Morris Motel, LLC v. Dechance

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MORRIS MOTEL, LLC,

Plaintiff, MEMORANDUM AND ORDER

v. 20-CV-3350 (RPK) (AYS)

PAUL M. DECHANCE, Chairman, JAMES

WISDOM, Vice-Chairman, CHARLES

LAZAROU, HOWARD BERGSON,

RONALD LINDSAY, RICK CUNHA

and WAYNE RODGERS, constituting

the Members of the Zoning Board of

Appeals for the Town of Brookhaven;

the BOARD OF ZONING APPEALS OF

THE TOWN OF BROOKHAVEN; and the

TOWN OF BROOKHAVEN,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Plaintiff Motel Morris, LLC, owns and operates a recently renovated motel in the Town of

Brookhaven, New York. In this lawsuit against the Town, its Board of Zoning Appeals (“BZA”),

and the BZA’s members, plaintiff alleges that the Town committed an unconstitutional taking, and

that all defendants deprived plaintiff of substantive due process, because defendants denied

plaintiff a zoning variance for certain motel renovations and refused to issue a Certificate of

Occupancy for the as-renovated motel. Plaintiff and defendants have filed cross-motions for

summary judgment. For the reasons explained below, defendants’ motion is granted and plaintiffs’

cross-motion is denied.

BACKGROUND

The facts in this section are taken from the parties’ statements of facts filed in accordance

with Local Rule 56.1, and the accompanying exhibits, except where otherwise noted.

Since 2014, plaintiff has owned a motel in the Town of Brookhaven, New York, as well as

the land on which the motel sits. Pl.’s Resp. to Defs.’ Local Rule 56.1 Statement ¶ 5 (Dkt. #32)

(“Pl.’s Rule 56.1 Resp.”); Decl. of Fredrick P. Stern 63–64 (Dkt. #31-2) (“Stern Decl.”).1 The

property has been the site of a motel since the 1950s. Pl.’s Rule 56.1 Resp. ¶ 5.

Plaintiff’s lot is currently split-zoned J-2 Business and A-1 Residence District. Pl.’s Local

Rule 56.1 Statement ¶ 6 (Dkt. #31-3) (“Pl.’s Rule 56.1”). Those designations do not permit motel

operation. See Brookhaven Town Code (“Town Code”) §§ 85-425, 431 (J-2 Business zoning); id.

at § 85-197 (A-1 Residence District zoning). 2 But the Town has long allowed the motel to operate

on the lot by issuing Certificates of Occupancy, dating to the 1950s, and a Certificate of Existing

Use, dating to 1977, permitting this nonconforming use. Pl.’s Rule 56.1 Resp. ¶ 4; Decl. of

Kenneth J. Lauri 4–6 (Dkt. #30-4). These certificates pre-date the J-2 and A-1 zoning designations

for plaintiff’s lot. Defs.’ Mem. in Supp. of Summ. J. 12 (Dkt. #30-2); see Pl.’s Mem. in Supp. of

Summ. J. 17 (Dkt. #31-4) (“Pl.’s Mem. in Supp.”).

In 2015, plaintiff applied for, and received, a building permit to conduct “[i]nterior and

exterior renovations” and to “[r]eplace interior finishes” and “exterior siding.” Defs.’ Mot. for

Summ. J. Ex. Building Permit 2 (Dkt. #30-6). This permit provided that, before the Town would

issue a new Certificate of Occupancy allowing the motel to resume operations, a building inspector

would inspect the motel to ensure compliance with the Town Code. Ibid.

During the renovations, “[a] stop work order was issued for various aspects of the work

being performed,” Pl.’s Rule 56.1 ¶ 10, and a building inspector advised plaintiff that plaintiff

1 All pagination refers to the Electronic Case Filing (“ECF”) pagination, unless otherwise noted.

2 The Brookhaven Town Code, available at https://ecode360.com/BR0012, is an appropriate object of judicial notice.

Lepper v. Vill. of Babylon, No. 18-CV-7011 (JMA) (AYS), 2022 WL 939719, at *24 (E.D.N.Y. Mar. 29, 2022) (taking

judicial notice of the online Village of Babylon Zoning Code); Quick Cash of Westchester Ave. LLC v. Vill. of Port

Chester, No. 11-CV-5608 (CS), 2013 WL 135216, at *4 (S.D.N.Y. Jan. 10, 2013) (similar).

needed to clarify with the BZA whether the renovations might be considered an impermissible

extension of a nonconforming use under the Town Code. Decl. of Robert Foley ¶ 9 (Dkt. #31-1)

(“Foley Decl.”).

In 2016, plaintiff applied to the BZA for variances to pave the parking lot and allow a sign

setback. Pl.’s Rule 56.1 Resp. ¶ 7. The BZA held a hearing on those requests in 2017. Id. ¶ 13.

In connection with the requests, plaintiff submitted a survey of the motel parcel reflecting that, as

part of repairs to the motel’s foundation, plaintiff had increased the foundation’s footprint by 353

square feet, from 647 to 1,000 total square feet. Id. ¶¶ 8, 12.

This increase became the focus of the hearing. Plaintiff’s application was held in abeyance

until plaintiff also sought a variance for the square-footage increase. Stern Decl. 29–33. Plaintiff

submitted that request, and the BZA held a second hearing. Pl.’s Rule 56.1 Resp. ¶ 13; Foley

Decl. 5.

The BZA then issued a decision denying plaintiff’s variance requests. Pl.’s Rule 56.1 Resp.

¶ 14. To justify this denial, the BZA invoked Section 85-883(A)(2) of the Town Code, which

provides that “[a] nonconforming use shall not be extended,” subject to the caveat that “the

extension of a lawful use to any portion of a nonconforming building or structure which existed

prior to the effective date of the zoning ordinances of the Town of Brookhaven shall not be deemed

the extension of such nonconforming use.” The BZA further concluded that the expansion of the

motel’s footprint was not authorized under Town Code Section 85-883(A)(3), which states that

“[a]dditions to existing buildings and structures with certificates of occupancy or a certificate of

existing use . . . shall be permitted, provided that said additions do not encroach deeper into any

nonconforming front yard, side yard or rear yard than the distance into said front yard, side yard

or rear yard that the existing foundation encroaches.”

In its decision, the BZA described plaintiff’s enlargement of the motel as a “substantial

deviation from the requirements of § 85-883(B)(3) of the Code, which prohibits any expansion of

nonconformity resulting in an encroachment deeper into the setbacks maintained by the original

nonconforming structure.” Stern Decl. 64. And it stated that the “applicant’s modification to the

structure caused same to extend more than 10’ deeper into the front yard, and almost 4’ into the

side yard of the parcel, in direct contradiction to § 85-883(B)(3) of the Code.” Ibid. The BZA

stated that plaintiff “had feasible alternatives” to operating the hotel in its modified form, because

it “can feasibly return the structure to its former dimension . . . which will enable applicant to

continue to benefit from the nonconforming use on the parcel.” Id. 65. Because the BZA denied

a variance, the Town has not issued a new Certificate of Occupancy for the motel, and this refusal

has precluded plaintiff from restarting motel operations on the parcel.

Plaintiff challenged this variance denial in New York Supreme Court by initiating an

Article 78 proceeding under the New York Civil Practice Law and Rules in New York Supreme

Court. Pl.’s Rule 56.1 Resp. ¶ 17. That petition was transferred to the Appellate Division, which

denied relief, concluding that “the determination denying the requested area variances was not

arbitrary, irrational, or an abuse of discretion.” Pl.’s Mot. for Summ. J., Ex. 1 – Appellate Division

Decision 2–3 (Dkt. #31-10).

While the Article 78 action was pending, plaintiff filed this federal lawsuit, asserting

constitutional violations under 42 U.S.C. § 1983. Compl. (Dkt. #1). Count One alleges that

defendants violated plaintiff’s right to substantive due process because the refusal to allow the as-

renovated motel to operate has infringed on plaintiff’s property interests in an arbitrary and

unreasonable manner. Id. ¶¶ 64–79. Count Two alleges that the Town of Brookhaven’s refusal to

grant a variance or Certificate of Occupancy for the renovated hotel unconstitutionally deprived

plaintiff of property without just compensation, in violation of the Fifth and Fourteenth

Amendments of the Constitution. Id. ¶¶ 80–111.

The parties have moved for summary judgment on both claims.

STANDARD OF REVIEW

Summary judgment is appropriate when “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). “An issue of

fact is genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020) (quoting SCR

Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). “A fact is material if it

might affect the outcome of the suit under the governing law.” Ibid. In assessing the record, the

Court views “the evidence in the light most favorable to the nonmoving party and draw[s] all

reasonable inferences in that party’s favor.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010).

When the parties cross-move for summary judgment, “each party’s motion must be examined on

its own merits, and in each case all reasonable inferences must be drawn against the party whose

motion is under consideration.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001).

DISCUSSION

Plaintiff has not established a violation of its substantive due process rights, or an

unconstitutional taking, even when the record is taken in the light most favorable to plaintiff.

Accordingly, defendants’ motion for summary judgment is granted, and plaintiff’s cross-motion

is denied.

I. Defendants Did Not Deprive Plaintiff Of Substantive Due Process.

Taking the record in the light most favorable to plaintiff, defendants have not committed

any violation of the substantive due process doctrine. “Substantive due process standards are

violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of

governmental authority.” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). To

prevail on a substantive due process claim based on a zoning board’s actions, a plaintiff must

establish that (1) it “had a valid ‘property interest’ in a benefit that was entitled to constitutional

protection at the time [it] was deprived of that benefit,” Zahra v. Town of Southold, 48 F.3d 674,

680 (2d Cir. 1995), and (2) “defendants infringed on that property right in an arbitrary or irrational

manner,” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 784 (2d Cir. 2007) (citing Harlen

Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir. 2001)).

Plaintiff cannot prevail because it has not shown that it has a protectable property interest

in its nonconforming operation of the as-renovated motel on the parcel. To establish a property

interest for purposes of a due process claim, plaintiff must demonstrate that “an independent source

such as state statutes or rules entitl[es plaintiff] to certain benefits.” Radwan v. Manuel, 55 F.4th

101, 125 (2d Cir. 2022) (quotation marks omitted) (quoting Goss v. Lopez, 419 U.S. 565, 572–73

(1975)). Under New York law, plaintiff had a property interest in the use of its unrenovated

structure as a motel, because “a nonconforming property use that predates the enactment of a

restrictive zoning ordinance is considered a vested right entitled to constitutional protection.”

Ahmed v. Town of Oyster Bay, No. 12-CV-3654 (JMA) (SIL), 2021 WL 4463808, at *7 (E.D.N.Y.

Apr. 20, 2021) (collecting cases), report and recommendation adopted, 2021 WL 4463489

(E.D.N.Y. Sept. 29, 2021). But that right does not extend to plaintiff’s operation of the renovated

motel building, because a landowner’s “vested right in a nonconforming structure existing at the

time a prohibitory code is enacted[] does not extend to subsequent construction.” DeFalco v.

DeChance, 949 F. Supp. 2d 422, 427 (E.D.N.Y. 2013) (citation and alterations omitted); see, e.g.,

Matter of Hannett v. Scheyer, 830 N.Y.S.2d 292, 293–94 (App. Div. 2007) (“Although we agree

that the original dwelling was not required to conform with the setback requirements of the current

zoning ordinance . . . this protection did not extend to the newly constructed second story.”)

(citations omitted); Matter of Frisenda v. Zoning Bd. of Appeals of Town of Islip, 626 N.Y.S.2d

263, 263–64 (App. Div. 1995) (“Even though the petitioner’s original residence is a permitted

nonconforming structure . . . this factor does not mean that the structure is legalized for all future

construction and should be entitled to a building permit as of right.”).

Plaintiff accordingly attempts to ground its property interest in a different source, asserting

that it has a protected interest in a new Certificate of Occupancy for the as-renovated motel because

plaintiff was entitled to enlarge its building under the Town Code. Pl.’s Mem. in Supp. 16–17.

Courts in this circuit have recognized a property interest in a desired Certificate of Occupancy “if

the plaintiff can show clear entitlement to the approval” of the certificate. Nardiello v. Town of

Oyster Bay, No. 15-CV-292, 2016 WL 1464557, at *4 (E.D.N.Y. Apr. 12, 2016); Arrigoni

Enterprises, LLC v. Town of Durham, 629 F. App’x 23, 25 (2d Cir. 2015) (citing Villager Pond,

Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)); Macera v. Vill. Bd. of Ilion, No. 16-CV-

668 (LEK) (TWD), 2019 WL 4805354, at *12 (N.D.N.Y. Sept. 30, 2019). To establish such an

entitlement, “the plaintiff must show that, at the time the [certificate] was denied, there was no

uncertainty regarding [plaintiff’s] entitlement to it under applicable state or local law.” C.C.S.com

USA, Inc. v. Gerhauser, 518 F. App’x 1, 3 (2d Cir. 2013) (quoting Natale, 170 F.3d at 263 n.1,

and citing O’Mara v. Town of Wappinger, 485 F.3d 693, 700 (2d Cir. 2007)) (quotation marks and

alterations omitted). Conversely, a plaintiff lacks a clear entitlement to a Certificate of Occupancy

if there is “[u]ncertainty as to the meaning of [the] applicable law.” Natale, 170 F.3d at 263. Were

it otherwise, the Second Circuit has noted, federal courts would risk becoming “zoning boards of

appeals,” since “permit claimants would regularly be entitled to present to federal courts their

disputes concerning the interpretation of local and state land use regulations.” Ibid.

Plaintiff does not assert a cognizable property interest because it has not demonstrated a

clear entitlement to a Certificate of Occupancy for the as-renovated motel under the Town Code.

A landowner is entitled to a Certificate of Occupancy only if its property complies with the Town

Code. See Town Code § 16-4. Plaintiff alleges that its renovated structure is compliant based on

Section 85-883(B)(3), which provides that “[a]dditions to existing buildings and structures with

. . . a certificate of existing use . . . shall be permitted, provided that said additions do not encroach

deeper into any nonconforming front yard, side yard or rear yard than the distance into said front

yard, side yard or rear yard that the existing foundation encroaches, exclusive of stoops, porches

or patios.” Pl.’s Mem. in Supp. 17 (quoting Town Code § 85-883(B)(3)). Plaintiff, of course, had

a Certificate of Existing Use for its nonconforming, pre-renovation motel. And while plaintiff

acknowledges that its renovations extended the motel’s structure further into the property’s rear

and side yards, see Pl.’s Rule 56.1 Resp. ¶ 12, plaintiff contends that these additions did not

“encroach deeper into any nonconforming front yard, side yard, or rear yard” because the yards,

standing alone, do not violate any zoning restriction, see, e.g., Pl.’s Mem. in Further Supp. of Mot.

for Summ. J. 5–6 (Dkt. #31-9) (stating that expansions were consistent with Section 85-883(B)(3)

because that section prohibits only expansions “which further encroach into [a] ‘nonconforming

front yard, side yard or rear yard”) (emphasis in original).

But Section 85-883(B)(3) does not explain when a “front yard, side yard, or rear yard”

qualifies as “nonconforming.” The phase “nonconforming front yard, side yard, or rear yard” can

plausibly bear plaintiff’s reading—in which a yard is nonconforming only if it violates the Town

Code when the yard is considered separately from the property as a whole. But the phase could

also be understood to reach any front yard, side yard, or rear yard on a nonconforming lot. On this

understanding, if the lot as a whole is nonconforming, so are its yards.

The latter reading draws support from surrounding provisions of the Town Code. It

comports with Section 85-883(A)(2)’s broad statement that “[a] nonconforming use shall not be

extended.” In contrast, plaintiff’s interpretation of Section 85-883(B)(3) would allow plaintiff to

extend its nonconforming motel activity. And Section 85-883(A)(4) states that no

“nonconforming use [shall] be moved in whole or in part to any other portion of the lot or parcel

of land occupied by such nonconforming use.” Plaintiff’s construction of Section 85-883(B)(3),

allowing the motel’s expansion, would permit it to effectively move part of its nonconforming

motel activities to “[an]other portion of the lot or parcel of land.” Town Code § 85-883(A)(4).

Considering Section 85-883(B)(3)’s ambiguous language and the context of these surrounding

sections, plaintiff’s construction of Section 85-883(B)(3) is not clearly dictated by the statutory

language. In other words, this “uncertainty” about the meaning of Section 85-883(B)(3) “means

that [plaintiff] did not have a ‘clear entitlement’ to a certificate of occupancy and therefore no

cognizable property interest.” O’Mara v. Town of Wappinger, 485 F.3d 693, 700 (2d Cir. 2007),

certified question accepted, 868 N.E.2d 213 (N.Y. 2007), and certified question answered, 879

N.E.2d 148 (N.Y. 2007).

Accordingly, defendants are entitled to summary judgment on plaintiff’s substantive due

process claim.3

II. The Town Is Entitled To Summary Judgment On Plaintiff’s Takings Claim.

The Town is entitled to summary judgment on plaintiff’s claim under the Takings Clause

of the Fifth Amendment, which “provides that private property ‘shall not be taken for public use,

3 In a few paragraphs of its summary judgment memorandum, plaintiff argues that “the issuance of a stop work order

by the Town” deprived it of the “incontrovertible property interest in the use of the property as a Motel” without

procedural due process, because plaintiff did not receive “a pre- or post-deprivation hearing after the issuance of the

stop work orders.” Pl.’s Mem. in Supp. 23–24. Because this alternative theory was not presented in plaintiff’s

complaint, I decline to address it. Mosby v. Bd. of Educ. City of Norwalk, 754 F. App’x 34, 37 (2d Cir. 2018); Buccilli

v. Foster & Garbus, LLP, No. 17-CV-7498 (SFJ) (AYS), 2019 WL 1208792, at *4 (E.D.N.Y. Mar. 12, 2019).

without just compensation.’” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005)

(citation omitted).

A takings claim requires a property interest. Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1000–01 (1984); see Penn Central Transp. Co. v. New York, 438 U.S. 104, 125 (1978). Plaintiff

principally argues that it has a property interest protected by the Takings Clause because it has a

clear entitlement to a Certificate of Occupancy—in other words, based on the same rationale it

invokes for its substantive due process claim. Pl.’s Mem. in Supp. 18. In support, plaintiff cites

only due process precedent. Id. at 16–17 (citing Bower Associates v. Town of Pleasant Valley, 761

N.Y.S.2d 64, 67–68 (App. Div. 2003), Norton v. Town of Islip, 239 F. Supp. 2d 264, 270 (E.D.N.Y.

2003), and Matter of Keller v. Haller, 641 N.Y.S.2d 380, 381–82 (App. Div. 1996)). It is not clear

that property interests for purposes of the Substantive Due Process Clause are necessarily property

interests under the Takings Clause. See Gloria M. Andrews v. City of Mentor, 11 F.4th 462, 469–

73 (6th Cir. 2021) (rejecting argument that “due-process caselaw” should be used to decide takings

claims); Ganci v. New York City Transit Auth., 420 F. Supp. 2d 190, 196–97 (S.D.N.Y.)

(describing due process cases as “instructive in defining ‘property’ for purposes of the Takings

Clause, although it is not necessarily the case that the term ‘property’ in the takings context and

the term ‘property’ in the due process context are coextensive”), aff’d, 163 F. App’x 7 (2d Cir.

2005). But assuming that due process cases can be cross-applied in this way, plaintiff’s claim fails

because plaintiff has not established the clear entitlement to a Certificate of Occupancy that gives

rise to a property interest under those cases. See pp. 5–9, supra.

Any alternative takings theory in plaintiff’s complaint and summary judgment briefing is

too conclusory to survive summary judgment. Plaintiff alludes to regulatory takings. See Pl.’s

Mem. in Supp. 19 (citations omitted); Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J. 16

(Dkt. #30-19) (“Pl.’s Mem. in Opp’n”). A regulatory taking occurs when government regulation

compels a physical invasion of the plaintiff’s property, or when the government denies all

“economically beneficial or productive use of” a property. 1256 Hertel Ave. Assocs., LLC v.

Calloway, 761 F.3d 252, 264 (2d Cir. 2014) (quoting Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1015 (1992)) (quotation marks omitted). “Outside these two categories,” as a general matter,

“regulatory takings claims are governed by Penn Central” which “identified several factors—

including the regulation’s economic impact on the claimant, the extent to which it interferes with

distinct investment-backed expectations, and the character of the government action”—as

“particularly significant in determining whether a regulation effects a taking.” Lingle, 544 U.S. at

528–29 (citation omitted).

Plaintiff cites the Lucas standard in its summary judgment papers—stating that “[t]he

[regulatory] actions of the Defendants effectively den[y] all economically beneficial or productive

use of Plaintiff’s land and constitute a taking . . . [and t]he Town has diminished the value of

property to an unconstitutional level.” Pl.’s Mem. in Supp. 19 (citations omitted); see Pl.’s Mem.

in Opp’n 16 (same statement). But plaintiff does not offer any supporting explanation or analysis.

Because plaintiff “cannot rely . . . on mere conclusory statements” to avoid summary judgment,

Alberti v. Cnty. of Nassau, 393 F. Supp. 2d 151, 161 (E.D.N.Y. 2005) (citing Gottlieb v. County

of Orange, 84 F.3d 511, 518 (2d Cir.1996)), its briefing on this point—which is “merely

conclusory and speculative, with no factual support in the record”—does not preserve an

alternative takings theory, Rochester v. Cnty. of Nassau, No. 10-CV-6017 (PKC) (SLT), 2019 WL

955032, at *4 (E.D.N.Y. Feb. 27, 2019); Daniels v. City of New York, No. 16-CV-190 (PKC) (JO),

2018 WL 4119191, at *7 (E.D.N.Y. Aug. 29, 2018) (same); Alberti v. Cnty. of Nassau, 393 F.

Supp. 2d 151, 167 n.4 (E.D.N.Y. 2005) (similar).

In sum, because the factual record, taken in the light most favorable to plaintiff, does not

establish a protected property interest on the plaintiff’s due-process-derived theory, and that is the

only theory that plaintiff has supported with more than conclusory argument, defendants are

entitled to summary judgment on plaintiff’s takings claim. Defendants’ motion for summary

judgment on this claim is granted, and plaintiff’s cross-motion is denied.

CONCLUSION

Defendants’ motion for summary judgment is granted. Plaintiff’s cross-motion for

summary judgment is denied. The Clerk of Court is respectfully instructed to enter judgment for

defendants and close this case.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: March 29, 2023

Brooklyn, New York