| Kreamer v Town of Oxford |
| 2012 NY Slip Op 00274 [91 AD3d 1157] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| Michele Kreamer et al., Appellants, v Town of Oxford etal., Respondents. |
—[*1] McKenzie Hughes, L.L.P., Syracuse (Jeffrey D. Brown of counsel), forrespondents.
Garry, J. Appeal from an order of the Supreme Court (Dowd, J.), entered July 19, 2010 inChenango County, which granted defendants' motion to dismiss the complaint.
In October 2008, plaintiffs purchased residential property in the Town of Oxford, ChenangoCounty, and subsequently commenced repairs and/or new construction upon the property.Defendant Patrick Moore, the Town Code Enforcement Officer, issued a stop work order becauseplaintiffs had not obtained a building permit. Plaintiffs thereafter applied for such a permit, andMoore denied their application on the ground that the lot was too small for the proposedconstruction under the Town's zoning ordinance. In June 2009, defendant Town of OxfordZoning Board of Appeals (hereinafter ZBA) denied plaintiffs' application for an area variance. InSeptember 2009, plaintiffs commenced this action against Moore, the ZBA, defendant Town ofOxford, defendant Town of Oxford Planning Board, and defendant Lawrence Wilcox,individually and as Town of Oxford Supervisor, seeking a declaratory judgment and aninjunction, and alleging common-law negligence, abuse of power by Wilcox and violation of 42USC § 1983. Defendants thereafter moved to dismiss the complaint, and Supreme Courtgranted the motion. Plaintiffs appeal.
Initially, we reject plaintiffs' contention that Supreme Court improperly applied the standardapplicable to summary judgment motions to the motion to dismiss the complaint (seeCPLR 3211 [a] [7]; 3212). Despite a brief reference to plaintiffs' failure to submit affidavits, therequisite standard was clearly applied; the decision was rendered by " 'constru[ing] the pleadings[*2]liberally, accept[ing] the allegations as true and afford[ing][plaintiffs] the benefit of every possible inference to determine whether the facts alleged fitwithin a cognizable legal theory' " (Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1054[2009], quoting T. Lemme Mech., Inc. vSchalmont Cent. School Dist., 52 AD3d 1006, 1008 [2008]).
Supreme Court properly dismissed plaintiffs' cause of action seeking a declaratory judgmentthat their property is grandfathered under the Town's zoning ordinance. Plaintiffs contend that adeclaratory judgment action is a proper vehicle for this claim, and that Town Law § 267-c(1) provides that a challenge to a town zoning action "may" be asserted in a CPLR article 78proceeding, but that such a proceeding is not an exclusive remedy. The significant question is notwhether the proper form of proceeding was selected, but rather whether the claim wastimely—and we find that it was not. A six-year limitations period generally governsdeclaratory judgment actions (see CPLR 213 [1]), but it is well settled that if such a claimcould have been properly made in another form, then the shorter limitations period applies; " 'thetime for asserting the claim cannot be extended through the simple expedient of denominatingthe action one for declaratory relief' " (Matter of Town of Olive v City of New York, 63 AD3d 1416, 1418[2009], quoting New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201[1994]; see Trager v Town of Clifton Park, 303 AD2d 875, 876 [2003]). The applicablelimitations period is determined by " 'examin[ing] the substance of [the] action to identify therelationship out of which the claim arises and the relief sought' " (Matter of Save the PineBush v City of Albany, 70 NY2d 193, 202 [1987], quoting Solnick v Whalen, 49NY2d 224, 229 [1980]). Here, plaintiffs' claim that their property is grandfathered arises out ofdefendants' denial of their building permit and variance applications. The relief they seek is, inessence, a determination that defendants' actions were wrong. This claim could have beenbrought in a CPLR article 78 proceeding challenging defendants' actions under Town Law§ 267-c (1). The action was not commenced within that statute's 30-day limitations period,and was thus properly dismissed as untimely (see Town Law § 267-c [1];Matter of Town of Olive v City of New York, 63 AD3d at 1418; Matter ofStankavich v Town of Duanesburg Planning Bd., 246 AD2d 891, 892-893 [1998]; Matterof Powell v Town of Coeymans, 238 AD2d 788, 789 [1997]).[FN*]
Plaintiffs' tort claims were also properly dismissed. "Government action, if discretionary,may not be a basis for liability, while ministerial actions may be, but only if they violate a specialduty owed to the plaintiff, apart from any duty to the public in general" (McLean v City of New York, 12 NY3d194, 203 [2009]). Defendants' allegedly negligent denial of plaintiffs' applications for apermit and variance was not claimed to be ministerial, nor do plaintiffs' allegations give rise toany reasonable inference of the existence of a special duty (see id. at 199; Lewis v State of New York, 68 AD3d1513, 1514-1515 [2009]). As to the cause of action against Wilcox, plaintiffs claim that hecommitted an "abuse of power" by signing the letter advising that their permit application hadbeen denied and that their remedy was an appeal rather than a new application. However, thereare no facts alleged that might support a showing [*3]that thisconduct was wrongful, that it was not discretionary, or that it was beyond the scope of thisdefendant's official duties, with respect to which he was immune from civil liability (see Moore v Melesky, 14 AD3d757, 760 [2005]; Della Villa v Constantino, 246 AD2d 867, 869 [1998]).
Next, Supreme Court correctly dismissed plaintiffs' claim pursuant to 42 USC § 1983.As pertinent here, the statute redresses constitutional violations of property rights and "is notsimply an additional vehicle for judicial review of land-use determinations . . .[D]enial of a permit—even an arbitrary denial redressable by [a CPLR] article 78 or otherstate law proceeding—is not tantamount to a constitutional violation under 42 USC§ 1983; significantly more is required" (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 627 [2004][internal quotation marks, citation and emphasis omitted]). To establish their substantive dueprocess claim, plaintiffs were required to allege that, without legal justification, they weredeprived of a vested property interest, consisting of "more than a mere expectation or hope" ofobtaining a permit or a variance (Town of Orangetown v Magee, 88 NY2d 41, 52 [1996];see Matter of Ken Mar Dev., Inc. vDepartment of Pub. Works of City of Saratoga Springs, 53 AD3d 1020, 1024-1025[2008]). The pleadings here contain no allegations that might support a claim that defendants hadso little discretion over building permit and variance applications "that approval of a properapplication [was] virtually assured" (Bower Assoc. v Town of Pleasant Val., 2 NY3d at628 [internal quotation marks and citations omitted]; see Town of Orangetown v Magee,88 NY2d at 52-53) and, thus, plaintiffs did not establish a " 'legitimate claim of entitlement' "(Town of Orangetown v Magee, 88 NY2d at 52, quoting Board of Regents of StateColleges v Roth, 408 US 564, 577 [1972]). Moreover, plaintiffs failed to allege facts thatmight support a claim that defendants' actions were "wholly without legal justification"(Bower Assoc. v Town of Pleasant Val., 2 NY3d at 627). No facts or circumstances arealleged from which it could be inferred that defendants' actions were punitive, politicallymotivated, or otherwise egregious and arbitrary in the constitutional sense (compare Town ofOrangetown v Magee, 88 NY2d at 53; Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d1450, 1453-1454 [2010]). Accordingly, no violation of 42 USC § 1983 wassuccessfully alleged.
Plaintiffs' remaining contentions, to the extent not specifically addressed, have beenconsidered and found to be without merit.
Peters, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Plaintiffs' speculative contentionthat the 30-day limitations period may never have begun to run because the ZBA's decision maynot have been filed with the Town Clerk (see Town Law § 267-c [1]) was raisedfor the first time on appeal and is thus unpreserved (see Matter of Wyman v Braman, 298AD2d 787, 788 [2002], lv dismissed 99 NY2d 578 [2003]; Matter of Dwyer vPolsinello, 160 AD2d 1056, 1058 [1990]).