| Matter of Upstate Land & Props., LLC v Town of Bethel |
| 2010 NY Slip Op 04692 [74 AD3d 1450] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Upstate Land and Properties, LLC, Appellant, vTown of Bethel et al., Respondents. |
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Peters, J. Appeal from a judgment of the Supreme Court (Meddaugh, J.), entered June 1,2009 in Sullivan County, which, in a combined proceeding pursuant to CPLR article 78 andaction for a declaratory judgment, granted respondents' motion to dismiss the first and fifthcauses of action of the petition/complaint.
Petitioner owns a large tract of vacant land consisting of two contiguous parcels within theTown of Bethel, Sullivan County, which fronts on two public roads known as Ballard Road andPine Grove Road, as well as five smaller roads. Because the property is bisected by wetlandsrunning north to south, the western portion is not accessible from an existing driveway onBallard Road other than by foot. In anticipation of development of the property, but without firstobtaining approval, petitioner created a rough entranceway from Pine Grove Road in order toconduct soil and engineering tests and survey the western portion of the property. Days later,respondent Lynden Lilley, the Highway Superintendent for respondent Town of Bethel, issued anotice of violation for construction of a driveway without a proper permit.
Petitioner paid the assessed fine and applied for a driveway permit. Lilley issued a temporarydriveway permit for a "field or woodlot entrance." Soon after, petitioner performed [*2]additional work on the driveway, including the removal oftrees.[FN*]The Town's engineer, Glenn Smith, subsequently inspected the area and reported that the newlyconstructed entrance was nearly 200 feet in length and ranged from 18 to 30 feet in width,extended to within feet of a neighboring property and posed the threat of additional runoff anddrainage concerns for the neighboring property that required erosion control measures.Thereafter, Lilley revoked petitioner's temporary permit on the basis that the work performedexceeded the scope of the permit. Petitioner then applied for permission to access the westernparcel from other locations and, following a letter from the Town Board requesting that nodriveway permit be issued at that time, Lilley denied petitioner's request.
Petitioner commenced the instant proceeding pursuant to CPLR article 78 to annul therevocation of its temporary permit and action for declaratory judgment and damages pursuant to42 USC §§ 1983 and 1988. As relevant here, Supreme Court dismissed the fifthcause of action, which alleged procedural and substantive due process violations pursuant to 42USC § 1983 and sought counsel fees under 42 USC § 1988. Petitioner now appeals,arguing that it has sufficiently pleaded a substantive due process claim pursuant to 42 USC§ 1983.
When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), we afford thepleadings a liberal construction, accept the facts alleged therein as true, accord the plaintiff thebenefit of every possible inference and determine whether the facts alleged fit within anycognizable legal theory (see EBC I, Inc.v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Lazic v Currier, 69 AD3d 1213, 1213-1214 [2010]). To state asubstantive due process claim in the land-use context, petitioner must allege "(1) the deprivationof a protectable property interest and (2) that 'the governmental action was wholly without legaljustification' " (Matter of Ken MarDev., Inc. v Department of Pub. Works of City of Saratoga Springs, 53 AD3d 1020,1024-1025 [2008], quoting BowerAssoc. v Town of Pleasant Val., 2 NY3d 617, 627 [2004]; see Town of Orangetownv Magee, 88 NY2d 41, 52-53 [1996]).
First addressing petitioner's claim as it relates to the revocation of its temporary drivewaypermit, petitioner was required to establish " 'more than a mere expectation or hope to retain thepermit and continue [its] improvements; [petitioner] must show that pursuant to [s]tate or locallaw, [it] had a legitimate claim of entitlement to continue construction' " (Bower Assoc. vTown of Pleasant Val., 2 NY3d at 627, quoting Town of Orangetown v Magee, 88NY2d at 52). Although a protectable property interest is established when a landowner effectssubstantial changes and incurs substantial expenses to further the development in reliance on alegally issued permit (see Town of Orangetown v Magee, 88 NY2d at 52), the petitionalleges that nearly all work on the subject woodlot entrance was complete at the time of theissuance of the temporary permit and does not claim that petitioner thereafter performed anysignificant work in reliance on the permit. Even if the further removal of trees and expansion ofthe driveway could be viewed [*3]as having been performed inreliance on the temporary permit, such work is not "so substantial that the municipal actionresults in serious loss rendering the improvements essentially valueless" (id. at 48; see Glacial Aggregates LLC v Town ofYorkshire, 14 NY3d 127, 136-137 [2010]; Matter of Sterngass v Town Bd. of Town of Clarkstown, 10 AD3d402, 405 [2004]). Furthermore, given that the permit was of a temporary nature andauthorized only the woodlot entrance created for the limited purpose of inspecting the property,respondents' conduct cannot be said to have " 'engendered a clear expectation of continuedenjoyment' of the permit" (Town of Orangetown v Magee, 88 NY2d at 52-53, quotingBarry v Barchi, 443 US 55, 64 n 11 [1979]). Thus, petitioner's allegations wereinsufficient to establish the existence of a protectable property right in the temporary permit.
We do find, however, that petitioner has successfully stated a cause of action under 42 USC§ 1983 for deprivation of a protectable property interest based upon Lilley's blanket denialof any and all access to the 60-acre western portion of its property. As previously noted,although the western portion abuts five other town roads, it is not accessible from any existingdriveway and, without a driveway, can be accessed only by foot. Given the severe limitationsthis lack of access places on petitioner's use and development of its property, the complaintsufficiently alleges the deprivation of a vested property interest (see Matter of Ken Mar Dev.,Inc. v Department of Pub. Works of City of Saratoga Springs, 53 AD3d at 1022).
While respondents are vested with discretion to grant or deny a driveway permit at a specificaccess point (see Bower Assoc. v Town of Pleasant Val., 2 NY3d at 628), they do notassert any valid reason upon which they base the denial of all access. Rather, as Lilley's lettershows, the sole reason for denying petitioner any access was the Town Board's request that noaccess be granted because petitioner had previously failed to comply with the Town's drivewaylaws and the conditions of his temporary permit. Absent the Town Board's blanket prohibition,however, and subject to the particulars of a specific application, there is "a very stronglikelihood" that a driveway permit for one of the other locations would be granted (id.[internal quotation marks and citation omitted]). Given that the blanket denial was punitiverather than based upon permissible considerations pursuant to a specific application, petitioner'sallegations that the denial was due to the complaints of neighbors and political pressure on theTown Board are sufficiently specific and supported by the record to meet the pleadingrequirement that the " 'governmental action was wholly without legal justification' " (Matterof Ken Mar Dev., Inc. v Department of Pub. Works of City of Saratoga Springs, 53 AD3d at1024-1025, quoting Bower Assoc. v Town of Pleasant Val., 2 NY3d at 627; seeTown of Orangetown v Magee, 88 NY2d at 53).
The parties' remaining contentions are either rendered academic by our determination orhave been reviewed and found to be without merit.
Mercure, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is modified,on the law, without costs, by reversing so much thereof as dismissed petitioner's fifth cause ofaction to the extent that it alleges a 42 USC § 1983 claim based upon respondent LyndenLilley's denial of a permit for access to the western portion of petitioner's property, and, as somodified, affirmed.
Footnote *: Following issuance of thetemporary permit, a neighboring property owner commenced an action against the parties in thisproceeding/action seeking a preliminary injunction prohibiting the construction of either a roador driveway from Pine Grove Road to petitioner's property. According to petitioner, SupremeCourt (Sackett, J.) denied injunctive relief and granted it permission to remove some trees alongthe previously constructed entranceway.