33 Seminary LLC v. City of Binghamton

869 F.Supp.2d 282

33 SEMINARY LLC, 31 Seminary LLC, and 26 Seminary Avenue Project LLC, Plaintiffs,

v.The CITY OF BINGHAMTON, Matthew T. Ryan, Individually and as Mayor of Binghamton, Kenneth J. Frank, Individually and as Corporation Counsel of the City of Binghamton, Thomas Costello, Individually and as Supervisor of Building and Construction and Code Enforcement for the City of Binghamton, David S. Chadwick, Individually and as Former Supervisor of Building and Construction for the City of Binghamton, Kevin Esworthy, Individually and as former Building Inspector of the City of Binghamton, John Stella, Individually and as Chairman of the Planning Commission of the City of Binghamton, Mark Young, Individually and as Member of the Planning Commission of the City of Binghamton, Michelle O'Loughlin, Individually and as Member of the Planning Commission of the City of Binghamton, Robert Pompi, Individually and as Member of the Planning Commission of the City of Binghamton, Thomas Pollack, Individually and as Member of the Planning Commission of the City of Binghamton, Earl Walker, Individually and as Member of the Planning Commission of the City of Binghamton, James Worhach, Individually and as Member of the Planning Commission of the City of Binghamton, Kelly Ligeikis, Individually and as Member of the Planning Commission of the City of Binghamton, Joann Mastronardi, Individually and as Chairman of the Zoning Board of Appeals of the City of Binghamton, Vladimyr Gouin, Individually and as Member of the Zoning Board of Appeals of the City of Binghamton, Donald Hanrahan, Individually and as Member of the Zoning Board of Appeals of the City of Binghamton, Carman Garufi, Individually and as Member of the Zoning Board of Appeals of the City of Binghamton, Gerald O'Brien, Individually and as Member of the Zoning Board of Appeals of the City of Binghamton, Defendants.

No. 3:11–CV–1300 (MAD/DEP).

United States District Court, N.D. New York.

April 18, 2012.

Cohen Law Group, PC, Brian S. Cohen, Esq., of Counsel, New York, NY, for Plaintiffs.

City of Binghamton, Corporation Counsel, Brian M. Seachrist, Esq., of Counsel, Binghamton, NY, for Defendants.

MEMORANDUM–DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

INTRODUCTION

Plaintiffs, property owners in the City of Binghamton, commenced this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated their rights under the United States Constitution. Presently before the Court is defendants' motion to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1). (Dkt. No. 27). Plaintiffs have opposed the motion. (Dkt. No. 32).

BACKGROUND¹

Plaintiffs are New York Limited Liability companies (“LLCs”). Isaac Levin (“Levin”) is the managing member of the LLCs. In 2007, 2008 and early 2009, plaintiffs purchased properties at 26 Seminary Avenue (July 11, 2007), 33 Seminary Avenue (July 2008) and 31 Seminary Avenue (January 30, 2009) in the City of Binghamton. In 2008, plaintiffs converted 33 Seminary Avenue to five-bedroom units for college students. Plaintiffs sought to convert the remaining properties into “safe and upscale housing” for students attending the State University of New York at Binghamton or Broome County Community College.

Ordinance 009–009

On March 16, 2009, the City Council adopted, and Mayor Matthew Young subsequently approved, Ordinance 009–009 (“Ordinance”) which amended certain sections of Chapter 410 of the Code of the City of Binghamton (“City Code”). Chapter 410 is entitled “Zoning”. Article VI refers to Residential Districts. Of relevance herein is Section 410.27(B) which provides:

B. R–2 Residential One- and Two–Unit Dwelling District.

(1) Permitted by right.

(a) Principal uses:

Two-unit residences

(3) Permitted with Planning Commission approval (special use permit and Series A site plan).

(1) Principal uses:

Conversion of dwelling Unit to More than Four Bedrooms

Article VIII is entitled, “Special Use Permit/Series A Site Plan Review Requirements”. Of relevance is Section 410.36 which provides:

A. Series A Site Plan approval from the Planning Commission pursuant to 410.39 of this Article VIII is required for all new construction, for all commercial uses, for all special permitted uses, for all principal permitted and accessory uses, for all changes of use, and as required by 410.27 or 410.29 of this Chapter. No building permit shall be issued by the Building Inspector for any use which requires site plan approval except upon authorization of an in conformity with plans approved by the Planning Commission.

B. Exceptions. Notwithstanding Subsection A of this section, no Series A Site Plan approval is required for: (i) single- and two-family dwellings and accessory uses thereto, except as may be required by 410.27 or 410.29 of this Chapter, or (ii) any change of use from one principal permitted or accessory use to another principal permitted or accessory use, including changes of use within a permitted multiple use, e.g. a shopping center, and where no exterior alterations or additions are proposed, provided the Planning Department and Building Inspector determine that the proposed change of use will not have any significant impact on:

1. Traffic volume

2. Site access

3. On-site and off-site parking

4. Internal circulation

5. Neighborhood noise levels

6. Green space (The proposed project will not have created a need for additional landscaping, screening, or buffering)

7. Drainage

8. Character of the neighborhood

9. Lighting

The list of items to be considered above is inclusive, but not exclusive, and the Planning Department and Building Inspector may consider any environmental or development issues that would have a significant impact on the parcel and/or the surrounding area.

Applications for 31 Seminary Avenue²

On April 30, 2009, plaintiffs submitted a Building Permit Application (“Building Permit Application”) to convert the one-unit dwelling to a two-unit dwelling with four bedrooms. Plaintiffs filed the required site plan and floor plan. Simultaneously, plaintiffs submitted an application to the Planning Commission (“Planning Commission Application”), pursuant to the Ordinance, for approval to construct a two-family home with five bedrooms per unit. Plaintiffs also submitted an application to the Zoning Board for a variance (“Variance Application”) for a parking lot to provide parking for ten cars. ³

After the Building Permit Application was submitted, plaintiffs allege that the following events occurred:

• On May 5, 2009, defendant Supervisor Chadwick (“Chadwick”) told Levin that the Building Permit was denied because the change of occupancy from a one-unit to a two-unit dwelling was deemed a “change of use”.

• On May 7, 2009, Levin hand delivered a letter to Chadwick and Corporation Counsel contesting the denial arguing that the change of occupancy was not a change of use and cited examples from other municipalities.

• On May 8, 2009, plaintiffs received a letter from Chadwick advising that the Building Permit Application had not yet been considered because Planning Commission approval was required due to the change of use.

• On May 8, 2009, Attorney Seachrist telephoned Levin to advise that the Building Permit Application would be approved if the renovation was changed from five bedrooms per dwelling to four bedrooms.

• Shortly thereafter, Levin had another conversation with Chadwick wherein Chadwick advised that only a permit to construct a one-unit dwelling with four bedrooms would be approved “as of right”.

On May 14, 2009, plaintiffs submitted a modified permit application for the renovation of 31 Seminary Avenue providing for a one-unit dwelling with four bedrooms, two auxiliary rooms, one kitchen and parking for four vehicles (“Modified Application”).⁴ Chadwick allegedly informed Levin that the Modified Application would be denied because there were other applications pending. On May 26, 2009, plaintiff faxed a letter to the Planning Commission withdrawing all other applications.⁵ On May 26, 2009, plaintiffs claim they received written correspondence denying the Modified Application.

Plaintiffs allegedly amended the modified permit application and resubmitted the floor plan without the auxiliary rooms. On June 3, 2009, the application was denied and plaintiffs claim they were advised to amend their plans to demonstrate that a single-family residence was being proposed. ⁶

In June 2009, plaintiffs were issued a permit for work.⁷ On June 11, 2009, plaintiffs allegedly submitted another application to convert the unit to a two-unit dwelling but claim the application was denied on July 10, 2009. On June 17, 2009, plaintiffs allegedly submitted an application to convert 31 Seminary Avenue from a single-unit dwelling to a two-unit dwelling with four bedrooms per unit. By letter dated June 29, 2009, plaintiffs claim that Chadwick denied the application classifying the proposed conversion as a change of use.⁸

On July 6, 2009, Inspector Esworthy appeared at 31 Seminary Avenue for an inspection of the premises. Plaintiffs allege that the inspection was unannounced and that Levin was not present, had no knowledge of the inspection and did not consent to the inspection. Esworthy allegedly questioned the on-site workers about the work being performed. Plaintiffs claim that the only work being performed at the time was on the roof and exterior of the house. Esworthy issued a “red tag” and stopped work on the house. Plaintiffs claim that the stop work order was issued based upon statements of roofers who had no knowledge of plaintiffs' final plans for the interior of the home. Moreover, plaintiffs claim that the on-site workers had no authority to speak for or represent plaintiffs. As a result of the stop-work order, plaintiffs allegedly sustained over $100,000.00 in damages.

On October 21, 2009, plaintiffs wrote to the Zoning Board asking for an interpretation as to whether the proposed conversion of 31...