DeFalco et al v. DeChance et al

Filing 33

MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED, that the Defendants 21 Motion Pursuant to Fed. R. Civ. P. 12 (c) for judgment on the pleadings is granted and the complaint is dismissed in its entirety with prejudice; and it is further ORDERED, that the Plaintiffs 24 motion for partial summary judgment is denied as moot; and the Clerk is directed to close the case. Ordered by Judge Arthur D. Spatt on 6/13/2013. (Coleman, Laurie)

FILED 
CLERK 

6/13/2013 3:37 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MICHAEL DEFALCO AND WILLIAM
MATTHEWS,
Plaintiffs,

MEMORANDUM OF
DECISION AND ORDER
11-CV-05502 (ADS)(ETB)

-againstPAUL M. DECHANCE, in his capacity as
Chairman of the Board of Zoning Appeals for
the Town of Brookhaven, the BOARD OF
ZONING APPEALS, and the TOWN OF
BROOKHAVEN
Defendants.
---------------------------------------------------------X
APPEARANCES:
William D. Wexler, Esq.
Attorney for the Plaintiff
816 Deer Park Avenue
North Babylon, NY 11703
Robert F. Quinlan, Brookhaven Town Attorney
Attorney for the Defendants
1 Independence Hill
Farmingville, NY 11738
By: Daniel Belano
Todd M. Lewis, Sr
Assistant Town Attorneys
SPATT, District Judge.

This action arises out of the denial by the Defendant Board of Zoning Appeals for the
Town of Brookhaven of the Plaintiff Michael DeFalco’s application for a variance on his
property in Brookhaven. On November 30, 2011, DeFalco and William Mathews (“the
Plaintiffs”) filed an amended complaint against the Defendants Paul M. Dechance Chairman of
the Board of Zoning Appeals for the Town of Brookhaven, the Board of Zoning Appeals, and the
Town of Brookhaven (collectively the “Defendants”), alleging violations of their substantive and
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procedural due process rights and equal protection rights under the United States Constitution.
Presently pending before the Court are a motion by the Defendants for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.) 12(c) and a motion by
the Plaintiffs pursuant to Fed. R. Civ. P. 56 for partial summary judgment on the due process
causes of action. For the reasons that follow, the Defendants’ motion for judgment on the
pleadings is granted; the Plaintiffs’ motion for partial summary judgment is denied as moot; and
the complaint is dismissed in its entirety.
I.

BACKGROUND

For purposes of the motion for judgment on the pleadings, the following facts are drawn
from the amended complaint and construed in a light most favorable to the Plaintiffs.
The Plaintiffs are the owners of certain improved real property on Fire Island located on
the south side of Ocean Walk, 165 feet east of Nautilus Walk, Fire Island Pines in the Town of
Brookhaven. The Defendant Paul M. DeChance (“DeChance”) is the Chairman of the Board of
Zoning Appeals for the Town of Brookhaven (“the Board”). Pursuant to the Town Law of the
State of New York, the Board is charged with hearing and deciding appeals from and reviewing
any order, requirement, decision, interpretation, or determination made by the administrative
official charged with the enforcement of any ordinance or local law.
The property at issue, measuring 6,600 feet, is improved with a two-story wood frame.
In 1996, the Plaintiffs obtained title to the property for use as a summer home. The existing
dwelling measures 1,224 square feet and accounts for 19% of the lot occupancy. Existing
amenities account for an additional 23.6% lot occupancy for a total of 42.6% lot coverage. All
existing structures are recognized in valid certificates of occupancy.

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In 2010, DeFalco applied to the Board seeking certain variances, including: front yard
setback and minimum and total yard side variance; a proposed second-story balcony and secondstory residence addition; minimum and total side yard variances for a proposed south side
second-story balcony and proposed deck addition; and an eight-foot high fence on both side
yards. Lastly, DeFalco sought permission to exceed the 35% lot occupancy. In particular,
DeFalco proposed to remove decking on the east and west side of the dwelling and replace it
with the proposed decking on the south side of the dwelling and was therefore proposing to
maintain the same 42.6% lot occupancy.
At a public hearing, DeFalco’s agent testified in support of his application. DeFalco’s
request was opposed by a neighboring property owner, Craig Schlossberg. The Board also
received letters from the Fire Island Pines Property Owners Association; the Department of the
Interior; and the Brookhaven Division of Environmental Protection, which were read into the
record.
On May 12, 2011, the Board granted the application in part with respect to the proposed
second story residence addition and second story balcony. However, as to the lot coverage
request, the Board found as follows:
A. Applicant submitted no evidence of prior grants in the area maintaining 42.6%
lot coverage. As the applicant is seeking to significantly alter the existing
dwelling, the lot occupancy that currently exists on the subject lot is no longer
protected by the Town of Brookhaven certificates described above. As such,
the Board finds that the request is outside the nature and character of the
community and would have a negative and precedent setting effect if granted.
B. Applicant requests permission to maintain 42.6% lot coverage where 35% is
permitted. The Board finds this excessive coverage to be a substantial request
when compared to the Code and what presently exists on the ground.
C. The applicant can feasibly conform to the Code’s requirements without losing
any of the dwelling space, as the existing structure accounts for only 19% of
the lot occupancy. Allowing for some relief in lot occupancy, at 37%, would
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provide the applicant approximately one thousand square feet of accessory
structures on the subject parcel. The Board finds that the applicant, in
constructing the decks to the side yard setbacks described above, could
feasibly provide adequate accessory area while maintaining lot occupancy at
37%. This would be in close conformity to the Code requirement of 35% than
the 42.6% requested herein.
D. The Board finds that the precedent setting nature of 42.6% lot coverage would
set a negative precedent and would create a cumulative effect which would
have a negative impact on the sensitive physical and environmental conditions
of the neighborhood.
E. Though the Board recognizes that the applicant is seeking to maintain the
same lot coverage as presently exists in the parcel, the Board finds that the
applicant’s hardship is self-created in nature as the applicant is proposing
structural alterations to the dwelling as defined by the Code but choosing not
to return the parcel to the Code required lot coverage of 35%.
As such, the Board finds that the applicant’s request to maintain 42.6% lot
coverage, where 35% is permitted, is not the minimum relief necessary and
would have a negative effect on the health, safety and welfare of the
community. The Board further finds that this detriment will be mitigated by
the granting of 37% lot coverage as an alternative to the applicant’s request.
(Def’s Reply Exh 6).
A. State Court Action
Prior to the filing of this federal action, DeFalco commenced a proceeding, DeFalco v
DeChance, Index No. 11-17102, in the New York State Supreme Court, Suffolk County,
pursuant to Article 78 of the New York State Civil Practice Law and Rules (CPLR) against the
Defendants and related parties. As relevant here, DeFalco challenged the Board’s decision to the
extent it required him to reduce his lot coverage from 42.6% to 37%. In this regard, DeFalco
contended that the Board’s determination revoked his existing certificates of occupancy and
compliance with respect to the existing dwelling and structures on his property, thereby effecting
an unconstitutional taking of his property and violating his due process right to a hearing.

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By decision dated September 4, 2012, Supreme Court, Suffolk County (Lasalle, J.),
rejected this argument, reasoning that “[the Board]’s determination did not affect [DeFalco’]s
right to continue to live on his property with the dwelling and structures thereon as is.” (Def’s
Reply, Exh 2). Rather, the court observed, “[the Board] merely determined that if [DeFalco]
decided to make his proposed alterations on the property, he would have to bring his lot
occupancy and side yard setbacks into closer conformity with the current zoning requirements”
(Id.). The court further opined that “[t]o the extent that [DeFalco] argues that his current
certificates of occupancy and compliance in certain structures on the property establish his
vested right in those structures, it has been held that a landowner’s ‘vested right [] in a
nonconforming structure existing at the time a prohibitory code provision is enacted, does not
extend to subsequent construction.” (Id., citing Matter of Rembar v Board of Appeals of Vil. Of
E. Hampton, 148 AD2d 619, 620 (2d Dept 1989)).
In the interim, Schlossberg brought an Article 78 proceeding against the Defendants,
DeFalco, and Matthews, to annul the May 12, 2011 Board decision on the basis that the Board
failed to comply with the State Environmental Quality Review Act (“SEQRA”). In particular,
Schlossberg contended that the Board failed to conduct an environmental review in connection
with DeFalco’s application for a variance.
By decision dated August 6, 2012, Supreme Court (1) granted Schlossberg’s petition;
(2) annulled the May 12, 2011 Board’s decision; and (3) remanded the matter to the Board for a
new determination. By order dated March 20, 2013, on remand and upon a SEQRA
determination that “lot coverage reduction to 37% would not alter the character of the
community or impact physical or environmental condition,” the Board adopted its findings
outlined in the May 12, 2011 decision.
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By separate order dated December 20, 2012, in the DeFalco state proceeding, the
Supreme Court vacated its prior decision dated September 4, 2012 and denied DeFalco’s petition
as moot.
B. The Present Action
As stated above, on November 30, 2011, the Plaintiffs filed an amended complaint
against the Defendants pursuant to 42 U.S.C. § 1983, alleging violations of their substantive and
procedural due process rights as well as their equal protection rights. The Plaintiffs also sought a
judgment pursuant to 28 U.S.C. § 2201 declaring the certificates of occupancy valid and legal
and “that the variances should not be subject to plaintiffs’ reducing the lot coverage of their
property.” (Amended Complaint, ¶ 32(a)). Finally, the Plaintiffs sought a permanent injunction
against the Defendants pursuant to Fed. R. Civ. P. 65 and 28 U.S.C. § 2202 preventing them
from taking any action “against plaintiffs under any provision of the Town Code to punish
plaintiffs for, or prohibit plaintiffs from using and improving the premises.” (Id. ¶ 33). After
submitting an answer to the Amended Complaint, the Defendants moved pursuant to Fed. R. Civ.
P. 12 (c) for judgment on the pleadings dismissing the complaint. In the Defendants’ motion
papers, they specify that the Court should dismiss this case pursuant to Fed. R. Civ. P. (12)(b)(1)
for lack of subject matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state
a claim upon which relief can be granted. Thereafter, the Plaintiffs moved pursuant to Fed. R.
Civ. P. 56 for partial summary judgment on their causes of action sounding in procedural and
substantive due process rights.

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II. DISCUSSION
A. Legal Standard for Motion to Dismiss Pursuant to Rule 12(b)(1)
Under Federal Rule of Civil Procedure Rule 12(b)(1), a claim may be dismissed for lack
of subject matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A
case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power to adjudicate it.”). In reviewing a motion
to dismiss under Rule 12(b)(1), the court must accept as true all material factual allegations in the
complaint, but it is not required to draw all reasonable inferences in the plaintiff's favor. See J.S.
v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). Rather, a plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that subject matter
jurisdiction exists. See Makarova, 201 F.3d at 113. In deciding a 12(b)(1) motion, the district
court may rely on and refer to evidence outside the pleadings. See Id.
B. Legal Standard for Motion for Judgment on the Pleadings Pursuant to
Fed. R. Civ. P. 12(c)
In general, “the standard for addressing a Rule 12(c) motion for judgment on the
pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.”
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Under the now well-established
Twombly standard, a complaint should be dismissed only if it does not contain enough
allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). The Second
Circuit has explained that, after Twombly, the Court’s inquiry under Rule 12(b)(6) is guided by
two principles. See Harris v. Mills, 572 F. 3d 66 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)).

7

“First, although ‘a court must accept as true all of the allegations contained in a
complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Id.
(quoting Iqbal, 556 U.S. at 678). “‘Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss and ‘[d]etermining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at 663-64). Thus, “[w]hen
there are well-pleaded factual allegations, a court should assume their veracity and . . . determine
whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679.
In considering a motion to dismiss, this Court accepts as true the factual allegations set
forth in the complaint and draws all reasonable inferences in the Plaintiff’s favor. See Zinermon
v. Burch, 494 U.S. 113, 118, 110 S. Ct. 975, 979, 108 L. Ed. 2d 100 (1990); In re NYSE
Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir. 2007). Only if this Court is satisfied that “the
complaint cannot state any set of facts that would entitle the plaintiff to relief” will it grant
dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Hertz Corp. v. City of New York, 1 F.3d 121, 125
(2d Cir. 1993). The issue on a motion to dismiss is “not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.” Todd v.
Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236,
94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
C. As to Whether the Plaintiffs Have Standing to Pursue the Present Action
The Defendants first argue that the Board “did not revoke, modify, reduce, declare
invalid, or otherwise adversity affect [their] Certificates of Occupancy nor did it reduce
Plaintiffs’ lot occupancy” (Def’s Mem, at 8). For this reason, the Defendants assert, the
8

Plaintiffs lack standing to bring this action and the Court lacks subject matter jurisdiction over
the action.
“In every federal case, the party bringing the suit must establish standing to prosecute the
action.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S. Ct. 2301, 159 L. Ed.
2d 98 (2004). Arising from the case and controversy requirement of Article III of the
Constitution, “[i]n essence the question of standing is whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490,
498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); see also Clapper v. Amnesty Int'l, __ U.S. __, 133
S. Ct. 1138, 185 L. Ed. 2d 264 (2013). To establish standing for purposes of the constitutional
“case or controversy” requirement, a plaintiff must show that he or she personally has suffered
an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.” Clapper, 133 S. Ct. at 1147 (internal
quotation marks omitted).
Here, construing the motion papers favorably to the Plaintiffs, the Court finds that they
adequately alleged that but for the Board’s decision, they would have been able to develop the
premises with the desired lot coverage so that they suffered a concrete injury. See Soundview
Associates v. Town of Riverhead, 893 F. Supp. 2d 416, 429-30 (E.D.N.Y. 2012) (Alleged injury
suffered by landowner, namely, its inability to construct and operate health spa on its property,
was sufficient to confer standing upon landowner with respect to its § 1983 action against town,
town attorney, and town's planning board attorney for their alleged violation of its Fourteenth
Amendment rights to substantive and procedural due process in denying its special permit
application for the health spa and in subsequently causing its continuing application to be
withdrawn). Indeed, the Defendants fail to cite a case where a court declined to confer standing
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upon a plaintiff despite an adverse determination against him or her by a state administrative
entity. The fact that the Board’s decision was conditional in nature and did not affect the
Plaintiffs’ existing use of the premises speaks to, as explained later, whether the Plaintiffs were
deprived of a protected property interest rather than whether they suffered a concrete injury for
purposes of Article III standing.
D. As to Whether the Plaintiffs State a Cause of Action for Violation of Procedural and
Substantive Due Process
As an initial matter, the Court observes that, despite the September 4, 2012 decision in
Supreme Court, Suffolk County rejecting the Plaintiffs’ due process claims, the Plaintiffs are not
precluded from asserting those claims here. As noted above, Supreme Court, Suffolk County
vacated its September 4, 2012 decision. It is well-settled in this circuit that a vacated order has
no collateral estoppel effect. See Corporation of Lloyd's v. Lloyd's U.S., 831 F.2d 33, 36 (2d
Cir. 1987); Universal City Studios, Inc. v. Nintendo Co., 578 F. Supp. 911, 919–20
(S.D.N.Y.1983), affd, 746 F.2d 112 (2d Cir. 1984).
Turning to the substantive law, causes of action based on alleged violations of “due
process” are “based on the Fourteenth Amendment, as implemented by section 1983, and
require[ ] the existence of a federally protectible property right and the denial of such a right in
the absence of either procedural or substantive due process.” Natale v. Town of Ridgefield, 170
F.3d 258, 262 (2d Cir. 1999); see also Rackley v. City of New York, 186 F.Supp.2d 466, 479
(S.D.N.Y.2002). Because the United States Constitution generally does not create property
interests, this Court, in applying the entitlement test, looks to “existing rules or understandings
that stem from an independent source such as state law to determine whether a claimed property
right rises to the level of a right entitled to protection under the substantive [or procedural] due
process doctrine.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998)
10

(internal quotation marks omitted) (citing Brady v. Town of Colchester, 863 F.2d 205, 212 (2d
Cir. 1988) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548
(1972). Accordingly, in this case, the Court must turn to New York law to determine whether
the Plaintiffs have a protectible property right.
In assessing this issue, the Court is mindful of the general proscription that “federal
courts should not become zoning boards of appeal to review nonconstitutional land[-]use
determinations by the [C]ircuit's many local legislative and administrative agencies.” Sullivan v.
Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986). Indeed, “the Due Process Clause does not
function as a general overseer of arbitrariness in state and local land-use decisions; in our federal
system, that is the province of the state courts.” Zahra v. Town of Southhold, 48 F.3d 674, 680
(2d Cir. 1995).
“In order for an interest in a particular land-use benefit to qualify as a property interest
for the purposes of the . . . due process clause [,] a landowner must show a ‘clear entitlement’ to
that benefit.” O'Mara v. Town of Wappinger, 485 F.3d 693, 700 (2d Cir. 2007) (citing Clubside,
Inc. v. Valentin, 468 F.3d 144, 152 (2d Cir. 2006)). A mere “abstract need or desire” for the
benefit is insufficient. RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 915 (2d Cir.
1989) (quoting Roth, 408 U.S. at 577). This “clear entitlement” test must be applied with
“considerable rigor.” Id. at 918. The test “focuses 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.” Crowley v. Courville, 76 F.3d 47, 52 (2d Cir. 1996)
(quoting Zahra, 48 F.3d at 680) (internal quotation marks omitted); see Natale, 170 F.3d at 263
(“entitlement turns on whether the issuing authority . . . is required to issue [permit] upon
ascertainment that certain objectively ascertainable criteria have been met”); Walz v. Town of
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Smithtown, 46 F.3d 162, 168 (2d Cir. 1995) (homeowner had property interest in an excavation
permit because superintendent of highways had no discretion to decline to issue it if the
application stated the nature, location, extent and purpose of the proposed excavations);
Gagliardi v. Village of Pawling, 18 F.3d 188, 192-193 (2d Cir. 1994) (landowners had no
property interest in enforcement of zoning laws for adjacent property, since the municipal
officials had broad discretion in determining whether to grant or deny building permit, site plan
and variances); RRI Realty Corp., 870 F.2d at 918-19 (no property interest existed in a building
permit since town officials had wide discretion to either grant or deny the permit). Even if
“objective observers would estimate that the probability of [obtaining the relief sought] was
extremely high, the opportunity of the local agency to deny issuance suffices to defeat the
existence of a federally protected property interest.” RRI Realty, 870 F.2d at 918.
Here, the Court must first identify the potential property right of which the Plaintiffs were
allegedly deprived. The potential property right at issue is not, as the Plaintiffs suggest, the
Certificates of Occupancy recognizing the non-conforming lot coverage. Indeed, the Board
makes clear that the Plaintiffs’ enjoyment of the existing non-conforming use survives the
Board’s denial of the variance. Cf. Norton v. Town of Islip, 239 F.Supp.2d 264, 270-271
(E.D.N.Y. 2003) (holding that the Town's issuance of a certificate of occupancy which revoked
the former conditional use as a two-family dwelling “was an affirmative act revoking the prior
property right in its nonconforming use, subject to a procedural due process challenge, despite
defendants' claim that the right to conforming use expired years previously when the house
remained unoccupied for one year, after being gutted by fire”). Rather, the potential property
right at issue of which the Plaintiffs were allegedly deprived is the Plaintiffs’ proposed extension
of their non-conforming lot coverage – that is, the requested variance as to lot coverage.
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However, a landowner’s “vested right[] in a nonconforming structure existing at the time
a prohibitory code provision is enacted, does not extend to subsequent construction.” Matter of
Renbar, 148 AD2d at 620; see also Garcia v. Holze, 94 A.D.2d 759, 760 (2d Dept 1983); Matter
of Rosbar Co. v Board of Appeals of City of Long Beach, 77 A.D.2d 568 (2d Dept 1980), affd,
53 N.Y.2d 623, 625, 420 N.E.2d 969 (1981). Brookhaven Town Code § 85-166 (A)
clearly states that “no building or land shall be used and no building shall be erected or
structurally altered except in conformity with the provisions of this article.” In addition, a
zoning board of appeals “c[an] properly decide that additional variances would impose too great
a burden and strain on the existing community” or “find that previous awards had been a mistake
that should not be again repeated,” as a board is “not bound to perpetuate earlier error.” Cowan
v Kern, 41 N.Y.2d 591, 596, 394 N.Y.S.2d 579 [1977]). Furthermore, “[a] zoning board may,
where appropriate, impose reasonable conditions and restrictions as are directly related to and
incidental to the proposed use of the property, and aimed at minimizing the adverse impact to an
area that might result from the grant of a variance or special permit.” Matter of Gentile v Village
of Tuckahoe Zoning Bd. of Appeals, 87 A.D.3d 695, 696 (2d Dept 2011) (internal quotation
marks omitted).
To be sure, “a property interest can sometimes exist in what is sought – in addition to the
property interest that exists in what is owned – provided there is a ‘legitimate claim of
entitlement to the benefit in question.’” Zahra, 48 F.3d at 679–80 (emphasis added). Again,
whether the Plaintiffs’ possess a protected property right interest in the variance turns on
whether, under applicable state law, “absent the alleged denial of due process, there is either a
certainty or a very strong likelihood that the application would have been granted.” Walz v.
Town of Smithtown, 46 F.3d 162, 168 (2d Cir. 1995) (quoting Yale Auto Parts v. Johnson, 758
13

F.2d 54, 59 (2d Cir. 1985)). More specifically, “entitlement turns on whether the issuing
authority lacks discretion to deny the permit, i.e., is required to issue it upon ascertainment that
certain objectively ascertainable criteria have been met.” Natale, 170 F.3d at 263.
However, here, the Plaintiffs fail to establish a “legitimate claim to entitlement to the
benefit in question.” Even without section 85-166 (A) of the Brookhaven Town Code, it is wellsettled that local zoning boards enjoy broad discretion in the consideration of applications for
variances. See Matter of Ifrah v. Utshig, 98 N.Y.2d 304, 746 N.Y.S. 2d 667 (2002); Matter of
Fuhst v. Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56 (1978); Matter of Miller v. Town of
Brookhaven Zoning Bd. of Appeals, 74 A.D.3d 1343 (2d Dept 2010). In making its
determination as to whether to grant an area variance, a zoning board of appeals is required,
pursuant to Town Law § 267-b(3), to engage in a balancing test, weighing the benefit to the
applicant against the detriment to the health, safety, and welfare of the neighborhood or
community if the variance is granted. See Matter of Pecoraro v. Board of Appeals of Town of
Hempstead, 2 N.Y.3d 608, 781 N.Y.S. 2d 234 (2004).
The board must consider whether (1) an undesirable change will be produced in the
character of the neighborhood or a detriment to nearby properties will be created by granting the
area variance; (2) the benefit sought by the applicant can be achieved by some other method,
feasible for the applicant to pursue, other than an area variance; (3) the requested variance is
substantial; (4) the proposed variance will have an adverse impact on the physical or
environmental conditions in the neighborhood; and (5) whether the alleged difficulty was selfcreated. See Matter of Pecoraro, 2 N.Y.3d at 613; Matter of Ifrah v Utschig, 98 N.Y.2d at 307308. A zoning board is “not required to justify its determination with supporting evidence with
respect to each of the five factors, so long as its ultimate determination balancing the relevant
14

considerations was rational.” Matter of Steiert Enters. v. City of Glen Cove, 90 AD3d 764, 767
(2d Dept 2011), quoting Matter of Merlotto v. Town of Patterson Zoning Bd. of Appeals, 43
A.D.3d 926, 299 (2d Dept 2007).
In this case, “[t]he discretion granted the Town under the ordinance. . . prevents [the
P]laintiffs from having an expectation of being granted a zoning variance sufficient to rise to the
level of a protected property interest.” See Vertical Broad., Inc. v. Town of Southampton, 84 F.
Supp. 2d 379, 393 (E.D.N.Y. 2000); Crowley v. Courville, 76 F.3d 47, 52 (2d Cir. 1996) (there
was no protected property interest in a variance where zoning regulations granted the zoning
board with discretionary approval powers); Dean Tarry Corp. v. Friedlander, 826 F.2d 210, 213
(2d Cir. 1987) (property owner's expectation of success in receiving planning board approval for
his project did not give rise to a cognizable property right because of the broad discretion that the
zoning ordinance conferred on the planning board).
Having determined that the Plaintiffs fail to adequately allege a constitutionally protected
property interest, the Court need not address whether the Defendants acted in an irrational
manner with respect to that property interest. Vertical Broad., Inc., 84 F. Supp. 2d at 392
(“Specifically, in cases where there is no ‘entitlement,’ and therefore no protected property
interest, it will matter not how the regulator's actions are characterized.”). Accordingly, the
Court grants the Defendants’ motion to dismiss the Plaintiffs’ substantive due process and
procedural due process causes of action.
E. As to Whether the Plaintiffs Have Stated an Equal Protection Claim
In the amended complaint, the Plaintiffs assert that their equal protection rights under the
Fourteenth Amendment were violated under a “class-of-one” theory.

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The Equal Protection Clause of the Fourteenth Amendment requires the government to
treat all similarly situated individuals alike. See City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed.2d 313 (1985); see also Vill. Of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (“Our cases
have recognized successful equal protection claims brought by a ‘class of one,’ where the
plaintiff alleges that she has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” (citations omitted)). In
Prestopnik v. Whelan, the Second Circuit explained the difference between class-of-one equal
protection claims and more traditional equal protection claims:
The Equal Protection Clause requires that the government treat all similarly
situated people alike. While this clause is most commonly used to bring claims
alleging discrimination based on membership in a protected class, it may also be
used to bring a “class of one” equal protection claim. In a “class of one” case, the
plaintiff uses the existence of persons in similar circumstances who received more
favorable treatment than the plaintiff to provide an inference that the plaintiff was
intentionally singled out for reasons that so lack any reasonable nexus with a
legitimate governmental policy that an improper purpose– whether personal or
otherwise – is all but certain.
249 F. Appx 210, 212–13 (2d Cir. 2007) (internal alterations, citations, and quotation marks
omitted). A class-of-one claim exists “where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Olech, 528 U.S. at 564.
Furthermore, “[c]ourts, including the Second Circuit, have repeatedly cautioned about the
danger of ordinary disputes between a citizen and a municipality – whether it be about land use,
licenses, inspections, or some other regulatory or investigative function of local governments –
being transformed into federal lawsuits by an incorrect, overexpansive theory of class-of-one
liability.” Crippen v. Town of Hempstead, 07-CV-3478 JFB ARL, 2013 WL 1283402
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(E.D.N.Y. Mar. 29, 2013); Bizzarro v. Miranda, 394 F.3d 82, 88–89 (2d Cir. 2005) (“Olech does
not empower federal courts to review government actions for correctness. Rather, an Olech-type
equal protection claim focuses on whether the official's conduct was rationally related to the
accomplishment of the work of their agency.”); Geinosky v. City of Chi., 675 F.3d 743, 747 (7th
Cir. 2012) (“Courts have understood that if class-of-one claims are not defined appropriately,
they might turn many ordinary and inevitable mistakes by government officials into
constitutional violations and federal lawsuits.”); Kan. Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1216–17 (10th Cir. 2011) ( “We have approached class-of-one claims with caution, wary
of turning even quotidian exercises of government discretion into constitutional causes. . . .
These concerns are magnified with challenges to low-level government decision-making, which
often involves a great deal of discretion. The latitude afforded police officers, . . . zoning
officials, and other similar government actors necessarily results in a sizeable amount of random
variation in outcome. If even innocuous inconsistencies gave rise to equal protection litigation,
government action would be paralyzed.” (internal citations and quotation marks omitted);
Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm’n., 610 F.3d 8, 16 (1st Cir.
2010) (“Drawing distinctions is what legislators and regulators do every day: without this
comparability sieve, every routine governmental decision at the state and local level—of which
there are millions every year– could become a class-of-one case in federal court.”); Cordi–Allen
v. Conlon, 494 F.3d 245, 252 (1st Cir. 2007) (“The burden that a class of one plaintiff must carry
at the summary judgment stage is considerably heavier than a mere showing that others have
applied, with more auspicious results, for the same benefit that he seeks. . . . Were the law
otherwise, the federal court would be transmogrified into a super-charged version of a local
zoning board – a zoning board on steroids, as it were.”); McDonald v. Vill. of Winnetka, 371
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F.3d 992, 1009 (7th Cir. 2004) (“Even if [plaintiff] was wronged here, we do not believe that he
has shown the wrong to be discriminatory in nature. Every time an actor commits a tort, he may
be treating the victim differently than he frequently treats others, simply because tortious conduct
is by nature a departure from some norm. Nonetheless, the purpose of entertaining a ‘class on
one’ equal protection claim is not to criminalize all tort law nor to transform every claim for
improper provision of municipal services or for improper conduct of an investigation in
connection with them into a federal case.”) (citations omitted); Crippen, 2013 WL 1283402, at
*8 (“plaintiffs cannot attempt to federalize every such dispute with a municipality by simply
uttering the magic words ‘class-of-one,’ without also pointing to any evidence that all other
similarly situated individuals received more favorable treatment than the plaintiff”).
In this case, the Court deems the Plaintiffs’ allegations that they are part of a “class of
one” to be conclusory. Pursuant to Iqbal, the motion to dismiss analysis begins with the
“identif[ication of] the allegations in the complaint that are not entitled to the assumption of
truth.” 129 S. Ct. at 1951. Many of the Plaintiffs' allegations in support of their cause of action
are nothing more than “bare assertions” amounting to a “formulaic recitation of the elements of a
. . . [class-of-one equal protection] claim.” See id. These include allegations that the “[t]he
Defendants have not secured for every person within its jurisdiction freedom from intentional
and arbitrary discrimination occasioned by the express use of the [Board]’s power; “[t]here is no
rational basis for the difference in treatment”; and the Defendants acted “for the sole purpose to
prevent plaintiffs from improving their residence and to deny them the use of their property.”
(Amended Complaint, at ¶ 64-66); see Moss v. United States Secret Service, 572 F.3d 962, 970
(9th Cir. 2009) (bald allegation of impermissible government motive is conclusory and may be
disregarded under Iqbal). Indeed, it bears noting that the Plaintiffs fail to make any argument in
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support of their equal protection claim in their memorandum of law in opposition to the
Defendants’ motion to dismiss. Accordingly, the Court grants the Defendants’ motion to dismiss
the equal protection cause of action.
F. As to the Plaintiffs’ Motion for Partial Summary Judgment
“Because the claims against defendants do not survive the motion[] to dismiss, the Court
denies as moot plaintiff[s] motion for [partial] summary judgment.” Watanmaker v. Clark, 09CV-3877 JFB ARL, 2010 WL 3516344 (E.D.N.Y. Aug. 31, 2010).
III. CONCLUSION
For the reasons stated above, it is hereby
ORDERED, that the Defendants’ Motion Pursuant to Fed. R. Civ. P. 12 (c) for judgment
on the pleadings is granted and the complaint is dismissed in its entirety with prejudice;
and it is further
ORDERED, that the Plaintiffs’ motion for partial summary judgment is denied as moot;
and the Clerk is directed to close the case.

SO ORDERED.
Dated: Central Islip, New York
June 13, 2013

_ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge

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