Albra

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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GLD3, LLC and SNOOK-9 REALTY, Inc. :

Plaintiffs, :

:

v. :

:

AZEM ALBRA, Town Supervisor and Town :

Board Member of the Town of Fishkill in his :

official capacity, JACQUELINE BARDINI, as a :

Town Board Member of the Town of Fishkill in : OPINION AND ORDER

her official capacity, JOSEPH BUONO, as a :

Town Board Member of the Town of Fishkill in : 21 CV 11058 (VB)

his official capacity, LOUISE DANIELLE, as a :

Town Board Member of the Town Of Fishkill in :

her official capacity, KENYA GADSDEN, as a :

Town Board Member of the Town of Fishkill in :

her official capacity, the TOWN BOARD OF :

THE TOWN OF FISHKILL, the TOWN OF :

FISHKILL, and DOES 1-20. :

Defendants. :

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Briccetti, J.:

Plaintiffs GLD3, LLC, and Snook-9 Realty, Inc., bring this action pursuant to 42 U.S.C. §

1983 against the Town Board of the Town of Fishkill (the “Town Board”); the Town of Fishkill

(the “Town”); the Town Supervisor, Azem Albra; Town Board Members Jacqueline Bardini,

Joseph Buono, Louise Daniele, Kenya Gadsden; and “Does 1–20.” Plaintiffs allege defendants

violated their rights under the United States Constitution and analogous New York State law to

procedural due process, substantive due process, and equal protection, by delaying various

municipal permits and approvals necessary for the plaintiffs to develop their property and by

enacting certain legislation that imposed additional conditions and limitations on plaintiffs’

proposed development. Plaintiffs also allege a regulatory takings claim in violation of the Fifth

Amendment.

Now pending is defendants’ motion for summary judgment. (Doc. #103). For the

reasons set forth below, the motion is GRANTED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331.

BACKGROUND

The parties have submitted briefs, statements of material facts pursuant to Local Civil

Rule 56.1, and declarations with exhibits. These submissions reflect the following factual

background.

I. Continental Commons

Plaintiffs own two commercial parcels (the “Property”) totaling about ten acres in

Fishkill, New York. The Property falls within the boundaries of what is known as the Fishkill

Supply Depot, formerly a strategic location for the Continental Army during the Revolutionary

War. The Property falls within a 74-acre tract listed on the National Register of Historic Places.

In 2007, plaintiffs began planning the development of what they called the Continental

Commons within the Property, which included construction of a restaurant, hotel, shops, and a

visitor center.

At the southwestern corner of the Property is a burial area which takes up about four

tenths of an acre (the “Burial Area”). The Burial Area was discovered in 2007, when an

archeological investigation identified seven suspected grave shafts. One grave shaft was

confirmed to contain a human burial. Plaintiffs have agreed not to build on the Burial Area, and

it has been permanently preserved through a conservation easement. Plaintiffs voluntarily placed

a marker in the Burial Area to honor fallen Revolutionary War soldiers and other veterans. To

date, there has been no evidence to suggest that the person buried on the Property was a

Revolutionary War soldier or that the area was a Revolutionary War burial site.

II. The Town Board

On November 5, 2019, defendants Albra and Daniele were elected to the Town Board

with Albra elected as the Town Supervisor. They took office on January 1, 2020. Both

campaigned in their respective elections in opposition to the development of Continental

Commons. Members of the Town Board including Albra, Daniele, and defendant Bardini (who

was already a member of the Board) communicated with Lance Ashworth, president of the

Friends of the Fishkill Supply Depot (“FOFSD”), a not-for-profit organization opposing the

development of Continental Commons, about their opposition to the project and various

strategies to impede it.

III. Initial Development and Approvals

On April 11, 2019, the Fishkill Planning Board (“Planning Board”) issued a State

Environmental Quality Review Act (“SEQRA”) “negative declaration” determining Continental

Commons “will not have a significant adverse environmental impact and therefore preparation of

an Environmental Impact Statement in not required.” (See Doc. #106 (“Randazzo Decl.”) Ex. D

at 1). The SEQRA negative declaration set forth other approvals required to develop Continental

Commons, including: (i) water and sewer agreements/district extensions by the Town Board; (ii)

site development plan approval by the Planning Board; (iii) special use permit by the Planning

Board; and (iv) water and sewer plan approval by the Dutchess County Department of Health.

On December 12, 2019, the Planning Board amended the negative declaration and granted

plaintiffs’ preliminary site plan approval and special permit use approval for Continental

Commons (“conditional site plan approval”). The preliminary site plan approval conditioned the

final site plan approval on plaintiffs’ compliance with eighteen conditions. (See Doc. #109

(“Riccardulli Decl.”) Ex. 38 at 17–20).

IV. Extension of the Blodgett Water and Sewer Districts

As part of the initial approvals, Continental Commons needed to obtain a water and

sewer agreement or a district extension of an existing water and sewer district. At an April 17,

2019, Town Board meeting, counsel for the Town Board advised that if the town had capacity

and feasibility for the water and sewer districts, it could not deny the petitions. On or about

October 30, 2019, plaintiffs filed two petitions to extend the Blodgett water and sewer districts

(the “Water and Sewer Districts”).

The Town Board held a public hearing regarding the petitions on December 4, 2019.

Approval of the petitions at this meeting was important to plaintiffs because the incoming board

was openly opposed to the development. The vote on the water and sewer petitions did not go

forward that night because plaintiffs’ attorney stated she failed to properly notice the hearing.1

0F

The vote on the petitions was tabled until a December 18, 2019, meeting. This meeting was

cancelled due to a lack of quorum. The meeting was rescheduled to December 30, 2019, and

was subsequently postponed because Albra sought an injunction preventing the Board from

holding the meeting based on the allegation that the then-Town Supervisor exceeded his

authority by unilaterally scheduling the meetings prior to the expiration of his term.

After the new board took over in January 2020, the board held public meetings on the

Water and Sewer District petitions on January 22, February 5, February 19, and March 4, 2020.

There were also public hearings during the Town Board meetings on April 1 and May 27. The

Town Board left the public comment period open through June 6, 2020, and plaintiffs responded

1 Plaintiffs subsequently sued the lawyer and firm who represented them for legal

malpractice and breach of fiduciary duty in connection with the land use applications in Dutchess

County Supreme Court. See GLD3, LLC, et al. v. Cuddy & Feder LLP, et al., Index No. 2023-

51772. (Randazzo Decl. Ex. C).

on June 26, 2020.

Following the public hearings the Town Board also had meetings on September 2 and 16,

2020, to discuss resolutions to approve extensions to the Water and Sewer Districts. On

September 16, 2020, the Town Board voted against the extensions, with three votes in favor of

disapproving the resolutions and none against. Albra abstained from voting on the resolutions.

On January 15, 2021, plaintiffs filed an Article 78 petition in the Dutchess County

Supreme Court alleging the denials were arbitrary and capricious, constituting an abuse of

discretion and exceeding the Town Board’s legal authority. On September 19, 2022, the court

granted the Article 78 petition, annulled the Town Board’s resolutions denying the extensions,

and remanded to the Town Board with directions to grant the petitions.

V. Zoning Laws

Starting in April 2021, the Town Board began to discuss proposed amendments to zoning

laws related to aquifer protection and historic preservation. The Town Board engaged CPL, an

engineering firm, to assist in creating a plan around historic and groundwater preservation. In an

April 7, 2021, memorandum to the Town Board, Albra wrote the purpose of the proposed zoning

laws was “the protection of cultural and historical resources” and “the protection of groundwater

and aquifer resources in the Town of Fishkill” in order to ensure health, safety, and wellbeing of

its citizens. (Randazzo Decl. Ex. MM at ECF 8, 11)2.

1F

Liz Axelson of CPL prepared a map identifying historical sites and markers in Fishkill

(“Historic Map”), which included references to the Property. On August 11, 2021, the Town

Board discussed amendments to the town code to (i) “provide aquifer protection to preserve

2 “ECF ___” refers to page numbers automatically assigned by the Court’s Electronic Case

Filing system

drinking water quality for the future,” and (ii) “adopt historical preservation measures to protect

the Town’s vast historical and cultural resources” based on the Historic Map. (See Randazzo

Decl. Ex. RR at 7, 28).

On September 15, 2021, the Town held a public meeting on the proposed zoning laws.

Albra stated the purpose of the historic preservation code amendments (the “Historic Law”) was

to protect the residents of Fishkill and to transfer power from the developers to the citizens.

Axelson presented and explained that the Historic Law would regulate “other structures, if any,

designated as historically significant by the Town Board of the Town of Fishkill . . . . [I]t would

also address land disturbance on a site or parcel identified as a historic site, a former cemetery, or

burial site, a potential archaeological site, a site identified [by] the New York State Historic

Preservation Office . . . or a site that is located in or adjacent to an area designated as sensitive

for archaeological sites.” (Doc. #115 ¶ 109). During her presentation, Axelson did not refer to

plaintiffs or Continental Commons, but noted the designation of “Veterans’ Fishkill Supply

Depot Site and soldiers burial ground, [as] sort of one combined site.” (Doc. #115 ¶ 108).

Plaintiffs allege, and defendants dispute, that the agenda packet of the September 15

meeting was the first time the Town published drafts of the code amendments and the August 3

draft of the Historic Map. Plaintiffs also allege, and defendants also dispute, that

“notwithstanding the proposed regulation and designation of the Property, the Town did not

notify them of the proposed code amendments or the designation.” (Doc. #115 ¶ 106).

On September 22, 2021, counsel for plaintiffs emailed the Town Board’s attorney

expressing concerns as to why the word “veteran” was being used to refer to the Fishkill Supply

Depot and the Property. Counsel also requested to review the underlying materials used in

designating the Property as they did not believe it was correctly designated. The email was

forwarded to Albra and Axelson, but there is no response in the record. On September 22, 2021,

Albra’s secretary emailed Axelson stating, “The Supervisor would like the area at the corner of

Van Wyck Lake Road and Route 9 [referring to the Property] identified in your Historical

Preservation Map and Law, labeled ‘Revolutionary War Soldiers Graves.’” (Doc. #115 ¶ 116).

A. The Dutchess Mall and Deer Crossing Sites

On September 21, 2021, Albra received an email from the Dutchess Mall representatives,

another development in the area, expressing concern about the effect of the proposed zoning

laws. The email noted “[o]bviously we are not historic or cultural.” (Doc. #115 ¶ 119). The

Dutchess Mall site was also on the National Register of Historic Places. Albra emailed Axelson

stating: “I have 2 private consultants with concerns over the Dutchess Mall site. I want this site

developed and do not want anything to slow that down. Please review the below emails and let

me know if their concerns are valid or not.” (Doc. #115 ¶ 120). He emailed again on September

30, 2021, stating “[a]ny updates on these questions, I don’t want anything that will delay any

type of construction on the Dutchess Mall Site.” (Id. ¶ 121). The communications between

Axelson and Albra about the Dutchess Mall site were not included in the record for the Historic

Law.

On September 30, 2021, Axelson and Albra went on site visits to identify other historic

sites and markers. Among the sites they visited was Deer Crossing, the confirmed location of a

1776 Revolutionary War hospital marker. Neither the site nor the marker was included on the

Historic Map.

B. Finalizing the Historic Map

The Town Board held a public hearing on October 20, 2021. The Board discussed the

Historic Map, which referred to the Property as both the “Fishkill Supply Depot Site” and the

“Veterans of the Fishkill Supply Depot and Area of Revolutionary Soldiers’ Graves.” (Doc. #115

¶ 131).

Plaintiffs’ counsel attended the October 20 public hearing and made comments. (Doc.

#111 ¶ 140). Counsel and Domenico Broccoli, plaintiffs’ principal, explained plaintiffs were the

ones who placed a historical marker on their property to honor veterans of the Revolutionary

War, but that the marker did not mark the location of a Revolutionary War burial site or graves.

Broccoli stated that if the marker he placed on the Property was the basis for the Property’s

inclusion in the Historic Law, he would remove the marker from the Property. (Docs. ##111 ¶

136; 115 ¶ 135).

Plaintiffs’ counsel also “provided written comments to the Town Board requesting that

the Town Board delay voting on the proposed laws due to (1) the Town’s failure to provide

impacted property owners with an opportunity to be heard; and (2) the Town’s failure to consider

the record related to the potential impact by Continental Commons to historical and

environmental resources.” (Doc. #115 ¶ 132). Plaintiffs also objected to the inclusion of the

Property on the Historic Map, because they alleged the designation was falsely based on the

misunderstanding that the marker plaintiffs placed on their property marked the location of

Fishkill Supply Depot artifacts and/or the burials of Revolutionary War soldiers. (Riccardulli

Decl. Ex. 24).

After plaintiffs’ representatives testified about their research into the grave sites, Axelson

suggested the Town amend the Historic Map to remove the reference to Revolutionary War

graves, notwithstanding the unresolved question of whether the Property contained such graves.

(Doc. #115 ¶ 138). That night the Town Board adopted the Historic Zoning Law and Aquifer

Protection Law (collectively “Zoning Laws”). The Town Board adopted the Historic Map on

May 3, 2023, as part of an amendment to the Town’s Comprehensive Plan. The Town stated its

purpose and intent in enacting the Historic Law was:

It is in the best interests of the Town of Fishkill that recognized historic resources

be protected for the continuing use and enjoyment of future residents within the

community. The Town of Fishkill specifically finds that many of these vital and

irreplaceable historic resources have heretofore been afforded recognition, but not

protection, through their inclusion, or deemed eligibility for inclusion, on the

National Register of Historic Places. The Town further finds that preservation of

Fishkill’s historic architectural character will foster civic pride in the beauty and

architectural achievements of the past and result in economic benefits to Fishkill by

uniformly preserving its heritage and distinctive character.

(Randazzo Decl. Ex. TT at ECF 19).

In her deposition, Axelson explained her investigation in preparation of the Historic Map

was limited to a review of information contained on Wikipedia and the Historic Marker

Database3, and that she did not attempt to verify the factual information she relied on. Axelson

2F

testified she did not know, “when she designated the Fishkill Supply Depot site . . . [if she was]

identifying a single piece of property or the entire 75 acres designated by the National Registry

of Historic Places.” (Riccardulli Decl. Ex. 26 at Tr. 158). At the time she added the Property to

the map, she was not aware of the Planning Board’s more than four-year review of Continental

Commons; or that the Planning Board adopted negative declarations finding that the project

would not have an adverse impact on historical and archeological resources.

The Town Board also held a public hearing during its meeting on October 20, 2021,

concerning the Aquifer Protection Law. The purpose of this amendment was to “protect the

public health, safety, and general welfare by preserving and maintaining the quality and quantity

3 The Historical Marker Database is a volunteer created website that “contains

photographs, inscription transcriptions, marker locations, maps, additional information and

commentary, and links to more information. Anyone can add new markers to the database and

update existing marker pages with new photographs, links, information and commentary.” (Doc.

#115 ¶ 145).

of the Town’s major aquifer and groundwater resources in order to ensure an adequate and safe

potable water supply for present and future residents, employees, and the general public.” (Doc.

#106-71 at 222). The amended section also noted that “[o]ther land uses and structures and

improvements associated with land development may also present threats to aquifer and

groundwater quality and quantity such as impervious surfaces, which are regulated in this and

other chapters of the Code of the Town of Fishkill.” (Id. at 222–23).

Plaintiffs assert that Broccoli was contacted by a member of the committee to update the

Town’s comprehensive plan, on behalf of Albra, to negotiate a deal in which plaintiffs would gift

the Burial Area to the Town in exchange for the water and sewer extension. (Doc. # 115 ¶ 148–

150). Broccoli allegedly rejected this proposal. Plaintiffs also assert that after the Town Board

denied plaintiffs’ petitions to extend water and sewer to the Property, the Town Board’s attorney

offered that the Town Board would extend water and sewer to the Property if plaintiffs agreed to

donate the Burial Area to the Town, agree not to develop their remaining property for ten years

and agree to a monitor during construction of Continental Commons. (Id. ¶ 151).

VI. The Town Commemorates the Property

Plaintiffs make various additional allegations about the Town’s adoption of street names

on the Property to demonstrate its historical significance and commemorating part of the

Property as a Revolutionary War burial ground, despite the lack of evidence of Revolutionary

War burials on the Property. (See Doc. #115 ¶¶ 153–72).

VII. Final Approvals

On December 29, 2021, plaintiffs filed an Article 78 petition in Dutchess County

Supreme Court challenging the Town’s adoption and enactment of the Zoning Laws. On March

16, 2022, the Town Board passed a resolution amending the Zoning Laws, to exempt all

properties for which a completed application for site plan approval, subdivision approval, or

grant of a special use permit was outstanding—meaning the amended Zoning Laws did not apply

to Continental Commons. Two acres of the Property remained subject to the Zoning Laws after

the amendment.

On October 5, 2022, the Town Board passed resolutions granting plaintiffs’ petitions for

extensions of the Water and Sewer Districts. On October 8, 2025, the Dutchess County Supreme

Court dismissed plaintiffs’ Article 78 petition because plaintiffs lacked standing to assert their

claim challenging the Historic Law. Plaintiffs had already withdrawn the portions of their

petition challenging the Aquifer Protection Law. (See Randazzo Decl. Ex. III)

The Planning Board granted conditional final approval of the Continental Commons site

development plan and special use permit on December 18, 2023. The Planning Board issued

final site plan approval on April 16, 2025. To date, construction has not begun on the Property.

DISCUSSION

I. Standard of Review

The Court must grant a motion for summary judgment if the pleadings, discovery

materials before the Court, and any affidavits show there is no genuine issue as to any material

fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 4

3F

A fact is material when it “might affect the outcome of the suit under the governing

law . . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot

preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4 Unless otherwise indicated, case quotations omit all internal citations, quotations,

footnotes, and alterations.

A dispute about a material fact is genuine if there is sufficient evidence upon which a

reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether

there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.

2010). It is the moving party’s burden to establish the absence of any genuine issue of material

fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).

If the non-moving party fails to make a sufficient showing on an essential element of its

case on which it has the burden of proof, then summary judgment is appropriate. Celotex Corp.

v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable” evidence,

summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249–50. The

non-moving party “must do more than simply show that there is some metaphysical doubt as to

the material facts . . . and may not rely on conclusory allegations or unsubstantiated speculation.”

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). “[T]he mere existence of a scintilla

of evidence” supporting the non-moving party’s position is likewise insufficient; there must be

evidence on which the jury could reasonably find for him. Dawson v. Cnty. of Westchester, 373

F.3d 265, 272 (2d Cir. 2004).

On summary judgment, the Court construes the facts, resolves all ambiguities, and draws

all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc. v.

CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a

reasonable inference could be drawn in the non-movant’s favor on the issue on which summary

judgment is sought, summary judgment is improper. Sec. Ins. Co. of Hartford v. Old Dominion

Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004). Bald assertions, completely unsupported

by admissible evidence, are not sufficient to overcome summary judgment. Carey v. Crescenzi,

923 F.2d 18, 21 (2d Cir. 1991).

II. Substantive Due Process Claim

Plaintiffs claim defendants infringed on their substantive due process rights by (i)

initially denying and delaying plaintiffs’ petitions to extend the Water and Sewer Districts, and

(ii) enacting Zoning Laws which limited plaintiffs’ use of their property. Plaintiffs argue these

actions were motivated by “political animus” and defendants’ desire to block the development of

Continental Commons. (Doc. #110 at 1).

For the reasons detailed below, the Court finds plaintiffs fail as a matter of law to make a

showing of substantive due process violations.

A. Claim Related to Denying and Delaying Plaintiffs’ Petitions to Extend the Water

and Sewer Districts

Defendants argue plaintiffs did not have a protected property interest in extensions of the

Water and Sewer Districts sufficient to sustain a substantive due process claim.

The Court agrees.

“To prevail on its claim that it was denied a property right by conduct that violated the

substantive due process standards of the Fourteenth Amendment, [a plaintiff] must show (1) that

it had a valid property interest in the granting of the petition, and (2) that the defendants

infringed that property interest in an arbitrary or irrational manner.” Clubside, Inc. v. Valentin,

468 F.3d 144, 152 (2d Cir. 2006). For the Court to find a valid property interest, a party must

establish a legitimate claim of entitlement. Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir.

1995). A legitimate claim of entitlement exists when, 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. Walz v. Town of Smithtown, 46 F.3d 162, 168 (2d Cir.

1995). “As a general rule, entitlement turns on whether the issuing authority lacks discretion to

deny the permit, i.e., is required to issue it upon ascertainment that certain objectively

ascertainable criteria have been met.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 504

(2d Cir. 2001). The question of whether an applicant has a property interest is normally a matter

of law for the court. Clubside, Inc. v. Valentin, 468 F.3d at 153.

New York Town Law Sections 190 and 194 vest a town board with the power to govern

the establishment and extension of municipal-improvement districts, including sewer and water

districts. N.Y. Town Law § 190 (McKinney 2004). The Second Circuit has explicitly held “the

statutory authority [pursuant to New York Town Law Section 194(1)] to consider whether a

proposed extension or creation of a municipal improvement district is in the public interest vests

[a town planning board] with sufficient discretion to defeat [plaintiffs’] claim to a

constitutionally protected property interest in extension of the sewer district.” Clubside, Inc. v.

Valentin, 468 F.3d at 157. Thus, a developer does not have a constitutionally protected property

interest in an application for extension of a water or sewer district. Id.

Plaintiffs do not grapple with the holding in Clubside. Rather, plaintiffs argue they had a

clear entitlement to the extension because, absent the alleged due process violation, their

application would have been granted. (Doc. #110 (citing Sullivan v. Town of Salem, 805 F.2d 81

(2d Cir. 1986)). However, Clubside makes clear there was more than a theoretical possibility of

discretionary action by the Town Board in the extension of the Water and Sewer District such

that plaintiffs were not clearly entitled to a permit. 486 F.3d at 157. Plaintiffs offer no

explanation besides their own assertion that their application would have been granted with

certainty absent a due process violation. (See Doc. #110 at 5–7).5 Plaintiffs’ unsupported

4F

5 Even to the extent plaintiffs offer the Town Board attorney’s comments that the petition

would be granted if the Town had capacity or feasibility, this evidence is unavailing. These

statements alone without proof that the Town did have feasibility or capacity, which are not in

assertion is insufficient in light of the holding in Clubside. Accordingly, plaintiffs had no clear

entitlement to the extension of the Water and Sewer Districts.

Plaintiffs argue alternatively that they had a vested property interest in the extensions

because at the time the petitions were denied, plaintiffs had already obtained conditional site plan

approval from the Planning Board; had already incurred substantial expenses related to the multi-

year review; and had immediately begun to satisfy the conditions required to obtain final site

plan approval. (Doc. #110 at 5–6).

It is true that a vested property interest may arise when a landowner demonstrates a

commitment to the purpose for which a permit was granted by effecting substantial changes and

incurring substantial expense to further the development. Town of Orangetown v. Magee, 88

N.Y.2d 41, 47–48 (N.Y. 1996). However, “neither the issuance of a[n] [approval], nor the

landowner’s substantial changes and expenditures, standing alone, will establish a vested right.”

Frooks v. Town of Cortlandt, 997 F. Supp. 438, 450 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 (2d Cir.

1999). Rather, the plaintiffs must establish they relied on the municipal board’s approval to the

extent that the board’s action “result[ed] in serious loss rendering the improvements essentially

valueless.” Id. at 451; see, e.g., Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 784–85 (2d

Cir. 2007) (finding plaintiffs established an issue of fact as to whether they had a vested property

right because plaintiffs made $2.3 million in improvements and suffered personal and corporate

bankruptcy after the town’s subsequent restriction of the permit's parameters).

Here, plaintiffs argue only that they “incurred . . . substantial expenses,”6 are committed

5F

the record, do not demonstrate plaintiffs had a clear entitlement to the approvals, especially in

light of the holding in Clubside.

6 Without listing any additional supporting facts or allegations, plaintiffs assert the

substantial expenses amount is “more than $13M in damages.” (Doc. #110 at 1).

to the development of the Continental Commons, and that the denial of the water and sewer

petitions was “destructive of plaintiffs’ property interest.” (Doc. #110 at 6). Merely reciting the

elements of a vested property right does not meet plaintiffs’ burden of establishing such a right.

Frooks v. Town of Cortlandt, 997 F. Supp. at 451 (“[P]laintiffs nowhere allege, or even mention,

any improvements made under the 1981 certificate that have become ‘valueless.’ Nor do

plaintiffs state any loss, aside from unsubstantiated allegations in the Complaint . . . . Such

allegations, standing alone, will not suffice on a motion for summary judgment.”). Thus,

although plaintiffs undertook a four-year review and began to satisfy the conditions required by

the Planning Board, plaintiffs do not put forth any facts demonstrating their investment was

rendered essentially valueless.

“Because [plaintiffs] have not shown that they had a cognizable property interest for

purposes of the substantive due process clause it is unnecessary to reach the question of whether

the Town’s actions were arbitrary or irrational.” O’Mara v. Town of Wappinger, 485 F.3d 693,

700 (2d Cir. 2007).

Accordingly, summary judgment must be granted on plaintiff’s substantive due process

claim premised on the Water and Sewer Districts.

B. Claim Based on Enacting Zoning Laws Which Limited Plaintiffs’ Use of Their

Property

Defendants argue the Zoning Laws did not violate plaintiffs’ substantive due process

rights because the Zoning Laws were a valid exercise of the Town’s zoning powers.

The Court agrees.

“In zoning dispute cases, the principle of substantive due process assures property owners

of the right to be free from arbitrary or irrational zoning actions.” Brady v. Town of Colchester,

863 F.2d 205, 215 (2d Cir. 1988). Generally, zoning restrictions do not violate substantive due

process rights unless they are “clearly arbitrary and unreasonable, having no substantial relation

to public health, safety, morals or general welfare.” Village of Euclid v. Ambler Realty Co., 272

U.S. 365, 395 (1926). “Government regulation of a landowner’s use of his property is deemed

arbitrary or irrational, and thus violates his right to substantive due process, only when

government acts with no legitimate reason for its decision.” Southview Assoc., Ltd. v. Bongartz,

980 F.2d 84, 102 (2d Cir. 1992). “In assessing [plaintiffs’] claims, we are mindful of the general

proscription that federal courts should not become zoning boards of appeal to review

nonconstitutional land use determinations.” Brady v. Town of Colchester, 863 F.2d at 215.

Defendants assert the Zoning Laws were enacted to preserve and protect historic sites and

structures and to preserve and maintain the quality and quantity of the Town’s aquifer and

groundwater resources. The intent behind the Zoning Laws was discussed during Town Hall

meetings, in memoranda prepared in advance of those meetings, and in the text of the legislation.

(See, e.g., Doc. #111 ¶¶ 109, 111, 112, 149, 150, 157, 160; Doc. #106-71 at 100).

Historic preservation and conservation of resources are reasonable and legitimate reasons

for Zoning Laws. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 109 n.5 (1978)

(“[I]t is the public policy of the State of New York to preserve structures and areas with special

historical or aesthetic interest or value and authorizes local governments to impose reasonable

restrictions to perpetuate such structures and areas.”); Kittay v. Giuliani, 112 F. Supp. 2d 342,

352 (S.D.N.Y. 2000) (“Courts have repeatedly upheld land use restrictions based on

environmental concerns,” including those intended to regulate the water supply).

In fact, plaintiffs do not actually argue the Zoning Laws were arbitrary or unreasonable.

(See Doc. #110 at 7–8). Plaintiffs’ only argument in favor of their substantive due process claim

is that the amendments imposed additional restrictions on the Property, limiting the manner in

which it could be used. (Id. at 7). Plaintiffs provide no case law—nor is the Court aware of

any—suggesting these limitations alone could render the Zoning Laws arbitrary or

unreasonable.7

6F

Accordingly, summary judgment must be granted on plaintiff’s substantive due process

claim premised on the Zoning Laws.8

7F

III. Procedural Due Process Claim

Plaintiffs argue they were denied procedural due process because defendants failed to

provide notice and an opportunity to be heard on the Water and Sewer District extensions and on

the Zoning Laws.

To prove a violation of procedural due process rights, a plaintiff must “first identify a

property right, second show that the [government] has deprived him of that right, and third show

that the deprivation was effected without due process.” Local 342, Long Island Pub. Serv.

Emps., v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994). Thus, “a plaintiff must

prove that he or she was deprived of an opportunity granted at a meaningful time and in a

meaningful manner for a hearing appropriate to the nature of the case.” Brady v. Town of

7 To the extent plaintiffs meant to argue the Zoning Laws are unreasonable or arbitrary

because the Property’s inclusion on the Historic Map was premised on an incorrect assumption

that the Property contained Revolutionary War soldiers’ graves, that argument would be

unpersuasive. The Property is located within the Fishkill Supply Depot National Register of

Historic Place site. Indeed, plaintiffs have acknowledged the historic nature of the Property

through its naming (“Continental Commons”) and design and have agreed to have a conservation

easement on the Property. It would have been reasonable to include the Property on the Historic

Map in an effort to preserve historic sites, and it could not be said that the “government acted

with no legitimate reason for its decision.” Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 102

(2d Cir. 1992).

8 Plaintiffs’ substantive due process claim premised on the Zoning Laws independently

fails because the Zoning Laws were never applied to the Property and their claim is not ripe. See

infra IV.B.

Colchester, 863 F.2d at 211.

A. Claim Related to Denying and Delaying Plaintiffs’ Petitions to Extend the Water

and Sewer Districts

Defendants argue plaintiffs’ procedural due process claim premised on extensions of the

Water and Sewer Districts fails because plaintiffs have no constitutionally protected property

interest.

For the reasons stated above, the Court agrees. See supra II.A. Plaintiffs do not have a

constitutionally protected property interest in an application for extension of a water or sewer

district, nor do they show their investment was rendered valueless by the denial and delay of

their petitions.

B. Claim Based on Enacting Zoning Laws Which Limited Plaintiffs’ Use of Their

Property

Defendants argue plaintiffs’ procedural due process rights were not violated because they

had an adequate post-deprivation remedy—the Article 78 proceeding.

The Court agrees.

“[T]he Second Circuit has . . . held on numerous occasions that where, as here, a party

sues the state and its officials and employees for the arbitrary and random deprivation of a

property or liberty interest, an Article 78 proceeding is a perfectly adequate post deprivation

remedy.” Ahmed v. Town of Oyster Bay, 7 F. Supp. 3d 245, 254 (E.D.N.Y. 2014) (citing Grillo

v. N.Y.C. Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002)). However,

[w]hen reviewing alleged procedural due process violations, the Supreme Court has

distinguished between (a) claims based on established state procedures and (b)

claims based on random, unauthorized acts by state employees. In the latter case,

the Due Process Clause of the Fourteenth Amendment is not violated when a state

employee intentionally deprives an individual of property or liberty, so long as the

State provides a meaningful postdeprivation remedy. When the deprivation occurs

in the more structured environment of established state procedures, rather than

random acts, the availability of postdeprivation procedures will not, ipso facto,

satisfy due process.

Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.

1996). “In the land-use context, courts in this Circuit have repeatedly held that the availability of

an Article 78 proceeding in state court is a post-deprivation remedy that satisfies procedural due

process.” Ariz. Hudson Valley LLC v. Allen, 2023 WL 3936640, at *5 (N.D.N.Y. June 9, 2023).

Plaintiffs argue the Article 78 proceedings were inadequate to overcome the Town

Board’s pattern of wrongdoing because the decisions were made as part of a larger scheme by

defendants to frustrate and delay the development of Continental Commons. The cases plaintiffs

rely on for the proposition that other “courts faced with an intractable scheme to frustrate and

delay an individual’s due process rights in the context of zoning and other planning disputes have

explicitly recognized that Article 78 is inadequate to overcome the local authorities’ pattern of

wrongdoing” are inapposite and are thus insufficient to show the Article 78 proceedings were not

a meaningful post-deprivation remedy. (Doc. #110 at 11).

In Koncelik v. Town of East Hampton, the court denied a motion to dismiss a procedural

due process claim because “although plaintiffs timely and successfully availed themselves of the

Article 78 proceeding . . . , their plans to develop their property [we]re still being delayed” by

pending appeals. 781 F. Supp. 152, 158 (E.D.N.Y. 1991). Similarly, in Acorn Ponds v. Village

of North Hills, the plaintiff obtained relief in an Article 78 proceeding when a judge directed a

zoning and appeals board to conduct various inspections. 623 F. Supp. 688, 690–91 (E.D.N.Y.

1985). The board in that case subsequently refused to provide the relief directed by the judge,

and the plaintiff successfully alleged the board’s resistance constituted a denial of due process.

Id.

There are no analogous allegations here. Plaintiffs do not challenge the failure to

implement final relief on the merits ordered through an Article 78 proceeding. After plaintiffs

filed their Article 78 petition to annul the Zoning Laws, the Town amended the Zoning Laws

such that the provisions therein did not apply to Continental Commons. (Doc. #171). This in

itself demonstrates that the Article 78 proceeding here was a post-deprivation remedy that

satisfied procedural due process. Further, unlike Koncelik, there are no further delays alleged

related to the Zoning Laws.

Plaintiffs also argue the Article 78 proceedings were insufficient because defendants

limited the record in those proceedings to exclude evidence of bad faith. Specifically, plaintiffs

allege the record did not include documents related to “the enactment of the Historic Law,

including Albra’s direction to CPL to include Plaintiffs’ property as historic; Albra’s direction to

CPL to exclude the Dutchess Mall from the Historic Law; and the Planning Board’s review of

the project resulting in a negative declaration.” (Doc. #110 at 10 (citing Doc. #115 ¶¶ 117,

143)). However, plaintiffs cite no evidence in the record for the proposition that these materials

were not made available in the Article 78 proceeding. Plaintiffs’ citations are to their own

attorney’s affirmation and nevertheless do not support the idea that these materials were

intentionally left out of the record. Regardless, the Court is not persuaded that this undermined

the Article 78 proceedings in any way. Plaintiffs withdrew their Article 78 challenge to the

Aquifer Protection Law, and their challenge to the Historic Preservation Law was dismissed by

the Dutchess County Supreme Court for lack of standing. (See Randazzo Decl. Ex. III).

Plaintiffs do nothing to show this allegedly excluded evidence would have altered the Supreme

Court’s outcome on standing.

Accordingly, defendants’ summary judgment motion on the procedural due process claim

must be granted.9

8F

IV. Equal Protection Claim

Defendants argue plaintiffs’ equal protection claim is without merit because (i) plaintiffs

fail to identify any similarly situated comparators and (ii) because the Zoning Laws were not

applied to or enforced against plaintiffs, such that the claim is not ripe.

As to the Water and Sewer District extensions, the Court agrees with defendants that

plaintiffs have offered no similarly situated comparators. However, the Court finds there is a

material issue of fact as to whether plaintiffs have identified similarly situated comparators for

the enactment of the Zoning Laws. Nevertheless, the Court agrees with defendants that plaintiffs

fail to make out a claim and that plaintiffs’ claim is not ripe.

Although “the Equal Protection Clause is most commonly used to bring claims alleging

discrimination based on membership in a protected class,” a plaintiff who does not allege

membership in a protected class may, nonetheless, bring a “class of one” equal protection claim.

Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other grounds by Appel v.

Spiridon, 531 F.3d 138 (2d Cir. 2008). “A class-of-one claim exists where the plaintiff alleges

that [he] has been intentionally treated differently from others similarly situated and that there is

no rational basis for the difference in treatment.” Analytical Diagnostic Labs, Inc. v. Kusel, 626

F.3d 135, 140 (2d Cir. 2010).

A. Similarly Situated Comparators

To succeed on a class-of-one claim, a plaintiff must establish that “(i) no rational person

could regard the circumstances of the plaintiff to differ from those of a comparator to a degree

9 Plaintiffs’ substantive due process claim premised on the Zoning Laws independently

fails because the Zoning Laws were never applied to the Property and their claim is not ripe. See

infra IV.B.

that would justify the differential treatment on the basis of a legitimate government policy; and

(ii) the similarity in circumstances and difference in treatment are sufficient to exclude the

possibility that the defendants acted on the basis of a mistake.” Clubside, Inc. v. Valentin, 468

F.3d at 159. Thus, there must be “an extremely high degree of similarity” between plaintiffs and

their comparators. Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir. 2012). Plaintiffs

“must demonstrate that they were treated differently than someone who is prima facie identical

in all relevant respects.” Nielson v. D’Angelis, 409 F.3d at 104 (citing Purze v. Village of

Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)). This requirement is rigorously enforced

“in the land-use context because zoning decisions will often, perhaps almost always, treat one

landowner differently from another.” Beard v. Town of Monroe, 666 F. App’x 62, 65 (2d Cir.

2016).

Plaintiffs offer no comparators as to the Water and Sewer District petitions and provide

no detail regarding any other property that petitioned for an extension. Accordingly, plaintiffs

fail to make out an equal protection claim premised on the Water and Sewer District petitions.

As to the enactment of the Zoning Laws, plaintiffs reference two proposed comparators—

the Dutchess Mall site and the Deer Crossing site. First, Deer Crossing is the confirmed location

of a 1776 Revolutionary War hospital marker. (Doc #115 ¶ 100). Neither Deer Crossing nor the

marker were included on the Historic Site Map. (Id. ¶ 101). Plaintiffs provide no additional

details about that site that would allow the Court to reach the conclusion that the two sites are

prima facie identical. Without knowing information related to that site, a rational jury could not

find Deer Crossing is an appropriate comparator for Continental Commons.

With respect to the Dutchess Mall site, this comparator is similar to Continental

Commons in that both sites fall within the National Register of Historic Places. (Doc. #115 ¶ 23;

Doc. #110 at 14). Indeed, in the Town Board’s statement of intent for enacting the Local Law

Regarding Historical Structures, the Board stated, “many of these vital and irreplaceable historic

resources have heretofore been afforded recognition, but not protection, through their inclusion,

or deemed eligibility for inclusion, on the National Register of Historic Places.” (Doc. #111 ¶

149). From this evidence, a rational jury could find the Dutchess Mall site is an appropriate

comparator for Continental Commons, and that Continental Commons was treated differently for

impermissible reasons.

Although Continental Commons—unlike the Dutchess Mall—was included on the

Historic Site Map, the inference that defendants’ discriminatory animus is the only reason these

properties were treated differently is bolstered by Albra’s emails to Axelson stating “I have 2

private consultants with concerns over the Dutchess Mall site. I want this site developed and do

not want anything to slow that down” and “I don’t want anything that will delay any type of

construction on the Dutchess Mall Site.” (Riccardulli Decl. Ex 20 at 2–3). From these emails, a

rational jury could infer that Continental Commons’s inclusion on the Historic Site Map—as

compared to the Dutchess Mall’s exclusion—was not based on a legitimate government policy,

but rather intentional disparate treatment. Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d at

143.

B. Ripeness of Zoning Laws Claim

However, regardless of whether similarly situated comparators exist as to the Zoning

Laws enactment, the equal protection claim fails because plaintiffs do not show the Zoning Laws

were ever applied to or enforced against them. “This Court has generally recognized three types

of equal protection violations: (1) a facially discriminatory law; (2) a facially neutral statute that

was adopted with a discriminatory intent and applied with a discriminatory effect . . . ; and (3) a

facially neutral law that is enforced in a discriminatory manner.” Chabad Lubavitch of Litchfield

County, Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 199 (2d Cir. 2014). Plaintiffs do

not allege the Zoning Laws were facially discriminatory, thus they must show the laws were

applied or enforced in a discriminatory manner.

Plaintiffs’ claim fails because the Zoning Laws were never applied to or enforced against

them. The Town enacted the Zoning Laws on October 20, 2021. At that time, plaintiffs had

already been granted a SEQRA negative declaration and preliminary site plan approval. There

was no action taken against the Property between October 20, 2021, and March 16, 2022, when

the Town amended the Zoning Laws to “exempt all properties for which a completed application

site plan approval, subdivision approval, or grant of a special use permit was outstanding on the

effective date” of the Zoning Laws. (Randazzo Decl. Ex. YY). The effect of this was to exempt

Continental Commons from the Zoning Laws. Plaintiffs do not dispute that the Zoning Laws did

not apply to Continental Commons following this amendment.

Plaintiffs point to the two undeveloped acres of the Property, which are not exempt from

the Zoning Laws because of the amendments, to show the Zoning Laws still apply to the

Property. However, these claims are not ripe because plaintiffs never applied for a variance. The

final-decision requirement “requires the land developer to obtain a final, definitive position as to

the application of the relevant zoning laws to the property from the municipal entity responsible

for those laws.” Congregation Rabbinical College of Tartikov, Inc. v. Pomona, 915 F. Supp. 2d

574, 597 (S.D.N.Y. 2013). “In practice, this means that ripeness is conditioned on the property

owner submitting at least one meaningful application for a variance . . . even where, as here, her

plans for [their] property were stymied by an intervening change in local law.” Mills Pond

Group, LLC v. Town of Smithtown, 2025 WL 1720472, at *1 (2d Cir. 2025).

Any procedural due process claim premised on those two acres of land is not ripe because

there has been no final decision. Plaintiffs have yet to submit a single formal application for a

variance as to those two acres of land.

To be sure, “a plaintiff in a land use case may be excused from obtaining a final decision

if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile,” such as

when an agency “has dug in its heels and made clear that all such applications will be denied.”

Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 111 F. Supp. 3d 459, 479

(S.D.N.Y. 2015). “But to invoke this futility exception, a plaintiff must demonstrate: (1) “the

inevitability of refusal of their application, taking into consideration factors such as the

defendants’ hostility, delay and obstruction; and (2) that they have filed at least one meaningful

application.” Id. Plaintiffs have not done so. In fact, plaintiffs did not directly address the

ripeness issue in their briefing or attempt to invoke the futility exception. Ultimately, plaintiffs’

failure to file at least one meaningful application as to their two acres dooms their procedural due

process claim.10

9F

At bottom, even if there were similarly situated properties that were treated differently

than Continental Commons in the initial development of the law, summary judgment must be

granted on the equal protection claim because the Zoning Laws were never applied to the

Property and plaintiffs’ claim is not ripe.

10 Defendants argue plaintiffs are collaterally estopped from relitigating these issues

because plaintiffs’ Article 78 challenge to the historic preservation law was dismissed by the

Dutchess County Supreme Court for lack of standing. (Doc. #104 at 17). The Court does not

need to reach the collateral estoppel issue because for the reasons detailed above the Zoning

Laws were never applied to the Property and their claim is not ripe.

V. Failure to Oppose Motion as to Takings Claim and Individual Liability

Defendants moved for summary judgment on plaintiffs’ Fifth Amendment regulatory

takings claim and on the claims against the individual defendants in their official capacities. In

their opposition, plaintiffs failed to address the arguments on those two points in any way.

Accordingly, the Court infers the takings claim and the claims against the individual defendants

in their official capacities are abandoned. Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014)

(“[I]n the case of a counseled party, a court may, when appropriate, infer from a party’s partial

opposition [to a motion for summary judgment] that relevant claims or defenses that are not

defended have been abandoned”).

VI. Conspiracy Claim

Defendants argue summary judgment should be granted on plaintiffs’ Section 1985 and

1986 claim because there is no underlying constitutional violation.

The Court agrees.

To withstand a motion for summary judgment on a civil conspiracy claim, a plaintiff must

present evidence establishing three essential elements of the claim: “(1) an agreement between

two or more state actors or between a state actor and a private entity; (2) to act in concert to

inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing

damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).

Here, summary judgment must be granted on plaintiffs’ due process, equal protection,

and takings claims. Thus, no unconstitutional injury was inflicted on plaintiffs. See Singer v.

Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (“[A] plaintiff alleging a § 1983 conspiracy

claim must prove an actual violation of constitutional rights.”).

VII. State Law Claims

Pursuant to 28 U.S.C. § 1367(c), having dismissed the federal claims in this case over

which it has original jurisdiction, the Court declines to exercise supplemental jurisdiction over

plaintiffs’ remaining state-law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the [supplemental] jurisdiction doctrine—judicial

economy, fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state-law claims.”).

CONCLUSION

The motion for summary judgment is GRANTED.

The Clerk is instructed to terminate the motion (Doc. #103) and close this case.

Dated: July 13, 2026

White Plains, NY

SO ORDERED:

us [emu

Vincent L.Briccetti

United States District Judge

28