No. 07-2944-cv.United States Court of Appeals, Second Circuit.
March 6, 2009.
Appeal from the United States District Court for the Southern District of New York (William C. Conner Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on June 28, 2007, is AFFIRMED.
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APPEARING FOR APPELLANTS: JAMES G. SWEENEY, Law Offices of James G. Sweeney, Goshen, New York.
APPEARING FOR APPELLEES: PAUL E. SVENSSON, Hodges Walsh
Slater, LLP, White Plains, New York.
PRESENT: HONORABLE REENA RAGGI, HONORABLE PETER W. HALL Circuit Judges, HONORABLE GERARD E. LYNCH District Judge.[1]
Raymond Alzamora, Michael Dunn, and Creative Homes, Inc., appeal the dismissal of their 42 U.S.C. § 1983 claim charging the Village of Chester and the Village Planning Board with violation of appellants’ procedural due process right to notice of zoning law amendments that prevented the construction of a senior-citizens dwelling. On our de novo review of the Rule 12(b)(6) dismissal, see VietnamAss’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008), we assume the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision.
Appellants submit that the district court erred when it concluded, as a matter of New York law, that their right to the existing zoning status of their land had not vested at the time of the alleged procedural due process violation. SeeDLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998) (explaining that, in land-use-regulation cases, a
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property owner’s constitutional entitlement to a claimed interest stems “from an independent source such as state law” (internal quotation marks omitted)). They contend that, by operation of a default provision in the Village of Chester’s zoning law, see Village of Chester Code § 98-25(D), they obtained site plan approval and a special-use permit, ownership of which created a protectable development right even though they had not commenced construction.
While appellees challenge the premise that appellants actually obtained a special-use permit, we need not resolve that challenge because we conclude, for reasons similar to those identified by the district court, that appellants’ failure to complete substantial construction means that they had no constitutionally protected property right in the zoning status of their land or a constitutional right to receive actual notice of the proposed change in the zoning status.See American Mfrs. Mut. Ins. Co. v.Sullivan, 526 U.S. 40, 59 (1999) (“The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in `property’ or `liberty.'”). In order for such a right to vest under New York law, “a property owner must have undertaken substantial construction and must have made substantial expenditures prior to the enactment of the more restrictive zoning ordinance.” DLCMgmt. Corp. v. Town of Hyde Park, 163 F.3d at 130;see also In re Ellington Constr. Corp. v. ZoningBd. of Appeals of the Inc. Vill. of New Hempstead, 77 N.Y.2d 114, 122, 564 N.Y.S.2d 1001, 1005 (1990) (“[W]here a more restrictive zoning
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ordinance is enacted, an owner will be permitted to complete a structure or a development which an amendment has rendered non-conforming only where the owner has undertaken substantial construction and made substantial expenditures prior to the effective date of the amendment.”).
Adhering to that principle, we have rejected the very argument that appellants advance here: that the un-exercised right to develop land confers a due-process right in its existing zoning status. See DLC Mgmt. Corp. v. Town of HydePark, 163 F.3d at 131. If that were so, our court would effectively be transformed into a zoning board of appeals — a role we have expressly declined to assume.See id.
Because we affirm on this ground, we need not reach appellees’ alternative argument that appellants received all the notice required by due process.
The judgment of the district court is AFFIRMED.
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