Town Board argues that subject matter jurisdiction is lacking because plaintiff‘s claims are neither ripe nor final. “The central concern [of the ripeness doctrine] is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3532 (3d ed. 2008). This case does not present any of those concerns.
The Town Board principally relies on Williamson County Regional Planning Commission v. Hamilton Bank, which held that a plaintiff‘s taking claim “is not ripe” for adjudication until (1) “the government entity charged with implementing the
Yet as the Supreme Court has recently explained, “[t]he finality requirement is relatively modest. All a plaintiff must show is that there is no question about how the regulations at issue apply to the particular land in question.” Id. at 2230 (internal quotation marks omitted) (alterations adopted). “[N]othing more than de facto finality is necessary.” Id.7
Here, the Town government “has reached a conclusive position” and its decision is final. Id. at 2231. The Landmarks Commission held three hearings on the
Nevertheless, in support of its ripeness/finality argument, the Town Board would have plaintiff “seek a zoning variance to build a new house, or two,” ECF No. 20-15 at 14, and ask the Landmarks Commission for permission to “mov[e] . . . alter[] . . . or demoli[sh]” the House,
Nor does the fact that plaintiff has not applied to the Landmarks Commission for permission to move or demolish the House render its claimed injury “conjectural.” Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 945 F.3d 83, 110 (2d Cir. 2019). The burdens of the landmark designation themselves cause plaintiff an injury. As the Supreme Court has recognized, the property‘s “[f]inal designation as a landmark results in restrictions upon the property owner‘s . . . use of the landmark site.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 111 (1978). Now that the property is landmarked, the Landmarks “Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site.” Id. at 111-12; see
In sum, plaintiff‘s claims are ripe and are properly before the Court because the local government has made a final decision, not only subjecting the property to the whims of the Landmarks Commission, but effectively nullifying the subdivision approval plaintiff obtained from the Planning Commission and preventing plaintiff from implementing its plan to demolish the House and build two new homes.
III. Takings Clause Claims
The Fifth Amendment‘s Takings Clause provides that no “private property [shall] be taken for public use, without just compensation.”
A. One Parcel or Two?
“Because [the] test[s] for regulatory taking require[] [courts] to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property whose value is to furnish the denominator of the fraction.” Keystone Bituminous Coal Ass‘n v. DeBenedictis, 480 U.S. 470, 497 (1987) (internal quotation marks omitted); see, e.g., Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1180 (Fed. Cir. 1994) (calling this “the denominator problem“). Here, plaintiff argues that the Property, which had been subdivided prior to the landmarking and thus incorporates two separate lots, should be viewed as two individual properties. Under this view, the Town Board has allegedly taken two separate properties and each individual property “furnish[es] the [entire] denominator” for these two
While the Supreme Court has been clear that the denominator consists of the “parcel as a whole,” i.e., not individual sticks of the bundle of property rights associated with one parcel or individual physical portions of that parcel, id. (quoting Penn Cent., 438 U.S. at 130-31), it has been less clear about the proper test for how to define the “parcel.” In its most recent explication of the subject, the Supreme Court held that whether a landowner‘s property should be viewed as one or more parcels depends on if “reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” Murr v. Wisconsin, 137 S. Ct. 1933, 1945 (2017). Pursuant to Murr, a landowner‘s reasonable expectations stem from “a number of factors[,] . . . includ[ing] the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.” Id. Here, the documentary evidence and plaintiff‘s allegations, taken as true, indicate that one, if not two, of these factors weigh in plaintiff‘s favor.
Here, the “treatment of the land under state and local law” supports treating each subdivision as an independent parcel. Murr, 137 S. Ct. at 1945. As explained above, plaintiff succeeded in subdividing the property before the landmarking occurred. Thus, the Property now consists of two separate lots under local law. Although Murr rejected the landowners’ argument that courts should apply “a presumption that lot lines define the relevant parcel in every instance,” lot lines are nonetheless relevant to the analysis of a how a property is treated under state and local law, especially where, as here, those lot lines were drawn with direct
Moreover, even if the relevant expectations are those at the time of plaintiff‘s purchase of the Property, when it was not yet subdivided, the record plausibly suggests that state and local law, and the history of that law‘s application to the Property, would support a reasonable expectation that the Planning Commission would grant plaintiff‘s contemplated subdivision application and the Property would thus be treated as two separate tracts. First, the property on which the House sat had already been subdivided in 1992, without issue, and the previous owners built a house on that new subdivision. Second, when plaintiff purchased the Property, it was of sufficient size to accommodate two lots, and all the parties involved in the sale—plaintiff, the sellers, and the realtor—operated under the assumption that plaintiff would be able to subdivide the property “as-of-right,” demolish the House, and build
Contrasting this case with Murr illustrates how the “treatment of the land under state and local law” favors plaintiff in this case. 137 S. Ct. at 1945. In Murr, the landowners complained that a state law “effectively merged” two adjacent lots they owned. Id. at 1941. The Supreme Court observed that this state law had been in effect since 1976, while the two lots only came under the common ownership of the landowners in 1995. Id. at 1940–41. In ruling that the “treatment of the land under state and local law” favored treating the two lots in Murr as one parcel, the Court explained that “[a] reasonable restriction that predates a landowner‘s acquisition . . . can be one of the objective factors that most landowners would reasonably consider in forming fair expectations about their property.” Id. at 1945. The Court then went on to emphasize that the landowners’ “land was subject to this regulatory burden . . . only because of [their] voluntary conduct in bringing the lots under common
The third Murr factor, “the prospective value of the regulated land,” could also weigh in plaintiff‘s favor. Id. This factor seeks to assess whether restraining the development of a portion of a regulated land “adds value to the remaining property, such as by increasing privacy, expanding recreational space, or preserving surrounding natural beauty.” Id. at 1946. Here, prohibiting plaintiff from separately developing one of the subdivisions may “preserv[e]” whatever aesthetic and historical value the Town Board determined the House possesses. Id. But at the same time, as alleged in the Complaint, this development restriction adds no economic value to any part of the property whatsoever. In fact, it reduces it. If not for the restriction, plaintiff would be able to sell each developed subdivision for over $300,000 more than the purchase price of the entire property. Compl. ¶¶ 87–88.
On this motion to dismiss, the Town Board‘s contention that the Property should be viewed as one parcel must be rejected. As Judge Easterbrook has keenly observed:
If we are to have multiple factors, we should also have a trial. A fact-bound approach calling for the balancing of incommensurables, an approach in which no ascertainable legal rule determines a unique outcome, is one in which the trier of fact plays the principal part. That there is a legal overlay to the factual question does not affect the role of the trier of fact.
Sec‘y of Labor v. Lauritzen, 835 F.2d 1529, 1542 (7th Cir. 1987) (Easterbrook, J., concurring) (internal citations omitted); Narayan v. EGL, Inc., 616 F.3d 895, 901 (9th Cir. 2010); see also Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1158–59 (11th Cir. 2021); Imars v. Contractors Mfg. Servs., Inc., No. 97-3543, 1998 WL 598778, at *3 (6th Cir. Aug. 24, 1998). Under these circumstances, I “cannot readily say . . . that the ultimate conclusion as to whether” plaintiff reasonably expected that its property would be treated as two parcels “is one of law.” Lauritzen, 835 F.2d at 1543. “The drawing of inferences from subordinate to ‘ultimate’ facts is a task for the trier of fact—if, under the governing legal rule, the inferences are subject to legitimate dispute,” which in this case, they are. Id.; Narayan, 616 F.3d at 901; see also Imars, 1998 WL 598778, at *3.
B. Categorical Taking Claim
Plaintiff first claims that the Town Board effected a categorical taking of one of its two subdivided lots by “effectively nullif[ying] [p]laintiff‘s subdivision of the Property” and rendering impossible plaintiff‘s plan to develop and sell each property separately. Compl. ¶ 77. But that does not establish a categorical taking. Rather, a categorical taking exists only “when no productive or economically beneficial use of land is permitted.” Tahoe-Sierra, 535 U.S. at 330 (emphasis in original). In this case, even if each of the subdivisions is considered separately, the landmarking still allows plaintiff to derive at least some “productive or economically beneficial use” from each subdivision. Id. After all, one can reside in the portion of the House that sits on each subdivision, and the property can still be sold to be used as a residence. It is true that all this effectively depends on the same person owning the other subdivision as well, but that does not alter the fact that plaintiff can still derive at least some “productive or economically beneficial use” from each subdivision. Tahoe-Sierra, 535 U.S. at 330. Thus, the Town Board‘s motion to dismiss plaintiff‘s categorial taking claim is granted.
C. Non-Categorical Taking Claim
Plaintiff also asserts a claim for a non-categorical/Penn Central taking. “The Penn Central analysis of a non-categorical taking requires an intensive ad hoc inquiry into the circumstances of each particular case.” Sherman, 752 F.3d at 565
Plaintiff‘s allegations do not plausibly state a claim for a non-categorical taking under Penn Central‘s factors in the event that the Property is ultimately determined to consist of only one parcel.
1. Economic Impact
With the property viewed as one parcel, the economic-impact factor weighs against plaintiff. Plaintiff purchased the Property for $1,000,000 and alleges that the Property is now worth $850,000, resulting in a “capital loss of approximately
Plaintiff also alleges that it lost reasonably expected future profits of approximately $600,000 because it is unable to sell the two new homes it planned to build. Compl. ¶¶ 88, 91. But the “deprivation of the right to use and obtain a profit from property is not, in every case, independently sufficient to establish a taking.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436 (1982). “A
2. Investment-Backed Expectations
The second Penn Central consideration is the extent to which the regulatory action “has upset [plaintiff‘s] investment-backed economic expectations by altering its rights as to a constitutionally protected property interest.” 1256 Hertel Ave. Assocs., LLC v. Calloway, 761 F.3d 252, 266 (2d Cir. 2014). “The purpose of the investment-backed expectation requirement is to limit recovery to owners ‘who could demonstrate that they bought their property in reliance on a state of affairs that did not include the challenged regulatory regime.‘” Allen v. Cuomo, 100 F.3d 253, 262 (2d Cir. 1996) (quoting Loveladies Harbor, 28 F.3d at 1177). The Town Board argues that plaintiff did not lose a constitutionally protected property interest, and relatedly, that any investment expectation it had was not reasonable. These arguments are unpersuasive. This Penn Central factor weighs in plaintiff‘s favor, regardless of whether the Property is viewed as one or two parcels.
“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). The Second Circuit uses a “strict entitlement test,” focusing “on the extent to which the deciding authority may exercise discretion in arriving at a decision, rather than on an estimate of the probability that the authority will make a specific decision.” Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir. 1995) (internal quotation marks omitted).
The Town Board compares plaintiff‘s claim to a general interest in an existing classification of a property under zoning ordinances. This is because “[u]nder New York law” the source of plaintiff‘s property rights, “a landowner has no vested
Plaintiff has also alleged sufficient facts to show that it had a reasonable investment-backed expectation to build and sell two new houses that was frustrated by the landmark designation. Courts use “an objective analysis” here. Bridge Aina Le‘a, 950 F.3d at 633 (internal quotation marks omitted). “Distinct investment-backed expectations implies reasonable probability, not starry eyed hope of winning the jackpot if the law changes.” Id. (internal quotation marks omitted) (alterations adopted). “A reasonable investment-backed expectation must be more than a unilateral expectation or an abstract need.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005–06 (1984) (internal quotation marks omitted).
At the time plaintiff acquired the Property, the Property was within a zoning district that permitted building lots with a minimum area of 6,000 square feet. Compl. ¶ 31. Plaintiff accordingly filed an application to subdivide the Property into
3. Character of the Governmental Action
The third Penn Central factor weighs in favor of the Town Board. “[T]he ‘character of the government[al] action’ is another way to examine the severity of the government interference with property rights.” S. Grande View Dev. Co. v. City of Alabaster, 1 F.4th 1299, 1311 (11th Cir. 2021) (quoting Lingle, 544 U.S. at 539). As with taking claims generally, the character-of-the-governmental-action inquiry does not incorporate “a means-ends test[ that] asks, in essence, whether a regulation of private property is effective in achieving some legitimate public purpose.” Lingle, 544 U.S. 542 (emphasis in original). Nor does it “probe[] the regulation‘s underlying validity.” Id. at 543; see also Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1278 (Fed. Cir. 2009). Thus plaintiff‘s arguments regarding the lack of merit to this specific landmarking and the abuse of process it allegedly entailed are not relevant to this analysis. See S. Grande View, 1 F.4th at 1311–1312 (holding that Lingle dictates that evidence of the “[s]pecific [m]otives” and “the rationale behind” an alleged taking “is [i]rrelevant [p]ursuant to the Penn Central [f]actors“).8
Like other landmarkings, which courts have routinely upheld, see, e.g., Penn Central, 438 U.S. 104, the landmarking of the Property, at least if the Property is viewed as one parcel, does not have “effects [that] are functionally comparable to government appropriation or invasion of private property.” Lingle, 544 U.S. at 542; see also 1256 Hertel Ave., 761 F.3d at 265. To the contrary, plaintiff is still permitted to use or sell the home as a private residence and is under no obligation to admit members of the public for any reason. And although the landmarking does restrict some aspects of plaintiff‘s rights with respect to the Property, that “interference arises from some public program adjusting the benefits and burdens of economic life
If the Property is viewed as two parcels, however, plaintiff‘s allegations suffice to state a claim for a non-categorical taking. The alleged economic impact and interference with investment-backed expectations—denying any practical independent value to one, if not both, of the parcels and frustrating plaintiff‘s plan to develop and profit off the property—would be so severe that plaintiff would state a claim for a non-categorical taking regardless of the character of the governmental action. Because, as explained, plaintiff has plausibly alleged that the Property should
IV. Substantive Due Process
The Town Board next moves to dismiss plaintiff‘s substantive due process claim. “[T]he substantive component of the Fourteenth Amendment‘s Due Process Clause forbids the government from burdening, in a constitutionally arbitrary way, an individual‘s property rights.” O‘Connor v. Pierson, 426 F.3d 187, 204 (2d Cir. 2005); see also Lingle, 544 U.S. at 542–43. “[A] party asserting a deprivation of substantive due process must first establish a valid property interest within the meaning of the Constitution.” Crowley v. Courville, 76 F.3d 47, 52 (2d Cir. 1996). “Second, the [plaintiff] must demonstrate that the defendant acted in an arbitrary or irrational manner in depriving him of that property interest.” Id. As explained above, plaintiff has satisfied the first prong. It had a constitutionally protected property interest in developing each subdivision of the Property as a separate tract, and the landmarking deprived it of that interest.
Plaintiff‘s claim also survives the second prong of the substantive due process analysis. The complaint pleads facts sufficient to plausibly show that the defendants “abuse[d] [their] landmark power” and engaged in a sham landmarking. ECF No. 19 at 10. Viewing the record in the light most favorable to plaintiff, the landmark application was premised on the erroneous claim that the House was the only
Experts on both sides of the landmarking debate agreed that the House had visible features and alterations that detracted from its historical value, including a solarium addition on its façade. Significantly, the Landmarks Commission has no power to order plaintiff to expend funds restore the House, which may be substantial. Moreover, the Property had already been subdivided and a new house, with a two-car garage and driveway, was built next door without incident less than thirty years prior, calling into question the legitimacy of any concerns regarding the “streetscape.”
The Town Board also partially based the landmark designation on the House‘s “significant historical connection to the Wantagh community” through the three families that lived there. ECF No. 21-1 at 9. But the Town Board does not
Aspects of the landmarking process lend additional plausibility to plaintiff‘s due process claim. The Town Board provided an explanation for its decision almost four months after it rendered it, three and a half months after plaintiff filed this lawsuit. In that explanation, the Town Board purported to rely on “a quantitative
Plaintiff has thus plausibly alleged that the Town Board exercised its power under the Landmarks Preservation Ordinance in an “arbitrary or irrational manner” when it landmarked the House. Crowley, 76 F.3d at 52. Accordingly, the Town Board‘s motion to dismiss plaintiff‘s substantive due process claim is denied.
V. Vagueness
Plaintiff‘s fourth and final cause of action alleges that the Town‘s Landmarks Preservation Ordinance is void for vagueness. Plaintiff mounts both facial and as-applied challenges. “A facial challenge is an attack on a statute itself as opposed to a particular application.” City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019) (“A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.“). Such an attack is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the
“[A]ll vagueness challenges—whether facial or as-applied—require [a court] to answer two separate questions: whether the statute gives adequate notice, and whether it creates a threat of arbitrary enforcement.” United States v. Wasylyshyn, 979 F.3d 165, 175 (2d Cir. 2020). Plaintiff‘s complaint can be interpreted as raising both questions. See Compl. ¶¶ 108–18.
However, it is unnecessary to explore these claims at length at this time.
If one of a number of integrally related causes of action have to be tried, it makes little sense to grant a motion to dismiss as to one or more of them, as it may prove necessary to hold yet another trial in the event that it is determined on appeal that the motion to dismiss was improperly granted. As observed by Judge Clark in an analogous context: “[T]here seems no question that in the long run fragmentary disposal of what is essentially one matter is unfortunate not merely for the waste of time and expense caused the parties and the courts, but because of the mischance of differing dispositions of what is essentially a single controlling issue.”
Thibodeaux v. Travco Ins. Co., No. 13-CV-05599, 2014 WL 354656, at *2 (E.D.N.Y. Jan. 31, 2014) (quoting Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir. 1943)). Thus, the Town Board‘s motion to dismiss the vagueness claim is denied.
CONCLUSION
The Landmarks Commission‘s motion to be dismissed is granted. The Town Board‘s motion to dismiss is granted in part and denied in part. Plaintiff‘s claim for a categorical taking is dismissed, but plaintiff may proceed with its other claims.
Brooklyn, New York
August 17, 2022
SO ORDERED.
Edward R. Korman
Edward R. Korman
United States District Judge