Soundview Associates v. The Town of Riverhead et al

Filing 51

ORDER granting in part and denying in part 36 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the Court denies defendants' motion for summary judgment on the ground that pl aintiff has not alleged injury. The Court grants defendants' motion for summary judgment on plaintiff's substantive and procedural due process claims. As the defendants have not moved for summary judgment on the First Amendment claim, the Court denies without prejudice the defendants' motion for summary judgment with respect to qualified immunity as it relates to plaintiff's First Amendment claim. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/28/2012. (Maxwell, Rita)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-cv-4095(JFB) (AKT)
_____________________

SOUNDVIEW ASSOCIATES,
Plaintiff,
VERSUS

TOWN OF RIVERHEAD, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
September 28, 2012
___________________

JOSEPH F. BIANCO, District Judge:
On September 23, 2009, plaintiff
Soundview Associates (“Soundview” or
“plaintiff”) brought this action against the
Town of Riverhead (the “Town”), Richard
Ehlers, and Dawn C. Thomas, alleging
violations of Soundview’s First Amendment
right to petition the government for redress
of grievances, its Fourteenth Amendment
right to procedural due process, and its
Fourteenth Amendment right to substantive
due process.1 Specifically plaintiff asserted
1

Plaintiff also asserted violations of its Fifth
Amendment rights to substantive and procedural due
process, and asserted its claims against the Town
Board, the Town Planning Department and John
Does and/or Jane Does #1-6. By Memorandum and
Order dated July 14, 2010, the Court dismissed
plaintiff’s Fifth Amendment claims and plaintiff’s
claims against the Town Board and the Town
Planning Department. By a joint stipulation ordered
by Magistrate Judge A. Kathleen Tomlinson on
September 10, 2010, the John Does and/or Jane Does
#1-6 were dismissed from this action.

that the defendants violated its constitutional
rights, when, among other things,: (1) in
2003, defendants deprived Soundview – in
an arbitrary and capricious manner – of the
ability to build a health spa on a 191-acre
site in Riverhead despite the existence of a
1982 Special Permit that allowed such
construction; and (2) defendants wrongfully
conditioned the processing of a separate
application to construct a clubhouse on the
property by another company on plaintiff’s
withdrawal of its continuing application
with the Town of Riverhead for the health
spa, as well as plaintiff’s withdrawal of a
pending state court action challenging the
2003 health spa decision. Soundview seeks
compensatory and punitive damages and
attorneys’ fees pursuant to 42 U.S.C. § 1983
with respect to each claim.
The defendants now move for summary
judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure, on the grounds

restricted the construction of non-residential
structures. Nearly twenty years later,
plaintiff submitted a special permit
application for a 78,100 square foot “two
story resort” with 48 rooms on the restricted
golf course parcel. The Town denied
plaintiff’s application for several reasons,
including that the land was restricted by the
scenic easement. The Court concludes that
the 1982 Special Permit did not create a
federally protected property right to erect a
resort and spa in 2002 on the golf course
parcel because (1) the site plan submitted
with the 1982 Special Permit proposed a
health club within the condominium
development and not on the golf course
parcel; (2) the Riverhead Town Code
required that the permit holder begin use and
complete
the
construction or
use
requirements within one year and the health
club was not constructed within the relevant
time period; and (3) the golf course parcel
was subsequently restricted by the scenic
easement. The Court also concludes that,
even apart from the 1982 Special Permit, the
Town had discretion to deny the 2002
Application for the spa and resort under the
Riverhead Town Code, which outlines the
factors to consider when evaluating a special
permit application, and the restrictions on
the golf course parcel.

that (1) plaintiff has not alleged or
demonstrated harm from defendants’
conduct, (2) plaintiff cannot succeed on its
federal claims because plaintiff cannot
demonstrate a federally protectable property
right, (3) plaintiff cannot produce evidence
of the conduct required for a substantive due
process violation, and (4) defendants Ehlers
and Thomas are protected by qualified
immunity. Defendants seek dismissal of all
of plaintiff’s claims.
For the reasons set forth below, the
Court grants defendants’ motion in part and
denies the motion in part. Specifically, the
Court denies defendants’ motion on the
ground that plaintiff has not demonstrated
injury. Plaintiff has alleged that its interest
in the appeal of the Article 78 proceeding
contesting the denial of its resort and spa
permit request was adversely affected by the
coercive conduct of the individual
defendants, and this injury is sufficient to
confer standing upon plaintiff.
However, the Court grants defendants’
motion on the ground that plaintiff cannot
demonstrate a federally protected property
interest, and therefore plaintiff’s substantive
and procedural due process claims must be
dismissed. It is undisputed that the 1982
Special Permit was contingent upon, among
other things, (1) the submission of a site
plan, and (2) the provisions of the Riverhead
Town Code. The site plan submitted in
conjunction with the 1982 Special Permit
proposed a “health club” in the clustered
three-hundred
unit
condominium
development on the northern portion of the
initial parcel. In 1983, plaintiff granted a
scenic easement to the Town, which
restricted a separate portion of the initial
parcel, the golf course parcel, to golf course
usage and other compatible recreational
purposes. The scenic easement restricted the
construction of residential structures beyond
the approved 300 condominiums, and

The Court also concludes that, even
assuming arguendo that plaintiff had a
protected property interest, plaintiff’s
substantive and procedural due process
claims fail. With respect to plaintiff’s
substantive due process claim, plaintiff has
not produced any evidence that the
defendants arbitrarily or irrationally
infringed upon a property interest in denying
the 2002 Application. The Court concludes,
based upon the undisputed facts, that the
Town had legitimate interests which
rationally could have been furthered by the
denial of the application, including the
preservation of the scenic easement, and no
2

rational jury could find otherwise (even
construing the facts most favorably to
plaintiff). With respect to plaintiff’s
procedural due process claim, plaintiff has
not produced evidence that plaintiff was
denied adequate process with respect to the
submission of the 2002 Application, the
hearings regarding the 2002 Application, or
the denial of the 2002 Application. Plaintiff
availed itself of an Article 78 proceeding
with respect to the denial. Thus, plaintiff
was afforded adequate due process with
respect to the 2002 Application. To the
extent plaintiff argues that defendants
engaged in coercive conduct during the
pendency of the appeal of the Article 78
proceeding, such claims form the basis of
plaintiff’s First Amendment claim, which
cannot be re-cast as a due process claim.

Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of New York, 422 F.3d 47, 50 (2d Cir. 2005).
Unless otherwise noted, where a party’s 56.1
statement is cited, that fact is undisputed or
the opposing party has pointed to no
evidence in the record to contradict it.3
1. The Property
Plaintiff’s predecessors in interest are
entities known as Baiting Hollow
Development Corporation and Riverhead
Flagg Corporation (collectively referred to
here as “plaintiff”). (Defs.’ 56.1 ¶ 1.) At
some point prior to January 1982, plaintiff
purchased a 191-acre parcel of land located
in the Town of Riverhead, which bordered
the Long Island Sound to the north,
Oakleigh Avenue to the west, Sound
Avenue to the south, and a privately owned
farm, known as Wulforst Farm, to the east
(the “initial parcel”). (Id. ¶ 2.) The initial
parcel was improved with a clubhouse and a
golf course located on the southern 140
acres of property (the “golf course parcel”).
(Id.)

With respect to plaintiff’s First
Amendment claim, defendants do not move
for summary judgment on this claim, nor
does defendants’ motion clearly address the
First Amendment claim in the context of
qualified immunity. Thus, the Court denies
defendants’ motion for summary judgment
on qualified immunity grounds without
prejudice to defendants filing another
motion for summary judgment on the First
Amendment claim, including based on
qualified immunity.

2. The 1982 Special Permit
On November 3, 1982, plaintiff obtained
a special permit (the “1982 Special Permit”)
from the town for the initial parcel to
construct
a
300-unit
residential
condominium complex which included a
tavern, restaurant, retail store, and health
spa, subject to the requirements, restrictions

I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, and exhibits, and from the parties’
respective Rule 56.1 statements of facts.2

statements, submitted by the defendants on May 18,
2012 and by the plaintiff on May 22, 2012.
3
In addition, although the parties’ Rule 56.1
statements contain specific citations to the record to
support their statements, the Court has cited to the
Rule 56.1 statements, rather than the underlying
citation to the record, when utilizing the 56.1
statements for purposes of this summary of facts.

2

At a conference on May 3, 2012, the Court directed
the parties to filed revised Rule 56.1 statements of
facts that specifically pointed to evidence in the
record and fully explained any objection to an
opposing party’s statement of fact. All citations to the
parties’ 56.1 statements refer to the revised

3

According to the Riverhead Town Code
in effect in 1982,

and/or limitations of the Riverhead Town
Code. (Id. ¶ 3.) Pursuant to the 1982 Special
Permit, the town granted plaintiff permission
to construct the residential condominium
complex as a cluster along the bluffs
overlooking the Long Island Sound. (Id.
¶ 4.) The 1982 Special Permit was
conditioned on the plaintiff’s agreement to
execute
covenants
and
restrictions
preserving the open space and prohibiting
further development on the golf course
parcel. (Id. ¶ 5.) The 1982 Special Permit
also required that plaintiff grant the town a
scenic easement over the golf course parcel.
(Id. ¶ 6.) The restrictions allowed for a golf
club and golf course; golf club and golf
course facilities including a restaurant,
separate catering facilities and tavern;
jogging, cycling and riding paths; retail
stores specializing in golf, tennis and
swimming equipment and apparel; and other
compatible recreational uses. (Pl.’s 56.1
¶¶ 5-6; Defs.’s Ex. F, Grant of Scenic
Easement.)

Special permits of the Town Board
shall be for whatever duration
decided by the Town Board and as
specified in the Town Board’s
resolution. If the Town Board fails to
specify a period of time, said period
shall be in perpetuity. In addition, the
Town Board may condition the
permit by requiring that the applicant
actually begin use and complete the
construction or use requirements in
compliance with the conditions
imposed by the Town Board within a
time period of from one (1) to three
(3) years, decided by the Town
Board and set forth in the resolution
granting said permit. If the Town
Board fails to specify a period, said
period shall be one (1) year.
(Defs.’ 56.1 ¶ 12; Wilhelm Affidavit ¶ 4;
Defs.’ Ex. BB, Riverhead Code § 108-3.4)
The 1982 Special Permit states that it was
resolved that “Riverhead Flagg Corporation
be granted a special permit to run with the
land to construct a 300 unit condominium
complex . . . subject to the requirements,
restrictions, and/or limitations of the
Riverhead Town Code, . . . .” (Pl.’s Ex. A,
1982 Special Permit.) The 1982 Special
Permit does not specify a period for the

The 1982 Special Permit was also
subject to, among other things, the
requirements, restrictions, and/or limitations
of the Riverhead Town Code. (Defs.’ 56.1
¶ 7.) The 1982 Special Permit required the
submission of a detailed site plan describing
the specific development of the property and
phases of construction proposed by the
plaintiff. (Id. ¶ 8.) By Resolution Number
161 of 1983, the town approved the detailed
site plans submitted by plaintiff’s
predecessor, which included the location of
a health club facility on the northern part of
the property. (Id. ¶ 9.) The health club
facility was to be constructed in a relatively
central location to the condominium
complex. (Defs.’ Ex. H, 1982 Special Permit
Site Plan.)

4

Though plaintiff initially disputed the language of
the Riverhead Code in effect at the relevant time, by
letter dated August 17, 2012, plaintiff stated “[a]fter
reviewing both § 108-133.2 of the Town Code which
was enacted in 2002, as well as § 108-3(A) which
was in effect in 1982 and is annexed as Exhibit BB to
the defendant[s’] reply papers, the plaintiff hereby
concedes that both provisions of the code, old and
new, do in fact share generally the same language, in
effect. Therefore, as to number 12 of the Defendants’
Second Supplemental Statement Pursuant to Rule
56.1, there is no dispute as to the fact that this is what
the code provides.” (Pl.’s Letter, Aug. 17, 2012, ECF
No. 48.)

4

plaintiff’s predecessor to begin use and
complete
the
construction or
use
requirements of the 1982 Special Permit.
(Id.) The plaintiff or its predecessor never
constructed the health club facility depicted
on its site plan or any other health club
facility or health spa.5 (Defs.’ 56.1 ¶ 13.)

d. retail stores specializing in
golf, tennis and swimming
equipment and apparel, limited to
not more than one of each store;
e.
any
other
recreational uses.

compatible

(Defs.’ Ex. F, Grant of Scenic Easement.6)
The grant also included some restrictions.
(Id.) Among other things, the restrictions
stated that “except to the extent specifically
required or used for or in aid of
the . . . permitted uses . . . no residential
structures, the approved condominium units
notwithstanding, shall be erected” and “no
temporary or permanent non-residential
structures . . . shall be placed or erected
thereon.” (Id.)

3. The Scenic Easement
In April 1983, plaintiff and the town
executed a grant of scenic easement which
provided that
1. The use and development of the
“Recreation and Open Space
Preserve” will be forever restricted
to some or all of the following:
a. golf club and golf course open
to public or private membership,
as the case may be;

The scenic easement states that the
agreement between plaintiff and the Town to
grant the easement is pursuant to New York
General Municipal Law § 247, which
authorizes the acquisition of interests or
rights for the preservation of open spaces.
(Id.; see also N.Y. Gen. Mun. Law § 247.)
According to Ehlers’ declaration, pursuant
to New York General Municipal Law § 247,
plaintiff was afforded real property tax
reductions on the value of the golf course
parcel. (Ehlers Decl. ¶ 13.)

b. golf club and golf course
facilities including, but not
limited to, restaurant, public or
private,
separate
catering
facilities and tavern;
c. jogging paths, cycling paths,
riding paths;

4. Development of the Property
5

Plaintiff states that this fact is in dispute because
“[t]he defendants never processed the plaintiff’s site
plan application for the health spa and denied its
superfluous second special permit application” and
cites the resolution denying the application in 2003.
(Pl.’s 56.1 Counter Statement ¶ 13.) Plaintiff does not
submit evidence to dispute defendants’ statement of
fact, and in its attempt to place blame on defendants,
implicitly agrees that the spa was not built. The
declaration of Neil Rego (“Rego”), a partner of
Soundview, explicitly admits this fact; he states
“Soundview’s predecessors in interest proceeded
with development of and conveyance of the
condominiums, but did not, at the time, obtain site
plan approval for nor construct the health spa.” (Rego
Declaration (“Rego Decl.”) ¶ 10.)

Defendant Ehlers contends that, prior to
2002,
plaintiff
or
its
predecessor
constructed, or sold the rights to construct,
three-hundred condominium units pursuant
to the plans it submitted. (Ehlers Decl. ¶ 18.)
All of the permitted residential yield on the
6

Although Rego’s declaration states that the grant of
the Scenic Easement occurred April 19, 1984, it is
clear from the face of the document that the grant
occurred in April 1983, and it was recorded by the
Clerk of Suffolk County on April 13, 1983. (Defs.’
Ex. F, Grant of Scenic Easement.)

5

initial parcel was clustered in the threehundred unit residential condominium
complex along the bluffs overlooking the
Long Island Sound. (Id.)

Prior to 2002, the golf course parcel was
divided out of the initial parcel.8 (Defs.’ 56.1
¶ 14.) In or about 1996, the plaintiff leased
the golf course parcel to Rugby Recreational
Group, LLC (“Rugby”). (Id. ¶ 15.) Under
the terms of the lease between the plaintiff
and Rugby, Rugby held an option to
purchase the golf course parcel for ten
million dollars. (Id.) According to Rego’s
declaration, the lease reserved for
Soundview a seven acre parcel which was
not operationally part of the golf course but
was subject to the recreational use easement,
for the purpose of developing and
constructing Soundview’s health spa. (Rego
Decl. ¶ 15.) The golf course parcel had
never had frontage along the Long Island
Sound or any other body of water. (Defs.’
56.1 ¶ 16.)

Both parties agree that plaintiff itself
constructed 126 units. (Pl.’s Letter at 5,
Aug. 17, 2012, ECF No. 48; Defs.’ Letter at
3, Sept. 21, 2012, ECF No. 50; Defs.’ Ex.
LL, Planning Board Letter.) According to
the deposition testimony of Pasquale Intrieri,
Rego’s partner, plaintiff sold the rights to
construct the remaining 174 units to another
entity called High Orchard.7 (Defs.’ Ex. NN,
Intrieri Deposition Transcript (“Intrieri
Dep.”) at 20-21; Pl.’s Ex. S, Intrieri Dep. at
92.) The parties agree that, at some point,
the maximum number of units permitted was
reduced by agreement to 270 units. (Pl.’s
Letter at 5, Aug. 17, 2012, ECF No. 48;
Defs.’ Letter at 2, Sept. 21, 2012, ECF No.
50.) According to a planning board letter to
counsel for “The Knolls at Fox Hill, Inc.”,
an entity constructing residential units, 250
of the 270 permitted units had been
constructed by January 5, 2001, and the
planning board approved six additional units
at that time. (Defs.’ Ex. LL, Planning Board
Letter.) With respect to this issue, plaintiff
submitted a document which states that only
216 units had been constructed at this time.
(Pl.’s Suppl. Ex. B, Key Map Excerpt.)
Defendants contend that this document was
based on a survey of the land as it existed in
1995, and that the planning board’s
calculation is the correct assessment as to
the number of units constructed in 2002.
(Defs.’ Letter at 3, Sept. 21, 2012, ECF No.
50.)

5. The 2002 Application
In 2002, the plaintiff applied to the town
for a special permit (the “2002 Application”)
to construct a forty-eight unit residential
development complex with a spa on the golf
course parcel. (Id. ¶ 17.) According to the
2002 Application site plan, the spa and
resort was to total 78,100 square feet.
(Defs.’ Ex. L, 2002 Application Site Plan.)
The 2002 Application sought approval to
construct the complex on an open
unimproved portion of the golf course
parcel.9 (Defs.’ 56.1 ¶ 20.) An electric
8

Plaintiff “objects to this statement as it is
incomprehensible.” (Pl.’s 56.1 Counter Statement
¶ 14.) The Court finds that this statement is
comprehensible, and, as plaintiff does not point to
evidence to contradict this fact, admitted by plaintiff.
9
Plaintiff states that this fact is “in dispute” and,
without any further explanation, cites to various
pages of the deposition transcript of Pasquale Intrieri.
(Pl.’s 56.1 Counter Statement ¶ 20.) The cited
deposition testimony does not clearly indicate what
aspects of this statement are disputed though Intrieri
states that the spa parcel had “several old buildings
on it” and “wasn’t part of the open space.” (Pl.’s Ex.
S, Intrieri Dep. at 232, 236). To the extent this

7

Plaintiff does not present any other evidence as to
the exact number of units plaintiff sold the rights to
construct. (Pl.’s Letter at 5, Aug. 17, 2012, ECF No.
48.)

6

easement burdens the southwest corner of
the golf course parcel and runs through the
open space where the 2002 Application
proposed to construct the 48 unit complex.
(Id. ¶ 18.) Pursuant to Riverhead Town
Code Section 108-125 in effect at the time
of the application, the recreational use
zoning district required all lots to have 500
feet of frontage along the Long Island Sound
or other body of water. (Id. ¶ 19.)

town’s motion to dismiss and recognized
that the evidence submitted did not negate or
exclude a health spa as part of the definition
of “other compatible recreational uses.”
(Rego Decl. ¶¶ 28-29.) Rego states that, on
or about February 2, 2005, the town filed a
motion to renew its motion to dismiss
contending that since the partial denial of its
motion to dismiss, the town implemented a
comprehensive plan which re-zoned the
property as residential. (Id. ¶ 30.) By
decision dated April 19, 2005, the New
York State Supreme Court dismissed the
proceeding. (Defs.’ 56.1 ¶ 23.)

By resolution, the Riverhead Town
Board denied the special permit application
on November 18, 2003. (Id. ¶ 21.) In the
resolution denying the 2002 Application, the
Town Board found, among other things, that
the site was not suitable for the proposed
development as it was “encumbered by
covenants and restrictions . . . intended to
restrict the allowable uses of the property
and do not allow the construction of a health
spa.”10 (Defs.’ Ex. N, Town Board
Resolution.)

6. The 2005 Applications
On or about June 15, 2005, Wulforst
Farms, LLC (“Wulforst”) purchased a
privately owned farm, known as Wulforst
Farm, directly east of the golf course parcel,
consisting of approximately 40 acres (the
“Wulforst parcel”). (Defs.’ ¶ 25.) According
to Rego’s declaration, Wulforst was a sister
company to Rugby. (Rego Decl. ¶ 36.) On
or about November 18, 2005, the plaintiff
and Wulforst jointly filed applications with
the town (the “2005 Applications”) to,
among other things: (1) modify the
boundary lines of the respective properties
so as to subtract ten acres from the Wulforst
parcel and add it to the golf course parcel;
(2) subdivide the remaining thirty acres of
the Wulforst parcel into a thirty lot clustered
subdivision development; and (3) construct
a new multi-million dollar clubhouse on the
golf course parcel, to be known as the
Baiting Hollow Club. (Defs.’ 56.1 ¶ 26.)
The 2005 Applications did not mention the
forty-eight unit, 78,100 square foot,
residential spa complex that was the subject
of the 2002 Application.11 (Id. ¶ 28.)

On March 18, 2004, plaintiff
commenced an Article 78 proceeding in
New York State Supreme Court, Suffolk
County. (Defs.’ 56.1 ¶ 22.) According to the
Rego declaration, on or about September 20,
2004, the state court partially denied the
testimony seeks to establish that there were old
buildings on the spa parcel at some point, this fact is
not dispositive to this motion. To the extent plaintiff
seeks to argue that the spa parcel was not subject to
the scenic easement, plaintiff itself rejects that
argument in its papers and in the Rego declaration.
10
The Town Board also found that (1) adequate
provisions have not been made for the collection and
disposal of solid wastes, (2) because land had been
set aside for agricultural use or recreational turf, the
land cannot be used for Suffolk County density
calculations and prior applications for development
maximized the allowable sewage flow, (3) the
disadvantages of the intense development outweighed
the advantages to be gained, and (4) the intense
sewage flows that would be generated from the
property would adversely affect the health, safety,
and welfare of the community at large. (Defs.’ Ex N.,
Town Board Resolution.)

11

Plaintiff objects to this statement because it
“attempts to portray that Rugby/Wolforst’s 2005
applications were submitted jointly with the plaintiff
which is not the case.” (Pl.’s 56.1 Pl.’s 56.1 Counter

7

On April 25, 2006, plaintiff filed a
notice of appeal of the decision dismissing
the Article 78 proceeding. (Id.¶ 24.) On or
about October 23, 2006, plaintiff perfected
its appeal of the decision dismissing the
Article 78 proceeding. (Id. ¶ 31.) In or about
October of 2006, defendants learned that
plaintiff and Wulforst intended to pursue
both the 2002 Application as well as the
Baiting Hollow Club on the golf course
parcel. (Id. ¶ 30.)

with the Soundview appeal. (Id. at 235.)
According to Beil, Thomas informed him
that she was convinced that Soundview’s
appeal had no merit, but that she had a busy
week and until the lawsuit was resolved,
“the issues relating to the application were
still not going to move forward and so the
way to move the application forward was for
us to take care of this appeal.” (Id. 236.)
Stanley Pine (“Pine”), another principal
of Rugby/Wulforst, testified that

According to Ehlers, Riverhead’s Town
Attorney, and Thomas, Riverhead’s
Planning Board Attorney, they informed
plaintiff’s counsel that the two projects were
related because they were proposed on the
same property and the 2005 Applications
would need to be amended to include the
2002 Application so the town could study
the cumulative impacts of both projects as
required
by
New
York’s
State
Environmental
Quality
Review
Act
(“SEQRA”). (Ehlers Declaration (“Ehlers
Decl.”) ¶ 30; Thomas Declaration (“Thomas
Decl.”) p. 6 ¶ 27.12)

[Thomas] was going to have to
answer an appeal or some kind of
papers that Neil Rego had made
application or lawsuit or – and Dawn
Thomas came to Barry Beil and I
and requested, insisted – Ms.
Thomas was – I’m not sure the right
term to use, but wanted us to entice
or induce Mr. Rego to relinquish his
application and interest in building
this. I think she had to put in an
answer to an appeal or something of
that nature and she was about to have
to put in an answer and she, instead
of putting in the answer, turned up
the heat on Mr. Beil and myself to
induce Mr. Rego to drop his
application or his appeal or interest
in that spa.

According to the deposition testimony of
Barry Beil (“Beil”), a principal of
Rugby/Wulforst, town officials told Beil that
the Rugby/Wulforst applications would be
processed expeditiously if the Soundview
lawsuit “went away.” (Pl.’s Ex. J, Beil
Deposition Transcript (“Beil Dep.”) at 219.)
According to Beil, he was informed at a
meeting that Thomas did not want to deal

(Pl.’s Ex. J, Pine Deposition Transcript
(“Pine Dep.”) at 47-48.) According to Pine,
“we couldn’t get our project moved forward
unless we assisted in having [Rego]
relinquish his application for a spa.” (Id. at
105.)

Statement ¶ 28.) The Court notes that plaintiff admits
that the applications were submitted jointly in
paragraph 26. Plaintiff’s evidence with respect to
paragraph 28 does not demonstrate that the
applications were not submitted jointly; rather, it
obliquely references separate applications. Where
plaintiff posits this objection, the Court deems the
statement admitted. In any event, this fact is not
dispositive for the motion.
12
The Court notes that Thomas’ declaration contains
two paragraphs numbered 27, and therefore the Court
provides the page number for the cited paragraph.

According to Thomas’ and Ehlers’
declarations, at a meeting on or about
November 29, 2006, Beil informed the
defendants that he was purchasing the golf
course parcel and did not plan on pursuing
the 2002 Application. (Ehlers Decl. ¶ 31;
Thomas Decl. ¶ 28.) Beil stated that he did
8

not wish to amend the 2005 Applications.
(Id.)

August 8, 2012, the court held a conference
to address the issues of (1) the number of
units constructed on the initial parcel, and
(2) the relevant town code provisions.
Plaintiff submitted a letter on these issues on
August 17, 2012. Defendant responded on
September 21, 2012. The Court has fully
considered the submissions of the parties.

On January 29, 2007, plaintiff withdrew
its appeal of the state Article 78 proceeding.
(Defs.’ 56.1 ¶ 39.) On or about January 16,
2008, plaintiff consummated its transaction
with Rugby by selling the golf course parcel
for the full contract price of ten million
dollars.13 (Id. ¶ 41.) In consideration for
withdrawing the appeal of the state Article
78 proceeding and the 2002 Application,
Wulforst and/or Rugby granted the plaintiff
the right to collect rents from the original
clubhouse for an additional one hundred
ninety-eight years and granted two of the
partners of the plaintiff two-year extensions
on their personal consulting agreements with
Rugby. (Id. ¶¶ 43-44.)

II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

B. Procedural Background
Plaintiff filed the complaint in this action
on September 23, 2009. On February 8,
2010, defendants filed a motion to dismiss
the complaint. On July 14, 2010, the Court
issued a Memorandum and Order granting in
part and denying in part defendants’ motion
to dismiss the complaint. Defendants moved
for summary judgment on November 28,
2011. Plaintiff submitted its opposition on
January 17, 2012. Defendants submitted
their reply on February 21, 2012. The Court
held oral argument on April 4, 2012. At a
conference held on May 3, 2012, the Court
directed the parties to submit revised
statements pursuant to Local Rule 56.1 that
fully complied with the requirements of that
rule. Defendants submitted revised 56.1
statements on May 16, 2012 and May 18,
2012. The plaintiff submitted a revised 56.1
counterstatement on May 22, 2012. On
13

According to Rego’s deposition testimony, Rugby
had an obligation to exercise its option to purchase
the golf course parcel even if the town denied the
2005 Applications. (Defs.’ Ex. Y, Rego Deposition
Transcript at 238-39.)

9

III. DISCUSSION

2505, 91 L. Ed. 2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).

A. Standing
As the Second Circuit has explained,
“Article III of the Constitution limits the
judicial power of the United States to the
resolution of cases and controversies. This
limitation is effectuated through the
requirement of standing.” Cooper v. U.S.
Postal Serv., 577 F.3d 479, 489 (2d Cir.
2009) (citing U.S. Const. art. III, § 2 and
Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454
U.S. 464, 471-72, 102 S.Ct. 752, 70 L.Ed.2d
700 (1982)), cert denied sub nom Sincerely
Yours, Inc. v. Cooper, 130 S.Ct. 1688
(2010). “It is axiomatic that ‘[t]here are
three Article III standing requirements: (1)
the plaintiff must have suffered an injury-infact; (2) there must be a causal connection
between the injury and the conduct at issue;
and (3) the injury must be likely to be
redressed by a favorable decision.’” Id.
(quoting Kendall v. Employees Ret. Plan of
Avon Prods., 561 F.3d 112, 118 (2d Cir.
2009)); see also Lamar Adver. of Penn, LLC
v. Town of Orchard Park, N.Y., 356 F.3d
365, 373 (2d Cir. 2004) (“To meet Article
III’s constitutional requirements for
standing, a plaintiff must allege an actual or
threatened injury to himself that is fairly
traceable to the allegedly unlawful conduct
of the defendant.” (internal quotation marks
omitted)).

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

To meet Article III’s injury-in-fact
requirement, plaintiff’s alleged injury “must
be ‘concrete and particularized’ as well as
‘actual or imminent, not conjectural or
hypothetical.’” Baur v. Veneman, 352 F.3d
625, 632 (2d Cir. 2003) (additional
quotation marks omitted) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992));
see, e.g., Selevan v. N.Y. Thruway Auth., 584
F.3d 82, 89 (2d Cir. 2009) (finding that
10

plaintiffs had adequately articulated Article
III injury by alleging that they have paid
higher tolls as a result of defendant’s
policy). Furthermore, the alleged injury
must “affect[ ] the plaintiff in a personal and
individual way to confirm that the plaintiff
has a personal stake in the controversy and
avoid having the federal courts serve as
merely publicly funded forums for the
ventilation of public grievances or the
refinement
of
jurisprudential
understanding.” Baur, 352 F.3d at 632
(internal quotation marks and citations
omitted).

B. Section 1983
Plaintiff asserts three claims pursuant to
§ 1983. Specifically, plaintiff alleges: (1) a
substantive due process claim under the
Fourteenth Amendment; (2) a procedural
due process claim under the Fourteenth
Amendment; and (3) violations of the First
Amendment right to petition the government
for the redress of grievances. The Court
addresses each of these claims in turn.
To prevail on a claim under § 1983, a
plaintiff must show: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and its laws; (2) by a
person acting under the color of state law.
42 U.S.C. § 1983.15 “Section 1983 itself
creates no substantive rights; it provides
only a procedure for redress for the
deprivation of rights established elsewhere.”
Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993). Section 1983 “is not itself a source
of substantive rights, but a method for
vindicating federal rights elsewhere
conferred by those parts of the United States
Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S.
137, 145 n.3 (1979).

Defendants argue that plaintiff lacks
standing
because
plaintiff
cannot
demonstrate that it suffered an injury, and
even if an injury exists, plaintiff cannot trace
that injury to the defendants’ conduct.
(Defs.’ Mem. of Law, at 10-11.) Defendants
argue that Rugby was required to close on
the purchase of the golf course parcel, and
plaintiff and its principals were compensated
for the plaintiff’s inability to construct and
operate a spa on the property. (Id. at 10-11.)
Plaintiff argues that, but for the conduct of
defendants, plaintiff would have been able
to sell the golf course parcel and operate the
spa. (Pl.’s Opp. at 28.) Construing the
evidence most favorably to plaintiff, the
Court agrees that plaintiff has produced
evidence of injury with respect to its
inability to construct and operate the spa, for
purposes of establishing standing. For this
reason, defendants’ motion for summary
judgment on this ground is denied.14

15

Specifically, Section 1983 provides as follows:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law . . . .

14

To the extent defendants argue that plaintiff cannot
establish a causal nexus between defendants’ alleged
conduct and the plaintiff’s alleged injury because
plaintiff’s contract was with Rugby and the 2002 and
2005 Applications dealt with Wulforst (Defs.’ Br. at
11), plaintiff has produced evidence that defendants’
conduct caused the withdrawal of the spa application.

42 U.S.C. § 1983.

11

plaintiff has adequately stated a substantive
due process claim under § 1983.

1. Substantive Due Process Claim
Plaintiff brings a substantive due process
claim, alleging that it was coerced into
withdrawing its appeal of the Article 78
proceeding and its special permit and site
plan applications due to the Town’s
threatened refusal to process Rugby’s permit
applications. The Due Process Clause of the
Fourteenth Amendment protects persons
against deprivations of “life, liberty, or
property.” U.S. Const. amend. XIV, § 1.
The Fourteenth Amendment “does not
provide a comprehensive scheme for
determining the propriety of official conduct
or render all official misconduct actionable.”
Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.
2005). Instead, the scope of substantive due
process is very limited. See Washington v.
Glucksberg, 521 U.S. 702, 720 (1997). The
Supreme Court has said that it is “reluctant
to expand the concept of substantive due
process because guideposts for responsible
decisionmaking in this unchartered area are
scarce and open-ended.” Collins v. Harker
Heights, 503 U.S. 115, 125 (1992).
Substantive due process is a means of
“protection of the individual against
arbitrary action of government.” Wolff v.
McDonnell, 418 U.S. 539, 558 (1974). “In
order to establish a violation of a right to
substantive due process, [after plaintiff
demonstrates that it was denied a valid
property interest,] a plaintiff must
demonstrate not only government action but
also that the government action was ‘so
egregious, so outrageous, that it may fairly
be said to shock the contemporary
conscience.’” Pena, 432 F.3d at 112
(quoting Cnty. of Sacramento v. Lewis, 523
U.S. 833, 847 n.8 (1998)). To satisfy this
standard, a plaintiff must show that the
government decision it challenges “was
arbitrary or irrational or motivated by bad
faith.” Rosa R. v. Connelly, 889 F.2d 435,
439 (2d Cir. 1989). For the reasons set
forth below, the Court concludes that

a. Property Interest
To meet the first prong of the test for
substantive due process violations, a
plaintiff must show that he has a “valid
property interest.” Cine SK8 v. Town of
Henrietta, 507 F.3d 778, 784 (2d Cir. 2007)
(citing Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 503 (2d Cir. 2001));
see also Valmonte v. Bane, 18 F.3d 992, 998
(2d Cir. 1994) (“To formulate a claim under
the Due Process Clause of the Fourteenth
Amendment, a plaintiff must demonstrate
that he or she possesses a constitutionally
protected interest in life, liberty, or property,
and that state action has deprived him or her
of that interest.”).
“It is well settled in this Circuit that a
constitutionally protected property interest
in land use regulation arises only if there is
an entitlement to the relief sought by the
property owner.” Gagliardi v. Vill. of
Pawling, 18 F.3d 188, 192 (2d Cir. 1994).
A plaintiff has a “legitimate claim of
entitlement” to a particular benefit if,
“absent the alleged denial of due process,
there is either a certainty or a very strong
likelihood that the benefit would have been
granted.” RRI Realty Corp. v. Incorp. Vill.
of Southampton, 870 F.2d 911, 917 (2d Cir.
1989) (citation and internal quotations
omitted). An entitlement to a benefit arises
under the “strong likelihood” aspect of this
analysis “only when the discretion of the
issuing
agency
is
so
narrowly
circumscribed” as to virtually assure
conferral of the benefit. Id. at 918.
When a permit has already been granted,
“the ‘clear entitlement’ test no longer [is]
applicable to the special permit because the
test applies only to permits being sought.
The
special
permit,
once
issued,
12

unquestionably [is] the property of [the
recipient].” Villager Pond, Inc. v. Town of
Darien, 56 F.3d 375, 379 (2d Cir. 1995);
T.S. Haulers, Inc. v. Town of Riverhead, 190
F. Supp. 2d 455, 461 (E.D.N.Y. 2002).

(Defs.’ Br. at 12-15.) Plaintiff contends that,
because the 1982 Special Permit had been
granted, the plaintiff had a protected
property interest. (Pl.’s Br. at 5.)
i. The 1982 Special Permit

“The issue of whether an individual has
such a property interest is a question of law
‘[s]ince the entitlement analysis focuses on
the degree of official discretion and not on
the probability of its favorable exercise.’”
Gagliardi v. Vill. of Pawling, 18 F.3d 188,
192 (2d Cir. 1994) (citing RRI Realty Corp.,
970 F.2d at 918).

The Court does not agree that the
issuance of the 1982 Special Permit
automatically conferred upon plaintiff the
right to build a 78,100 square foot “two
story resort with 48 rooms” on the golf
course parcel. (Defs.’ Ex. L, 2002
Application Site Plan.) First, the 1982
Special Permit was contingent on site plan
approval, and the extremely detailed site
plan submitted to, and approved by, the
Town for the 1982 Special Permit placed the
“health club” within the condominium
complex on the northern portion of the
initial parcel, and not on the golf course
portion of the parcel. The site plan submitted
with the 1982 Special Permit clearly did not
contemplate the spa and resort proposed by
plaintiff nearly twenty years later.

Defendants argue that plaintiff does not
have a federally protected property interest
because (1) the 1982 Special Permit did not
create a right to the proposed spa and resort,
(2) the scenic easement granted to the Town
after the 1982 Special Permit restricted the
golf course parcel and the proposed spa and
resort were incompatible with the scenic
easement, (3) plaintiff had no right to build
the additional units contemplated in the
2002 Application because plaintiff had
constructed, or sold the rights to construct,
the units contemplated by the 1982 Special
Permit, (4) by the terms of the 1982 Special
Permit and the relevant Riverhead Town
code provisions, any rights to construct a spa
or health club had been abandoned, (5) the
property did not include the required 500
feet of frontage on the Long Island Sound,
and (6) an electric easement burdened the
golf course parcel in the area where the
plaintiff sought to build the spa and resort.16

Second, the Town Code provided that
the “Town Board may condition the permit
by requiring that the applicant actually begin
use and complete the construction or use
requirements in compliance with the
conditions imposed by the Town Board
within a time period of from one (1) to three
(3) years, decided by the Town Board and
set forth in the resolution granting said
permit. If the Town Board fails to specify a
period, said period shall be one (1) year.”
(Wilhelm Affidavit ¶ 4; Defs.’ Ex. BB,
Riverhead Code.) Here, the Town Board did
not specify a period for use and completion;
thus, the relevant time period for these
events was one year. Plaintiff’s predecessor
did not construct the health spa

16

Defendants also argue that plaintiff does not have a
property interest because the Riverhead Town Code
currently prohibits spas in the zoning district where
the property is located. (Defs.’ Br. at 13.) Plaintiff
argues that defendants engaged in dilatory conduct
during the Article 78 proceeding in order to re-zone
the property, and therefore the “special facts”
exception applies. (Pl.’s Br. at 6-11.) In light of the
Court’s analysis infra, which concludes as a matter of
law that the plaintiff did not possess a federally

protected property right prior to the re-zoning, the
Court does not address these arguments.

13

contemplated in the 1982 Special Permit and
site plan within that time frame.17

factual record before the Court at present,
the Court finds that these cases are
inapplicable.18 Based on the record before
the Court, including the provisions of the
1982 Special Permit and the related site
plan, the subsequent development of the
parcel, and plaintiff’s grant of the scenic
easement on the golf course parcel, it is
clear from the uncontroverted facts that the
2002 Application, submitted nearly twenty
years after the 1982 Special Permit, was not
a mere request for ministerial action by the
Town.

Finally, and perhaps most critically, after
the issuance of the 1982 Special Permit,
plaintiff granted the Town a scenic easement
restricting the parcel upon which the spa and
resort was eventually proposed. Even
assuming arguendo that the 1982 Special
Permit created a right in 1983 to construct a
spa and resort like the one eventually
proposed in 2002, plaintiff voluntarily
restricted the golf course parcel after the
issuance of the Special Permit. A property
owner is not entitled to ignore voluntary
restrictions of its property simply because
certain rights existed at a previous point in
time.

ii. No Claim of Entitlement to the Resort
and Spa
Even though the Court has determined
that the 1982 Special Permit did not create a
federally protected right to construct the
resort and spa in 2002, the Court must still
determine whether plaintiff possessed a
“legitimate claim of entitlement” to
construct the resort and spa on the golf
course parcel. As noted supra, an
entitlement to a benefit arises where there is
“a certainty or a very strong likelihood that
the benefit would have been granted.” RRI
Realty Corp., 870 F.2d at 917. A strong
likelihood exists “only when the discretion
of the issuing agency is so narrowly
circumscribed” as to virtually assure
conferral of the benefit. Id. at 918.

The instant case is dissimilar from the
cases cited by plaintiff, both of which were
decisions on a defendant’s motion to
dismiss. (Pl.’s Br. at 5-6.) In both cases, the
plaintiffs alleged that they had received
permits from the town or state, and later,
ministerial permits from the towns were
required in order for the plaintiffs to
exercise their rights under the primary
permits. See T.S. Haulers, Inc. v. Town of
Riverhead, 190 F. Supp. 2d 455, 461-62
(E.D.N.Y. 2002); Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 377-79 (2d
Cir. 1995). Though this Court relied on
these opinions in the motion to dismiss
opinion in this case, given the extensive
17

18

Defendants also argue, both in their briefs and
supplemental submissions, that plaintiff had no right
to construct the 48 additional units as part of the
proposed resort and spa because at the time of the
application, plaintiff had constructed or sold the
rights to construct the initially-approved 300
condominium units (which were at some point
reduced to 270 units) allowable under the 1982
Special Permit. The arguments regarding the
provisions of the Riverhead Town Code requiring
construction and use of the special permit within one
year would also apply to the condominiums. The
Court does not reach this argument.

As the court stated in T.S. Haulers, Inc., “[t]he
Court notes that later in the litigation it may become
clear that the Town does exercise discretion when
determining whether to issue a special permit to sand
mine. But, at this early stage in the litigation, without
the benefit of detailed information regarding Town
Code provisions or other regulations that govern the
issuance of a special permit and the operation of the
Town Board, the Court finds that the amended
complaint describes an absence of discretion
sufficient to defeat a motion to dismiss the
substantive due process claim.” 190 F. Supp. 2d at
462.

14

As noted by the Second Circuit in
Harlen Associates v. Incorporated Village of
Mineola, “[u]nder New York law, the Board
has the power to grant and deny special use
permits within its ‘untrammeled, but of
course not capricious discretion . . . with
which courts may interfere only when it is
clear that the Board has acted solely upon
grounds which as a matter of law may not
control.’” 273 F.3d 494, 504 (2d Cir. 2001)
(quoting Retail Prop. Trust v. Bd. of Zoning
Appeals of Hempstead, 281 A.D.2d 549, 722
N.Y.S. 244, 246 (N.Y. App. Div. 2001)).
Under the Riverhead Town Code, the Town
Board and the Planning Board may consider
a number of different factors when
evaluating a special permit application,
including whether the site is suitable for the
use, whether adequate provisions have been
made for sewage, and whether the intensity
of the proposed specially permitted use is
justified. Riverhead Town Code § 108133.5.; see also Harlen Assocs., 273 F.3d at
504 (“Although Village law requires that the
Board consider certain standards, the
ultimate decision as to whether to grant a
special use permit conclusively lies with the
Board.”). In addition, under the Riverhead
Town Code, the Town may consider a
number of factors when evaluating a site
plan. Riverhead Town Code §§ 108-128
through 108-133.

1982 Special Permit or used in aid of the
permitted uses. (Defs.’ Ex. F, Grant of
Scenic Easement.) Other portions of the
easement restricted the property to use of a
golf course, golf course facilities including a
restaurant and tavern, retail stores
specializing in golf, tennis and swimming
apparel, and “any other compatible
recreational use.” (Id.)
Plaintiff argues that the Riverhead Town
Code’s definition of “recreational center”
includes “health spas” and that it permits
“health spas and health related facilities” in
a “Planned Recreational Park” and therefore
the proposed resort and spa was permissible
under the easement. (Pl.’s Opp. at 7.20) As
the Second Circuit has noted, however,
“even if in a particular case, objective
observers would estimate that the
probability of issuance was extremely high,
the opportunity of the local agency to deny
issuance suffices to defeat the existence of a
federally protected interest.” Clubside Inc. v.
Valentin, 468 F.3d 144, 153 (2d Cir. 2006)
(quoting RRI Realty Corp., 870 F.2d at 153).
Although plaintiff disagrees with the
Town’s decision and classifies it as
unreasonable, arbitrary, and incorrect,
plaintiff does not argue that the Town lacked
discretion to make this decision.21 (Pl.’s Br.
20

Plaintiff has not submitted the cited portions of the
Riverhead Town Code as part of the record. The
Court assumes, for the purposes of this decision, that
plaintiff has correctly cited the code.
21
To the extent plaintiff’s argument could be
interpreted to be an argument that once plaintiff
complied with the application process, the special
permit should have automatically issued, the Second
Circuit has clearly rejected this argument in Harlen
Associations:

It is undisputed that plaintiff sought to
construct a 78,100 square foot resort and spa
on a parcel of land that was encumbered by
a scenic easement restricting the land to
“open space and preserve.”19 The
easement’s restrictions barred, among other
things, “temporary or permanent nonresidential structures” and “residential
structures” apart from those approved by the

[Plaintiff] argues that this broad discretion is
rendered nugatory because it filed a valid
application for the special use permit. It
contends that once a valid application is
filed, the Board must grant the permit
subject only to the imposition of reasonable
conditions. This argument is untenable. It

19

In addition, an electric easement burdens the
southwest corner of the golf course parcel and runs
through the open space where the 2002 Application
proposed to construct the 48 unit complex. (Defs.’
56.1 ¶ 18.)

15

at 7.) The appropriate inquiry focuses on
“the degree of official discretion and not on
the probability of its favorable exercise.”
Clubside, Inc., 468 F.3d at 154 (quoting RRI
Realty, 870 F.2d at 918). It is readily
apparent that the Town had considerable
discretion in deciding the 2002 Application
by virtue of the Riverhead Town Code and
the provisions of the Scenic Easement.22

b. Arbitrary or Irrational Infringement on
Property Interest
Even assuming arguendo that plaintiff
possessed a property right, plaintiff still
cannot satisfy the second prong of its
substantive due process claim. In order to
meet the second prong of a substantive due
process claim, plaintiff must show “that
defendants infringed on [its] property right
in an arbitrary or irrational manner.” Cine
SK8, 507 F.3d at 784. In particular, plaintiff
must show that the government’s
infringement was “‘arbitrary,’ ‘conscience
shocking,’
or
‘oppressive
in
the
constitutional sense,’ not merely ‘incorrect
or ill-advised.’” Ferran v. Town of Nassau,
471 F.3d 363, 369-70 (2d Cir. 2006)
(quoting Lowrance v. C.O. S. Achtyl, 20
F.3d 529, 537 (2d Cir. 1994); see also
Harlen Assocs., 273 F.3d at 505 (“As we
have held numerous times, substantive due
process ‘does not forbid governmental
actions that might fairly be deemed arbitrary
or capricious and for that reason correctable
in a state court lawsuit. . . . [Its] standards
are violated only by conduct that is so
outrageously arbitrary as to constitute a
gross abuse of governmental authority.’”
(quoting Natale v. Town of Ridgefield, 170
F.3d 258, 263 (2d Cir. 1999)); Crowley v.
Courville, 76 F.3d 47, 52 (2d Cir. 1996)

Because there is no federally protected
property right at issue in this case, the Court
grants defendants’ motion for summary
judgment with respect to plaintiff’s
substantive due process claim.23

would make the Board nothing more than a
rubber stamp and reduce its role in the
process to a rote check of whether the proper
filings had been made. Such a result is
diametrically opposed to the intent of the
Village in drafting its zoning law to give the
Board discretion and the duty to protect the
interests of the community.
273 F.3d at 504. Thus, any such argument is without
merit.
22
To the extent plaintiff attempts to argue that,
because the plaintiff’s Article 78 proceeding
withstood an initial motion to dismiss, this somehow
demonstrates that the plaintiff possessed a property
interest, the Second Circuit has held that even when
an Article 78 court “has ordered a town board to
grant a particular application after it concluded that
the board acted arbitrarily in denying the
application[, this] does not necessarily mean that the
applicant had a property interest in the permit prior to
the Article 78 proceeding.” Clubside, Inc., 468 F.3d
at 157 (collecting cases). The proper inquiry is the
Town’s discretion, and the state court’s decision on
the motion to dismiss (which was not provided to the
Court) does not affect this inquiry in the instant case.
23
Plaintiff also alleges in its opposition that it had a
property right in its subsequent civil action regarding
the 2002 Application. (Pl.’s Opp. at 20.) “The
Supreme Court has made it clear that a substantive
due process claim may not be maintained when a
specific constitutional provision . . . protects the right
allegedly violated.” McCann v. Mangialardi, 337
F.3d 782, 786 (7th Cir. 2003). “Despite recasting [its]
claim within the context of a liberty interest protected
by the due process clause of the Fourteenth

Amendment, [plaintiff’s] claim remains, in essence, a
First Amendment claim. The due process clause is
not an appropriate means to address a First
Amendment issue.” Galibois v. Fisher, No. 04-cv444-JD, 2007 WL 1246452, at *4 (D.N.H. Apr. 27,
2007) (citing Pagan v. Calderon, 448 F.3d 16, 33 (1st
Cir. 2006); Canady v. Bossier Parish Sch. Bd., 240
F.3d 437, 444 (5th Cir. 2001)); see also Logan v.
Lockett, No. 07-1759, 2009 WL 799749, at * (W.D.
Pa. Mar. 25, 2009) (“Thus, plaintiff’s claim arises, if
at all, under the First Amendment, and he cannot
recast his claim as one involving a deprivation of due
process.”). The Court finds that plaintiff’s claim with
respect to its rights, and defendants’ conduct, in the
state court civil action properly falls under its First
Amendment claim and cannot be asserted under
substantive due process.

16

The Court concludes that, even if
plaintiff could establish a cognizable
property right, plaintiff cannot satisfy the
second prong of the due process inquiry.
Where a board has legitimate interests which
could rationally be furthered through the
denial of an application, a board’s actions
cannot be held to be arbitrary as a matter of
federal constitutional law. See Harlen
Assocs., 273 F.3d 494, 505 (2d Cir. 2001)
(“[Plaintiff] also fails to satisfy the second
part of the due process inquiry, since it is
evident that, even if it had a cognizable
property right, the Board did not deprive it
of any such right in an arbitrary manner. As
we concluded in the context of [plaintiff]’s
equal protection claim, the Board had
legitimate interests which could rationally
be furthered through the denial of
[plaintiff]’s application. As a result, the
Board’s actions cannot be held to be
arbitrary as a matter of federal constitutional
law.” (citation omitted)). The board
specified several reasons for the denial of
the 2002 Application, including the
legitimate interests of preserving the scenic
easement, provisions for solid wastes,
density regulations, sewage concerns, and
the costs of the intense development. (Defs.’
Ex. N, Town Board Resolution.) Given the
uncontroverted facts, no rational jury could
find the Town’s conduct to be arbitrary or
irrational. See Crowley v. Courville, 76 F.3d
47, 53 (2d Cir. 1996) (“We note, however,
that such a ruling may be made only when
government acts with no legitimate reason
for its decision, and that the Village
authorities certainly had legitimate reasons
for their refusal to allow [plaintiff] to apply
the 1975 Variance to his proposed retail
development more than a decade after the
variance was granted.” (internal quotation
marks and citations omitted)).

(explaining that plaintiff meets second prong
of substantive due process test “only when
government acts with no legitimate reason
for its decision” (citation and quotation
marks omitted)).
Specifically, “[i]n the zoning context, a
government
decision
regulating
a
landowner’s use of his property offends
substantive due process if the government
action is arbitrary or irrational. Government
regulation of a landowner’s use of his
property is deemed arbitrary or irrational,
and thus violates his right to substantive due
process, only when government acts with no
legitimate reason for its decision.”
Southview Assoc., Ltd. v. Bongartz, 980 F.2d
84, 102 (2d Cir. 1992) (citations and
quotation marks omitted); see also Merry
Charters, LLC v. Town of Stonington, 342 F.
Supp. 2d 69, 78 (D. Conn. 2004) (explaining
that “denial by a local zoning authority
violates substantive due process standards
only if the denial ‘is so outrageously
arbitrary as to constitute a gross abuse of
governmental authority” (quoting Natale,
170 F.3d at 263)). For instance, in the
context of a substantive due process claim
against the Town of Colchester where
zoning was at issue, the Second Circuit
reversed a grant of summary judgment to the
Town where, inter alia, it “had no authority
under state law” to take certain actions with
respect to plaintiffs’ “protected property
interest in the use of their property.” Brady
v. Town of Colchester, 863 F.2d 205, 215-16
(2d Cir. 1988). The Second Circuit
explained that under these extreme
circumstances, a “trier of fact could
conclude that there was no rational basis for
the [Town’s zoning board’s] actions, and
that, as a result, the [zoning board] violated
appellants’ rights to substantive due
process.” Id. at 216 (citation and quotation
marks omitted).

Plaintiff does not point to any evidence
that could show that the Town’s decision to
deny the 2002 Application was “‘arbitrary,’
17

‘conscience shocking,’ or ‘oppressive in the
constitutional sense,’ not merely ‘incorrect
or ill-advised.’” Ferran, 471 F.3d at 36970. Instead, plaintiff exclusively points to
conduct with respect to the subsequent
appeal of the denial of the 2002 Application.
(See Pl.’s Opp. at 11-20.) As noted supra
note 23, the allegations and evidence
regarding defendants’ conduct with respect
to the subsequent litigation are properly
raised in a First Amendment claim, not a
due process claim.

As discussed extensively supra, plaintiff
does not possess a federally protected
property right, and thus plaintiff’s
procedural due process claim must fail. See
Puckett v. City of Glen Cove, 631 F. Supp.
2d 226 (E.D.N.Y. 2009) (“To demonstrate a
violation of due process rights based upon a
zoning decision, whether procedural or
substantive,
a
plaintiff
must
first
demonstrate the possession of a federally
protected property right to the relief
sought.”).

Thus, the Court determines in the
alternative that, even if plaintiff possessed a
protected property right, no rational jury
could find that the denial of the 2002
Application was an arbitrary or irrational
infringement upon that interest.

In addition, plaintiff has not alleged or
produced evidence that it was denied
adequate process in connection with the
submission of the 2002 Application, the
hearings on the 2002 Application, or the
denial of the 2002 Application. Plaintiff had
access to, and availed itself of, an Article 78
proceeding. See Deperno v. Town of Verona,
No. 6:10-CV-450(NAM/GHL), 2011 WL
4499293, at *7 (N.D.N.Y. Sept. 27, 2011)
(“In this case, the availability of Article 78
administrative review of the ZBA’s
determination and procedural process under
state law, including the enactment of the
zoning law, precludes a finding that the
defendants’ conduct violated plaintiff’s
rights of procedural due process under the
Fourteenth Amendment. Because plaintiff
can pursue these claims by means of an
adequate postdeprivation remedy in the state
courts, he has failed to allege a federal
constitutional violation.”). To the extent
plaintiff argues that its rights in the Article
78 appeal were denied due to the alleged
coercive conduct of defendants, these
allegations fall under plaintiff’s First
Amendment claim, not the procedural due
process claim.

*

*

*

For the foregoing reasons, summary
judgment is granted with respect to
plaintiff’s substantive due process claim.
2. Procedural Due Process Claim
In order to assert a violation of
procedural due process rights, a plaintiff
must “first identify a property right, second
show that the [government] has deprived
him of that right, and third show that the
deprivation was effected without due
process.” Local 342, Long Island Pub. Serv.
Emps., UMD, ILA, AFL-CIO v. Town Bd. of
Huntington, 31 F.3d 1191, 1194 (2d Cir.
1994) (citation omitted). In order to
establish a procedural due process violation,
a plaintiff must prove that he or she was
deprived of “an opportunity . . . granted at a
meaningful time and in a meaningful
manner’ for [a] hearing appropriate to the
nature of the case.” Boddie v. Connecticut,
401 U.S. 371, 378 (1971) (citations and
internal quotation marks omitted).

Thus, summary judgment is granted with
respect to plaintiff’s procedural due process
claim.

18

Amendment claim, the Court denies without
prejudice the defendants’ motion for
summary judgment with respect to qualified
immunity as it relates to plaintiff’s First
Amendment claim.

3. First Amendment Claim
Though defendants seek summary
judgment on all of plaintiff’s claims,
defendants do not separately move for
dismissal of the First Amendment claim. As
the Court has denied defendants’ motion for
summary judgment on the ground that
plaintiff has not alleged or demonstrated
injury, plaintiff’s First Amendment claim is
not decided at this juncture. Defendants may
move for summary judgment on the First
Amendment claim, if they wish to do so, in
a supplemental submission.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 28, 2012
Central Islip, NY

C. Qualified Immunity
The individual defendants argue, in the
alternative, that they are entitled to summary
judgment on qualified immunity grounds
with respect plaintiff’s claims. (Defs.’ Br. at
16-18.) Because the Court grants summary
judgment on plaintiff’s substantive and
procedural due process claims, the Court
need not reach the issue of qualified
immunity with respect to those claims. In
any event, plaintiff has not produced
evidence that Thomas or Ehlers engaged in
any conduct with respect to the denial of the
2002 Application. With respect to the First
Amendment claim, given that defendants
have not briefed the claim, the Court does
not decide the issue of qualified immunity as
applied to the First Amendment claim.
Defendants may raise the issue of qualified
immunity in a supplemental submission.

***
Plaintiff is represented by David Antwork,
Campanelli & Associates, 129 Front Street,
Mineola, NY 11501. The attorney for the
defendants is Phil Siegel, Smith Finkelstein,
Lundberg, Isler & Yakaboski, LLP, 456
Griffing Avenue, P.O. Box 389, Riverhead,
NY 11901.

IV. CONCLUSION
For the foregoing reasons, the Court
denies defendants’ motion for summary
judgment on the ground that plaintiff has not
alleged injury. The Court grants defendants’
motion for summary judgment on plaintiff’s
substantive and procedural due process
claims. As the defendants have not moved
for summary judgment on the First
19