Firetree, Ltd. et al v. Town of Colonie et al

Filing 69

MEMORANDUM-DECISION and ORDER - That Colonie defendants' 65 Motion for Summary Judgment is GRANTED. That Firetree's 66 Cross Motion to Amend/Correct is DENIED. Signed by Chief Judge Gary L. Sharpe on 10/9/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FIRETREE, LTD. et al.,
Plaintiffs,

1:11-cv-95
(GLS/RFT)

v.
TOWN OF COLONIE et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Shulman, Howard Law Firm
17 Old Route 66
P.O. Box 1000
Averill Park, NY 12018
FOR THE DEFENDANTS:
Friedman, Hirschen Law Firm
100 Great Oaks Blvd.
Suite 124
Albany, NY 12203

FRANKLIN K. BRESELOR, ESQ.

CAROLYN B. GEORGE, ESQ.

Bloomberg, Magguilli Law Firm
109 State Street
Albany, NY 12207

MICHAEL C. MAGGUILLI, ESQ.

Town of Colonie
534 Loudon Road
Newtonville, NY 12128

REBEKAH R.N. KENNEDY, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiffs Firetree, Ltd. and Orange Stones Company (collectively
“Firetree”) commenced this action under 42 U.S.C. § 1983 against
defendants Town of Colonie, New York, Joseph LaCivita, Michael M.
Rosch, Michael J. Lyons, Michael C. Magguilli and Paula A. Mahan
(collectively “Colonie defendants”), alleging violations of their First, Fifth
and Fourteenth Amendment rights. (See Compl., Dkt. No. 1.) Pending are
Colonie defendants’ motion for summary judgment and Firetree’s crossmotion to amend to its Complaint. (See Dkt. Nos. 65, 66.) For the reasons
that follow, Colonie defendants’ motion is granted and Firetree’s motion is
denied.
II. Background1
Firetree, Ltd. and Orange Stones Company are separate non-profit
Pennsylvania corporations who bid for, and then operate, residential
reentry facilities under contracts with the Federal Bureau of Prisons (BOP).
(See Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt. No. 65, Attach. 1;
Dkt. No. 66 ¶ 1.) In April 2007, Firetree agreed to “purchase the land and a

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The facts are undisputed unless otherwise noted.

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structure at 875 Old Albany Shaker Road, located in the Town of Colonie,
contingent upon the awarding of a contract by the [BOP].” (Defs.’ SMF ¶
2.) Before closing on the property, Firetree applied to the Building
Department of the Town of Colonie for a commercial zoning verification
(CZV) in order to construct a new building on the site.2 (See id. ¶ 3.) The
application, which was dated May 25, 2007, states that the new building
would be a “Correctional Facility.” (Id.) Specifically, the narrative explains
that the “community corrections facility” is a secure facility, and articulates
the relevant security provisions. (Dkt. No. 63, Attach. 1 at 21.) Based on
this proposed use, the Building Department approved the application.
(Defs.’ SMF ¶ 3.) Though Firetree never sought a building permit to begin
construction, it closed on the property in January 2008. (See id.)
Thereafter, Firetree changed its plan and decided to modify the
existing structure, as this would only require Minor Site Plan Review. (See
Compl. ¶¶ 20-21.) Because of this change, Firetree was informed that it
needed to apply for a new CZV. (See id. ¶ 22; Answer ¶ 9, Dkt. No. 8.) It

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CZV’s are kept on file with the Building Department for one year and state “that the
Building Department’s approval ‘is subject to review and change if the project is modified at a
subsequent date.’” (Defs.’ SMF ¶ 5.) Moreover, it is undisputed that under Chapter 190 of
Colonie Land Use Law, the director of the Building Department must resolve issues of
compliance before an application “may be granted by any Town official.” (See id. ¶ 6; Dkt. No.
66 ¶ 6.)

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did so on July 22, 2008, again describing the proposed use as a
“Correctional Facility.” (Defs.’ SMF ¶ 4.) Notably, this application did not
contain the same description of the facility; instead, the narrative states that
the building will be “a community reentry center, which is a transitional
correctional facility.” (Dkt. No. 63, Attach. 1 at 23.) Nevertheless, the
Building Department approved this CZV roughly one week later. (Defs.’
SMF ¶ 4.)
After receiving the CZV, Firetree submitted its Minor Site Plan
application to the Colonie Department of Planning and Economic
Development (PEDD). (See id. ¶ 7.) “Various Town departments, as well
as Albany County and the FAA, were engaged in reviewing aspects of the
project over the next few months.” (Id. ¶ 7.) In addition, the PEDD sought
additional information from Firetree to complete its review. (See id.)
Though Colonie defendants claim the application was never deemed
complete, (see id.), defendant LaCivita, the Director of the PEDD, stated
that Firetree’s application was finalized as of April 20, 2009, (see Dkt. No.
65, Attach. 4 ¶ 19). Albeit final, the application was never referred to the
Planning Board for consideration. (See Defs.’ SMF ¶ 7.) Likewise, the
building permit Firetree applied for on March 6, 2009 was not issued. (See
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id. ¶ 8; Dkt. No. 66 ¶ 8.) According to Firetree, the delay in considering its
application, as well as the denial of its building permit, led it to conclude
that the application would not be considered in a timely manner. (See
Compl. ¶¶ 27-43.) Thus, on May 1, 2009, Firetree sent a letter to
defendant Maggiulli, the town attorney, in which it advised that it was
“contemplating legal proceedings to challenge the unwarranted and illegal
delays.” (Id. ¶ 44.)
Ultimately, both the May 25, 2007 and July 28, 2008 CZVs were
rescinded by defendant Rosch, the head of the Building Department, in
separate letters in May 2009. (See Defs.’ SMF ¶ 9.) Firetree claims that
Rosch’s first recision on May 5, 2009 was immaterial as its initial CZV
expired on May 25, 2008. (See Dkt. No. 66 ¶ 9.) However, after receiving
this letter, Firetree commenced an Article 78 proceeding to compel Colonie
to rule on its Minor Site Plan application. (See Defs.’ SMF ¶ 10; Dkt. No.
66 ¶ 10.) Firetree served its petition on Colonie on May 11, 2009; the next
day, Rosch issued his second letter in which he rescinded the July 28,
2008 CZV. (See Compl. ¶¶ 48-49.) In a decision dated January 7, 2010,
the state court dismissed Firetree’s petition, finding that Rosch possessed
the authority to rescind the CZVs, and moreover, that Firetree’s failure to
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appeal Rosch’s decision to the Zoning Board of Appeals precluded judicial
review. (See Dkt. No. 56, Attach. 1 at 3-4.) Citing its inability to fulfill the
obligations of the contract with BOP, Firetree voluntarily withdrew its
appeal of the state court decision, and did not resubmit its application to
the town. (See Compl. ¶¶ 73-76; Defs.’ SMF ¶ 10.)
Firetree now alleges three causes of action: (1) deprivation of
property without due process of law; (2) deprivation of property without just
compensation; and (3) First Amendment retaliation. (See Defs.’ SMF ¶
12.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Wagner v. Swarts, 827 F. Supp. 2d
85, 92 (N.D.N.Y. 2011).
IV. Discussion3
Colonie defendants argue that Firetree’s Complaint should be

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Both parties’ briefs include a number of arguments that are inapplicable to the instant
case—e.g., Colonie defendants’ discussion of substantive due process, and Firetree’s
argument regarding the “special facts” exception. (See generally Dkt. No. 65, Attach. 3; Dkt.
No. 66, Attach. 1.) Therefore, the court addresses only the dispositive arguments asserted,
and countered, by the parties.

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dismissed because its Fifth Amendment claim is not ripe; it has no vested
property interest in the approval of its Minor Site Plan application; and its
retaliation claim fails as a matter of law.4 (See Dkt. No. 65, Attach. 3 at 2-8,
10-12.) In addition to refuting Colonie defendants’ assertions, Firetree’s
response includes a cross motion to amend, in which it seeks to add a
cause of action under the Equal Protection Clause. (See Dkt. No. 66,
Attachs. 1, 17.) Though Colonie defendants’ arguments are somewhat
disjointed, they are nonetheless correct.
A.

Ripeness
Colonie defendants aver that Firetree’s “abandon[ment]” of the

project, and its failure to seek compensation through the “procedures
provided by the state” render the Fifth Amendment claim unripe for judicial
review. (Dkt. No. 65, Attach. 3 at 10-12.) While not explicitly conceding
that its claim is flawed, Firetree acknowledges Colonie defendants’
argument “may affect” its Fifth Amendment claim. (Dkt. No. 66, Attach. 1 at
15.) In short, the court agrees with Colonie defendants.
“[A] plaintiff alleging a Fifth Amendment taking of a property interest
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In addition to moving for judgment as a matter of law, Colonie defendants’ seek
attorneys’ fees. (See Dkt. No. 65, Attach. 3 at 19-20.) This request is premature, and is thus
denied with leave to renew in a separate motion, which must be filed in accordance with the
Local Rules of Practice and the Federal Rules of Civil Procedure.

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must satisfy a two-prong test and show that (1) the state regulatory entity
has rendered a ‘final decision’ on the matter, and (2) the plaintiff has
sought just compensation by means of an available state procedure.”
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83,
88 (2d Cir. 2002) (citing Williamson Cnty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson, 473 U.S. 172, 186, 194-95 (1985)). Assuming,
without deciding, that Colonie defendants rendered a final decision on
Firetree’s application, there is no evidence in the record that Firetree
sought compensation through the state’s procedure. (See Dkt. No. 65,
Attach. 3 at 11-12.) Given that New York has “a reasonable, certain and
adequate provision for obtaining compensation,” R-Goshen LLC, v. Vill. of
Goshen, 289 F. Supp. 2d 441, 448-49 (S.D.N.Y. 2003), Firetree’s failure to
seek redress through that procedure is fatal to its claim. As such, Colonie
defendants’ motion is granted as to Firetree’s Fifth Amendment cause of
action.
B.

Vested Property Right
Next, Colonie defendants contend that Firetree did not have a vested

property interest in its proposed land use, and thus, it cannot state a cause
of action under the due process clause. (See Dkt. No. 65, Attach. 3 at 2-5.)
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In response, Firetree counters that it need not plead a vested property
interest, as Colonie defendants’ arbitrary and capricious conduct excuses
that requirement.5 (See Dkt. No. 66, Attach. 1 at 3-9.) The court disagrees
with Firetree.
The existence of a protectable right is an indispensable predicate to a
procedural due process claim. See, e.g., Gagliardi v. Vill. of Pawling, 18
F.3d 188, 193 (2d Cir. 1994). A developer does not have a property
interest in its plan application unless, “at the time of submittal and absent
any due process violations, there was a very strong likelihood that the
application would have been granted.” Orange Lake Assocs. v. Kirkpatrick,
825 F. Supp. 1169, 1178 (S.D.N.Y. 1993). “Application of the test must
focus primarily on the degree of discretion enjoyed by the issuing authority,
not the estimated probability that the authority will act favorably in a
particular case.” RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d
911, 918 (2d Cir. 1989). Even where the denial is arbitrary, “[t]he fact that
the permit could have been denied on non-arbitrary grounds defeats the
federal due process claim.” Id.
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Briefly, Firetree’s reliance on the “special facts” exception is misplaced as there is no
evidence that Colonie defendants amended the zoning laws applicable to its application. (See
Dkt. No. 68 at 1); see, e.g., Cedarwood Land Planning v. Town of Schodack, 954 F. Supp.
513, 522 (N.D.N.Y. 1997).

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Notwithstanding Firetree’s claim that the consideration and recision of
its CZV was arbitrary, (see Dkt. No. 66, Attach. 1 at 8-9), Colonie
defendants undoubtedly had the right to rescind the CZV, and/or
disapprove the Minor Site Plan application, (see Defs.’ SMF ¶¶ 5-6; Dkt.
No. 65, Attach. 3 at 4-5.) In fact, with the exception of conjecture and
allegations of “bad faith,” (see Dkt. No. 66, Attach. 1 at 3-8), Firetree has
offered nothing that demonstrates that Colonie defendants lacked the
authority to rescind the CZV. See RRI, 870 F.2d at 918 (“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 property
interest.”). Thus, Colonie defendants’ “discretionary approval powers,”
standing alone, are sufficient to defeat Firetree’s due process claim, as it
does not possess a vested property interest. Orange Lake, 825 F. Supp. at
1178. Therefore, Firetree’s due process claim is dismissed.
C.

Retaliation Claim
Lastly, Colonie defendants argue that Firetree failed to state a cause

of action for First Amendment retaliation because it failed to show how its
rights were chilled. (See Dkt. No. 68 at 11.) Again, the court agrees.
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To succeed on its retaliation claim, Firetree must demonstrate that “(i)
[it] has an interest protected by the First Amendment; (ii) the defendant[s’]
actions were motivated by or substantially caused by [its] exercise of that
right; and (iii) the defendant[s’] action effectively chilled the exercise of [its]
First Amendment rights.” Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.
1998) (internal citations omitted). Here, there is neither evidence, nor even
an allegation, that Rosch’s rescission of the CZVs chilled Firetree’s speech.
(See Compl. ¶¶ 89-94.) In fact, after receiving Rosch’s second letter,
Firetree not only continued to prosecute its Article 78 proceeding, but also
pursued an appeal. (See id. ¶¶ 49, 67-76.) Thus, Firetree’s remaining
claim for First Amendment retaliation also fails as a matter of law, and is
thus dismissed.
D.

Motion to Amend
Turning to Firetree’s motion to amend its Complaint, which Colonie

defendants vehemently oppose, the court is unpersuaded that an
amendment is appropriate here. (See Dkt. No. 66, Attach. 17; Dkt. No. 67.)
First, the discovery and dispositive motion deadline has passed. (See Dkt.
Nos. 25, 58.) And second, Firetree’s counsel offered neither explanation
nor cause for the amendment. (See generally Dkt. No. 66, Attach. 17.)
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Accordingly, Firetree’s motion to amend is denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Colonie defendants’ motion for summary judgment
(Dkt. No. 65) is GRANTED; and it is further
ORDERED that Firetree’s cross motion to amend (Dkt. No. 66) is
DENIED; and it is further
ORDERED that Clerk shall close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 9, 2012
Albany, New York

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