Land Use

  • Substantive and Procedural Due Process
  • Equal Protection, including Class of One
  • The Fair Housing Act
  • The Religious Land Use and Institutionalized Persons Act
  • Article 78 Proceedings
  • Denials of Permits and Certificates of Occupancy

SOKOLOFF STERN WIN PRESERVES BEACH DRIVING IN SOUTHAMPTON

In Araskog Thomas v. Trustees of the Freeholders and Commonality of the Town of Southampton, plaintiffs alleged that regulations permitting the public to drive 4×4 vehicles on private beaches within a public access easement violated the Due Process and Takings clauses of the 5th and Fourteenth Amendments, constitute public and private nuisances, and were ultra vires and void. Justice Joseph A. Santorelli denied plaintiff’s motion for partial summary judgment, granted the Trustees’ motion for summary judgment, and dismissed the entire case. This was a significant victory for the public use of the beaches, which dates back to the colonial Dongan Patent of 1686. Click here for article

Steven C. Stern and Chelsea Weisbord drafted the successful motion.

 

U.S. COURT OF APPEALS UPHOLDS DISMISSAL OF LANDOWNER’S UNRIPE TAKINGS/DUE PROCESS CLAIMS

In Dreher v. Town of Kent, plaintiff was a landowner who claimed zoning restrictions on his small lot prevented him from selling it, without ever having applied to the Town to build anything.  United States District Judge Cathy Seibel granted Sokoloff Stern’s motion to dismiss on ripeness grounds, as the Town had never rendered any final decision on the property.  The United States Court of Appeals for the Second Circuit affirmed.

Adam I. Kleinberg and Anthony F. Cardoso drafted the successful motion to dismiss and subsequent successful appellate briefing.

 

SECOND CIRCUIT UPHOLDS DISMISSAL OF LANDOWNER’S UNRIPE DUE PROCESS, CONSPIRACY, AND ARTICLE 78 CLAIMS

In Thomas v. Town of Mamakating, plaintiff challenged the Building Inspector’s determination that she was engaged in unauthorized mining on her property, the Zoning Board of Appeals’ decision to uphold that determination, and the Planning Board’s determination dismissing her request to reinstate an expired site plan approval. U.S. District Judge Vincent L. Briccetti granted Sokoloff Stern’s motion to dismiss the complaint on ripeness grounds, finding none of these actions constituted a “final decision” for ripeness purposes. The court also ruled plaintiff failed to plausibly invoke the futility exception to the final decision requirement. The U.S. Court of Appeals for the Second Circuit affirmed.

Leo Dorfman and Alexander J. Eleftherakis drafted the successful motion and appellate brief.

EAST END RESTAURANT’S COUNTERCLAIMS DISMISSED IN TOWN ZONING CASE

In Town of East Hampton v. Cyril’s Fish House, the Town sought to enforce its zoning regulations against a restaurant and bar on Montauk Highway.  Sokoloff Stern defended the Town against Cyril’s counterclaims which asserted malicious prosecution and abuse of process based on the Town Code prosecutions and enforcement.  Suffolk County Justice Joseph Farneti granted Sokoloff Stern’s motion to dismiss the counterclaims on procedural grounds. Follow link to East Hampton Star article about the dismissal: Click here

Brian S. Sokoloff and Kevin Levine drafted the successful motion.

 

FEDERAL COURT DISMISSES LANDOWNER’S UNRIPE DUE PROCESS AND CONSPIRACY CLAIMS

In Roe v. Town of Mamakating, a property developer claimed the Town, its Town Board, and Planning Board conspired to impede four land use projects in violation of his substantive due process rights under the Federal and New York State constitutions. U.S. District Judge Katherine B. Forrest granted Sokoloff Stern’s motion to dismiss the complaint on ripeness grounds, finding the Town had not yet reached a “final decision” on any of plaintiff’s four projects and that plaintiff failed to show the history of the projects warranted application of the futility exception to the final decision requirement.

Brian S. Sokoloff, Leo Dorfman, and Alexander J. Eleftherakis drafted the successful motion.

 

JUDGE TOSSES LAND USE CASE AGAINST VILLAGE OF SAGAPONACK 

In Sagaponack Realty, LLC v. Village of Sagaponack, the plaintiff attempted to drag the Village into a decade-long partnership dispute over the development of a multimillion-dollar beachfront property. Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York dismissed all claims against the Village based on principles of standing, subject matter jurisdiction, ripeness, and because plaintiff failed to show sufficient similarity between applications to support a disparate treatment claim.

Steven C. Stern and Alexander J. Eleftherakis drafted the successful motion. 

 

TOWN DEFEATS CIVIL RIGHTS CLAIMS BY MONTAUK BAR

In Doscher v. Town of East Hampton, the owner of a nightclub in Montauk called The Sloppy Tuna alleged violations of due process, equal protection, and the First Amendment from the Town’s reduction of the bar’s maximum occupancy under the fire code, and its issuance of summonses for maximum occupancy and noise violations. United States District Judge Sandra J. Feuerstein dismissed the action in its entirety, holding that plaintiff lacked a protected property right in an operating permit or a specific maximum occupancy, plaintiff’s business and social relationships are not subject to constitutional protection, and the noise ordinance was constitutional.

Mark A. Radi drafted the successful motion.

 

FEDERAL COURT REJECTS CLAIM THAT VILLAGE OFFICIALS’ VISITS TO A RESIDENTIAL HOME WERE ILLEGAL

In Oriental and Vernard v. Village of Westbury, plaintiffs sued the Village and its officials, alleging various constitutional claims relating to an alleged unlawful search of their property. U.S. District Court Judge Denis R. Hurley granted Sokoloff Stern’s motion to dismiss the case, finding the Village did not violate plaintiff’s constitutional rights because it never entered the home, the backyard, or any area behind a fence.

Steven C. Stern and Chelsea Weisbord successfully defended the litigation.

 

JUDGE WEXLER DISMISSES EQUAL PROTECTION CLAIMS BY RESTAURANT THAT RECEIVED SUMMONSES FOR TOWN CODE VIOLATIONS

In 4 West Associates LLC v. East Hampton Town, plaintiff corporation brought a federal suit in the Eastern District of New York against the Town of East Hampton alleging that the Town selectively applied the Town Code and violated the corporation’s right to equal protection.  Judge Leonard D. Wexler granted Sokoloff Stern’s motion to dismiss on statute of limitations grounds.

Steven C. Stern and Mark A. Radi drafted the successful motion.

 

JUDGE WEXLER DISMISSES VILLAGE RESIDENT’S FEDERAL LAND USE CLAIMS

In Amid v. Vill. of Old Brookville, the plaintiff filed a federal lawsuit asserting numerous federal and state law claims alleging discrimination arising out the Village’s alleged denial of various land use permits.  Judge Leonard Wexler dismissed the action in its entirety prior to discovery, holding that plaintiff failed to allege any plausible constitutional violations.

Steven Stern and Mark Radi drafted the successful pre-answer motion to dismiss.

 

RETALIATION SUIT AGAINST EAST END PUBLIC OFFICIAL DISMISSED

In Ellis v. Wilkinson, the plaintiff sued in federal court, asserting various constitutional and state law claims alleging that the former East Hampton Town Supervisor proposed the construction of a storm water retention pond near his residence in retaliation for the plaintiff’s report of environmental violations.  Judge Joseph Bianco dismissed the action in its entirety prior to discovery, finding plaintiff’s claims barred by the statute of limitations.

Steven C. Stern and Mark Radi drafted the successful motion to dismiss.

 

FEDERAL COURT TOSSES NEIGHBOR’S ZONING DISPUTE

In Gregory v. Village of Centre Island, the plaintiff brought constitutional claims, alleging that the Village denied his various building permit applications in retaliation for his failure to accede to the demands of his neighbor, and based on contentious litigation with the prior property owner. Judge Joseph Bianco dismissed the complaint in its entirety, finding that plaintiff’s claims were either time-barred or failed to state a viable constitutional claim.

Anthony F. Cardoso and Mark A. Radi drafted the successful motion.

 

FEDERAL COURT REJECTS CLAIM THAT VILLAGE SEARCH OF ABANDONED BUILDING WAS ILLEGAL

In Hausch v. Village of Tuckahoe, plaintiff sued the Village and its officials in federal court, alleging an unlawful search of a building under the Fourth Amendment.  Judge Nelson S. Román granted Sokoloff Stern’s motion to dismiss the case, finding that the Village did not violate plaintiff’s Fourth Amendment rights because it entered the building lawfully under the administrative search exception to the Fourth Amendment’s warrant requirement.  The United States Court of Appeals for the Second Circuit affirmed the dismissal.

Steven C. Stern and Kevin Levine drafted the successful motion.

 

STATE COURT DISMISSES ATTEMPT TO FORCE THE TOWN OF CARMEL TO REPAIR AND IMPROVE A SET OF PRIVATE ROADS

In Long Pond Association, Inc. v. Town of Carmel, a homeowners’ association sued the Town of Carmel, seeking a determination that the Town was obligated to maintain and repair a number of privately owned roads.  The homeowners claimed that the Town’s Highway Department performed snow plowing and other maintenance over the preceding ten years and that the Town had accordingly adopted the roads as public roads.

Justice Francis A. Nikolai of the Putnam County Supreme Court granted defendants’ motion for summary judgment, finding that the Town had performed limited services to the roads for emergency purposes only.  The Court adopted our argument that the Town had not treated the roads as its own, as the limited services performed paled in comparison to those afforded to Town roads.  The Court also held that the homeowners could not show that the Town had used the roads as public roads over a ten-year period and dismissed the entire lawsuit.

Adam I. Kleinberg and Mark A. Radi defended the case and drafted the successful motion.

 

SECOND CIRCUIT AFFIRMS DISMISSAL OF CIVIL RIGHTS CASE INVOLVING ENFORCEMENT OF VILLAGE CODE

In Mangino v. Inc. Vill. of Patchogue, the plaintiff is a local landlord who sued in federal court asserting a myriad of federal and state law claims arising from having been issued numerous housing violations.  He claimed the violations were issued in retaliation for his refusal to obtain a rental permit required by Village law.  He also alleged the Fire Marshal fabricated a complaint of a sparking wire to gain access to his rental property and conduct an inspection for the purpose of issuing additional violations.  Most of the case was dismissed on summary judgment and a jury returned a verdict in favor of the defendants on the remaining unlawful entry claim.  Plaintiff appealed.  In a reported decision, the United States Court of Appeals for the Second Circuit affirmed dismissal of the case in its entirety.   The Court held that the Code Enforcement Officer was entitled to qualified immunity on plaintiff’s federal malicious abuse of process claim because there is no clearly established constitutional right to be free from abuse of process when that process is supported by probable cause.

Brian S. Sokoloff and Mark A. Radi handled the case from inception through appeal.

 

STATE COURT DISMISSES NEGLIGENT MISREPRESENTATION WHERE TOWN HAD NO DUTY TO PLAINTIFF

In Okrent v. The Town of Kent, plaintiffs sued the Town for negligent misrepresentation, based on the Town’s assertion their property was on a Town road. The state court dismissed plaintiffs’ claims because they could not show a special relationship with the Town that gave rise to any duty breached by the Town.

Adam I. Kleinberg and Vernée C. Pelage drafted the successful motion to dismiss.

 

DEFENDANTS SECURE DISMISSAL OF PUBLICITY-RICH CASE BY WESTCHESTER DEVELOPER

In Old St. George’s LLP v. Bianco, et al., a case that was commenced with screaming headlines, Sokoloff Stern LLP, representing Yorktown Town Councilman Nicholas Bianco, secured dismissal of the action. Plaintiffs sought to convert an old church into a winery and alleged that defendants violated their constitutional rights by interfering with Westchester County’s plan to include the property in a state-law Agricultural District.  Writing a thorough opinion on defendants’ motion, Magistrate Judge Lisa Margaret Smith in the United States District Court for the Southern District of New York, dismissed plaintiffs’ claims seriatim. In an opinion reported at 2010 WL 2982961, the Second Circuit affirmed the dismissal.

Brian Sokoloff defended the litigation.

 

COURT GRANTS SUMMARY JUDGMENT IN COMPLICATED LAND USE CASE

In Osborne v. Fernandez, et al., 2009 WL 884697 (S.D.N.Y. 2009), a complicated land use case defended by Sokoloff Stern LLP, Judge Cathy Seibel of the United States District Court for the Southern District of New York in White Plains granted defendants’ motion for summary judgment.  Plaintiffs attempted to develop over a hundred acres of property in the Town of Stanford in Dutchess County, New York, asserting a variety of federal constitutional and state law claims.  In the course of granting summary judgment for defendants, Judge Seibel added her own opinion to a 75-page, meticulously reasoned Report and Recommendation of Magistrate Judge Lisa Margaret Smith. The United States Court of Appeals for the Second Circuit affirmed the decision.

 

ORANGE COUNTY STATE COURT GRANTS SUMMARY JUDGMENT TO FORMER BUILDING INSPECTOR

In Pasquini v. Sutton, plaintiffs purchased a house in the Town of Greenville for the purpose of renting it to third parties.  After they were cited for numerous fire code violations, they claimed that the sellers of the house conspired with the Town’s former Building Inspector to defraud them into believing that the house was free of violations at the time of the sale.  Sokoloff Stern represented the former Building Inspector and, following discovery, moved for summary judgment on various grounds.

Justice Elaine Slobod granted the motion, finding that the Building Inspector was entitled to the benefits of the shortened municipal statute of limitations because he had acted within the scope of his official duties and, in any event, that the record was devoid of evidence of a conspiracy.

Steven Stern and Melissa Holtzer drafted the successful motion.

 

FEDERAL COURT DISMISSES EQUAL PROTECTION AND DUE PROCESS CLAIMS PRE-DISCOVERY

In Puckett v. City of Glen Cove, 631 F.Supp.2d 226 (E.D.N.Y. 2009), plaintiff asserted that the City of Glen Cove violated its own laws when it granted a building permit to a private builder who built a so-called “McMansion” that blocked her view of the harbor.  In rejecting plaintiff’s Due Process and Equal Protection claims, the Honorable Judge Leonard D. Wexler determined that plaintiff was not treated differently than any similarly-situated homeowners and that she was not deprived of any cognizable property or liberty interest.  While plaintiff was permitted to proceed with discovery only based on her First Amendment claim, the Court noted, “The facts alleged … tend to show that Plaintiff was afforded extraordinary access to public officials in stating her position.”  Following the decision, the plaintiff voluntarily withdrew the case, with prejudice.

Steven Stern and Kiera Meehan wrote the successful motion.

 

FEDERAL COURT DISMISSES FAIR HOUSING ACT LAWSUIT AGAINST TOWN OF MOUNT PLEASANT

In Raum v. Town of Mount Pleasant, plaintiffs were homeowners who alleged that the Town violated the Fair Housing Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 by issuing notices of violation to discourage persons with disabilities from using their property as a group home.  Judge Stephen C. Robinson of the United States District Court for the Southern District of New York granted the Town’s pre-answer motion to dismiss.  Judge Robinson agreed with defendants’ arguments that plaintiffs did not properly allege any cognizable injury under any of the statutes invoked by plaintiffs, and that plaintiffs did not properly allege the Town’s causation for their injuries.  Brian S. Sokoloff and Leo Dorfman wrote and orally argued the successful motion.

 

SECOND CIRCUIT REJECTS CONSTITUTIONAL CLAIMS BY REHABILITATION CENTER

In Safe Harbor LLC v. Town of East Hampton, the plaintiff was an alcohol rehabilitation retreat center that began operations in a residentially-zoned neighborhood without a special permit. Plaintiff alleged that the Town’s Building Inspector and Zoning Board’s determinations that the center needed a special permit violated the Fair Housing Act and Americans with Disabilities Act. Eastern District Judge Leonard D. Wexler dismissed the complaint on ripeness grounds, which the United States Court of Appeals for the Second Circuit affirmed in its entirety.

Brian S. Sokoloff and Anthony F. Cardoso handled the successful motion and appeal.

 

STATE COURT DENIES ATTEMPT TO BRING A MUNICIPAL OFFICIAL INTO A PRIVATE REAL PROPERTY DISPUTE

In Spinelli v. Ivezaj, the original plaintiffs sold real property to the defendants in exchange for a small down payment and a purchase money mortgage for the remainder of the sale price.  After the defendants defaulted on the mortgage, the plaintiffs brought suit to foreclose.  The defendants proceeded to bring a second action, alleging they were fraudulently induced into purchasing the property, also claiming that the Town of North Castle’s Director of Planning made certain fraudulent representations concerning permitted commercial uses of the property.  Sokoloff Stern represented the Director of Planning, and made an early motion to dismiss on the basis that the alleged reliance by plaintiffs was unreasonable as a matter of law.

Justice Gerald E. Loehr of the Westchester County Supreme Court agreed that the alleged reliance was unreasonable, as the relevant zoning information was available to the public, and that the Director of Planning was absolutely immune from tort liability.  Accordingly, the Court dismissed the Director of Planning from the case.

Brian Sokoloff and Adam Kleinberg defended the case and drafted the successful motion.

 

FEDERAL JUDGE REJECTS ORTHODOX SCHOOL’S ZONING DISCRIMINATION CLAIMS

In Sheri Torah, Inc. v. Village of South Blooming Grove, a religious corporation sued the Village in federal court claiming the Village was using zoning restrictions to prevent it from converting leased property to a private religious school. Southern District Chief Judge Loretta A. Preska granted Sokoloff Stern’s pre-answer motion dismissing the case, holding that the Village was engaging in a legitimate review process, and plaintiff’s religious discrimination claims were not ripe for review.

Brian S. Sokoloff and Leo Dorfman drafted the successful motion.

 

LOCAL BUILDER’S CIVIL RIGHTS CLAIM DISMISSED BY APPELLATE DIVISION

In Zarabi v. Village of Roslyn Harbor, plaintiff alleged that the Village and its Building Inspector harassed him through multiple inspections and the delay of approvals on a house he built in the Village.  He alleged due process violations, equal protection violations based on national origin discrimination, and that the Building Inspector conspired with the architect on the project.  After eight years of litigation, Sokoloff Stern secured summary judgment for the Village and the Building Inspector, which the Appellate Division affirmed.

Steven C. Stern and Mark Radi successfully defended the case.