89 JPS, LLC v. Joint Village of Lake Placid and Town of North Elba Review Board et al

Filing 14

MEMORANDUM-DECISION AND ORDER granting in part and denying in part Defendants' 3 Motion to Dismiss; denying as moot and unncessary Defendants' 7 Appeal of Magistrate Judge Decision; and granting Plaintiff's 8 Motion to Remand the remaining causes of action. Signed by Chief Judge Norman A. Mordue on 9/14/2011. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
In the Matter of the Application/Action of
89 JPS, L.L.C.,
Petitioner-Plaintiff,
For an Order and Judgment Under CPLR
Article 78 and CPLR 3001
-againstN

8:11-CV-181
(NAM/DRH)

JOINT VILLAGE OF LAKE PLACID AND
TOWN OF NORTH ELBA REVIEW BOARD;
VILLAGE OF LAKE PLACID, INC.; TOWN
OF NORTH ELBA; CODE ENFORCEMENT
OFFICER OF VILLAGE OF LAKE PLACID
AND TOWN OF NORTH ELBA,
Respondents-Defendants.
_________________________________________

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APPEARANCES:

OF COUNSEL:

LAW OFFICE OF JAMES M. BROOKS
72 Olympic Drive
Lake Placid, New York 12946
Attorney for Petitioner-Plaintiff

James M. Brooks. Esq.

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THORN GERSHON TYMANN
AND BONANNI, L.L.P
8 Wembley Court, New Karner Road
P.O. Box 15054
Albany, New York 12212-5054
Attorneys for Petitioner-Plaintiff
RICE & AMON
Four Executive Boulevard
Suite 100
Suffern, New York 10901
Attorneys for Respondents-Defendants

Mandy McFarland, Esq.

Terry Rice, Esq.

Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Plaintiff-Petitioner (“plaintiff”) filed the instant proceeding in New York State Supreme

Court for Essex County alleging inter alia deprivation of his due process rights under the
Fourteenth Amendment to the United States Constitution. The action also sought an order
vacating an administrative determination of the Respondent-Defendant review board under N.Y.
C.P.L.R. Article 78 and further relief under New York state law. Respondents-Defendants
(“defendants”) removed the action to this Court and immediately moved to dismiss the complaint
pursuant to Fed. R. Civ. P. 12 (b) (6).
Thereafter, plaintiff’s counsel advised counsel for defendants that this Court lacked
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subject matter jurisdiction to entertain plaintiff’s claims pursuant to N.Y. C.P.L.R. Article 78.
Counsel for defendants contended that this Court does have appropriate jurisdiction over such
claims and requested a conference with the assigned magistrate judge to resolve the issue.
Magistrate Judge David R. Homer concluded that whether the Notice of Removal deprived the
state court of jurisdiction to proceed on plaintiff’s Article 78 claims was a matter for
determination in the first instance by the state court. Defendants filed an appeal of Magistrate

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Judge Homer’s Order arguing it is erroneous and contrary to law. Defendants requested entry of
an Order stating that the state court is devoid of jurisdiction over any of plaintiff’s claims and an
injunction against Essex County Supreme Court prohibiting review of plaintiff’s claims.
Defendants further sought an order directing plaintiff not to proceed in state court on any of its
claims.
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Plaintiff then filed a cross-motion for remand of the first four causes of action to Essex
County Supreme Court for lack of subject matter jurisdiction.
II.

RELEVANT FACTUAL BACKGROUND

A.

History of Proceedings before the Administrative Review Board
This case involves plaintiff’s application for a permitted accessory use building permit for

a boathouse on Mirror Lake in Lake Placid, New York. The property in question is a vacant

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commercial parcel that sits on Main Street in the Village of Lake Placid with unfinished
apartments above. Plaintiff, who apparently is a developer and boat collector, submitted his
application for a permit to construct a boathouse on the shoreline of the property on September
24, 2010 and presented it to the Joint Village of Lake Placid and Town of North Elba Review
Board (“JRB”) on October 6, 2010. Plaintiff’s architect, William Kaufmann, offered testimony to
the JRB concerning the proposed project which he estimated would cost $450,000. The proposed
structure was a one story, 1050 square foot log faced boat house which was 20 feet wide, 32 feet
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deep with a maximum height of 13.75 feet, all dimensions which were expressly permitted by the
then existing Land Use Code.1 Mr. Kaufmann explained that plaintiff had presented the plans for
the project to the Adirondack Park Agency (“APA”) for required approval. Plaintiff had made
modifications to the original plans - which called for a pitched roof - to provide for a flat roof in
compliance with APA rules and was awaiting APA approval of the plans.
Mr. Kaufmann testified that the purpose of the boathouse was for dry boat slip and storage

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with a rear slip for an electric boat, also permitted by the pertinent Land Use Code. In particular,
Mr. Kaufmann explained that one use for the structure was for the storage of two Maas single
skulls, each 27 feet in length. At one point in the October 6, 2010, hearing, one of the Board
members, Horst Weber, elected to recuse himself from further participation in determination of
plaintiff’s permit. Specifically, Mr. Weber indicated he had strong personal feelings against the
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construction of boathouses on Mirror Lake and was therefore apparently not in a position to judge
the case fairly:
If everyone has a boathouse on Mirror Lake you won’t see much of
the shoreline anymore. I mean going all the way around the lake.
Fundamentally I’m against boathouses. I do not (in audible)[sic] so

1

The Court notes that though the Village of Lake Placid and Town of North Elba had plans to revise its Land Use
Code to prohibit boat houses on Mirror Lake, the law in effect at the time plaintiff submitted his application
permitted the construction of such structures.

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and then 32 feet into the lake for kayaks, I don’t think is something
that should be done to store a few kayaks. So I, out of principle, have
to abstain out of that project. We shouldn’t have any boathouses on
Mirror Lake.
Subsequent to the initial hearing, plaintiff provided the JRB with the APA permit granted on
November 1, 2010, samples of all materials to be used in construction of the boathouse and a
color rendering of the proposed structure.
On November 3, 2010, the JRB convened and advised plaintiff that he was to proceed
with notifying neighbors within 200 feet of the proposed project so they could voice their
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objections, if any. Plaintiff was directed to mail 18 “Notices to Neighbors” as required by the
JRB procedure. On November 8, 2010, three members of the JRB appeared at plaintiff’s property
for a site inspection, including Mr. Weber who had previously recused himself. The proposed
boathouse was staked out on shore and there was a buoy in the water representing the 32' length
that the boathouse would sit out into the lake. The JRB members stood on the neighbor’s dock to

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see how their view would be affected. They observed that the plaintiff’s backyard was 69' wide
by 56' deep.
On November 17, 2010, the JRB met and allowed comment from the neighbors who
elected to appear and voice concerns over the proposed project. 16 of the 18 notices mailed had
been returned signed to the JRB. Sarah and Mark Galvin, absentee owners of a neighboring

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business, Bookstore Plus, and their tenant who rented the apartment above the commercial space,
appeared to voice their concern that the view of Whiteface Mountain, visible in the distance from
the backyard of the bookstore, might be impacted by the construction of the boathouse. The
Galvins, however, did not present studies or comparisons of the relative heights of the proposed
structure, shoreline, and backyard of the bookstore. William Hurley, Chairman of the JRB, noted
in the minutes of the November 17, 2010, meeting that the Board had received a letter from
Robert Evans who was “concerned” that the proposed boathouse would “affect the neighbor’s
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views” although the neighbor in question was not identified. Hurley also acknowledged that the
Board received two letters from the attorney for NBT Bank referencing the proposed changes to
the Town and Village code which would prohibit boathouses on Mirror Lake and urged the JRB
to deny plaintiff’s application because the new code was scheduled to take effect in a little over
forty days.
While he had recused himself at the initial hearing, Mr. Weber elected to make a
statement on the record at the November 17, 2010, hearing which prompted an exchange between
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he and plaintiff’s attorney, Mr. Brooks:

Well you abstained because you’d already previously
expressed your opinion.

Weber:

Yeah.

Brooks:

And you candidly and honestly said you’d already
formed your opinion and you couldn’t be fair and
imparital.

Weber:

Yeah.

Brooks:

... participate your [sic] not supposed to. I didn’t make
the rules those are rules that had been expressed before
by courts.

Weber:

Yeah.

Brooks:

And if I can I’m not going to withdraw or allow you to
withdraw your disqualification you already
disqualified yourself and you should have.

Weber:

Can I change my mind?

Brooks:

No.

Weber:

I mean it’s I can make a comment on it, it’s

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It would be an obstruction basically looking from the
bookstore across Whiteface yes, that’s what it would
be. Jim I did say at the last meeting I would abstain
but I changed by mind I will vote on this. So I’m
allowed to make my comment right.

Brooks:
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Weber:

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Yes.

Brooks:

You shouldn’t be commenting on it.

Hurley:

Is it true Mr. Brooks that the only person that can
recuse themselves or make that determination is the
person themselves?

Brooks:

No I wouldn’t go that far a Court can do that also and
you did it yourself and I admired you for it of course as
a matter of fact it was the right thing to do.

Weber:

Okay but I still will make a comment.

Brooks:

Well I do object to it because you shouldn’t.

Weber:

Yeah okay because it
...

Weber:
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You shouldn’t be because you’re a member of the
board

Weber:

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Brooks:

It affects our whole community and I’m here on this
board to adhere to the code because the code says we
are in charge of making sure our community grows
properly. And we are taking care of our scenic
resource. So unless I would step off the board today I
think boat houses in my book are visual pollution and
that is general. We have a lake shore that has been
damaged already but with a project like this on Main
Street we’re going ever more in that direction. So that
is my last comment.

Following the exchange between Weber and Brooks, JRB Chairman Hurley stated on the
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record that although plaintiff had the right to have a boat house, Hurley “personally” thought the
proposed structure was “too big for what he wants to do.” Although Hurley said what plaintiff
had tried to do so far was “nice,” is was “out of scale” with what “we should be looking at here on
that part of the lake.” In response, Mr. Brooks argued that he did not believe that the Town and
Village Code entitled the JRB to make that kind of determination “based on those standards.”
Indeed, Mr. Brooks contended “[t]he fact that it interferes purportedly with one commercial
property, you that’s it.” JRB member Chip Bissell stated that the project would interfere with
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“more than one” property. When asked by Mr. Brooks to explain himself he said “I’m sure the
next one down too. This is sticking out a long way Jim. ... ” Brooks countered that the next
property down from plaintiff’s was another commercial property and then Hurley piped in with
“No, the Shahaddy’s is a residence right on the lake.”
Mr. Hurley then continued with a long narrative concerning the JRB’s purpose in
examining the need for plaintiff’s proposed project:

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The question is do we have a right to look at need. That is in the book
under general development criteria. The first one in the need of the
proposed thing. And I think that there are other solutions that this
property, due to its configuration, due to its size of unused land space,
can store boats in. As I said you have a grass area so the upper deck
here, if it was the only place they could use for sunning and laying out
and or barbequing or enjoying the lake, I’d say ok. But they have a
seventy by fifty-five section of land that they can do all stuff on. So
do they have an explicit right. They have a right. But we do have
other parcels of the code to consider and I just think this boat house in
this location is too large for the general area. And that is a
consideration that we have to take into effect. You have 300 feet of
shoreline you can go out thirty-two feet. With seventy feet of
shoreline this will affect the neighbors not only their view but their
enjoyment of their property also.

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In response to Mr. Hurley’s comments Mr. Brooks argued that his client “fully compli[ed] with
all the requirements and standards of the code and he is entitled to his permit.” Mr. Brooks
contended that “what [the JRB was] interposing on [plaintiff] or subjecting [him] to are personal
opinion type determinations that are not recognized in [the] code and are not lawfully imposed on
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... [plaintiff’s] project.” When asked if plaintiff would consider making the boat house a little
smaller, Mr. Brooks replied that plaintiff stated “No, that’s what I need for what I intend to use it
for.”
Mr. Hurly then proposed closing the hearing and moving for a decision on the application,
but at this point in the hearing, board member Mike Orticelle stated he would like to consult with
the JRB counsel:

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I’d like to talk to our attorney to find out exactly what it is, what our
authority is, to get a legal opinion. I have a hard time telling people
what their needs are, how to use their property in accordance with the
law. I feel everybody’s paying. I understand you know the site and
the view are valuable around here but you cannot regulate community
efficacy and good neighborliness. Those other boat houses you
mentioned, those people drew those to that size for their purpose, to
be good neighbors. This individual decided this is what he needs, this
is what he wants, it’s within the law. I have a hard time telling him
otherwise unless there’s something major about the way it’s built,
architecturally to control over it.
Based on Mr. Orticello’s suggestion, Chairman Hurley’s motion was tabled and consideration of
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the matter was adjourned.
When the JRB reconvened on December 1, 2010, its attorney, William Kissel, was
present. He stated that there were three provisions of the Town and Village code which he relied
on in advising the JRB in reviewing plaintiff’s permit application. Kissel noted that despite the
angst of the various board members who felt that they were required to either approve or deny the
application as submitted, he advised that the code gave them the discretion and authority to

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approve the permit application with modification. Indeed, Kissel stated that the JRB would have
to “set for the basis” for needing to modify the application and the “precise manner” in which the
JRB would want to modify it. He then walked the board through the specific provisions of the
code that he believed were applicable to review of plaintiff’s permit application and advised the
JRB about making findings of fact and a final determination.
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Notably, although Mr. Kissel had never attended any of the previous JRB meetings
concerning plaintiff’s permit application, he stated that the chairman “went over with [him] a
number of particular items that he was concerned about and thought the board was [concerned
about].” Kissel also stated that the chairman asked him “to review the minutes” which he did.
“So between those two processes” Kissel claimed that he “drafted some potential findings of
fact.” He also qualified the materials that the JRB had in front of them at the meeting stating that

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they were given “analysis data that the planning office put together ... based on some field work
that they did.” Mr. Kissel stated:
I did not see this until late in the day. There’s one reference in the
draft stating that there are eight boat houses. The chairman asked the
question as to whether there’s really eight boat houses. So you know
that number is not magic or my number, that number came from this.
So again, as you discuss it with the staff or otherwise as you come to
a different conclusion that’s their finding of fact, not mine.
Mr. Brooks then asked for a copy of the factual or evidentiary materials Mr. Kissel was referring
to and was told by Mr. Hurley “Well we’re this is our this is going to end up being our motion or
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resolution. So if we act on this you’ll get a copy of it.” Mr. Brooks objected to not being
provided with a copy of the materials or even a chance to look at it as a violation of his client’s
due process rights.
The board then proceeded to discuss the various Findings of Fact as drafted by attorney
Kissel. It is clear from review of the transcript that the board could not quite agree on what the

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definition of a boathouse was, what the dimensions and use of each of the structures on Mirror
Lake was and therefore how many boat houses were actually on Mirror Lake at the time it was
reviewing plaintiff’s permit application. Mr. Brooks objected a number of times to not being
provided with a copy of the findings of facts and other analytical data being discussed by the
board during the hearing but these objections were ignored. Mr. Brooks also objected to Mr.

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Weber’s continued participation in the hearing after his official abstention from review of
plaintiff’s permit application. Mr. Kissel suggested that Brooks be allowed to reserve and state
his objections at the end of the hearing. The balance of the discussion on the record concerned a
comparison of the relative size of the various structures or boat houses on the lake, the number of
feet each structure protruded into the lake and looking at each property where such a structure
existed, the percentage of existing shoreline taken up the structure. These numbers were then
compared to the structure proposed by plaintiff.
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Based on the comments made by members of the JRB on the record they seemed to be
focusing on the fact that although the JRB had approved boat houses on the lake and there were
additional boat houses on the lake which predated the code, plaintiff’s proposed boat house was
larger than any of these structures and took up more of the shoreline than any other existing
shoreline structure on the lake. To wit, plaintiff’s proposed boat house would protrude four feet
five inches further into the water than the next largest shoreline structure and his proposed
boathouse would take up 29% of his property’s shoreline whereas the other boat houses on Mirror
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Lake covered only between 4-23% of the lot shoreline of their respective properties. The JRB did
take express note of the fact that there were no other boat houses in the vicinity of the proposed
project site.
When it became clear that the Board intended to approve plaintiff’s permit application but
with a modification that the boat house be no longer than 20 feet Chairman Hurley began asking
each board member for his or her thoughts. Though he had participated in the hearing, Mr.

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Weber noted once again that he had previously recused himself because he was “opinionated.”
Following this comment, however, another board member noted that Weber had only recused
himself from voting on the original application as submitted. Board member Chip Bissell stated
“[t]his is a whole different idea. This motion.” With that all members of the JRB, adopted the
Criteria, Findings of Fact and Determination drafted by its counsel and voted in favor of
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approving plaintiff’s application for a building permit to construct a boat house with a
modification that it be no longer than 20 feet in length except Mr. Weber, who un-abstained and
voted against the permit application.
B.

Overview of the JRB’s Determination
The Criteria adopted by the JRB set forth the three sections of the Land Use Code relied

on by the board in reviewing plaintiff’s permit. The first, Part IV, Article II, Section 4 entitled

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“Site Plan Review” states that it’s purpose is:
to provide a process for the recognition and detailed evaluation of
those types of natural and related land use considerations important to
the achievement of the joint comprehensive plan and the purpose of
these regulations and which, given the nature, level of detail and scale
of the town wide inventory and zoning maps, require a more exact and
site specific evaluation on a case by case basis than is otherwise
possible.
Article II, Section 4A(4) states that the districts and lands containing and adjacent to Lake Placid
and Mirror Lake are “an important and sensitive resource to the community, within which new
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uses or buildings of any size ... should undergo a site plan review.” Section 4(c) of Article II
provides the procedure for site plan review and states that the JRB shall approve, approve with
stipulated conditions, modification or disapprove any application based on its findings of fact and
the “applicable development consideration set forth in appendix E, Part V” of the Code.
The second provision of the Code deemed relevant by the JRB’s was Part IV, Article V,
Section 3 which provided Site Design Guidelines applicable to projects within the Village of

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Lake Placid and the Town of North Elba. Subsection 1 states “Buildings should be sited in such a
manner that preserves existing landforms:”

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The building (s) must fit into the landscape in a way that leaves major
landscape features intact. The most prominent parts of the site must
be left in their natural condition. Construction must be scaled so that
it complements rather than dominates the site. On site simulation with
balloons or other indicators may be required in order to adequately
demonstrate true building scale.
Subsection 2 entitled “Siting must be compatible with representative building patterns” states:
The existing community character is that of a traditional settlement
with mixed uses and services, typically housed in contiguous buildings
built over time on small compact lots with compatible architecture
fronting on public sidewalks and streets.
Subsection 3 states “Avoid adverse impacts on nearby properties:”
Relate the location of the site uses with adjoining and nearby
properties to avoid conflicts caused by traffic, lighting or parking and
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drainage, especially on residential properties. Disturbance of existing
vegetation must be minimized to allow existing buffers between
properties to remain.
Finally, subsection 4, entitled “Buildings should be sited in a manner that preserves significant
views” states:
Primary concerns relate to maintaining views both to the site and
features beyond. Projects should be designed to that they complement
rather than dominate the natural landscape. Buildings should be sited
so that their form does not break prominent skylines. ...
The JRB also included in the applicable Criteria a reference to Part IV, Article V to the
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following statement in Section 1concerning “architecture that is pleasing to observer,
compliments adjacent and nearby structures and does not intrude upon or overwhelm the natural
environment.” To wit, this provision of the Code reminds the board that “it is crucial to maintain
a balance between development and the preservation of our visual appeal.” The inclusion of this
fourth portion of the Code seemed to be in addition to the three relevant provisions Mr. Kissel

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had discussed at the JRB hearing on December 1, 2010. The JRB’s adoption of the language
concerning the project’s need to conform to specific architectural standards appears to contradict
statements made by Mr. Kissel during the hearing regarding the applicability of architectural
guidelines in the Code to plaintiff’s project.2
2

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Bissell: The other point I’d like to make is that I feel that the boat house should have a
connection architecturally to the existing building. And I think it’s it wouldn’t be that
hard to do but having a log boat house on the lake, use some of the beams and the feel
of the Alpine Meadows building. It seems like it would work much better than just
having this completely different architecture behind it. I think we talked about; it is
talked about in code about not having the real Adirondack sort of feel like the C1
district on Main Street. I think it’s pretty clear in the code in our technical design
guidelines. It wouldn’t be hard to do....
Krone: But it’s not on Main Street.
Bissell: No it’s not part of that building. You know when you’re going down the lake and you
look at it, you know and I don’t think it would be that hard to change. You go from logs
to a square cut. It would not be difficult.
...
Kissel: And in response to Mr. Bissell’s comments I’d be a little cautious as your attorney saying
that I find in the code for where this is and what it is, namely it’s on the shore. It’s not

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The final section of the Code referred to by the JRB in the Criteria adopted for review of
plaintiff’s permit was Appendix E entitled “Development Considerations.” Specifically, the JRB
referred to the General Development Considerations set forth in Section I of Appendix E and the
Environmental/Natural Resource Considerations set forth in Section II of the Appendix.3
Subsequent to recitation of the pertinent Criteria applicable to its review of plaintiff’s
permit application, the JRB set forth its Findings of Fact. Though it appears these Findings were
actually drafted by Mr. Kissel, they were ultimately adopted by the JRB with slight modifications
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as follows:
Mirror Lake is protected by local laws/ordinances passed by
the Village of Lake Placid/Town of North Elba that prohibit
any motorized use of the lake except for electric propelled
craft.

2.

Mirror Lake and its shores and views and vistas of it and
across it are an important and significant natural resource of
the Village of Lake Placid and Town of North Elba.

3.

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1.

The project site consists of a narrow waterfront lot that is 69

on Main Street. Excuse me, it’s not a commercial building it’s a boat house. ...

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Kissel: Excuse me. I believe it’s personal use. Of course if it’s not Mr. Chairman whether there
was another application would be needed or not. But let’s just say I know what you’re
talking about in terms of the architectural language in the code. I have trouble as your
lawyer telling you that I find enough basis in it for you to change the architecture, in view
of what you have now. That’s not to say you could never touch the architecture but in
terms of what’s there and what the code says and what the rest of the community looks
like in that area. I’m not saying you can’t do it, I’m just saying I think you’re getting on
thin ice at that point.
3

At the hearing on December 1, 2010, Mr. Kissell highlighted a number of the factors that the JRB would find
applicable in its review of plaintiff’s permit application under the “Development Considerations” section of the
Code:
*
Appx E, Section I (A) (4) : The relationship of the proposal to the existing land use make-up and
character of areas immediately or likely to be impacted by the proposal.
*
Appx. E, Section I (A) (5): The relationship of any principle and accessory building (s) and the
proposed site to one another, structures and uses in the vicinity as well as to the natural features of the
site.
*
Appx. E, Section I (A) (9): The overall sensitivity of the proposed project to the neighborhood and the
site and its provision for the location, size and type of signage, lighting and landscape features.
*
Appx. E, Section II (A) (7): Scenic Views and Visual Considerations - Including scenic vistas, travel
corridors, relationship between natural and built features and screening.

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feet wide along the Mirror Lake waterfront.

There are no boathouses in the vicinity of the project site.

6.

The shoreline of the project site protrudes somewhat more into
Mirror Lake than the properties immediately surrounding it on
either side so that construction of a dock or a boathouse on the
site will be somewhat more visible than if it were constructed
on adjoining or nearby property.

7.

The entire shoreline of Mirror Lake is presently improved with
only nine (9) boathouses and the length of all of these
boathouses is less than the 32 foot length proposed by the
applicant. The approximate dimensions of all existing
boathouses on Mirror Lake and the lot size widths upon which
these boathouses are located are shown in the attached
analysis.

8.

The entire shoreline of Mirror Lake where the land touches the
water is virtually free of all development with the exception of
the boathouses referenced above, The Boathouse Restaurant
owned by the Crowne Plaza and some small docks used for
personal purposes of residents on the Lake. There are no
homes or structures other than the above described boathouses
and docks that sit directly on the water or protrude into it.

9.

Mirror Lake and the project site are visible from several public
areas within the Village of Lake Placid, including sections of
Mirror Lake Drive, which contains 8 heavily utilized
pedestrian walk-ways from which the project site can be seen.
The project site is visible from large areas of the water and ice
surface of Mirror Lake. The entire surface of Mirror Lake is
used year-round for recreational use, including canoeing,
kayaking, sailing and swimming in the summer and walking,
snowshoeing, cross-country skiing, skating and dogsled rides
on the ice in the winter.

10.

The project site and the proposed boathouse will also be
visible from portions of the Lake Placid Municipal Beach and
Mids Park, the public park located between the shore of Mirror
Lake and Main Street in Lake Placid.

11.

The board has reviewed the plans and application of the

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The shoreline of the project site at the waterline and into the
lake of both the project site and all immediate and nearby
properties is undeveloped and not improved by boathouses or
any other structures, except for docks.

5.

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4.

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applicant and has conducted an on-site visit of the premises
and of nearby properties. At the request of the board the
applicant placed a floating buoy 32 feet from the shore of the
project site in order to replicate the distance that would be
occupied by the length of the boathouse that is proposed by
the applicant. The board's site inspection of the project
occurred while the buoy was in the water, allowing the board
to review the potential visual impact of the boathouse from
adjacent properties.

The six (6) boathouses existing on Mirror Lake that were not
subject to review and approval by the joint review board
because they were preexisting are no longer than 27.7 feet in
length.
The existing boathouses on Mirror Lake, including those
reviewed and approved by the Joint Review Board, occupy
between 4% and 23% of the shoreline frontage of the
properties on which they are located. The proposed boathouse
would occupy 29% of the shoreline frontage.

14.

The length of the proposed boathouse is longer than any
boathouse that has been approved in the past by the joint
review board and is longer than the boathouses on Mirror Lake
that were not subject to review by the joint review boord and
because of its length is incompatible with the size and scale of
existing boathouses on Mirror Lake.
Addressing Part IV, Article V, Section 3 A:

(l)

The boathouse does not fit into the landscape in a way that
leaves major landscape features intact and construction is not
scaled so that it contemplates rather than dominates the site. In
fact the length of the proposed boathouse results in it
dominating the portion of the site at the lakeshore and
substantially impairing if not eliminating the views from
nearby properties of Whiteface Mountain and other peaks that
are major existing landscape features. Construction has not
been scaled so as to compliment rather than dominate the site
as demonstrated by the buoy that was placed in the lake at the
32 foot point.

(2)

The siting of the boathouse would not be compatible with
representative building patterns in that it would extend into the

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l3.

15.

A

The joint review board has reviewed and approved three (3)
boathouses ranging in building length from 18 feet 6 inches to
28 feet.

13A.

N

12.

15

waters of Mirror Lake further than any existing boathouse.
There would be adverse impacts on nearby properties in that
the views of Mirror Lake and Whiteface Mountain and other
hills and peaks beyond will be totally or substantially
obstructed from the adjoining properties owned by Galvin and
Shehadi as will be the views of the lake and the mountain
range beyond from the property owned by NBT Bank.

(4)

The building is not proposed to be sited in a manner that
preserves significant views. Section 3 A (4) of the site design
guide1ines states that "primary concerns relate to maintaining
views both to the site and features beyond. Projects should be
designed so that they compliment rather than dominate the
natural landscape. Buildings should be sited so that their form
does not break prominent skylines.” Because of the length of
the proposed boathouse it will impair views to the site and
features beyond from the perspective of both adjoining and
nearby properties and public areas from which the site and
beyond are visible, including Mids Park, portions of the public
beach, the surface of Mirror Lake and portions of Mirror or
Lake Drive. The design of the boathouse consisting of 32 feet
in length would dominate rather than compliment the natural
landscape and the 32 foot length of the boathouse will break
the prominent skyline across and above the lake and of
Whiteface Mountain and other peaks and mountains.

16.

Under Appendix E I A (4) the relationship of the proposed
boathouse to the existing land use make-up and character of
areas immediately or likely to be impacted by it reveals that it
is inconsistent with the land use make-up and character of
other boathouses on Mirror Lake because of its excessive
length. Similarly, under I A (5) the relationship of the
proposed boathouse to structures and uses in the vicinity of it
is one of inconsistency and incompatibility because of the
excessive length. Finally, under I A (9), the proposed
boathouse is not sensitive to the neighborhood in that it is
unduly intrusive on the structure-free nature of the
neighborhood shore properties and the surfaces of Mirror Lake
adjacent to those shores due to the excessive length of it.

17.

Additionally, under the criteria set forth in Appendix E II A
(7), as discussed above, the scenic views to, across and beyond
the site will be negatively impacted due to the length and
width of the proposed boathouse.

18.

The negative impact and undue adverse impacts on the natural
resources of the Village/Town and to the public areas and

N

(3)

A
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16

adjacent and nearby properties identified above can be
substantially reduced if the length of the boathouse does not
exceed twenty (20) feet.
19.

N

At the meeting of the Joint Review Board held on November
17, 2010 the applicant's representative was asked by an
adjoining property owner specifically whether the applicant
''will be running business out of the boathouse.” The
app1icant's representative responded that the boathouse is part
of the property and "he is developing his property." The
applicant's representative also advised the adjoining land
owner that the boathouse would be "part of a business."
However, the application does not contain any information
regarding intended business use of the boathouse and the
applicant's representatiye did not provide the Board with any
information regarding this potential use.

The JRB adopted the aforementioned Criteria and Findings of Fact by way of a resolution
which all six members of the JRB voted, including Horst Weber, who voted against the
resolution. The remaining votes authorized plaintiff to build a boat house no longer than 20 feet
in length on the further condition that it not be used for commercial purposes.
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C.

Motions Currently Pending Before the Court
Plaintiff rejected the modification of his permit application by the JRB and sued in state

court pursuant to Article 78 of N.Y. C.P.L.R. alleging that the JRB’s action in conditioning his
permit was arbitrary, capricious, unreasonable, illegal and in violation of lawful procedure.
Plaintiff further alleged that Mr. Weber’s participation in the various hearings related to his
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application and his subsequent vote on the project was an additional violation of C.P.L.R. Art. 78
because of Weber’s initial abstention or recusal from the case based on personal bias. Plaintiff
sought a declaration that the JRB considered and relied on its purported “Findings of Fact” in an
unlawful method and manner, in violation lawful process and procedure, by means which were
arbitrary and capricious and in violation of plaintiff’s rights to object, dispute or challenge such
information in accordance with his due process rights under both the United States Constitution
and the Land Use Code of the Village of Lake Placid and the Town of North Elba, New York.
17

Plaintiff seeks a further declaration that various provisions of the Land use Code at issue herein
are unconstitutionally vague for failure to articulate objective, measurable standards. Finally,
plaintiff claims that his civil right of due process under the Fourteenth Amendment to the United
States Constitution was violated by the JRB, the Village of Lake Placid and the Town of North
Elba in denying him the permit he requested.
Defendants immediately removed the case to this Court and filed a motion to dismiss
pursuant to Fed. R. Civ. P. 12 (b) (6) asserting that plaintiff’s complaint fails to state any legally
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viable claims. First, defendants stated that plaintiff had no property interest in the permit
application he submitted to the JRB and was not deprived of due process of law. Defendants
contended that the decision of the JRB was supported by substantial evidence and was entirely
appropriate. Further, defendants argued that the Criteria objected to by plaintiff in the Land Use
Code are not impermissibly vague. Defendants submitted that plaintiff has failed to raise any
viable claims against either of the municipal defendants. Finally, defendants stated that Mr.

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Weber’s participation in the proceedings did not alter the outcome.
Thereafter, plaintiff’s counsel indicated to defense counsel that in spite of the Notice of
Removal, they intended to continue litigating plaintiff’s Article 78 claims in state court.
Plaintiff’s attorney argued that federal courts have no supplemental subject matter jurisdiction
over such claims. Defense counsel then sought an order from Magistrate Judge Homer declaring
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that plaintiff could not continue to litigate any part of the case in state court as the entire matter
had been removed. Following a telephone conference with the parties concerning this dispute,
Magistrate Judge Homer issued an Order on March 11, 2011, in which he stated:
It appears that the effect of the Notice of Removal on state court
proceedings is a matter for determination in the first instance by the
state court and therefore, if petitioner contends that it possesses a legal
basis upon which to continue the Article 78 proceeding in state court
notwithstanding the Notice of Removal, it may do so and the state
court will determine if the Notice of Removal deprived it of
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jurisdiction over that claim.
Defendants filed an appeal of this Order on March 17, 2011, and on March 21, 2011, plaintiff
filed a motion to remand the claims filed under C.P.L.R. 78 to Essex County.
From a review of the parties’ motion papers the Court learned that there had been motions
pending in Essex County seeking similar, if not the same, relief sought herein in connection with
the issue of whether a federal court may retain jurisdiction over plaintiff’s Article 78 claims.
Thus, the Court conducted a telephone conference on August 4, 2011, with all counsel to inquire
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as to the status of these motions in state court. The attorneys for the parties advised the Court that
the state court had declined to make any determination on the motions pending before it prior to
this Court deciding the motion for remand which is currently awaiting determination. The Court
will consider the two motions and the appeal presently pending seriatim.
III.

DISCUSSION

A.

Standard of Review

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The standard applicable to motions to dismiss are well-settled. On a motion to dismiss
pursuant to Fed. R. Civ. P. 12 (b) (6), the Court must accept the allegations of the complaint as
true, and draw all reasonable inferences in favor of the nonmoving party. See Grandon v. Merrill
Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669,
673 (2d Cir. 1995). In addition, the Court may not dismiss the complaint unless "it appears
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beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Nettis v. Levitt, 241 F.3d 186, 191 (2d Cir. 2001) (quotation omitted).
Therefore, the issue before the Court on such a motion "is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims." King v.
Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (quoting Villager Pond, Inc. v. Town of Darien, 56
F.3d 375, 378 (2d Cir. 1995)).

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When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts focus primarily on
the allegations in the complaint. See Chambers v. Time Warner, 282 F.3d 147, 152 (2d Cir.
2002). However, if subject matter jurisdiction is contested, courts are permitted to look to
materials outside the pleadings. See F.R.C.P. 12 (b) (1); Land v. Dollar, 330 U.S. 731, 735
(1947); see also St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73,
80–81 (2d Cir. 2005); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Such
materials can include documents appended to a notice of removal or a motion to remand that
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convey information essential to the court's jurisdictional analysis. Romano v. Kazacos, 609 F.3d
512, 520 (2d Cir. 2010) (citations omitted). Thus, while the Court has conducted an exhaustive
review of the evidentiary record submitted by the parties, it has done so only for the purpose of
determining the jurisdictional issues bearing on plaintiff’s motion to remand. The Court has not
considered the additional evidentiary submissions in connection with defendants’ motion to
dismiss and has not converted the present motion to dismiss under Fed. R. Civ. P. 12 (b) (6) to

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one for summary judgment pursuant to Fed. R. Civ. P. 12 (d).
B.

Motion for Remand
Plaintiff contends that this Court has no subject matter jurisdiction over the claims in the

complaint arising under N.Y. C.P.L.R. § 7801 and seeks remand of these causes of action to
Essex County. It is clear that the Court has no original subject matter jurisdiction over plaintiff’s
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Article 78 claims, but plaintiff has raised a claim under the Fourteenth Amendment to the United
States Constitution over which this Court exercises federal question jurisdiction pursuant to 28
U.S.C. § 1331. Since the Article 78 claims arise out of the same facts as the denial of due process
claim under the Fourteenth Amendment, this Court may exercise supplemental jurisdiction over
these related claims arising under state law pursuant to 28 U.S.C. § 1367. “A district court has
supplemental jurisdiction over claims that are so related to a claim over which it has original

20

jurisdiction that it forms part of the same case or controversy.” Leonard v. Dutchess Co. Dept. of
Health, 105 F. Supp.2d 258, 261 (S.D.N.Y 2000) (citing 28 U.S.C. § 1367 (a)). There are four
circumstances under which supplemental jurisdiction may be declined:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
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28 U.S.C. § 1367(c). Indeed, the Second Circuit held in Buric v. Kelly, 157 Fed. Appx. 391, 394,
2005 WL 3310047, *3 (2d Cir. Dec. 6, 2005) that “a district court has discretion to decline
supplemental jurisdiction only if its decision is based on one of the enumerated categories in 28
U.S.C. § 1367 (c)” (emphasis added).
In the present case, plaintiff’s claims do not raise questions that are “novel or complex
issues of state law.” Rather, the plaintiff’s state and federal claims are based simply on the

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question whether the JRB violated the state law and procedure as well as plaintiff’s federal due
process rights in purporting to conduct an environmental review of his proposed project which, as
a practical matter, consisted mostly of making a size and numbers comparison of his proposed
boat house to others already existing on the lake. The Court notes that although the JRB cited
potential visual and environmental impacts of the proposed project in its Findings of Fact, the
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board did not rely on evidence by way of testimony, photographs or measurements to support its
determination that these environmental or visual impacts would be significant given the congested
and commercial nature of the vicinity surrounding plaintiff’s property. Given the location of
plaintiff’s property in a commercial area of the Village of Lake Placid and the provisions of the
Land Use Code relied on by the JRB, the board was required to take into account the landscape,
building patterns and character of the areas in the vicinity of or likely to be impacted by plaintiff’s

21

project. Indeed, the Court is particularly struck by the JRB’s heavy reliance on the percentage of
shoreline which plaintiff’s proposed boat house would take up along Mirror Lake. Clearly one
would expect a boat house on plaintiff’s lot which is smaller given its Main Street location to take
up more shoreline area than boat houses built on larger lots more remote from the Village. Thus,
the question for a reviewing court is whether the JRB’s focus primarily on measurements was an
arbitrary method of reviewing plaintiff’s project.
Moreover, it is clear that the JRB’s Findings of Fact were not drafted solely as a result of
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testimony and evidence submitted during JRB hearings, but rather in large part as a result of
analysis done by the board outside of the hearing process. Plaintiff had no notice that the JRB
was relying on purported facts or evidence developed outside of the hearing process, he was not
provided with copies of JRB’s Findings of Fact or comparative analysis data prior to the board
making its determination and he had no opportunity to dispute or be heard on any of the factors
relied on by the board in issuing a conditioned building permit. In this Court’s view, the

A

administrative process, the evidence considered by the JRB and its ultimate determination in
modifying plaintiff’s proposal will not raise any unresolved or extremely significant questions of
New York law. The only issues for a reviewing court to decide will be whether the JRB’s
procedures were lawful, whether its determination was “affected by an error of law or was
arbitrary and capricious or an abuse of discretion,” see N.Y. C.P.L.R. § 7803 (3), and whether
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plaintiff’s federal civil rights were violated.
The Court notes that the facts which support the claims under Article 78 are the same facts
which give rise to plaintiff’s federal claim of denial of due process rights. Further, as this Court
is already fully familiar with the record and briefs in this action, judicial economy would be
served by all claims being decided in this forum. Nevertheless, the remaining question under 28
U.S.C. § 1367 (a) is whether this Court will retain jurisdiction over any of plaintiff’s federal

22

claims after review of the motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6). As discussed
below, the Court finds that each of plaintiff’s federal claims must be dismissed, and plaintiff
obviously desires to litigate the state causes of action in Essex County. Based thereupon, the
Court will exercise its discretion under 28 U.S.C. § 1367 (a) in declining to extend its
supplemental jurisdiction over plaintiff’s state law claims.
C.

Motion for Dismissal

1.

Due Process

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Since plaintiff’s complaint alleges facts which would support an alleged denial of both his
substantive and procedural due process rights, the Court will assume he intended to assert both
types of claims.
a.

Substantive Due Process
At the outset, the Court is mindful of the Second Circuit’s language in Zahra v. Town of

Southold, 48 F.3d 674, 679-80 (2d Cir. 1995), that “federal courts should not become zoning
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boards of appeal to review nonconstitutional land[-]use determinations by the [C]ircuit’s many
local legislative and administrative agencies.” However, in Zahra, the Circuit also noted
“Nevertheless, we have acknowledged that we should entertain such claims where a landowner's
constitutional rights are indeed infringed by local land-use actions.” Id. (citing Brady v. Town of
Colchester, 863 F.2d 205, 215 (2d Cir.1988)). “In fact, in such an instance, “our duty to protect
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the constitutional interest is clear.” Id. (citing Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir.
1988).
Defendants contend that plaintiff’s substantive due process claim is not viable because he
has no cognizable property interest in the building permit which is the subject of this action.
Indeed, to establish that defendants violated plaintiff’s substantive due process rights, the Court
must first inquire “whether a constitutionally cognizable property interest is at stake.” Villager

23

Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995). The Second Circuit uses a strict
“entitlement” test to determine whether a party's interest is protectable under the Fourteenth
Amendment. Zahra, 48 F.3d at 680 (citing Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d
Cir. 1994); RRI Realty Corp. v. Inc. Vill. of Southamptom, 870 F.2d 911, 918 (2d Cir.), cert.
denied, 493 U.S. 893 (1989); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985).
“This inquiry stems from the view that 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
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claim of entitlement’ to the benefit in question.” Id. (emphasis in original) (citing RRI Realty,
870 F.2d at 915; Yale Auto Parts, 758 F.2d at 58.) “The analysis 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.” Id. (citing, e.g., Walz v. Town
of 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

A

application stated the nature, location, extent and purpose of the proposed excavations);
Gagliardi, 18 F.3d at 192-93 (landowners had no property interest in enforcement of zoning laws
for adjacent property, since municipal officials had broad discretion in determining whether to
grant or deny building permit, site plan and variances); RRI Realty, 870 F.2d at 918-19 (no
property interest existed in building permit because town officials had discretion to either grant or
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deny the permit).
In the present case, the Court notes that pursuant to Site Plan Review provision of the
Land Use Code at issue herein, the defendant JRB had the discretion to “approve, approve with
stipulated conditions, modification or disapprove any application” presented. Thus, it would
appear that plaintiff had no constitutionally protected property interest in the building permit he
sought for the boat house. Plaintiff argues nevertheless that the “strict entitlement” test is not

24

applicable to this case because here, the JRB did not simply exercise its discretion and deny his
permit application. Rather, plaintiff contends that the JRB granted his building permit, thus
vesting him with a property right. While it is true that the JRB granted plaintiff’s permit, it did so
with conditions which it clearly had discretion to do at the time the permit was granted. To
establish a valid “property interest” for due process consideration, a plaintiff must show that the
benefit or property deprived was entitled to constitutional protection “at the time he was deprived
of that benefit.” Zahra, 48 F.3d at 680 (citing Brady, 863 F.2d at 211-12 (balance of citations
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omitted). In this case, it is apparent that the granting of a conditioned permit is the deprivation at
the heart of plaintiff’s claims. Thus, plaintiff’s substantive due process claim is fatally flawed for
want of a constitutionally protected property interest.
b.

Procedural Due Process
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
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manner’ for [a] hearing appropriate to the nature of the case.” Brady, 863 F.2d at 211 (quoting
Boddie v. Connecticut, 401 U.S. 371, 378 (1971) (emphasis in original). Here, defendants argue
that the availability of Article 78 administrative review of the JRB’s determination and procedural
process under state law precludes a finding that the defendants' conduct violated plaintiff’s rights
of procedural due process under the Fourteenth Amendment. The Court agrees. Plaintiff’s
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“procedural due process” claims are these: 1) Weber’s participation and vote in the JRB review of
his permit application was unlawful based on his admitted bias concerning the subject matter of
boat houses on Mirror Lake; and 2) the JRB violated the law by relying on evidence and
documents which were not shared with plaintiff’s counsel prior to the board’s determination and
which plaintiff had no opportunity to refute or oppose. With respect to the JRB’s Findings of
Fact, many of which are conclusory, particularly with respect to potential environmental impacts

25

of the project, plaintiff asserts they were illegally and improperly presented by the board.
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. See Hellenic Am.
Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 882 (2d Cir. 1996) (there is no
constitutional violation when there is an adequate state postdeprivation procedure to remedy a
random or arbitrary deprivation of property or liberty) (citing Hudson v. Palmer, 468 U.S. 517,
533 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels
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v. Williams, 474 U.S. 327 (1986)).
c.

Void for Vagueness Challenge
Plaintiff’s alleges that the site design guidelines set forth in the Land Use Code used by

the JRB to review plaintiff’s proposed project are “unconstitutional” because they fail to provide
“meaningful standards” for the board to use in making determinations. Although not couched
expressly as a federal claim, the Court interprets this “void for vagueness” challenge as also
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arising under the Fourteenth Amendment to the federal Constitution. Indeed, the vagueness
doctrine voids on due process grounds a rule that contains “prohibitions [that] are not clearly
defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “The need for notice is at the
heart of the vagueness doctrine.” Kramer v. New York City Bd. of Educ., 715 F. Supp.2d 335, 356
(E.D.N.Y. 2010). A punitive enactment is unconstitutionally vague when it (1) does not allow a
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person of ordinary intelligence a reasonable opportunity to know what is prohibited, or (2) lacks
explicit standards, thus permitting arbitrary or discriminatory enforcement. See Grayned, 408
U.S. at 108-09; see also Farid v. Ellen, 593 F.3d 233, 240 (2d Cir. 2010). A statute or rule is
inadequate under the second criterion when it “fails to provide sufficiently explicit standards for
those who apply it,” and “impermissibly delegates basic policy matters ... for resolution on an ad
hoc and subjective basis.” Id. at 243.

26

Plaintiff’s ability to raise this claim in federal court, however, is compromised by his lack
of standing. Standing requires that: (1) the party suffer an actual or imminent “injury in fact” that
is “concrete and particularized”; (2) there is a causal connection between this injury and that
conduct of the defendants; and (3) that the injury can be redressed by a favorable decision. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). As referenced above, however,
plaintiff did not have a legally cognizable property interest in having his application for a building
permit granted. Thus, he did not suffer an “injury in fact” as a result of the alleged vagueness in
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the Land Use Code and lacks standing to challenge its constitutionality in federal court.
d.

State Law Claims
Defendants also seek dismissal of plaintiff’s state law claims, including those raised

pursuant to C.P.L.R. Article 78. Because the Court has determined that it does not have original
jurisdiction over any of plaintiff’s federal claims, however, the Court will decline to determine the
merits of plaintiff’s state law claims pursuant to its supplemental jurisdiction. In lieu of
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dismissing these claims without prejudice, the Court deems remand appropriate.
D.

Appeal of Magistrate Judge’s Determination
The Court has reviewed the record and docket concerning defendants’ appeal of

Magistrate Judge Homer’s determination to allow plaintiff to attempt to continue litigating his
Article 78 claims in Essex County Supreme Court in spite of the Notice of Removal filed
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February 16, 2011. Since the state court was awaiting a determination by this Court, however, on
plaintiff’s motion for remand before proceeding with the various motions presented by the parties
in Essex County, it seems Magistrate Judge Homer’s determination on this matter was a nullity.
To wit, Magistrate Judge Homer’s refusal to issue an order declaring that this Court had exclusive
jurisdiction over all aspects of plaintiff’s claims did not alter the rights or status of any party
herein. Based thereupon, and in particular view of this Court’s determination to remand

27

plaintiff’s state law claims, the Court finds it unnecessary to analyze the merits of defendants’
appeal of the Magistrate Judge’s determination.
IV.

CONCLUSION
Based on the foregoing, it is therefore
ORDERED that defendants’ motion to dismiss the Fifth Cause of Action in the complaint

which asserts violations of substantive and procedural due process pursuant to Fed. R. Civ. P. 12
(b) (6) is GRANTED; and it is further
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ORDERED that to the extent that plaintiff’s complaint may be deemed to include a “void
for vagueness” challenge arising under federal law it is also dismissed; and it is further
ORDERED that defendants’ motion to dismiss the state law claims in plaintiff’s complaint
pursuant to Fed. R. Civ. P. 12 (b) (6) is DENIED; and it is further
ORDERED that plaintiff’s motion to remand the causes of action arising under state law
to Supreme Court, Essex County is GRANTED; and it is further

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ORDERED that defendants’ appeal of Magistrate Judge Homer’s determination of March
10, 2011, is DENIED as moot and unnecessary.
IT IS SO ORDERED.
Date: September 14, 2011
Syracuse, New York
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