South Nassau Building Corp. v. Town Board of the Town of Hempstead

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SOUTH NASSAU BUILDING CORP.,

MEMORANDUM & ORDER

Plaintiff,

21-cv-00715 (ERK) (AYS)

– against –

TOWN BOARD OF THE TOWN OF

HEMPSTEAD AND TOWN OF

HEMPSTEAD LANDMARKS

PRESERVATION COMMISSION,

Defendants.

KORMAN, J.:

In February 2021, the Town Board of the Town of Hempstead (the “Board”)

designated a house located in Wantagh, New York, as a historic landmark. The house

was built in 1925 in the Colonial Revival style and is owned by the plaintiff, South

Nassau Building Corp. The plaintiff opposed the landmark designation because it

hoped to demolish the house and build two new houses. The house’s landmark status

now impedes it from doing so. In response to this setback, the plaintiff brought this

suit against the Board and the Town of Hempstead Landmarks Preservation

Commission (the “Landmarks Commission”) challenging the landmark designation

on several constitutional grounds. Earlier, I dismissed the plaintiff’s claims against

the Landmarks Commission and its claim against the Board alleging a categorical

taking without just compensation in violation of the Takings Clause. S. Nassau Bldg.

Corp. v. Town Bd. of Hempstead, 624 F. Supp. 3d 261, 281 (E.D.N.Y. 2022). The

plaintiff now moves, and the Board cross-moves, for summary judgment on the

plaintiff’s remaining causes of action.

BACKGROUND1

In March 2020, the plaintiff, South Nassau Building Corp., purchased a house

located at 3171 Elm Place on the corner of Elm Place and Jones Avenue in Wantagh,

New York, an unincorporated hamlet within the Town of Hempstead (the “Town”).

ECF No. 42-22 ¶¶ 3, 7. The plaintiff intended to subdivide the property into two

building lots; raise the existing house, garage, and swimming pool; and build two

new houses that the plaintiff would sell for a profit. Id. ¶¶ 13, 18, 20. Applicable

zoning regulations allow building lots of 6,000 or more square feet. Id. ¶¶ 9–10;

Hempstead, N.Y., Bldg. Zone Ordinance § 29. The property is approximately 20,000

square feet and thus large enough to subdivide into two zoning compliant lots. ECF

No. 42-22 ¶¶ 6, 10.

On July 30, 2020, the plaintiff, through its affiliated company, Fairweather

Builders, Inc., applied to the Nassau County Planning Commission (“NCPC”) for

1 My decision of August 17, 2022, describes the facts of this case in detail

based on the well pleaded allegations in the complaint and the record at that time.

See 624 F. Supp. 3d at 264–69. I recount them briefly here, emphasizing facts that

have since come to light.

approval of a minor subdivision dividing the property into two lots of approximately

10,000 square feet each. Id. ¶ 24; ECF No. 41-8. The proposed property line

dividing the two lots ran through roughly the center of the property and bisected the

existing house. See ECF No. 42-16; ECF No. 41-4. The plaintiff’s application was

accompanied by a letter from the Town’s Chief Building Plan Examiner certifying

that the proposed subdivision complied with the Town’s zoning ordinance. ECF No.

42-22 ¶ 25; ECF No. 41-8, at 6.

While the plaintiff’s subdivision application was pending, a neighbor of the

property, Joan Kemnitzer, applied to the Landmarks Commission requesting that the

house be designated a landmark. Id. ¶ 33; ECF No. 42-10, at 8–10. Pursuant to the

Town’s Code, a landmark is “[a]ny place, structure or building of historical value or

aesthetic interest by reason of its antiquity or uniqueness of architectural design or

as part of the development, heritage or cultural characteristics of the town, county,

state or nation.” Hempstead, N.Y., Code § 76-1. Any building so designated may

not be moved or demolished, nor may its exterior be altered or repaired, without

prior approval of the Landmarks Commission. Id. §§ 76-10, 76-11.

The Town’s Landmarks Preservation Ordinance (the “Ordinance”) sets forth

the procedure for designating a place or building a landmark. Any person, with or

without the owner’s consent, may initiate the process by applying to the Landmarks

Commission. Hempstead, N.Y., Code § 76-6(A). If the Landmarks Commission

decides to consider the application, it must notify both the owner and nearby

property owners, and “[a]ll such owners” must be allowed “to confer with the

[C]ommission prior to a final recommendation by the Commission.” Id. § 76-6(B).

The Landmarks Commission then decides whether to recommend the property to the

Board for designation, taking into account “the special character, ambiance,

historical significance, aesthetic value and uniqueness of architectural design of the

proposed landmark or landmark site wherever applicable.” Id. § 76-6(A), (C). If

the Commission so recommends, the Board must convene a public hearing to

consider the recommendation and ultimately decide whether to designate the

property a landmark. Id. § 76-6(C)–(D).

On September 17, 2020, while Kemnitzer’s application was pending before

the Landmarks Commission, the NCPC approved the plaintiff’s subdivision

application. ECF No. 42-22 ¶ 41; ECF No. 41-11. The plaintiff subsequently filed,

and the Nassau County Clerk’s Office accepted, two new deeds creating two new

lots. ECF No. 42-22 ¶¶ 52–53; ECF No. 41-17. Nevertheless, the plaintiff could

not move forward with its plan to demolish the house because the Town’s

Department of Buildings is prohibited from issuing permits to demolish a proposed

landmark for 120 days after being notified that the Landmarks Commission is

considering a landmark application. See Hempstead, N.Y., Code § 76-7(A).

The Landmarks Commission held three hearings on Kemnitzer’s application:

an initial hearing on October 27, 2020; and two public hearings on December 8,

2020, and January 5, 2021, respectively. ECF No. 42-10, at 2; ECF No. 42-22 ¶ 43.

In preparation for these hearings, Kemnitzer and two other neighbors, Patricia

Emanuel and Heather Famiglietti, prepared a report highlighting the house’s

architecture and history. ECF No. 42-10, at 34–90; ECF No. 42-11, at 118–196. The

Landmarks Commission considered a preliminary version of this report at its initial

hearing and a final updated version with an addendum at its two subsequent public

hearings. ECF No. 42-10, at 35–90; ECF No. 42-11, at 118–218; ECF No. 42-12, at

84–182.

The report contained, among other things, an architectural report by Paul

Daley, an architectural historian; letters from several community organizations and

individuals supporting the landmark application; and a history of the families who

lived in the house. ECF No. 42-10, at 35–90; ECF No. 42-11, at 118–218; ECF No.

42-12, at 84–182. Daley’s architectural report described the house as a “fine,

surviving example of the Colonial Revival” style of architecture, which, he

explained, gained popularity in the early 20th Century. ECF No. 42-11, at 125. The

historical section of the report described the lives of the house’s previous

occupants—the Van Tuyl, Verity, and Motschwiller families. Id. at 128–173.

According to the report, W. Harold Van Tuyl built the house and helped found a

lumber yard, which “supplied the lumber for many of the homes that stand in

Wantagh today.” Id. at 128. Van Tuyl was also a pilot in the Naval Air Force during

World War I. Id. at 129. His son similarly served in World War II and gave his life

for our country. Id. at 130. The Van Tuyls owned the house for thirty-one years,

before they sold it in 1956 to the Veritys, who founded a local barber shop. Id. at

162. Eleven years later, the Veritys sold the House to the Motschwiller family,

operators of Wantagh Auto Body, “one of the oldest businesses in Wantagh.” Id. at

167.

The Landmarks Commission also considered a letter submitted by the plaintiff

from architect Robert Ferraro, who opined that the property did not merit landmark

status. Id. at 220–222. Ferraro wrote that the house had undergone a number of

alterations that “negat[ed] any preservation value” and, on the whole, was “no

different than hundreds and hundreds of similar homes on Long Island.” Id. at 221.

At the close of the second public hearing, the Landmarks Commission voted

unanimously to recommend landmark designation to the Board. ECF 42-12, at 279–

81; ECF No. 41-16. In a short, written decision, it explained: “[T]he home

exemplifies the Colonial Revival style so important a century ago; and the home has

a significant historical connection to the community and Town through the families

that lived there, and the early phase of suburbanization in Wantagh.” ECF No. 41-16.

On February 2, 2021, the Board held a public hearing to review the Landmarks

Commission’s recommendation. ECF No. 41-18. After hearing comments on both

sides of the issue, the Board unanimously approved the recommendation and

designated the property a historical landmark. ECF No. 41-18, at 36–37; ECF No.

42-14. On May 25, 2021, the Board adopted findings of fact further explaining its

decision. See ECF No. 41-19. Those findings conclude that the house:

uniquely exemplifies the Colonial Revival style of architecture so

important a century ago, particularly during the early phase of

suburbanization of the Town; that this unique home has a significant

historical connection to the Wantagh community, as well as the Town

as a whole, through the lives of the families who constructed this unique

home, as well as those that later lived in, and made this their home,

while significantly contributing to the early establishment, and then

growth, of the Town and the Wantagh community.

Id. at 8–9. The findings also emphasize “the role this unique historical home plays

in the historical, architectural, and cultural ‘streetscape’ of the entire surrounding

neighborhood.” Id. at 9.

As noted earlier, the house’s landmark status restricts the plaintiff from

proceeding with its original plan of demolishing the house. It does not, however,

necessarily foreclose all development on the property. To the contrary, a declaration

by the Town’s Chief Plan Examiner for the Department of Buildings, Louis

Carnovale, states that the property is large enough for the plaintiff to build a second

house on it without the need to demolish the landmarked house. ECF No. 42-19

¶¶ 1, 11. This would involve reconfiguring the subdivision and demolishing the

garage and swimming pool (as the plaintiff already planned to do), creating a

building site north of the landmarked house large enough to accommodate a new

house under the Town’s zoning regulations. Id ¶ 11. According to Carnovale,

however, this reconfiguration would require additional approvals: a discretionary

variance from the Town’s Board of Zoning Appeals to deviate below the minimum

frontage requirement, a modification of the subdivision from the NCPC, and

permission from the Landmarks Commission. Id.

The plaintiff did not apply for any of these approvals after the Board

designated its property a landmark. Instead, the plaintiff filed the complaint in this

case on February 10, 2021, eight days after the public hearing at which the Board

voted in favor of designation. ECF No. 1.

On July 1, 2021, the Board and the Landmarks Commission moved to dismiss

the complaint for failure to state a claim. ECF No. 20. I granted the motion with

respect to the plaintiff’s categorical takings claim against the Board and to all claims

against the Landmarks Commission, and otherwise denied the motion. See S.

Nassau Bldg. Corp., 624 F. Supp. 3d, at 281.

STANDARD OF REVIEW

The plaintiff and Board each move for summary judgment in their favor on

the plaintiff’s remaining causes of action pursuant to Federal Rule of Civil Procedure

56. See ECF No. 41; ECF No. 42. The court will grant a motion for summary

judgment if there is “no genuine dispute as to any material fact” and the moving

party is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In

determining whether there is a genuine dispute as to a material fact, [the court must]

resolve all ambiguities and draw all inferences in favor of the non-moving party.”

Vincent v. The Money Store, 736 F.3d 88, 96 (2d Cir. 2013) (citing Donnelly v.

Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012). There is no

“genuine” dispute when “the record taken as a whole could not lead a rational trier

of fact to find for the non-moving party.” Chabad Lubavitch of Litchfield Cnty., Inc.

v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 192 (2d Cir. 2014) (internal

quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)).

DISCUSSION

The plaintiff’s substantive due process, non-categorical takings, and

vagueness claims remain live. The parties dispute how the legal principles

governing these claims apply but agree that there are no genuine issues of material

fact to be tried. ECF No. 51, at 2:13–19. Before turning to these claims, I address

the Board’s preliminary contention that this case must be dismissed because the

plaintiff has failed to join a required party.

I. Joinder of Fairweather Builders, Inc.

The Board contends that non-party Fairweather Builders, Inc. (“Fairweather”)

is a required party that must be joined pursuant to Rule 19(a) of the Federal Rules of

Civil Procedure. ECF No. 42-21, at 16. According to an undisputed declaration

submitted by the plaintiff, Fairweather is the plaintiff’s construction arm and was

authorized by the plaintiff to pursue the subdivision application on the plaintiff’s

behalf before the NCPC. ECF No. 41-25 ¶¶ 8, 13. Thus, while Fairweather was the

applicant for approval of the subdivision, it has no ownership or other interest in the

property at issue here. Id. ¶¶ 11, 13, 21.

Rule 19(a) sets forth two categories of nonparties who must be joined if

feasible. First, joinder is required if “the court cannot accord complete relief among

existing parties” without the nonparty. Fed. R. Civ. P. 19(a)(1)(A). Second,

nonparties who “claim[] an interest relating to the subject of the action” must be

joined in certain circumstances enumerated in the Rule. Id. 19(a)(1)(B).

Fairweather does not fall into either category. First, its absence does not

impede complete relief. Complete relief could be accorded to the plaintiff by

annulling the landmark designation, awarding damages, or granting declaratory

relief; or to the Board by dismissing the plaintiff’s claims, without requiring

Fairweather to do anything. See Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 48

(2d Cir. 1996) (finding no barrier to “complete relief” where “nothing in the district

court’s statements or final judgment require[] the [nonparty] to do anything or

change any of its positions.”). Second, Fairweather claims no interest in the

landmarked house or any other subject of this action. See ECF No. 41-25 ¶ 21; see

also ConnTech Dev. Co. v. Univ. of Connecticut Educ. Properties, Inc., 102 F.3d 677,

682 (2d Cir. 1996) (“[Rule 19(a)(1)(b)] require[s] that the absent party claim a

legally protected interest relating to the subject matter of the action.” (Quoting

Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1044 (9th Cir.1983)).

Consequently, Rule 19(a) does not require Fairweather to be joined in this action.

II. Takings and Substantive Due Process – Ripeness and Finality

Moving on to the outstanding claims, the Board renews its argument—first

raised in its motion to dismiss—that the plaintiff’s takings and substantive due

process claims fail for lack of ripeness. ECF No. 22-15, at 11; 42-21, at 17–26. I

rejected this argument at the motion to dismiss stage because the plaintiff’s well-

pleaded allegations established ripeness. At the summary judgment stage, however,

the undisputed record shows that these claims are indeed unripe. In particular, the

declaration by Louis Carnovale establishes that the plaintiff may be able to build a

second house on the property notwithstanding the landmark designation. But the

plaintiff has not applied to do so. Without a final decision clarifying the extent to

which the landmark designation impedes the plaintiff’s ability to develop its

property, its takings and substantive due process claims are not ripe for adjudication.

“Ripeness is a doctrine rooted in both Article III’s case or controversy

requirement and prudential limitations on the exercise of judicial authority. At its

heart is whether [the court] would benefit from deferring initial review until the

claims [it is] called on to consider have arisen in a more concrete and final form.”

Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005) (citations

omitted). Specific ripeness requirements apply in the context of land use disputes.

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985), the Supreme Court held that a takings claim “is not ripe”

for adjudication until (1) “the government entity charged with implementing the

regulations has reached a final decision regarding the application of the regulations

to the property at issue,” and (2) the plaintiff has exhausted state remedies to receive

just compensation. 473 U.S. at 186, 194–95. The Supreme Court overruled

Williamson County’s second prong—exhaustion of state remedies—in Knick v.

Township of Scott, 588 U.S. 180, 206 (2019). The “final decision” requirement,

however, remains good law and has been expanded in this Circuit to apply to both

takings and substantive due process challenges to land use regulations. See Pakdel

v. City & Cnty. of San Francisco, 594 U.S. 474, 475 (2021) (reaffirming the “final

decision” requirement); see also Murphy, 402 F.3d at 350 (finality requirement

applies to substantive due process and takings claims (citing Southview Assocs. v.

Bongartz, 980 F.2d 84, 97 (2d Cir. 1992))).

Under Williamson County’s finality requirement, if “avenues still remain for

the government to clarify or change its decision, it is not final and therefore not ripe

for judicial review.” Ateres Bais Yaakov Acad. of Rockland v. Town of Clarkstown,

88 F.4th 344, 350 (2d Cir. 2023) (internal quotation marks omitted) (quoting Pakdel,

594 U.S. at 480). The rationales for the finality requirement flow from the nature of

the claims to which it applies: “[B]ecause a plaintiff who asserts a [non-categorical]

taking must prove that the government regulation has gone ‘too far,’ the court must

first know how far the regulation goes.” Pakdel, 594 U.S. at 479 (cleaned up)

(quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986)).

Additionally, the finality requirement ensures that the court can “determine whether

a claimant was deprived of property and whether the government conduct was

arbitrary or capricious”—both elements of a substantive due process claim.

Southview Assocs., 980 F.2d at 97.

Finality is generally conditioned on the property owner “submitting at least

one meaningful application to the relevant municipal entity” for permission to

develop the property. Vill. Green At Sayville, LLC v. Town of Islip, 43 F.4th 287, 296

(2d Cir. 2022) (internal quotation marks omitted) (quoting Murphy, 402 F.3d at 348).

This is because “it is ‘virtually impossible’ for [the court] to determine what

development will be permitted on a particular lot of land when its use is subject to

the decision of a regulatory body invested with great discretion, which it has not yet

even been asked to exercise.” Id. (cleaned up) (quoting Suitum v. Tahoe Reg’l Plan.

Agency, 520 U.S. 725, 739 (1997)). While the requirement is “relatively modest”

and demands only “de facto finality,” a decision is not final unless it leaves “no

question about how the regulations at issue apply to the particular land in question.”

Pakdel, 594 U.S. at 478–79 (internal quotation marks omitted) (quoting Suitum, 520

U.S. at 739).

A plaintiff need not “submit a plan for development of his property . . . [when]

such a submission would [be] pointless.” Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1012 n.3 (1992) (cleaned up) (quotation marks and citations omitted). This

exception means that a plaintiff need not apply for an approval when, for example,

an agency “lacks discretion to grant [the application] or has dug in its heels and made

clear that all such applications will be denied.” Murphy, 402 F.3d at 349.

In denying the Board’s motion to dismiss for lack of ripeness, I concluded that

the plaintiff’s well-pleaded allegations, accepted as true, plausibly established the

futility exception to the ordinary requirement to submit one meaningful application.

S. Nassau Bldg. Corp., 624 F. Supp. 3d at 271. Based on the plaintiff’s submissions,

I found that “the [h]ouse straddles the center of the property in a way that prevents

plaintiff from building a second house.” Id. Because the “goal of the landmark

designation was to assure the preservation of the [h]ouse at its current location,” and

against the backdrop of the extensive process undertaken to landmark the property,

I concluded that any application to develop a two-lot subdivision on the property

would be futile. Id.

At the summary judgment stage, however, I must consider the undisputed

facts in the record, which include the declaration by Louis Carnovale, the Town’s

Chief Plan Examiner for the Department of Buildings. See ECF No. 42-19.

Carnovale’s declaration states that the plaintiff’s property is large enough to

accommodate two building lots of sufficient size under the applicable zoning

regulations without demolishing or moving the existing house. Id. ¶ 11. This could

be done by reconfiguring the subdivision into two lots separated by a property line

running roughly east to west, rather than north to south as the current subdivision is

configured. Id. The landmarked house would occupy the lot to the south of the new

property line, while the lot to the north would be large enough to accommodate the

construction of a second house—albeit, requiring the removal of the garage and pool

that currently occupy that area.2 Id. The plaintiff has not contested the facts set out

2 The plaintiff’s property is within the Town’s Residence “A” Zoning District,

which permits building lots with a minimum lot area of 6,000 square feet. ECF No.

42-22 ¶¶ 9–10; ECF No. 42-19 ¶ 6; see also Hempstead, N.Y., Bldg. Zone Ordinance

§ 29. Carnovale’s declaration states that a 6,300 square-foot building lot could be

carved out of the property to the north of the house. ECF No. 42-19 ¶ 11. Subtracting

that lot area from the property’s total square footage indicates that the lot to the south

containing the landmarked house would be approximately 13,700 square feet. See

ECF No. 42-22 ¶ 6.

in Carnovale’s declaration. Accordingly, there is no dispute that the current location

of the landmarked house does not necessarily foreclose building a second house.

That is not to say that the plaintiff is guaranteed approval of the development

Carnovale proposes. The Board concedes that building a second house on a

reconfigured north lot would require permission from several bodies, some of which

wield considerable discretion. First, the plaintiff would need approval from the

NCPC to reconfigure the subdivision. See Nassau Cnty. Charter § 1610(a)(13)

(defining “subdivision” to include “any alteration of” approved and duly filed “lot

lines or dimensions of any lots or sites.”). Additionally, the reconfigured north lot’s

frontage onto Jones Avenue would be twelve feet less than the zone’s 60-foot

minimum, requiring a variance from the Town’s Board of Zoning Appeals (“BZA”).

ECF No. 42-19 ¶ 11; see also Hempstead, N.Y., Bldg. Zone Ordinance § 29.

Carnovale’s declaration states that construction would also require approval from

the Landmarks Commission. ECF No. 42-19 ¶ 11; see also Hempstead, N.Y., Code

§ 76-10 (requiring Landmarks Commission “review” of “plans for the . . . alteration

. . . of places, sites, structures, or buildings designated as sites.”).

Nevertheless, Carnovale’s declaration shows that it is “possib[le] . . . that

‘some development will be permitted’” on the property, in addition to the existing

house. See Southview Assocs., 980 F.2d at 98 (quoting Macdonald, Sommer &

Frates, 477 U.S. at 352). Indeed, building a second house without demolishing or

moving the existing house would be consistent with the Board’s goal of preserving

the existing house and maintaining the neighborhood’s “streetscape.” ECF No. 42-

15 at 9, 12. Though discretionary, the plaintiff has not disputed that the approvals

needed to develop a two-lot subdivision are within the power of the relevant bodies

to grant.

Because the plaintiff has not submitted at least one application to develop its

property, the court cannot ascertain “whether the [Town will] deny approval for all

uses that would enable the plaintiff[] to derive economic benefit from the property.”

Southview Assocs., 980 F.2d at 98 (internal quotation marks omitted) (quoting

Williamson Cnty. Reg’l Plan. Comm’n, 473 U.S. at 187). As the Supreme Court has

explained, “local agencies charged with administering regulations governing

property development are singularly flexible institutions; what they take with the

one hand they may give back with the other.” MacDonald, Sommer & Frates, 477

U.S. at 350. Had the plaintiff applied to develop its property, the municipal bodies

involved may have indicated the extent to which they would allow development

alongside the existing house. Even if they ultimately withheld their approval, their

decision would refine the issues for the court to address in resolving the plaintiff’s

claims. By proceeding straight to litigation, the plaintiff bypassed the “give-and-

take negotiation that often resolves land use problems.” Vill. Green At Sayville, 43

F.4th at 297. The court is thus left to guess at how the landmark designation

“appli[es] to the particular land in question” because “avenues still remain for the

government to clarify” what development will be permitted—in particular, whether

the Board would allow development along the lines described in Carnovale’s

declaration. Pakdel, 594 U.S. at 478, 480.

The plaintiff does not directly address the significance of Carnovale’s

declaration to the ripeness inquiry.3 It notes, however, that Carnovale’s proposed

reconfiguration would require “at least one variance from the” BZA. ECF No. 41-

24 at 21. But the plaintiff does not contend that the BZA “lacks discretion to grant

variances” or that that applying for a variance would otherwise be futile. See

Murphy, 402 F.3d at 349. The discretionary nature of the relief alone does not excuse

the plaintiff from the general rule that a landowner must submit “at least one

meaningful application for a variance” before suing. E.g., Murphy, 402 F.3d at 348;

Vill. Green At Sayville, 43 F.4th at 296.

Nor is finality established simply because Carnovale’s proposed

reconfiguration would require the approvals of multiple entities—namely, the BZA,

3 The plaintiff’s reply brief states that the “legal relevance of Carnovale’s

development suggestion is not apparent.” ECF No. 41-24 at 21. However, the

Board’s opening brief—while not a model of clarity—clearly cited Carnovale’s

declaration to support its argument that Williamson County ripeness was absent. The

Board invoked the declaration in its discussion of ripeness and argued: “[T]he

landmark designation not withstanding [sic], with variances the [p]laintiff may

conceivably develop a two-lot subdivision without destroying or moving the Van

Tuyl house.” ECF No. 41-23 at 26.

NCPC, and Landmarks Commission. Indeed, Williamson County itself presented

similar circumstances. There, the Supreme Court held that the County Planning

Commission’s rejection of a proposal to develop the plaintiff’s property was not a

“final decision” because the plaintiff had not sought “variances from either the

Board [of Zoning Appeals] or the [Planning] Commission,” each of which had the

power to grant certain of the variances needed. Williamson Cnty. Reg’l Plan.

Comm’n, 473 U.S. at 188 (emphasis added). Similarly, in BMG Monroe I, LLC v.

Village of Monroe, 93 F.4th 595 (2d Cir. 2024), the Second Circuit held that a

property owner’s failure to seek variances from either of two agencies empowered

to grant relief from applicable architectural requirements rendered its claims unripe.

93 F.4th at 603. The court explained, “even if futility excused [the property owner]’s

failure to seek a variance from the [Zoning Board of Appeals], it would not excuse

[it]’s failure to seek a second variance from the Village Planning Board.” Id. at 604

n.6. As in Williamson County and BMG Monroe I, the plaintiff here is not excused

from applying to develop its property simply because it must seek approvals from

more than one agency.

The plaintiff next contends that Carnovale’s proposed reconfiguration would

require the plaintiff to “scrap its approved subdivision and start over with a new

plan” that would involve selling “the century-old [h]ouse” on the south lot “instead

of a newly constructed dwelling designed to modern living sensibilities.” ECF No.

41-24 at 21. As an initial matter, the Ordinance only restricts the alteration of

exterior building features; the plaintiff remains free to renovate the house’s interior

without approval from the Landmarks Commission. See Hempstead, N.Y., Code §

76-10(D). More importantly, the Takings Clause does not guaranty a property owner

the “most beneficial use of the[ir] property.” Penn Cent. Transp. Co. v. City of New

York, 438 U.S. 104, 127 (1978) (emphasis added) (citing Goldblatt v. Hempstead,

369 U.S. 590, 592 (1962)). Accordingly, a decision is not final simply because it

makes clear that the municipality would reject the property owner’s preferred

development plan.

To the contrary, courts have routinely held that a rejection of one plan is not

“final” if it remains possible that the municipality would approve a different plan—

typically, one that responds to the municipality’s initial concerns. See, e.g.,

Macdonald, Sommer & Frates, 477 U.S. at 351–53, 351 n.8 (finding no finality

where planning commission rejected “only one intense type of residential

development” but it remained “possibl[e] that some development will be

permitted”); cf. Penn Cent. Transp. Co., 438 U.S. at 136–37 (finding no regulatory

taking because plaintiff had “not sought approval for . . . a smaller structure” than

its proposed 50-plus story office tower). The Second Circuit’s decision in Southview

Associates, Ltd. v. Bongartz, demonstrates this principle: There, the court held that

the Vermont Environmental Board’s denial of a subdivision proposal was not “final”

because the developer had not sought “a permit for a subdivision situated on another

part of its property.” 980 F.2d at 98–99 (emphasis added). Despite the Board’s

rejection of “one particular subdivision approval,” the court found that the Board

“would be receptive to a subdivision proposal that placed lots in a different segment

of the . . . property so as to minimize impact on” deer habitat. Id. at 99. The

developer had not pursued a reconfigured proposal; so, it remained unclear what

development the Board would permit. Id. Consequently, the developer’s takings

and substantive due process claims were unripe. Id.

So too here: The plaintiff is asking the court to intervene before the relevant

municipal entities have weighed in on whether the plaintiff can build a second house

on a different part of its property. While the plaintiff would clearly prefer to build

two new houses, it has “not [shown] that only [development] along the lines of its

[original plan] would avert a regulatory taking.” See MacDonald, Sommer & Frates,

477 U.S. at 351 n.8 (emphasis added). To the contrary, the plan described in

Carnovale’s declaration would allow the plaintiff to develop and sell two houses on

two separate building lots, providing a beneficial use of both lots. Moreover, the

record does not indicate that the relevant municipal entities would be unreceptive to

a development plan that preserves the existing house at its current location.

In sum, the plaintiff has not obtained a final decision clarifying the extent of

development that will be permitted on its property. While the Landmarks

Commission seems likely to reject the original plan involving the demolition of the

landmarked house, the plaintiff’s failure to pursue any other plan despite the

existence of a possible alternative configuration “leaves undetermined the permitted

use of the property in question.” BMG Monroe I, LLC, 93 F.4th at 601 (internal

quotation marks omitted) (quoting Murphy, 402 F.3d at 353). Accordingly, the

plaintiff’s non-categorical takings and substantive due process claims are unripe. As

to both, the Board’s motion for summary judgment is granted, and the plaintiff’s

motion denied.4

III. Vagueness

The plaintiff’s remaining cause of action challenges the Ordinance as

unconstitutionally vague. The Ordinance, however, is sufficiently definite as applied

to the plaintiff’s property to pass constitutional muster.

A. The Vagueness Doctrine

Among the “most fundamental protections of the Due Process Clause” is the

requirement that “laws be crafted with sufficient clarity to give the person of

ordinary intelligence a reasonable opportunity to know what is prohibited and to

provide explicit standards for those who apply them.” Thibodeau v. Portuondo, 486

F.3d 61, 65 (2d Cir. 2007) (cleaned up) (citations omitted). A statute may be

4 Because I resolve both claims on their lack of Williamson County ripeness,

I do not reach the merits of either.

unconstitutionally vague on either of two grounds: “[f]irst, if it fails to provide

people of ordinary intelligence a reasonable opportunity to understand what conduct

it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory

enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000) (citing Chicago v.

Morales, 527 U.S. 41, 56–57. Plaintiff’s challenge to the Ordinance is premised on

the second ground. Under this aspect of the vagueness doctrine, “[a] regulation will

encounter valid vagueness objection if it accords ‘unfettered discretion’ to those who

enforce it.” Hayes v. New York Att’y Grievance Comm. of the Eighth Jud. Dist., 672

F.3d 158, 169 (2d Cir. 2012) (quoting Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir.

1999)).

“The degree of vagueness tolerated in a statute varies with its type: economic

regulations are subject to a relaxed vagueness test, laws with criminal penalties to a

stricter one, and laws that might infringe constitutional rights to the strictest of all.”

VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010) (internal

quotation marks omitted) (quoting Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir.

2008)). The Ordinance at issue here is a civil statute and, as such, is not

impermissibly vague unless its commands are “so vague and indefinite as really to

be no rule or standard at all.” Ass’n of Int’l Auto. Mfrs., Inc. v. Abrams, 84 F.3d 602,

614 (2d Cir. 1996) (internal quotation marks omitted) (quoting Boutilier v. Immigr.

& Naturalization Serv., 387 U.S. 118 (1967)).

In reviewing an ordinance for vagueness, “we are relegated to the words of

the ordinance itself, to the interpretations [state courts have] given to analogous

statutes, and, perhaps to some degree, to the interpretation of the statute given by

those charged with enforcing it.” Grayned v. City of Rockford, 408 U.S. 104, 110

(1972) (cleaned up) (citation omitted). Neither “mathematical certainty” nor

“meticulous specificity” is required. Id. (citation omitted). Rather, because

“language is necessarily marked by a degree of imprecision,” Thibodeau, 486 F.3d

at 66, statutory text may reflect “flexibility and reasonable breadth” without running

afoul of due process, Grayned, 408 U.S. at 110.

The plaintiff mounts both facial and as-applied vagueness challenges to the

Ordinance. “A facial challenge is an attack on a statute itself as opposed to a

particular application.” City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015). By

contrast, in an as-applied challenge, an ordinance’s vagueness is assessed “in light

of the specific facts of the case at hand.” United States v. Rybicki, 354 F.3d 124, 129

(2d Cir. 2003) (citation omitted). “A plaintiff who engages in some conduct that is

clearly proscribed cannot complain of the vagueness of the law as applied to the

conduct of others.” Id. at 130 (quoting Vill. of Hoffman Ests. v. Flipside, Hoffman

Ests., Inc., 455 U.S. 489, 494–95 (1982)). Thus, courts “evaluate ‘[v]agueness

challenges to statutes not threatening First Amendment interests’ . . . only ‘on an as-

applied basis.’” United States v. Requena, 980 F.3d 30, 40 (2d Cir. 2020) (quoting

Maynard v. Cartwright, 486 U.S. 356, 361 (1988)). Because the plaintiff does not

contend that the Ordinance threatens First Amendment interests, only its as-applied

vagueness challenge is viable.

B. Vagueness As-Applied

Assessing the sufficiency of an ordinance’s enforcement standards in an as-

applied challenge involves two steps. First, the court asks whether the “statute as a

general matter provides sufficiently clear standards to eliminate the risk of arbitrary

enforcement.” VIP of Berlin, LLC, 593 F.3d at 191 (internal quotation marks

omitted) (quoting Farrell v. Burke, 449 F3.d 470, 494 (2d Cir. 2006)). Second, “even

in the absence of such standards,” the court may reject a vagueness challenge if “the

conduct at issue falls within the core of the statute’s prohibition, so that the

enforcement before the court was not the result of the unfettered latitude that law

enforcement officers and factfinders might have in other, hypothetical applications

of the statute.” Id. (quoting Farrell, 449 F3.d at 494 (2d Cir. 2006)). Here, the

inquiry starts and ends at the first step because the Ordinance sets forth sufficiently

clear standards to curb arbitrary enforcement as a general matter.

To determine whether the Ordinance provides generally clear enforcement

standards, I begin with “the words of the ordinance itself.” Grayned, 408 U.S. at

110. Two of its provisions speak to the standard for designating a landmark. Most

directly, Section 76-1 of the Town Code defines a landmark as “[a]ny place, structure

or building of historical value or aesthetic interest by reason of its antiquity or

uniqueness of architectural design or as part of the development, heritage or cultural

characteristics of the town, county, state or nation.” Hempstead, N.Y., Code § 76-1.

In addition, Section 76-6(A) delineates the factors the Landmarks Commission must

consider, to the extent applicable, in recommending a landmark application to the

Board. These factors are “the special character, ambiance, historical significance,

aesthetic value and uniqueness of architectural design of the proposed landmark.”

Id § 76-6(A).

As is obvious, both provisions leave ample room for the Board and Landmarks

Commission to exercise discretion in deciding landmark applications. The

Ordinance does not define “historical value,” “aesthetic interest,” “uniqueness,” or

“antiquity.” Indeed, each of these concepts is partly subjective. Such “flexibility

and reasonable breadth,” however, does not necessarily violate due process.

Grayned, 408 U.S. at 110.

To the contrary, courts have generally held that concepts like cultural

significance, historical value, and aesthetic interest have common sense meanings

that can be applied in a reasonably objective manner. See, e.g., Maher v. City of New

Orleans, 516 F.2d 1051, 1061–63 (5th Cir. 1975) (rejecting claim that historic

districting ordinance lacked sufficient enforcement standards); Kruse v. Town of

Castle Rock, 192 P.3d 591, 599 (Colo. App. 2008) (“[Historic preservation]

ordinances must contain broad terms to permit application to different potentially

historic properties.”). But cf. Anderson v. City of Issaquah, 851 P.2d 744, 747, 751–

52 (Wash. Ct. App. 1993) (holding that building design ordinance prescribing, inter

alia, “harmonious” colors, “appropriate proportions,” and “complimentary details”

was unconstitutionally vague, as-applied). Indeed, as the Second Circuit has

explained, it is “doubt[ful] that a municipality could maintain a reasonable level of

architectural homogeneity or historical fidelity—both of which are proper

governmental purposes—in the absence of judgments that are partly subjective.”

Lusk v. Vill. of Cold Spring, 475 F.3d 480, 495 (2d Cir. 2007).

In fact, several courts have rejected vagueness challenges to historic

preservation ordinances similar in some respects to the Ordinance. For example, in

Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, 853 F. Supp.

2d 214 (D. Conn. 2012), the district court rejected a vagueness challenge to an

ordinance governing the use of buildings located in a historic district. 853 F. Supp.

2d at 234–35. The ordinance required the Borough’s historic district commission to

consider several factors before permitting proposed uses, including the building’s

“historical and architectural value and significance,” as well as its “architectural

style, scale, general design, arrangement, texture and material and the relationship

thereof to . . . other buildings and structures in the immediate neighborhood.” Id. at

233–34 (quoting Conn. Gen. Stat. § 7-147f). The district court explained that, while

“some of these criteria are subjective, they are sufficiently tied to objective aesthetic

standards to provide necessary guidance to the [commission] such that the

[c]ommission is not vested with unbridled discretion.”5 Id. at 234–35.

Similarly, Rector, Wardens, & Members of the Vestry of St. Bartholomew’s

Church v. City of New York (“St. Bartholomew’s”), 728 F. Supp. 958 (S.D.N.Y. 1989),

rejected a facial vagueness challenge to New York City’s landmarks preservation

ordinance. 728 F. Supp. at 964. In terms similar to the Ordinance here, New York

City’s ordinance defined a “landmark” as:

[a]ny improvement, any part of which is thirty years old or older, which

has a special character or special historical or aesthetic interest or value

as part of the development, heritage or cultural characteristics of the

city, state or nation, and which has been designated as a landmark

pursuant to the provisions of this chapter.

N.Y.C., Admin. Code § 25-302(n) (1989). The district court held that the ordinance

“unquestionably” satisfied due process because it “provide[d] a property owner with

adequate notice of the law’s requirements and the opportunity for an extensive

hearing.” 728 F. Supp. at 964. “[S]ince a reasonable person can and should know

what standards must be met in . . . opposing a landmark designation,” the court

5 On appeal, the Second Circuit affirmed the district court’s decision in

relevant part, although only on the ground that the plaintiff waived the issue of

vagueness due to insufficient briefing on appeal, and vacated on other grounds.

Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 768

F.3d 183, 200 (2d Cir. 2014).

concluded that the ordinance was “not impermissibly vague.”6 Id. While analogous

to this case in many regards, St. Bartholomew’s is distinct in two ways. First, it

resolved a facial, rather than as-applied, vagueness challenge. Id. at 962. Second,

the decision analyzed only whether the ordinance gave adequate notice of its

requirements—not whether the ordinance authorized or encouraged arbitrary and

discriminatory enforcement. See id. at 964. In other words, the court did not address

the ground for vagueness advanced by the plaintiff here.7 Nevertheless, St.

Batholomew’s is one among a chorus of decisions holding that concepts like

“historical or aesthetic interest”—which are core to historic preservation statutes—

are sufficiently concrete to pass constitutional muster.

In accordance with these decisions, the factors set forth in the Ordinance for

designating a landmark are clear enough to curb arbitrary and discriminatory

enforcement. “What renders a statute vague is not the possibility that it will

sometimes be difficult to determine whether the [standard] it establishes has been

proved; but rather the indeterminacy of precisely what that [standard] is.” United

6 On appeal, the plaintiff did not renew its vagueness challenge and instead

pursued only free exercise and takings claims. See Rector, Wardens, & Members of

Vestry of St. Bartholomew’s Church v. City of New York, 914 F.2d 348, 353 (2d Cir.

1990).

7 This may be because St. Bartholomew’s pre-dates much of the caselaw

elaborating the two distinct aspects of the vagueness doctrine. See, e.g., Hill v.

Colorado, 530 U.S. 703, 732 (2000); Farrell v. Burke, 449 F.3d 470, 784–85 (2d Cir.

2006).

States v. Williams, 553 U.S. 285, 306 (2008). Here, there is no question what the

Ordinance requires: To be eligible for landmarking, a building must have “historical

or aesthetic interest,” and that interest must be tied to “its antiquity or uniqueness of

architectural design” or to its connection with “the development, heritage or cultural

characteristics of the town, county, state or nation.” Hempstead, N.Y., Code § 76-1.

The factors set out in § 76-6(A) further guide the Landmarks Commission in

determining whether a building meets this standard—and by extension the Board in

acting on the Commission’s recommendation. While these terms are partly

subjective, they have common sense meanings that—like other historic preservation

statutes—adequately cabin the discretion of the Board and Landmarks Commission.

Moreover, New York law provides additional protection by authorizing

individuals to challenge local agency action on the ground that it was arbitrary and

capricious or an abuse of discretion. See N.Y. C.P.L.R. art. 78 (McKinney 2025); id.

§ 7803(3). This procedure, known as an Article 78 proceeding, can be used to

challenge a landmark designation affecting the challenger’s property. See, e.g., 989

Hempstead Tpk., LLC v. Town Bd. of Hempstead, 187 N.Y.S.3d 662, 664 (App. Div.

2023); Stahl York Ave. Co., LLC v. City of New York, 905 N.Y.S.2d 37, 40 (App. Div.

2010). For example, in Paloma Homes, Inc. v. Petrone, 781 N.Y.S.2d 675 (App.

Div. 2004), Article 78 was used to obtain an order annulling a landmark designation

of the petitioner’s property where the town board had failed to set forth “specific

findings of fact to support its determination.” 781 N.Y.S.2d at 677. This opportunity

under state law for judicial review of local agency action significantly weakens the

plaintiff’s contention that the Ordinance does not “as a general matter . . . eliminate

the risk of arbitrary enforcement.” VIP of Berlin, LLC, 593 F.3d at 191 (citation

omitted).

The plaintiff contends, however, that the Board’s interpretation of the

Ordinance in this particular case was unconstitutionally vague because it allowed

the Board to essentially ignore the Ordinance’s text. We may look to “the

interpretation of the statute given by those charged with enforcing it” in reviewing

an as-applied vagueness challenge. Grayned, 408 U.S. at 110 (cleaned up) (citation

omitted).

The plaintiff points to the Board’s findings of fact supporting its decision to

landmark the plaintiff’s property. See Pl’s. Ex. Q, ECF No. 41-19. There, the Board

summarized the record and recited the relevant law it considered in granting the

landmark application. Id. It explained that it considered “the standards articulated

in the controlling ordinance” and the factors “set forth in §76-6A of the Town Code,”

“as well as such factors deemed relevant by the Board.” Id. at 8 (emphasis added).

In a footnote to this final clause, it cited two New York Court of Appeals decisions—

Cummings v. Town Board of North Castle, 466 N.E.2d 147 (N.Y. App. Div. 1984),

and Buitenkant v. Robohm, 505 N.Y.S.2d 884 (App. Div. 1986)—which held:

Where a legislative body such as a town board reserves to itself the

power to grant special use permits, it need not set forth any standards

to govern the exercise of its discretion. The only limitation upon this

exercise of discretion is that it must not be arbitrary or capricious.

Buitenkant, 505 N.Y.S.2d at 885 (emphasis added) (citation omitted); see also

Cummings, 466 N.E.2d at 148 (“When the legislative body reserves to itself the

granting of special exceptions it need set forth no standards for the exercise of its

discretion . . . .”). The Board has also cited Buitenkant and Cummings in its briefing

to this Court, where it has claimed to have “untrammeled, but of course not

capricious discretion” to designate landmarks and contended that it “is guided, but

not constrained by” the § 76-6(A) factors that govern the Landmarks Commission’s

review of a landmark application. ECF No. 41-23, at 57–58 (internal quotation

marks omitted) (quoting Cummings, 466 N.E.2d at 148).

The plaintiff contends that this asserted authority to deem additional factors

to be relevant to the Board’s decision allows the Board to ignore the Ordinance’s

text and designate landmarks based on “unknown factors at its whim.” ECF No. 41-

22, at 18–19. Moreover, it contends that Buitenkant and Cummings apply in the

context of special use permits—not landmark designations, which must be made in

accordance with statutory standards. Id. at 20 (citing Paloma Homes, Inc., 781

N.Y.S.2d at 676–67). Thus, the Board’s claim of “untrammeled” discretion to

designate landmarks reveals the absence of clear enforcement standards governing

its application of the Ordinance to the plaintiff’s property.

While it is a close question, the Board’s decision, taken as a whole, does not

support the plaintiff’s contention that the Board interpreted the Ordinance to permit

the use of extra-statutory considerations in designating the plaintiff’s property a

landmark. Rather, further review of the Board’s decision indicates that it was based

on the Board’s judgment—reasonable or not—about the house’s aesthetic and

architectural value and its connection to Hempstead’s history. See Hempstead, N.Y.,

Code § 76-1. For example, the Board’s findings of fact emphasized the house’s

“graceful, classically inspired symmetry,” which in its view “exemplifies the

Colonial Revival Style.” ECF No. 41-19, at 10. The Board also found that the

house’s “style, size, and date of construction” typify the era “when Wantagh made

the transition to suburban community,” making the house an “historical,

architectural, and cultural anchor of” the neighborhood. Id. at 10–12. It also noted

the contributions to the community and nation of various individuals who have lived

in the house: W. Harold Van Tuyl supplied materials for homes in the area through

his lumber business and served as a flyer in World War I; his son, Richard Van Tuyl,

flew in World War II and was shot down over enemy territory; and the Motschwiller

family, who most recently occupied the house, operated a business in one of

Wantagh’s historic buildings. Id. at 9–11.

Agree with the Board’s decision or not, it was—as the Ordinance requires—

grounded in the Board’s judgment about the house’s “historical, architectural, or

cultural significance to the local community.” Id. at 13; see also Hempstead, N.Y.,

Code § 76-6(A). As I explained in my order of August 17, 2022, aspects of the

record undermine the Board’s rationale to some extent. For example, the Board’s

findings repeatedly emphasized the house’s uniqueness. See S. Nassau Bldg. Corp.,

624 F. Supp. 3d at 268–69. Yet the applicant’s own expert, Paul Daley, wrote that

“revival styled homes [still] remain on both Elm Place and Jones Avenue.” ECF No.

42-11 at 127. And the Board itself stated that “the Colonial Revival style found

fertile ground in the Town of Hempstead.” ECF No. 41-19 at 10. Nevertheless, the

relevant point for purposes of the vagueness inquiry is that it is clear what standard

the Board was applying. Whether its application of that standard was arbitrary and

capricious or an abuse of discretion is a question an Article 78 proceeding might

have resolved. The plaintiff did not pursue such review.

Because the Ordinance, as-applied to the plaintiff’s property, provides

“sufficiently clear standards to eliminate the risk of arbitrary enforcement,” I need

not consider whether the property at issue falls within the Ordinance’s “core.” VIP

of Berlin, LLC, 593 F.3d at 191. The plaintiff’s claim that the Ordinance is

unconstitutionally vague as-applied falls short at the first step of the inquiry. The

Board is therefore entitled to summary judgment on the plaintiff’s vagueness claim.

CONCLUSION

The Board’s motion for summary judgment is granted as to all remaining

causes of action in the complaint, and the plaintiff’s motion for summary judgment

is denied.

SO ORDERED.

Brooklyn, New York Edward R. Korman

September 24, 2025 United States District Judge