Cunney v. Board of Trustees
Cunney v. Board of Trustees
Opinion of the Court
OPINION AND ORDER
This is a case that demonstrates that law, like life, can be a game of inches. Plaintiff Brendan Cunney brought the instant Complaint against Defendants Board of Trustees of the Village of Grand View, New York (“Board”); Zoning Board of Appeals for the Village of Grand View, New York (“ZBA”); and Joseph Knizeski, in his official capacity as Building Inspector of the Village of Grand View-on-Hudson (“Knizeski”) (collectively, “Defendants” or ‘Village”), alleging multiple claims arising out of Defendants’ application of a height-restriction zoning ordinance to Plaintiffs property.
I. BACKGROUND
A. Factual Background
Gladstone Estates, LLC (“Gladstone”) is a New York limited-liability company that Plaintiff and his brother formed in mid-2005. (See Pl.’s Resp. to Defs.’ Local Rule 56.1 Statement (“Pl.’s 56.1 Statement”) ¶¶ 1, 3 (Dkt. No. 69).) On October 28, 2005, Gladstone, which is not a party in this Action, took title to a piece of property within the Village of Grand View-on-Hudson, NY. (See Decl. in Support (“Defs.’ Deck”) Ex. N, at unnumbered 2 (Dkt. No. 58) (unofficial copy of recorded deed).) Since at least September 30, 2005, when Plaintiff accepted a proposal from John Atzl (“Atzl”), made on behalf of Atzl, Sca-tassa & Zigler Land Surveyors, P.C. (“ASZLS”), for “surveying and planning services,” Plaintiff intended to develop this piece of property for residential use. (See Defs'.’ Deck Ex. P (Atzl proposal, submitted on August 29, 2005, and accepted by Plaintiff on September 30, 2005).)
Of the two “residential districts” within the Village, the subject property was located in “Zone B,” also known as “R-10.” (See Defs.’ Deck Ex. L, at unnumbered 3 (excerpt of the village’s zoning law); Defs.’ Local Rule 56.1 Statement (“Defs.’ 56.1 Statement”) ¶ 16 (Dkt. No. 65).) The requirements applicable to that zone are contained in Chapter IX of the Village of Grand View-on-Hudson Zoning Law (‘Village Zoning Law”). (See Aff. in Opp’n (“PL’s Deck”) Ex. A (‘Village Zoning Law”) (Dkt. No. 67).) At the time Gladstone took title to the property, and at all relevant times during this litigation, section E of that chapter (“section E”) contained a restriction on the height of any building constructed within Zone B:
It being the purpose of this section, among others, to preserve as nearly as practicable the remaining views [of] the Hudson River from River Road, no building shall be erected in Zone B ... which shall rise more than two stories in height nor more than four and one-half*474 ... feet above the easterly side of River Road. Where the lot lies substantially at the same level as River Road, no building or construction shall rise more than one story or fifteen feet in height.
(Id. at IX.E.) Moreover, the Village Zoning Law separately defined “easterly side of River Road” to mean “the point at which the road surface of River Road intersects with the easterly curb adjacent to River Road,” adding that the referenced “point of intersection is commonly referred to as the ‘gutter.’ ” (Defs.’ Decl. Ex. L, at 4.)
In addition to outlining the requirements applicable to houses constructed within Zone B, the Village Zoning Law also outlined the procedures a property owner had to follow in order to build, and then occupy, a house. First, to commence construction, the owner had to obtain site-plan approval and a building permit: (See Village Zoning Law, at XII.A.1, XIV. D.l(c)(l).) To obtain the former, the owner had to submit an application to the Village’s Planning Board (“Planning Board”). (See id. at XIV.D.l(cX2).) The Planning Board then had to hold a public hearing, after which it would approve or disapprove the application. (See id. at XIV.D.l(c)(3)-(5).) Having received site-plan approval, the owner, or “the agent, architect, landscape architect, engineer or builder employed in connection with the proposed work,” had to submit an application for a building permit to the Village’s Building Inspector — who was, at all relevant times, Defendant Knizeski — along with copies of relevant building plans, site plans, surveys, and supporting documents. (See id. at XII.A.2-5.) The Building Inspector could then, in his discretion, approve the application, at which point construction could commence. (See id. at XII. C.l.)
Second, after constructing but before occupying a house, the owner had to obtain a certificate of occupancy (“CO”). (See id. at XII.H.) To do so, “[t]he owner or his/her agent” had to “make [an] application.” (Id. at XII.H.4.) Prior to issuing a CO, the Building Inspector was required to “examine or cause to be examined all buildings, structures and sites for which an application for a Building Permit ... has been filed.” (Id. at XII.I.) Thereafter, the Building Inspector would determine whether “the proposed work ha[d] been completed in accordance with the applicable building codes, local laws, rules and regulations, and also in accordance with the application, plansf,] and specifications filed in connection with the issuance of the Building Permit.” (Id. at XII.J.l.) Upon finding that the work was completed “in accordance” with these requirements, the Building Inspector was required to issue the CO. (See id. (“When ... it is found that the proposed work has been completed in accordance with the applicable [requirements], the Building Inspector ... shall issue a [CO].” (emphasis added)).) However, if the Building Inspector “found that the proposed work ha[d] not been properly completed,” he was required to deny the application. (See id. at XII.J.1-2 (“If it is found that the proposed work has not been properly completed, a [CO] ... shall not be issued .... ” (emphasis added)).)
Plaintiff first sought approval a site plan for the subject property in early 2006. At a February public hearing before the Planning Board, Atzl (the surveyor) presented a proposal that involved construction of a two-story home and relocation of a “small home” that was already on the site and that Plaintiff wished to use as a pool
Plaintiff then sought approval of a revised site plan at a Planning Board hearing held on September 14, 2006. Although the Planning Board did not grant approval at that hearing, it ultimately granted approval after Plaintiff made necessary changes. (See Defs.’ 56.1 Statement ¶ 33.) Apparently, none of the changes related to the height of the proposed house, and Plaintiff did not have to request a height variance. Notably, Defendants concede that this site plan “was within the height and size restrictions of the Village Zoning
Subsequently, Knizeski approved Plaintiffs building-permit application on October 19, 2006, (see Defs.’ Decl. Ex. Q, at unnumbered 3 (building permit); see also PL’s Decl. Ex. K, at unnumbered 2 (Letter from Knizeski to Plaintiff, Oct. 19, 2006)), and construction began. Within a month of. granting the building permit,- and then approximately two weeks after that, Knize-ski conducted discretionary on-site inspections of the property and reported “satisfactory results.” (See Defs.’ Dec 1. Ex. K, at unnumbered 1-2 (Knizeski’s “daily log entries” related to Plaintiffs property); Defs.’ Decl. Ex. R, at unnumbered 3-4 (inspection reports).)
Collazuol conducted his own survey and reported the results in a July 2007 letter to the Village Clerk, which stated that “the roof ridge of the new dwelling [was] [four feet nine inches] above the high point of pavement on the easterly side of River Road. Therefore, the ridge of the building [was] [three inches] greater than allowed.” (Defs.’ Decl. Ex. U, at unnumbered 1 (Letter from Collazuol to Village Clerk, July 17, 2007).) The Parties do not dispute that, in making this determination, Colla-zuol measured from the highest point of River Road. (See Defs.’ 56.1 Statement ¶ 59; Defs.’ Decl. Ex. U, at unnumbered 2 (survey drawing, indicating that Collazuol used an elevation of 30 feet and measured a roof-ridge height of 34.75 feet); see also Defs.’ Decl. Ex. DD, at 15 (Collazuol Dep.)
Plaintiff submitted an application for a CO on August 29, 2007. (See Defs.’ 56.1 Statement ¶ 61; Defs.’ Decl. Ex. Q, at unnumbered 15 (CO application, submitted by Plaintiff and his wife).)
[t]he [as-built] roof heights ... [were] somewhat consistent with the site plan ... except for at [one of the five stations] .... However, due to the circumstances [he found] that the building and roofs [had] been constructed substantially in accordance with the plans submitted by the Architect in that the building [was] no greater in height than that as proposed.
(Defs.’ Decl. Ex. U, at unnumbered 3 (Letter from Collazuol to Village Clerk, Oct. 30, 2007).) Furthermore, Collazuol recommended that “[t]he diminimous [sic] difference in roof height should be neglected as [it fell] within typical building tolerances, ie. [sic] 0.90 ft. or 10 inches.” (Id.)
In his letter, Collazuol also included a finding “that the elevations of the road surface [were] inconsistent with the site plan and are lower than previously indicated.” (Id.) This statement referred to an error in the site plan that Atzl discovered in an as-built survey he completed on September 18, 2007. (See Defs.’ 56.1 Statement ¶ 71.) In short, although Atzl had conducted field measurements of the road elevations when he prepared the site plan, in the final site plan he unintentionally used data from Rockland County topographical maps that turned out to be incorrect. (See Defs.’ Decl. Ex. J, at unnumbered 17-18 (ZBA February 2008 hearing minutes).) This resulted in a two-foot discrepancy between the site-plan elevations and the real-world elevations, such that the allowable height was two feet lower than expected. (See id. at unnumbered 18.) Atzl reported his error to Collazuol before Collazuol submitted his October 30 letter, but Collazuol’s finding that the house exceeded the height restriction by 10 inches did not account for the error. (See Defs.’ 56.1 Statement ¶¶ 75-78.)
In response to Collazuol’s letter, the Planning Board Chair requested a meeting with Collazuol to discuss his findings. (See Defs.’ Decl. Ex. V, at unnumbered 2 (Letter from Planning Board Chair to Colla-zuol, Nov. 9, 2007).) At that meeting, which was also attended by the ZBA Chair and the Village Attorney, it was determined that Collazuol would prepare a new report based on the real-world elevation measurements. (See Defs.’ 56.1 Statement ¶¶ 82-85.)
Collazuol .submitted that report on December 11, 2007, in a letter to Knizeski. (See Defs.’ Decl. Ex. U at unnumbered 5-6 (Letter from Collazuol to Knizeski, Dec. 11, 2007).) A “Grade Sheet” attached to the letter contained Collazuol’s final measurements for the road elevations and as-built roof elevations at the same five measurement stations used in the site plan and in his October 30 report. (See id. at unnumbered 6.) According to Collazuol’s calculations, at the two stations measuring garage-roof elevations, the as-built elevation was lower than the planned elevation, and the as-built elevation fell below the allowable elevation under section E. (See id.) However, at the other three stations, all of which measured a roof elevation at the “highest ridge,” the as-built elevation was higher than the planned elevation, and the as-built elevation exceeded the allowable elevation by between 0.83 inches and 2.95 inches. (See id.) In the letter, Colla-zuol explained that “[t]he as-built difference in the chart shows that at [one of the
Plaintiff appealed Knizeski’s denial of the CO to the ZBA, requesting that the Village either grant" his CO application or grant a height variance. (See Defs.’ Decl. Ex. J, at unnumbered 12-14.) Notably, with regard to the former, Plaintiffs specific request was “for an interpretation of the definition of ‘height’ in the Zoning Law.” (Id. at 12.) The ZBA held two hearings, one on February 26, 2008, and the other on April 7, 2008, to consider Plaintiffs.appeal. (See Defs.’ Decl. Ex. J, at unnumbered 12, 25.) At the second hearing, in response to Plaintiffs request for an interpretation of ‘height,’ the ZBA unanimously passed a motion finding that
the Zoning Law is not ambiguous with respect to the manner in which building height is measured in the R-10 Zoning District for the reasons that the definition of “Height” in the Zoning Law states that buildings are measured vertically and, when read together with the definition of “Easterly Side of River Road” clearly requires that to determine whether a building height exceeds [four- and-a-half] feet above River Road, the measurement is taken from the point at which the road surface intersects with the curb vertically to the highest point of the roof. The word “vertical” in Webster’s New World Dictionary is defined as “perpendicular, or at a right angle, ... upright, straight up or down,
(Id. at unnumbered 35.)
The ZBA then proceeded to consider Plaintiffs request, in the alternative, for “a variance from [section E] to permit the maintenance and use of a single family
Ultimately, the ZBA unanimously granted Plaintiffs request for a variance, subject to three conditions:
1. That the [pool house] shall be removed from its present location prior to issuance of a [CO] for the residence;
2. That there shall be an open and unobstructed view on the northerly side of the property for the entire northerly side yard plus an area running in a diagonal line from the northeasterly corner of the residence through the northeasterly corner of the existing pool, then to the River ...;
3. That no structures shall be constructed at any time within the open, unobstructed area described in [the paragraph outlining the second condition] ....
(Id. at unnumbered 40.) The ZBA also made findings necessary to support their decision, including that “although the variance [was] substantial, the removal of the poolhouse [sic] and maintenance of the unobstructed river view mitigates the negative impact of the height of the residence,” that “the removal of the poolhouse [sic] is a feasible alternative to requiring the applicant to remove three feet from the height of the house,” and that “the benefit to [Plaintiff] by not requiring the removal of three feet of the height of the house [was] great and the detriment to the community [was] lessened by the” variance’s conditions. (Id. at unnumbered 41.)
B. Procedural History
Although at the ZBA hearing Plaintiff appeared to indicate that he would agree to the conditions the ZBA ultimately imposed, Plaintiff ultimately did not .comply with the conditions, and he therefore did not obtain either the variance or the CO. Instead, Plaintiff initiated lawsuits in state and federal court challenging the Village’s denial of his CO application.
1. State Court
On October 9, 2008, Plaintiff filed an Article 78 Petition in New York Supreme Court, alleging that, procedurally, the ZBA’s decision failed to comply with New York state laws and that, substantively, the ZBA’s “imposition of conditions” on Plaintiff was “unreasonable,” “outside of [ZBA’s] jurisdiction,” and was “not consistent with the spirit and intent of the zoning local law.” (See Defs.’ Decl. Ex. D (petition).) On March 31, 2009, the court issued an order denying the petition on the substantive ground, finding that “there [was] nothing irrational or unreasonable about the ZBA’s interpretation of the term
Defendants appealed that decision, and on April 20, 2010, the Appellate Division reversed the Supreme Court’s judgment on the procedural ground, holding that the lower court correctly found that the ZBA violated the Open Meetings Law, but that the court “improperly annulled the ZBA’s determination on th[at] basis.” (Defs.’ Decl. Ex. F, at 2-3 (Appellate Division decision).) The court therefore “confirmed” the ZBA’s determination and “dismissed [the proceeding] on the merits.” (Id. at 2.)
2. Federal District Court
On'the same day that Plaintiff filed his Article 78 Petition, he filed a civil action in New York Supreme Court against Defendants and against Atzl and Atzl’s firm (“Atzl Defendants”), alleging that section E was unconstitutionally vague, both on its face and as applied to Plaintiff, and that Defendants deprived him of substantive due process, entitling him to damages under 42 U.S.C. § 1983, and alleging that Atzl Defendants “were negligent in the performance of surveying” Plaintiffs land, entitling him to damages under state law. (See Compl. ¶¶ 22-40 (Dkt. No. 1).) Defendants removed the action to federal court on November 5, 2008. (See Dkt. No. 1.)
The case was originally assigned to Judge Conner, who allowed Plaintiff to file a Motion for Summary Judgment against Defendants in January 2009. (See Dkt. No. 6.) In addition to opposing that Motion, Defendants filed a Motion To Dismiss in February 2009. (See Dkt. No. 13.) Before Judge Conner decided those motions, the case was reassigned to this Court in July 2009. (See Dkt. No. 27.) Shortly thereafter, the case was again reassigned, this time to Judge William Young, a judge, from the District of Massachusetts who was sitting by designation in the Southern District of New York. (See Dkt. No. 28.)
After holding oral argument on the Parties’ motions in October 2009, Judge Young issued an Order, on December 18, 2009, granting summary judgment for Defendants in full. (See Mem. & Order (Dkt. No. 31).)
Shortly after Judge Young entered the judgment, Plaintiff filed what Judge Young interpreted to be a motion for reconsideration, arguing that Judge Young should not have dismissed the entire case because the Parties’ motions addressed only Plaintiffs claims against Defendants, and thus the court’s order should not have dismissed Plaintiffs claim against Atzl Defendants. (See Dkt. No. 33).) Judge Young granted Plaintiffs Motion, and on January 20, 2010, he entered an amended judgment vacating the prior judgment in full, entering judgment “in "favor of the Village defendants only,” and remanding the case “to the New York Supreme Court for the state law malpractice claim against [Atzl Defendants].” (Dkt. No. 34 (Amended Judgment, filed Jan. 20, 2010).) In January 2012, Plaintiff and Atzl Defendants settled their claim for $175,000. (See Defs.’ 56.1 Statement ¶ 112 & n. 1.)
3. The Second Circuit
Plaintiff appealed Judge Young’s decision to the Second Circuit, which reversed in part and vacated in part. See Cunney v. Bd. ofTrs., 660 F.3d 612 (2d Cir. 2011).
Next, with regard to Plaintiffs substantive-due-process claim, the court recognized that “[t]he district court’s rationale in denying [that] claim turned on its denial of his void-for-vagueness claim, which [the court] [had] [just] reversed.” Id. at 626. Indeed, Judge Young had held that Plaintiff did not have a constitutionally protected property interest in the CO because his house violated section E, but the Second Circuit had held that section E “may not be applied as a basis for denying [Plaintiff] [the] CO” because it was “unconstitutionally vague.” Id. The court therefore opted to “leave it to the district court to decide in the first instance the viability and merits of [Plaintiffs] substantive due process claim.” Id. Accordingly, it “vacate[d] the grant of summary judgment in favor of [Defendants] on [this] claim, and re-mandad] for further proceedings consistent with [its] opinion.” id.
Following the Second Circuit’s ruling, the Village issued a CO for the subject property on November 9, 2011. (See Defs.’ Decl. Ex. Q, at unnumbered 14 (Certificate of Occupancy).) The CO was issued after a final inspection and was apparently unaccompanied by any height-related conditions or a variance. (See Defs.’ 56.1 Statement ¶ 111.) Moreover, the CO was issued to Gladstone, (see Defs.’ Decl. Ex. Q, at unnumbered 14), which was the property owner at the time of issuance and remained the property owner until August 9, 2013, when Gladstone conveyed the property to Plaintiff, {see Defs.’ Decl. Ex. N, at unnumbered 4-6 (unofficial copy of recorded conveyance, dated Aug. 9, 2013)).
J. Remand
After the Second Circuit issued its order, the case was reassigned to this Court. (See Dkt. No. 37 (notice of reassignment, dated Nov. 20, 2011).) On December 22, 2011, Defendants sent a letter requesting permission “to file a motion to determine whether [Plaintiff] may recover compensatory damages for the [Second Circuit’s] finding that [section E] was void for vagueness.” (See Dkt. No. 42 (Letter from Samantha Vélez to Court, Dec. 22, 2011).) At a hearing held on December 11, 2012, after a review of case law from within and outside of the Second Circuit, the Court concluded that “Plaintiff may be awarded damages solely on his ... void for vagueness claim.” (Defs.’ Decl. Ex. H, at 20-21 (Hr’g Tr., Dec. 11, 2012 Hr’g).) But the Court clarified that its conclusion “[did not] mean that the Court [had] made any particular finding as to what could be qualified or what could constitute such damages and whether or not Plaintiff has made.
[W]hat [Plaintiff] is going to have to do is prove actual injury resulting from his due process violation as a result of the void for vagueness. So he’s going to have to show damages that were directly caused by the due process violation as explained by the Second Circuit in the context of the void for vagueness doctrine. In other words, that but for the due process violation, [Plaintiff] would not have suffered the claimed damages.
(Id.) It then issued an Order memorializing its conclusion “that Plaintiff may receive damages for his void-for-vagueness claim.” (Dkt. No. 47 (Order, dated December 12, 2012).)
The Parties then proceeded to discovery, which continued throughout late 2013. Near the end of that process, the Court adopted a scheduling order at a conference held on October 18, 2013. (See Dkt. No. 55.) Pursuant to that Order, Defendants filed their Motion for Summary Judgment on January 17, 2014, (see Mot. (Dkt. No. 57); Mem. of Law in Supp. of the Village Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) (Dkt. No. 66)), Plaintiff filed his Opposition Memorandum on February 18, 2014, (see PL’s Revised Mem. of Law in Opp’n to Defs.’ 3d Mot. for Summ. J. (“PL’s Mem.”) (Dkt. No. 70)), and Defendants filed their Reply Memorandum on March 3, 2014, (see Reply Mem. of Law in Opp’n & in Further Supp. of the Village Defs.’ Mot. for Summ. J. (“Defs.’ Reply Mem.”) (Dkt. No. 72)). The Court now turns to a discussion of Defendants’ Motion.
II. DISCUSSION
A. Standard of Review
Summary judgment shall be granted where the movant shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). Moreover, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should 'be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
“In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also Borough of Upper Saddle River, N.J. v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314, 2014 WL 1621292, at *12 (S.D.N.Y. 2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004);
B. Analysis
Defendants’ Motion raises four issues. First, Defendants argue that Defendants Knizeski and the ZBA should be dismissed from the case because, respectively, the Village is the real party in interest, and the ZBA is not a suable entity. (See Defs.’ Mem. 16-17.) Second, Defendants argue that Plaintiff lacks standing to bring his claim because he was not the owner of the subject property until August 9, 2013, when Gladstone conveyed the property deed to Plaintiff. (See id. at 4-6.) Third, Defendants seek summary judgment on Plaintiffs substantive-due-process claim, arguing that Plaintiff did not have a constitutionally protected property interest in the CO and that Defendants’ actions were not so arbitrary and outrageous that they violated Plaintiffs constitutional rights. (See id. at 6-10.) Fourth, Defendants argue that Plaintiff cannot establish proximate cause for certain of his damages claims, and that, to the extent Plaintiff receives damages, Defendants are entitled to a set-off of the award in light of Plaintiffs settlement with Atzl Defendants. (See id. at 11-16, 18-19.) After an overview of Plaintiffs claims and the issues left open to the Court on remand, the Court will address each argument in turn.
1. Plaintiff’s Claims
Plaintiffs Complaint alleges a single cause of action against Defendants under § 1983, but it has been interpreted throughout this litigation to allege three constitutional violations — namely, a facial vagueness challenge, an as-applied’ vagueness challenge, and a substantive-due-process challenge. (See Dkt. No. 8, at 2-7 (Pl.’s Mem. of Law in Supp. of Mot. for Partial Summ. J.); Dkt. No. 31 (district court Order granting summary judgment for Defendants); Dkt. No. 39 (Second Circuit order reversing in part and vacating in part the district court Order).)
In his void-for-vagueness claim, Plaintiff challenges the text of section E, arguing, essentially, that the ordinance’s vagueness denied Plaintiff his due process right to understand what the ordinance says in the context of his specific desire to comply with it. (See Compl. ¶ 27 (alleging that “[t]he definition for measuring ... height ... was undertaken in a manner that a reasonable and prudent person would not understand when the actions of any individual property owner would or would not be in violation of any height or any other restrictions or requirements”); id. ¶ 32 (“The Village Defendants violated Plaintiffs clearly established constitutional ... rights regarding what a reasonable person would know regarding limitations under building height with the Village Zoning Code.”).) This characterization is consistent with the Second Circuit’s treatment of Plaintiffs as-applied-vagueness claim, which, according to the court, implicated one of “the most fundamental protections of due process[,] ... that no one may be required at peril of life, liberty or property to speculate as to the meaning of ... statutes,” and that “[a]ll are entitled to be informed as to what the State commands or forbids.” Cunney, 660 F.3d at 620 (emphasis added) (some alterations and internal quotation marks omitted). Moreover, it is consistent with the court’s recognition that, in its review of this claim, it was “relegated to the words of the ordinance itself’ and to the “interpretations” of the statute given to it by lower courts and “those charged with enforcing it.” Id. at 621 (alterations and internal quotation marks). Finally, it is consistent with the court’s description of the deprivation of due process the Plaintiff suffered in the context of this claim. See id. (finding that section E “fail[ed] to give specific notice of how a permit applicant should design his site plan so that the proposed building complies with th[e] restriction”); id. at 622 (holding that “section E ... provides no standard that can be objectively applied to determine if the conduct at issue ... complies with the ordinance’s restrictions”).
By contrast, in his substantive-due-process claim, Plaintiff challenges Defendants’ denial of his CO application, arguing that Defendants’ actions denied Plaintiff his due process right to be free from arbitrary
It is important to recognize this distinction between the words of the ordinance and the actions of Defendants because the denial of due process related to each claim implicates separate and distinct interests. Whereas Plaintiffs vagueness claim alleges that he was forced to speculate as to the meaning of the ordinance and was thereby deprived of liberty and/or property interests associated with the speculation, Plaintiffs substantive-due-process claim alleges that Defendants acted arbitrarily and outrageously and thereby deprived him of his property interest in the CO.
2. Defendants Knizeski and ZBA
At the outset, the Court will address Defendants’ argument that neither Defendant Knizeski nor Defendant ZBA is
In Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Supreme Court explained that
[o]fficial-capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.... It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.
Id. at 165-66, 105 S.Ct. 3099 (internal quotation marks omitted); see also Lore v. City of Syracuse, 670 F.3d 127, 168 (2d Cir. 2012) (same); cf. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.” (citation omitted)). Therefore, because, in addition to suing the Village, Plaintiff has sued Knize-ski only in his official capacity, the Court dismisses Plaintiffs claims against Knize-ski. See Liang v. City of New York, No. 10-CV-3089, 2013 WL 5366394, at *17 (E.D.N.Y. Sept. 24, 2013) (dismissing official-capacity claims, under Rule 12(b)(6), where the plaintiff alleged identical claims against a municipality); Mercier v. Kelly, No. 10-CV-7951, 2013 W 4452486, at *1, *6-7 (S.D.N.Y. Aug. 19, 2013) (granting summary judgment for the same reason); see also Phillips v. Cnty. of Orange, 894 F.Supp.2d 345, 384 n. 35 (S.D.N.Y. 2012) (“Within the Second Circuit, where a plaintiff names both the municipal entity and an official in his or her official capacity, district courts have consistently dismissed the official capacity claims as redundant.”).
With respect to Plaintiffs claims against Defendant ZBA, “[i]t is well-established that under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and therefore, cannot sue or be sued.” Martinez v. Cnty. of Suffolk, 999 F.Supp.2d 424, 429 (E.D.N.Y. 2014) (internal quotation marks omitted); see also Mulvihill v. New York, 956 F.Supp.2d 425, 427 (W.D.N.Y. 2013) (same); Henry-Lee v. City of New York, 746 F.Supp.2d 546, 559 n. 11 (S.D.N.Y. 2010) (same). Here, the ZBA is “merely [an] administrative arm[ ]”
3. Standing
Defendants next argue that Plaintiff does not have Article III standing to litigate his claims. {See Defs.’ Mem. 4-6.)
“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood]’ that the injury ‘will be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 449-50 (2d Cir. 2014) (same). Moreover, “[t]he party invoking federal jurisdiction bears the burden of establishing standing.” Driehaus, 134 S.Ct. at 2342 (internal quotation marks omitted).
Here, Plaintiff satisfies that burden. First, Plaintiff alleges that, notwithstanding Gladstone’s ownership of the subject property, he has personally suffered various forms of “financial loss,” including but not limited to “permanent loss in value assessed at $902,080,” “lost interest on profit,” “temporary loss of use assessed at $8,000 per month,” “carrying costs on the property in excess of $315,000,” and “attorney and professional fees in the’underlying ZBA and state court challenges ... in excess of $30,000.” (Pl.’s Mem. 3; see also Pl.’s Decl. Ex. D (Pl.’s Aff.) ¶¶ 15-16 (averring that “Gladstone Estates had no income so [Plaintiff] had to put the money in, directly or via [another] account,” and that he and his wife “had spent approximately $2,500,000” on the house by the time the CO was issued); Pl.’s Decl. Ex. E (Aff. of Michael Cunney) ¶ 4 (averring that Plaintiff “capitalize [d]” Gladstone “to purchase, develop, and build the property, at his own expense”).) This satisfies the injury-in-fact requirement. See Natural Res. Def Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 85 (2d Cir. 2013) (“Even a small financial loss is an injury for purposes of Article III standing.”); Miller v. Wells Fargo Bank, N.A., 994 F.Supp.2d 542, 550 (S.D.N.Y. 2014) (“Clearly, economic injuries ... are judicially cognizable.”).
Second, Plaintiff alleges that he suffered this financial loss as a direct result of Defendants’ unconstitutional enforcement of the zoning law. Specifically, Plaintiff argues that he incurred expenses associated with section E’s vagueness, such as commissioning multiple sets of plans and attempting to conform with the ordinance. (See Defs.’ Decl. Ex. H, at 12.) Plaintiff also argues that Defendants’ actions deprived him of the CO and that, “[a]bsent the CO, the home was rendered without use or value.” (PL’s Mem. 9.) These allegations satisfy Article Ill’s causation re
Third, where Plaintiff seeks compensatory damages under § 1983 for economic injuries sustained as a result of these constitutional violations, an order from the Court awarding Plaintiff monetary relief will redress his injury. See Davis v. Passman, 442 U.S. 228, 248, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (“By virtue of [§ 1983], a damages remedy is ... available to redress injuries [resulting from unconstitutional actions] when they occur under color of state law.”); see also Maxineau v. City of New York, No. 11-CV-2657, 2013 WL 3093912, at *11 (E.D.N.Y. Jun. 18, 2013) (finding that even nominal damages under § 1983 are “sufficient ... redress for the purposes of Article III standing”); cf. Official Comm. of Unsecured Creditors of WorldCom, Inc. v. S.E.C., 467 F.3d 73, 77 (2d Cir. 2006) (finding Article III standing where the plaintiff “suffered economic injuries” and “[sought] financial compensation to redress those losses”).
Fourth, this holding is consistent with numerous cases holding that a party has standing to challenge an unconstitutionally applied zoning law even if the party is not the owner of the subject property. See, e.g., Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (finding Article III standing where the plaintiff was not the owner of the property subject to a rezoning-petition denial but had “expended thousands of dollars on the plans for [the property] and on the studies submitted to the [defendant village] in support of the petition for rezoning” — which studies and plans “[would] be worthless” “[u]n-less rezoning [was] granted”); Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 574 n. 6 (2d Cir. 2003) (finding Article III standing where an organization would suffer injury from enforcement of a zoning ordinance against a third-party property owner); Fair Housing in Huntington Comm. Inc. v. Town of Huntington, N.Y., 316 F.3d 357, 360, 363 (2d Cir. 2003) (finding Article III standing where the plaintiffs alleged that a town’s discriminatory “facilitation] [of] [a] development” project owned by a third party caused an injury in fact through perpetuating and exacerbating segregation); Anderson Grp., LLC v. City of Saratoga Springs, No. 05-CV-
Finally, Defendants’ sole argument that Plaintiff did not own the subject property when the constitutional violation occurred, and that Plaintiff therefore has no standing to seek damages, was squarely rejected by the Supreme Court in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In that case, the plaintiffs claimed that the defendants’ “enforcement of [an] ordinance against third parties — developers, builders, and the like — ha[d] had the consequence of precluding the construction of housing suitable to their needs” and thereby injured them. Id. at 504, 95 S.Ct. 2197. Endorsing the plaintiffs’ argument in part, the Court held that
[t]he fact that the harm to [the plaintiffs] may have resulted indirectly does not in itself preclude standing. When a governmental prohibition or restriction imposed on one party causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights.
Id. at 504-05, 95 S.Ct. 2197. The Court ultimately found that the plaintiffs had no standing because “none of [the plaintiffs] ha[d] a present interest in any [property subject to the ordinance]; none [was] himself subject to the ordinances strictures; and none ha[d] even been denied a variance or permit by respondent officials.” Id. at 504, 95 S.Ct. 2197. Here, however, Plaintiff, as “one of the owners of Gladstone,” (Defs.’ Mem. 4), had an interest in the subject property even when Gladstone was the property owner. And Plaintiff himself, not Gladstone, applied for the CO that Defendants unconstitutionally denied. (See Defs.’ Decl. Ex. Q, at unnumbered 15.) Therefore, Plaintiff has standing, and the Court has subject matter jurisdiction over Plaintiffs claims.
J. Substantive Due Process
Defendants next argue that the Court should grant summary judgment on Plaintiffs substantive-due-process claim. As discussed, the district court originally granted summary judgment for Defendants on Plaintiffs substantive-due-process claim, but the Second Circuit vacated that judgment because “[t]he district court’s rationale ... turned on its denial of [Plaintiffs] void-for-vagueness claim, which [the Second Circuit] reversed” in a different section of its opinion. Cunney, 660 F.3d at 626. It thus “[left] it to [this Court] to decide in the first instance the viability and merits of [Plaintiffs] substantive due process claim.” (Id.)
a. Legal Standard
To prevail on this claim, Plaintiff “must show 1) that [he] had a valid proper
“In order for an interest in a particular land-use benefit to qualify as a property interest for purposes of the substantive due process clause[,] a landowner must show a ‘clear entitlement’ to that benefit.” O’Mara, 485 F.3d at 700; 545 Halsey Lane Properties, LLC v. Town of Southampton, 39 F.Supp.3d 326, 339, 2014 WL 4100952, at *10 (E.D.N.Y. Aug. 19, 2014) (same); see also Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (“An applicant for a governmen-' tal permit has a protected property interest in the permit being sought only where the applicant has a clear entitlement to the approval sought from the government official or administrative body.” (internal quotation marks omitted)). Such an entitlement “exists where, 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.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 504 (2d Cir. 2001) (emphasis added) (internal quotation marks omitted); see also Ahmed v. Town of Oyster Bay, 7 F.Supp.3d 245, 258 (E.D.N.Y. 2014) (same).
The Second Circuit has recognized at least two circumstances in which a plaintiff will fail to meet the “certainty or very strong likelihood” test in the context of an application for a land-use benefit. First, a protected property interest does not exist where a local authority has discretion to deny the application on non-arbitrary grounds. See RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d Cir. 1989) (“The fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.”); see also Watrous v. Town of Preston, 902 F.Supp.2d 243, 259-60 (D.Conn. 2012) (same); Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 368 (S.D.N.Y. 2011) (same). Stated differently, “a constitutionally-protected property interest exists in a sought-after land-use permit or approval if the issuing agency lacked the authority to deny the permit or approval for a legitimate reason, or if the discretion of the issuing agency was so narrowly circumscribed that approval of a proper application was virtually assured.” DLC Mgmt., 163 F.3d at 132; Michael’s Restaurant & Sports Bar, Inc. v. Vill. of Fishkill, No.
Before applying the “certainty or very strong likelihood” test to Plaintiffs claim, two features of that test bear mention. First, in applying the test, the Court’s inquiry focuses on the objective amount of ambiguity or discretion present in the context of the ZBA’s consideration of Plaintiffs CO application. See O’Mara, 485 F.3d at 699-700 (certifying a “question of [state] law surrounding the enforceability of [a zoning* regulation]” to the New York Court of Appeals, and holding that “the uncertainty that [led the court to] certify [that question of law] [meant] that the [plaintiffs] did not have a ‘clear entitlement’ to a certifícate occupancy”); Natale, 170 F.3d at 263-64 (holding that the plaintiff had no entitlement to building and zoning permits where the entitlement “turned ultimately on the resolution of [a] state law dispute,” and where “[t]hat issue turned on the meaning of [a state statute] and an interpretation of [a] state court decision”); RRI Realty, 870 F.2d at 918 (“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.... 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.”). For this reason, “[i]n almost all cases, the existence of a federally protectable property right is an issue of law for the court.” Natale, 170 F.3d at 263; St. Francis Hosp. v. Sebelius, 34 F.Supp.3d 234, 246, 2014 WL 3715117, at *9 (E.D.N.Y. July 23, 2014) (same); see also DLC Mgmt., 163 F.3d at 132 (“Because the focus of this inquiry is on the degree of the issuing agency’s official discretion and not on the probability of its favorable exercise, the question of whether
Second, when making this objective determination, the Court focuses on the amount of ambiguity or discretion present at the time Plaintiff’s CO application was denied. See Natale, 170 F.3d at 263 n. 1 (“[T]he plaintiff must show that, at the time the permit was denied, there was no uncertainty regarding his entitlement to it under applicable state or local law, and the issuing authority had no discretion t'o withhold it in his particular case.” (emphasis added)); see also Villager Pond, 56 F.3d at 379 (directing the district court to determine whether, “prior to the issuance of the zoning permits, the discretion to issue them was so limited that a property interest existed in the[] permits” (emphasis added)); RRI Realty, 870 F.2d at 919 (finding no protected property interest where “a state court found the [local authority] to have exceeded its jurisdiction” in denying a permit, but where, “[pjrior to the Article 78 proceeding, there was no clear likelihood that the state court would deem issuance of [the permit] to be required”). Accordingly, a constitutionally protected property interest in a land-use benefit would not exist where a local authority possessed sufficient discretion to deny the benefit even if the authority was later found to have exercised that discretion unlawfully. See Clubside, 468 F.3d at 157 (“[A]n Article 78 court’s ... determination] that [a town board’s] ruling was arbitrary and capricious and not supported by substantial evidence ... is not equivalent to a finding that the town board lacked discretion in the first instance.”); DLC Mgmt., 163 F.3d at 132 (“[A] plaintiff may lack a protected property interest in a permit even when the permit was denied arbitrarily.”). And such an interest also would not exist even if a local authority exercised its discretion under a law that was later determined to be invalid. See Dean Tarry Corp. v. Friedlander, 826 F.2d 210, 213 (2d Cir. 1987) (finding that the plaintiffs “application was rejected pursuant to a zoning ordinance, extant at the time [the plaintiff ] submitted its plan for approval, that conferred broad discretion on the Planning Board,” holding that “this discretion, embodied in the governing law, prevented [the plaintiffs] expectation of success from rising to the level of certainty required to give rise to a cognizable property right,” and noting that state court decisions “invalidating the zoning ordinance ... [did] not require a contrary result” because “[t]he Planning Board possessed wide discretion under then existing law”); Vertical Broad., Inc. v. Town of Southampton, 84 F.Supp.2d 379, 393 (E.D.N.Y. 2000) (“The discretion granted the Town under the ordinance, even if such discretion was unlawful, prevents plaintiffs from having an expectation of being granted a zoning variance sufficient to rise to the level of a protected property interest.”).
b. Degree of Discretion
Turning to Plaintiffs claim, which alleges that the Village Building Inspector’s denial of Plaintiffs CO application deprived Plaintiff of substantive due process, the Court first engages in an “assessment of the powers” of the Building Inspector at the time Plaintiffs CO was denied. See RRI Realty, 870 F.2d at 919. As relevant here, the Village Zoning Law generally empowered the Building Inspector to
[i]nspect any building,, structure^] or land to determine whether any violation of [the Village Zoning Law], the New York State Uniform Fire Prevention and Building Code, or such other laws, rules or regulations as the Building Inspector shall be chargeable with- inspection or enforcement of, has been committed or*496 exist, whether or not such building, structure or land is occupied. The Building Inspector shall have authority to inspect and enforce all laws, rules and regulations relating to or affecting lots, buildings and/or structures, and their use and occupancy.
(Village Zoning Law, at XI.D.l(a).) It also specifically empowered the Building Inspector to
[i]ssue such permits and certificates in conformity with the laws, rules and regulations of the State of New York and of [the Village Zoning Law] and refuse to issue same in the event of non-compliance, which reason therefor shall be endorsed on the application and notice thereof given to the applicant, as provided in [the Village Zoning Law].
(Id. at XI.D.l(b).)
With regard to the Building Inspector’s authority to issue a CO, the Village Zoning Law provided that,
[b]efore issuing a [CO], the ... Building Inspector ... shall examine or cause to be examined all buildings, structures and sites for which an application for a Building Permit or Zoning Permit has been filed, and may conduct such inspections as are deemed appropriate from time to time during construction and after completion of work.
(Id. at XII.I.) It further provided that,
[w]hen, after final inspection, it is found that the proposed work has been completed in accordance with the applicable building codes, local laws, rules and regulations, and also in accordance with the application, plans and specifications filed in connection with the issuance of the Building Permit or Zoning Permit, the Building Inspector ... shall issue a [CO]. If it is found that the proposed work has not been properly completed, a [CO] ... shall not be issued and the work shall be ordered to be completed in conformity with the Building or Zoning Permit and in conformity with applicable law.
(Id. at XII.J.) Under the Village Zoning Law, therefore, the Building Inspector had authority to “[i]ssue [a CO]” for a building that is found to be “in conformity with the laws, rules and regulations of the State of New York and of [the Village Zoning Law],” and to “refuse to issue [a CO] in the event of non-compliance.” (Id. at XI.D.l(b).) In making this determination of “conformity” or “non-compliance,” the Building Inspector was required to conduct a final inspection. (Id. at XII.I (providing that the Building Inspector “shall examine or cause to be examined” the subject building).) Moreover, upon finding compliance, the Building Inspector was required to issue a CO. (Id. at XII.J (providing that “the Building Inspector ... shall issue a [CO]” after finding compliance).) Conversely, the Building Inspector was required to deny a CO upon finding non-compliance. (Id. (“If it is found that the proposed work has not been properly completed, a[ CO] ... shall not be issued_”).) In this way, the Village Zoning Law appears to have significantly limited the Building Inspector’s discretion once he made a determination of compliance or non-compliance, and it did so in a way that might support a protected property interest. See Walz v. Town of Smithtown, 46 F.8d 162, 168 (2d Cir. 1995) (finding “circumscribed ... discretion” that established a protected property interest where the local law specified that, “[u]pon compliance with [the local law’s] requirements, a permit shall be issued,” and where the local law required only that the applicant provide certain information in the application (emphasis added)); Sullivan v. Town of Salem, 805 F.2d 81, 85 (2d Cir. 1986) (finding a possible protected property interest where the plaintiff alleged “that his houses fully con
But this is not a case, as in Walz and Sullivan, “where local officials were required by law to grant [a] permit if the application was properly filed.” Harlen Assocs., 273 F.3d at 504 (emphasis added) (citing Walz, 46 F.3d at 168; Sullivan, 805 F.2d at 85). Here, the Village Zoning Law gives the Building Inspector discretion to make a determination of conformity or non-conformity. That determination, in turn, must be supported by two sub-determinations: first, “that the proposed work ha[d] been completed in accordance with the applicable building codes, local laws, [and] rules and regulations,” and, second, “that the proposed work ha[d] been completed ... in accordance with the application, plans and specifications filed in connection with the issuance of the Building Permit or Zoning Permit.” (Village Zoning Law, at XII.J.l; see also Defs.’ 56.1 Statement ¶¶ 64, 66 (“Mr. Knizeski exercises his discretion and determines whether to grant a [CO] based on whether there is compliance to the Zoning Code, Building Code, the construction documents and the plans that were submitted.... Mr. Knize-ski’s discretion is limited to determining whether the structure complies or does not comply and if the project complies he must issue the [CO].”).)
In denying Plaintiffs application, the Building Inspector found that “the elevation of roof height exceeded] that as described in” the unconstitutionally vague
Second Circuit precedent squarely holds, however, that “[a] plaintiff may be deemed not to have a protected property interest ... even in a case where the denial of the permit is arbitrary”; “[t]he fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.” RRI Realty, 870 F.2d at 918 (second and fourth emphasis added); see also Clubside, 468 F.3d at 158 (same); Walz, 46 F.3d at 168 (same); see also Watrous, 902 F.Supp.2d at 259-60 (same); Tomlins, 812 F.Supp.2d at 368 (same). And here, the Building Inspector could have denied the CO application on the non-arbitrary ground that the house was not built “in accordance” with the site plan originally filed in connection with the Building Permit. Undisputed parts of the record reflect that, in September 2007, Vernon requested that Collazuol obtain height measurements of the house at the same five locations used in the site plan. (See Defs.’ 56.1 Statement ¶ 68; Defs. Decl. Ex. V, at unnumbered 1 (Letter from Vernon to Collazuol (Sept. 13, 2007)).) After completing the survey, Collazuol reported that the measurements at four of the stations were “somewhat consistent with the site plan,” implying that these measurements were not entirely consistent with the site plan and that the measurement at one of the stations was not consistent. (See Defs. Decl. Ex. U, at unnumbered 3 (Letter from Collazuol to Bley (Oct. 30, 2007)).) This conclusion was supported by the as-built survey Atzl conducted in September 2007, (see Defs.’ 56.1 Statement ¶ 71), which concluded that the final house was taller than the proposed house:
Q: ... [T]he final house was over height; correct?
A: Yes.
Q: And by how much?
A: I believe it was 2.9 or 3 feet.
Q: Mr. Collazuol testified that it was 2.95 feet; does that sound about right?
A: Yes.
Q: ... Now, how did the other foot over height [, i.e.[,] the one-foot overage not attributable to the two-foot error in the road elevations,] come into being?
A: It got to be in the framing for the roof, the floors or something.
Q: So, would it be fair to say that if your site plan had not had the incorrect 2 feet, mistake, the house would still have been a foot over height?
A: I believe so.
(Defs.’ Decl. Ex. BB, at 50-51 (Atzl Dep.).) Furthermore, it was consistent with the “grade sheet” Collazuol submitted to Knizeski as part of his final survey of the property, which grade sheet indicated that the as-built measurements differed at all five of the site-plan stations, two of which exceeded the planned heights by between 0.51 and 0.95 inches (after controlling for the two-foot road-elevation error). (See Defs.’ Decl. Ex. U, at unnumbered 5.) Therefore, exercising his discretion to interpret the Village Zoning Law to require strict compliance, the Building Inspector could have denied the CO on the non-
Plaintiff would argue that the difference between the as-built house and the site plan was minor, and that the Building Inspector would not have denied the CO application on that ground. Indeed, in his initial report of the results of the site-measurement survey, Collazuol “[found] that the building and roofs ha[d] been constructed substantially in accordance with the plans submitted by the Architect in that the building [was] no greater in height than that as proposed,” noting that “[t]he diminimous [sic] difference in roof height should be neglected as [it fell] within typical building tolerances, ie. [sic] 0.90 ft. or 10 inches.” (Defs. Decl. Ex. U, at unnumbered 3 (Letter from Collazuol to Bley (Oct. 30, 2007)).) The fact remains, however, that Knizeski was not required, to adopt Collazuol’s recommendation and find that the difference between the site plan and the as-built house was de minimis or that the house complied with the plan despite the difference. Absent a provision of local or state law limiting the Building Inspector’s discretion in the face of even slight non-compliance — for example, a provision that mandates a finding of compliance where the height of a final structure exceeds a site plan by less than one foot, or by less than 10 percent — Knizeski had the authority to deny Plaintiff’s CO application on the grounds that the house was not built “in accordance with the application, plans[,] and specifications filed in connection with the issuance of the Building Permit.” (Village Zoning Law, at XII.J.l.) This “degree of discretion” accorded to the Building Inspector is sufficient to defeat Plaintiffs property interest in the CO, even if it was “extremely” likely that Knizeski actually would have found that Plaintiffs house was built “in accordance” with the site plan. See RRI Realty, 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.... [A]n entitlement does not arise simply because it is likely that broad discretion will be favorably exercised.” (emphasis added)); see also Clubside, 468 F.3d at 153 (same); 545 Halsey Lane Properties, 39 F.Supp.3d at 339-40, 2014 WL 4100952, at *11 (same); cf RRI Realty, 870 F.2d at 919 (finding no protected property interest in a permit where, although not mentioned by the local authority in refusing to grant the permit, “it [was] undisputed that the structure violated the height limit in [a] zoning variance that had been granted at the outset of construction,” but there “was surely not a certainty nor a clear likelihood that state law would later be construed to require issuance of a permit notwithstanding the zoning noncompliance”).
c. Legal Uncertainty
Alternatively, even absent discretion to deny Plaintiffs application on a non-arbitrary ground, the Court would still hold that Plaintiff had no. protected property interest in light of the undisputed fact that the ordinance was vague. As discussed, the Second Circuit has consistently held that “[ujncertainty as to the meaning of the applicable law defeats a claim to a clear entitlement.” O’Mara, 485 F.3d at 700; see also Clubside, 468 F.3d at 153 (same); Natale, 170 F.3d at 263 (same); cf. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 763-64, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (“[Indeterminacy is not the hallmark of a duty that is mandatory. Nor can someone be safely deemed ‘entitled’ to something when the identity of« the alleged entitlement is vague.” (citing Natale, 170 F.3d at 263)). Here, there is no dispute-and, indeed, the Court is constrained to hold-that Plaintiff was “[u]ncer-tain[] as to the meaning” of section E when he applied for the CO. As the Second Circuit held in this case, section E “is remarkably unclear with respect to how the four and a half foot limitation is defined. ... Consequently, this shortcoming ... fail[ed] to give specific notice of how a permit applicant should design his site plan so that the proposed building complies with that restriction.” Cunney, 660 F.3d at 621 (emphasis added). Furthermore, the Second Circuit held that “the ordinance provides no standard that can be objectively applied to determine if the conduct at issue in this case ... complies with the ordinance’s restrictions.” Id. at 622. In the context of these holdings, Plaintiff cannot demonstrate a “certainty or very strong likelihood” that he would have obtained a CO, because the very nature of his vagueness claim is that he did not understand how to comply with the law. Thus, the “question of law” presented by the ambiguity in the ordinance defeats Plaintiffs clear-entitlement claim. See O’Mara, 485 F.3d at 700 (holding that a “question of law” unresolved at the time the plaintiffs’ CO application was denied introduced “uncertainty” sufficient to defeat a “ ‘clear entitlement’ to a certificate of occupancy”); Natale, 170 F.3d at 263-64 (holding that the plaintiffs had no clear entitlement to permits under state law where the fate of the permits “turned ultimately on the resolution of [a] state law dispute as to .... the meaning of [a state statute] and an interpretation of [a] state court decision”); see also Laidlaw Energy & Envtl., Inc. v. Town of Ellicottville, N.Y., No. 08-CV-32, 2011 WL 4954881, at *4-5 & n. 3 (W.D.N.Y. Oct. 18, 2011) (noting, in the context of a plaintiffs claim that a zoning ordinance was “vague and ambiguous,” that the “claimed property interest could ... be defeated because of uncertainty in the underlying meaning of the relevant zoning codes”).
Although the Second Circuit’s conclusion about section E’s vagueness is sufficient,
Even though the Court’s holding is based on section E’s vagueness, the fact that this vagueness was later found to rise to the level of a constitutional violation does not change the outcome. First, to demonstrate a property interest, Plaintiff must show a “certainty or very strong likelihood” at the time of the denial. See Natale, 170 F.3d at 263 n. 1 (“[T]he plaintiff must show that, at the time the permit was denied, there was no uncertainty regarding his entitlement to it under applicable state or local law .... ” (emphasis added)). A court’s subsequent order granting Plaintiffs request does not satisfy this requirement. See O’Mara, 485 F.3d at 700 (holding that an unresolved question of law defeated the plaintiffs’ property interest in a CO “[ejven if the [state court] were to” later resolve the question in the plaintiffs’ favor); Clubside, 468 F.3d at 157 (“[A]n Article 78 court’s order directing a town board to take particular action when the court has determined that the board’s ruling was arbitrary and capricious ... is not equivalent to a finding that the town board lacked discretion in the first instance.”); RRI Realty, 870 F.2d at 919 (dismissing a plaintiffs argument that a state court “found the [local authority] to have exceeded its jurisdiction and ordered issuance of the ... permit” because, “[pjrior to [that decision], there was no clear likelihood that the state court would deem issuance of [the permit] to be required”).
Second, because the analysis focuses on Plaintiffs entitlement at the time of denial, it is irrelevant that the uncertainty-generating law was later invalidated. In Dean Tarry Corp. v. Friedlander, 826 F.2d 210 (2d Cir. 1987), a local planning board rejected the plaintiffs site-development-plan application in an exercise of its discretion under a statute allowing it to consider the “health, safety and welfare of the people in the area.” Id. at 211 (internal quotation marks omitted). Subsequently, a state court judge invalidated the denial and ordered the board to approve the plaintiffs plan, basing its decision in part on a determination “that the discretion given to the Planning Board by the zoning ordinariee was beyond the scope of the enabling statute.” Id. In rejecting the plaintiffs substantive-due-process claim based on the planning board’s denial of his application, the Second Circuit explained that the board’s “discretion, embodied in the governing laiv, prevented [the plaintiffs] expectation of success from rising to the level of certainty required to give rise to a cognizable property right.” Id. at 213 (emphasis added). And although the state court had ultimately invalidated the zoning ordinance because it unlawfully granted the planning board too much discretion, the invalidation “[did] not require a contrary result” in the case because the court applied the clear-entitlement analysis in the context of the law existing at the time of the denial. See id. (“The Planning Board possessed wide discretion under then existing law to reject [the plaintiffs] site plan.... This wide discretion prevented [the plaintiffs] expectation of success from rising to the level of a property right meriting protection under the ... Fourteenth Amendment ].” (emphasis added)). Similarly, here the Second Circuit ultimately invalidated section E because it “provided the Village enforcement officers with unfettered latitude in making compliance determinations regarding [Plaintiffs] property.” Cunney, 660 F.3d at 625. Like the plaintiff in Dean Tarry, Plaintiff has won his claim that section E is invalid for
Here, as discussed, Plaintiffs void-for-vagueness claim alleges a due process right entirely separate from his substantive-due-process claim, the latter of which focuses on Defendants’ actions associated with their denial of the CO. The relevant question, therefore, is whether, absent those actions — i.e., absent their use of section E — there was “a certainty or a very strong likelihood that the application would have been granted.” Clubside, 468 F.3d at 152. In the context of the vague ordinance, the Court concludes that there was no such certainty, because Plaintiff, by his own admission, was so uncertain as to the meaning of section E that he could not have known whether he complied with that section, regardless of whether Defendants ultimately used section E as a basis to deny the application. In other words, “absent [Defendants’] alleged denial of [Plaintiffs] due process” when they used section E as a basis to deny his application, there was “[n]either a certainty [n]or a very strong likelihood that the application would have been granted” because there was sufficient “uncertainty as to the meaning of applicable law.” Id. at 152-53 (alterations omitted).
d. Vested Right
Plaintiffs argument that he had a “vested right” to the CO based on investments he undertook in reliance on his belief that he would obtain a CO does not save his claim. (See Pl.’s Mem. 17-20.) Specifically, Plaintiff argues that he “effected substantial change and incurred substantial expense pursuant to a legally issued building permit,” and that “[t]his gave rise to a vested right to the CO upon the completion of construction, [because] implicit in issuing the building permit was that the CO would be granted if the house was constructed in accordance with those plans.” (Id. at 20.) However, none of the cases Plaintiff cites sufficiently supports the proposition that Plaintiff acquired a vested right in an unissued CO because of expenditures he undertook in connection with an existing building permit. Indeed, most of the relevant cases he cites stand for the related but different proposition that an individual may acquire a vested right in an existing benefit after undertaking expenditures in reliance on maintaining that benefit. See DLC Mgmt., 163 F.3d at 130 (vested-rights claim based on “existing zoning status”); Frooks v. Town of Cortlandt, 997 F.Supp. 438, 450 (S.D.N.Y. 1998) (vested-rights claim where certificate of occupancy “was wrongfully revoked”), aff'd, 182 F.3d 899 (2d Cir. 1999); Town of Orangetown v. Magee, 88 N.Y.2d 41, 643 N.Y.S.2d 21, 665 N.E.2d 1061, 1064 (1996) (vested-rights claim seeking “reinstatement of [a] building permit”); Lombardi v. Habicht, 293 A.D.2d 474, 740 N.Y.S.2d 101, 102-03 (2002) (vested-rights claim based on revoked building permit); Ranieri v. Argust, 254 A.D.2d 771, 679 N.Y.S.2d 765, 766 (1998) (vested-rights claim based on existing certificate of occupancy and building permit).
Plaintiff does cite one case, Acorn Ponds at North Hills v. Inc. Village of North Hills, 623 F.Supp. 688 (E.D.N.Y. 1985), where a court found that a plaintiff had a property interest in an unissued CO based on the plaintiffs completion of buildings in accordance with existing building permits. See id. at 692 (“[The plaintiff] claims that it had received 41 building permits and that some of its buildings were completed ... all in accordance with the building permits issued by [the defendant]. It, therefore, had more than a unilateral ex
Thus, in light of the foregoing, and in accordance with the Second Circuit’s order, the Court holds that Plaintiff has not demonstrated a constitutionally protected property interest in the CO. Accordingly, the Court grants summary judgment for Defendants on this claim.
5. Damages
Defendants finally seek to limit Plaintiffs ability to recover damages from his void-for-vagueness claim, arguing that he has failed to establish proximate cause for certain types of damages, and that they are entitled to a set-off from any damages ultimately awarded to Plaintiff in light of Plaintiffs settlement with Atzl Defendants.
Most of Defendants’ proximate-cause arguments challenge Plaintiffs ability to recover damages from the denial of the CO application. For example, Defendants argue that Plaintiff could have obtained the variance by moving or demolishing the pool house, (see Defs.’ Mem. 13), that the denial of the CO did not prevent a sale of the property, (See id. at 14-15), and that Atzl’s two-foot measurement error and a construction error were superseding and intervening causes that broke the causation chain between the vague ordinance and the denial of the CO, (see id. at 15-16). Defendants also argue, in passing, that “[t]he fact that [Plaintiff] did not own the subject property'defeats a proximate cause argument because the economic damages sustained by [Gladstone] are not recoverable by [Plaintiff].” (Id. at 11.)
At the December 2012 hearing on the damages issue, the Court held that Plaintiff “may be awarded damages solely on his prevailing on the void for vagueness claim.” (Defs.’ Decl. Ex. H, at 20-21.) However, it did not “ma[k]e any particular finding as to what could be qualified or what could constitute such damages and whether or not Plaintiff has made out a case that the damages he claims he suffered were the result of the vague statute itself or the vague ordinance.” (Id.) Instead, the Court held that Plaintiff would have to “prove actual injury that resulted from his due process violation as a result of the void for vagueness.” (Id.) As the Court further explained, Plaintiff must “show damages that were directly caused by the due process violation as explained by the Second Circuit in the context of the void for vagueness doctrine. In other words, that but for the due process violation, [Plaintiff] would not have suffered the claimed damages.” (Id.)
Building on the Court’s holding at the December 2012 hearing, in this Opinion
Notably, Plaintiff appears to ground his proximate-cause argument in “the Second Circuit’s determination that ‘the [rjecord is clear that the only reason provided by the Village for the denial of [Plaintiffs] CO application was that his house exceeded] [s]ection E’s height restriction.’ ” (Pl.’s Mem. 8-9 (quoting Cunney, 660 F.3d at 626).) This language from the Second Circuit’s opinion, however, appeared in the section addressing Plaintiffs (now dismissed) substantive-due-process claim. It is thus no suppprt for Plaintiffs claim of damages resulting from the vagueness itself.
The Court therefore need not address Defendants’ specific arguments related to the lack of proximate cause for the CO application denial. However, consistent with its holding in the December 2012 hearing, the Court declines to grant summary judgment to Defendants in full on the damages issue. None of Defendants’ arguments in this Motion challenges the Court’s previous determination that Plaintiff may be able to prove damages caused by the vagueness itself. Although the Court will once again decline to make a finding as to the specific types of damages Plaintiff may recover, it notes, by way of example, that such damages might include any unnecessary costs Plaintiff incurred while attempting to comply with the vague ordinance, any loss in property value Plaintiff suffered as a result of his understanding of the ordinance’s requirement, as well as any actual injuries Plaintiff suffered from mental or emotional distress caused by his speculation, to the extent such damages are cognizable in the context of this case.
With regard to Defendants’ argument that they are entitled to a set-off of any damages Plaintiff recovers from the $175,0.00 settlement Plaintiff obtained from Atzl Defendants, the Court holds that they are not so entitled in the context of its holding of the types of damages Plaintiff may recover. Initially, there is a dispute as to whether Defendants, in general, are entitled to a set-off in the context of a § 1988 claim. (Compare Defs.’ Mem. 18 (arguing that “a set-off is appropriate in a § 1983 case” (citing Ruhlmann v. Smith, 323 F.Supp.2d 356, 369 (N.D.N.Y. 2004) (applying a set-off in a § 1983 action); Mason v. City of New York, 949 F.Supp. 1068, 1079 (S.D.N.Y. 1996) (holding, “[i]n the[ ] circumstances [of that case],” that a setoff “would not conflict with ... the policies underlying [§ 1983],” and applying the set-off)), with Pl.’s Mem. 14 (“[Section] 1983 does not provide for a setoff .... ” (citing Banks ex rel. Banks v. Yokemick, 177 F.Supp.2d 239, 263 (S.D.N.Y. 2001) (holding that a set-off in “the circum
III. CONCLUSION
To summarize, in light of the foregoing, the Court grants Defendants’ Motion in part and denies it in part. Specifically, it grants Defendants’ Motion for summary judgment on Plaintiffs substantive-due-process claim, and it grants Defendants’ Motion to dismiss Plaintiffs claims against Knizeski and the ZBA. But the Court denies Defendants’ Motion to dismiss Plaintiffs claims for lack of standing, and it denies Defendants’ Motion for summary judgment on the damages and set-off issues given the Court’s holding that Plaintiff is entitled to a specific type of damages in the context of his void-for-vagueness claim. Moreover, in light of the Second Circuit’s opinion remanding the case to this Court, the Court grants summary judgment in favor of Plaintiff on his void-for-vagueness claim. The Clerk of Court is respectMly directed to terminate the pending Motion. (See Dkt. No. 56.)
SO ORDERED.
. The Court has listed the Parties names as they appear on the docket. For purposes of clarity, the Court notes that "Village of Grand View, New York," and “Village of Grand Vie-won-Hudson” refer to the same village.
. The Court notes that while this exhibit is not consecutively paginated, page 4 refers to the page number marked as "4," rather than the fourth page of the exhibit.
. To be clear, while each page of this exhibit is numbered, the exhibit is not consecutively paginated. Moreover, because the exhibit includes minutes from three separate ZBA hearings, certain page numbers repeat. The Court will therefore refer to pages of the exhibit as if they were unnumbered.
. Notably, the hearing minutes also indicate that the ZBA found that the "maximum permitted ... height” was 30.5 feet above River Road. (See Defs.’ Decl. Ex. J, at unnumbered 1.) This figure is inconsistent with the "lowest point” calculation method the board had employed during the hearing, which concluded that the maximum permitted height was 28.5 feet (given that the lowest point was 24 feet). (See id. at unnumbered 9.) The record does not contain an explanation for the inconsistency.
. Knizeski conducted two other discretionary inspections, both in March 2007. One focused on the framing and plumbing work, and the other focused on the insulation work. The inspected work was fully approved and partially approved, respectively. (See Defs.’ Decl. Ex. R, at unnumbered 1-2.)
. The Parties do not address whether the CO application was properly filed by Plaintiff and his wife even though Gladstone owned the property. However, the Court notes that, per the terms of the CO application itself, the application may be filed by the "owner” or by a "lessee, engineer, surveyor, architect, builder, or agent of the owner.” (See Defs.' Decl. Ex. Q, at unnumbered 15 (CO application).)
. Knizeski sent a letter a week later that purported to supercede the December 12 letter. However, the second letter contained only a minor revision, and was identical to the December 12 letter in all material respects. (See Defs.’ Decl. Ex. Q, at unnumbered 16 (Letter from Knizeski to Plaintiff, Dec. 19, 2007).)
. The ZBA’s finding references a part of the Zoning Law that the Parties did not submit as part of the record for Defendants’ Motion, but that the Parties submitted with previous motions. Specifically, in Chapter IV, the Zoning Law instructs that ”[hjeight shall be measured vertically from the mean elevation of the natural ground level along the side of the building with the lowest natural grade to the highest point of the roof, including chimneys.” (See Att’y Decl. Ex. F, at 5 (Village Zoning Law, submitted with Plaintiff's declaration filed in support of his first motion for summary judgment) (Dkt. No. 7); see also Dkt. No. 11, Ex. A, at 5 (same, submitted with Defendant’s 56.1 Statement filed in opposition to Plaintiff’s first motion for summary judgment).)
. Judge Young converted Defendants’ motion to dismiss into a motion for summary judgment because "both parties refer[ed] th[e] [c]ourt to exhibits beyond the four walls of the complaint.” (Mem. & Order at 1.)
. Judge Young interpreted section E to mean that "any point on River Road to the Hudson River must be free of any view-obstructing structures that exceed the height requirements,” such that a measurement to de
. The Second Circuit’s decision is also part of the docket and part of the record filed in connection with Defendants' Motion. (See Dkt. No. 39; Defs.’ Decl. Ex. G.)
. The Second Circuit did not consider Judge Young's ruling on Plaintiff's facial claim because Plaintiff apparently ”ha[d] not argued or characterized his claim on appeal” to include a facial claim. Cunney, 660 F.3d at 620 n. 2.
. The Complaint also alleges that Defendants deprived Plaintiff of his “rights under the First ... Amendment ],” but Plaintiff has not raised this claim at any point in the litiga
. The Court notes that all of the cases the Second Circuit cited in its discussion of Plaintiff's due process claim referenced a specific liberty interest other than a general right to be free from speculation, such as a right to be free from civil or criminal punishment, or the First Amendment right to free speech. See United States v. Williams, 553 U.S. 285, 306, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (criminal punishment and free speech) Hill, 530 U.S. at 732, 120 S.Ct. 2480 (criminal punishment and free speech); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (criminal punishment and -free speech); Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294 (criminal punishment and free speech); Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 283, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961) (criminal punishment and free speech); VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010) (free speech); Rubin v. Garvin, 544 F.3d 461, 467-68 (2d Cir. 2008) (criminal punishment); Thibodeau v. Portuondo, 486 F.3d 61, 66 (2d Cir. 2007) (criminal punishment); Farrell, 449 F.3d at 482 (criminal punishment and free speech); Rock of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 156 (2d Cir. 1999) (civil and criminal liability); Brache v. Westchester Cnty., 658 F.2d 47, 51 (2d Cir. 1981) (criminal liability). But here, Plaintiff has not alleged that the vague ordinance implicated a similar liberty interest, and he has not otherwise identified a liberty interest other than his right to know what the law says. Cf. Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) ("Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”); Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003) (same).
It is possible that the Second Circuit grounded its holding in a property interest. However, it is unlikely that the court did so based on a property interest in the CO. The Second Circuit never mentioned the CO in its analysis of the void-for-vagueness claim; instead, every mention of what might be considered a "property" interest appeared to refer to Plaintiff’s actual plot of land. See Cunney, 660 F.3d at 624 ("Our review of the record gives us substantial concern that the ordinance was arbitrarily applied to [Plaintiff’s] property.”); id. at 625 (“[B]ecause River Road's elevation ... fluctuates ... along the boundary of [Plaintiff’s] property ... the application of these interpretations to [Plaintiff’s] property would undoubtedly lead to divergent results.”); id. ("We therefore hold that because section E's terms provided the Village enforcement officers with unfettered latitude in making compliance determinations regarding [Plaintiff’s] property, section E, as applied here, is unconstitutionally vague.” (citation omitted)). Moreover, although the district court specifically held that Plaintiff had no property interest in the CO, see Cunney, 675 F.Supp.2d at 403 (concluding that Plaintiff "never possessed a protectable property right to occupy the Property”), the Second Circuit did not discuss this holding, but instead vacated the district court’s ruling on that claim and "[left] it to [this Court] to
. It may be true that a fact-finder is more likely to find official conduct to be outrageously arbitrary when an official applies an unconstitutionally vague statute. However, at least in a case like this one, vagueness does not correspond directly to outrageously arbitrary conduct-indeed, if it did, the Second Circuit would not have remanded the case to this Court "to decide in the first instance the viability and merits of [Plaintiff’s] substantive due process claim.” Cunney, 660 F.3d at 626.
. To be clear, the Court grants Defendants' Motion on these arguments on the merits— • not because, as Defendants argue, Plaintiff has "abandoned th[e]se claims.” (See Defs.' Reply 1.)
. Plaintiff generally argues that many of Defendants’ arguments "are barred by the law of the case doctrine,” (see Pl.’s Mem. 1), which "requires a trial court to follow an appellate court's previous ruling on an issue in the same case,” United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). However, notwithstanding the Second Circuit's order "direct[ing] [this Court] to enter summary judgment in favor of [Plaintiff]” on his void-for-vagueness claim, Cunney, 660 F.3d at 626, the Court has an "independent obligation” to evaluate Defendants’ standing argument-especially where the Second Circuit did not directly address whether Plaintiff has standing. See Astrazeneca AB v. Apotex Corp., 985 F.Supp.2d 452, 494 (S.D.N.Y. 2013) (“In light of the court’s 'independent obligation to examine [its] own jurisdiction,’ it would be unwise to avoid the question of standing by means of the law of the case doctrine where no court in this litigation has explicitly addressed the issue.” (citation omitted) (alteration in original) (quoting United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995))); Precision Assocs., Inc. v. Panalpina World Transp., (Holding) Ltd., No. 08-CV-42, 2013 WL 6481195, at *11 n. 10 (E.D.N.Y. Sept. 20, 2013) (rejecting the plaintiffs’ claim that a previous order denying a motion to dismiss a claim prevented the court from evaluating the defendants’ motion to dismiss on standing grounds because, in the context of the previous order, "[t]he defendants did not move to dismiss [that claim]
. This Opinion's forthcoming discussion of proximate cause further supports the Court’s holding with regard to the causation requirement. See Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013) ("[T]he test for whether a complaint shows the ‘fairly traceable’ element of Article III standing imposes a standard lower than proximate cause.”).
. Plaintiff nominally “disputes” these statements, but he appears to do so only on the ground that Knizeski "acted ultra vires in relinquishing his duties to others” and that a planning board chair "directed enforcement based upon his personal view of how [the local law] should be applied.” (Pl.’s 56.1 Statement ¶¶ 64, 66.) Plaintiffs dispute over what actually happened in this case, however, does not create a genuine dispute over whether Knizeski, in general, had discretion to make a compliance determination. See RRI Realty, 870 F.2d at 918-19 (holding that the property-interest analysis “focuses on the degree of official discretion” and "an assessment of the powers” of the local authority).
. The Court’s conclusion is consistent with the Second Circuit’s opinion in this case. First, the Court’s description of Collazuol's findings in the as-built survey matches the Second Circuit’s description of those findings. See Clunney, 660 F.3d at 617-18. Second, although the Second Circuit appeared to suggest that Plaintiff's house "complied with section E” under certain interpretations of the ordinance, See id. at 622 (characterizing Col-lazuol’s July 2007 and October 2007 letters as concluding that the house complied with section E), nowhere did it find that Plaintiff’s house was built “in accordance” with the site plan. Third, although the court stated that "[tjhere is no question ... that a reasonable
. To make essentially the same point in a different way, one could also argue that section E granted the Building Inspector discretion to decide how to measure a house’s height and thereby determine compliance, and that this discretion defeated the property interest. See Cunney, 660 F.3d at 625 (holding that section E gave Knizeski "unfettered latitude in’ making compliance determinations” (emphasis added)). Under either formulation, the takeaway is that Plaintiff's entitlement to the CO was not clear in light of the vague law.
. A few months after issuing the Building Permit, Knizeski did request "a letter from [Plaintiff's] engineer ... certifying] that the height of [the] new house [did] not exceed that as stated in [section E]." (Defs.' Decl. Ex. S.) However, the request did not contain an interpretation of section E or any instruction regarding the preferred measurement method. (See id.) Atzl thereafter complied with the request, certifying that ”[t]he elevations taken [were] in conformance with the approved site Plan” and that, per section E, "[t]he elevation of the highest part of the roof line will not be more than 41/2 feet of the easterly side of River Road.” (Defs.' Decl. Ex-. T.) However, the record does not indicate that Knizeski, nor anyone acting on the Village’s behalf, formally endorsed Atzl’s characterization of section E. Moreover, Atzl's interpretation did not even resolve the ambiguity, because it did not specify at which point on River Road he measured. (See id.)
. To be clear, these examples are neither determinative nor exhaustive, and the Parties therefore should not rely on this statement either to claim entitlement to certain types of damages or to argue that Plaintiff is not entitled to unmentioned types of damages.
Reference
- Full Case Name
- Brendan CUNNEY v. BOARD OF TRUSTEES OF the VILLAGE OF GRAND VIEW, New York Zoning Board of Appeals for the Village of Grand View, New York Atzl, Scatassa & Zigler Land Surveyors John R. Atzl, Individually and Joseph W. Knizeski, as Building Inspector of the Village of Grand Viewon-Hudson
- Cited By
- 10 cases
- Status
- Published