MASI MANAGEMENT INC v. TOWN OF OGDEN

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Supreme Court, Monroe County, New York.

MASI MANAGEMENT, INC., Plaintiff, v. TOWN OF OGDEN et al., Defendants.

Decided: February 25, 1999

Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester (J. Michael Wood of counsel), for defendants. Gates & Adams, Rochester (Douglas S. Gates of counsel), for plaintiff.

In this action pursuant to 42 U.S.C. § 1983, and under the N.Y. Constitution, plaintiff alleges that defendants violated its substantive due process, and equal protection, rights by causing it to expend effort and money to secure approval of a land use project defendants never intended to approve.   Defendants move to dismiss the complaint for failure to state a cause of action (CPLR 3211(a)(7)).

A. The Facts

Plaintiff is a “contract-vendee” of land in the Town of Ogden near the Village of Spencerport.   Plaintiff alleges that defendants intentionally delayed action on plaintiff's proposal until they could obtain submission and approval of a competing senior citizen housing project proposed by a well-liked local developer who hired an attorney married to a town councilwoman.   Giving the complaint, as supplemented by affidavits submitted by the plaintiff, an exceedingly liberal construction, the following salient facts are alleged.   Plaintiff approached defendants informally in the late Spring of 1997 with a subdivision proposal for senior citizen housing on property zoned for R-2 uses, which allow duplex housing.   According to the complaint, plaintiff abandoned this original plan in response to defendants' entreaties, and formally submitted a proposal in August of 1997 for approval of a subdivision plat involving large lot single-family homes and free-standing patio homes without inclusion of duplexes.   Subsequently, when faced with defendants' apparent preference for a competing senior citizen proposal submitted by another local developer, Michael LoPresti, plaintiff withdrew its proposal in frustration sometime in February, 1998.   Plaintiff substituted a duplex subdivision proposal for an R-2 district with some minor portions calling for uses not permitted in R-2 districts.   Defendants eventually denied plaintiff's application and plaintiff did not seek review of the denial in a CPLR article 78 proceeding.   Instead, plaintiff filed this § 1983 action alleging a deprivation of its constitutional rights.

Plaintiff does not now appear to have any interest in the property, although the record is inconclusive on the point;  it did not challenge defendants' delay and denial of the subdivision application in an Article 78 proceeding or in an action for a declaratory judgment;  it does not in this action seek to overturn the Town's decision;  and it does not join the owner of the land in this lawsuit.   The owner is nowhere mentioned in the pleadings and it is not revealed whether the owner believes that defendants unconstitutionally restricted or infringed any ownership rights in the parcel.1  Instead, plaintiff seeks damages for its “opportunity cost” borne because defendants led it to believe that its project eventually would be approved within the time specified in its purchase contract when, all along, defendants planned to reject plaintiff's project in favor of a proposal for senior citizen housing presented by a locally favored developer.

In particular, plaintiff contends that it would have submitted a formal proposal for two-family duplexes early on that defendants virtually would have been required to approve under the town zoning code (Ogden Town Code ch. 210 [hereinafter referred to as Zoning Code] ) then in existence, which clearly permitted such uses, but for its knowledge that defendants, for a long time, wished to change the zoning code to prohibit duplexes in the area of the subject property, and defendants' request for plaintiff's cooperation in carrying out such wish.   Plaintiff alleges that, when it broached the subject of duplex development, defendants begged off, and induced it to enter into “an oral agreement” with certain of defendants which called upon plaintiff to change its project to one involving construction of large-lot single-family homes and patio homes.   In return, according to plaintiff, defendants would change the zoning code to permit the multiple uses on the subject parcel that plaintiff desired to incorporate into the project, and, presumably (because such presumption is all that is alleged), approve the project in time for the deadline set in plaintiff's purchase and sale contract.   The long and the short of plaintiff's claim is that it expended large sums, for which it seeks compensatory damages, to satisfy the particular demands of defendants in regard to the alternative large-lot single-family and patio home project design desired by defendants, when it could have, without a bureaucratic run-around, easily submitted the original duplex plan for swift approval under the existing code.

B. First & Third Causes of Action:  Substantive Due Process

In the first and third causes of action, plaintiff alleges, respectively, a violation of the federal and state constitutional guarantee that the state not deprive it of property without due process of law.   U.S. Const.Amdt. XIV;  N.Y. Const. Art. I § 6.   Most of the discussion in this section concerns the Fourteenth Amendment.   At the end of this section, however, the court concludes that, although the New York Court of Appeals has for some purposes given the state due process clause a broader interpretation than the federal guarantee, no such rule covers the circumstances of this case.

 As a preliminary matter, the court merely “assume[s] without determining the issue” that a contract-vendee “shares” with the property owner the property rights of the landowner.  DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir.1998).   Whether the owner was deprived of a property right in violation of the substantive due process principle “begin[s]” with the question whether the property right asserted is cognizable under the federal constitution.  Id. 163 F.3d at 130.  “In this regard, a property right will not be recognized as cognizable under the due process doctrine if the person claiming the right has a mere abstract need or desire for, or unilateral expectation of the claimed right.   Rather, the person claiming the right must have a ‘legitimate claim of entitlement’ to it.”  Id. 163 F.3d at 130 (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).   In determining whether such a legitimate claim of entitlement is asserted, the court must identify precisely what plaintiff claims it was entitled to, and then determine whether New York zoning law conferred such a legitimate claim of entitlement on plaintiff.   Id. 163 F.3d at 130.

In this case, the allegations of plaintiff's complaint suggest two theories of entitlement.   First, plaintiff claims that it had a legitimate claim of entitlement to continued positive consideration of the large-lot single-family and patio home project, or at least the right to be free from defendants' misleading representations causing it to pursue the single-home and patio home approach, and to enactment of amendments to the local zoning ordinance defendants stated that they desired, which would accommodate plaintiff's subdivision proposal.   The second theory of relief a liberal construction of the complaint yields is that plaintiff had a legitimate claim of entitlement to the existing R-2 zoning classification of the land to accommodate the original proposal to build two-family duplexes, an allowable use in an R-2 district.   The latter claim of entitlement appears to be the more concrete theory of the case, and therefore it is considered first.

As very recently summarized by the Second Circuit,

Under New York law, a property owner has no right to the existing zoning status of his land unless his right has become “vested.”   See, e.g., In the Matter of Ellington Construction Corporation v. Zoning Board of Appeals of the Incorporated Village of New Hempstead, 77 N.Y.2d 114, 122, 566 N.E.2d 128, 132, 564 N.Y.S.2d 1001, 1005 (1990).   In order for a right in a particular zoning status to vest, a property owner must have undertaken substantial construction and must have made substantial expenditures prior to the enactment of the more restrictive zoning ordinance.  Id.  “Where ․ there has been no construction or other change to the land itself,” a property owner has no right to complete a project permitted under an earlier zoning classification.  In the Matter of Pete Drown, Inc. v. Town Board of the Town of Ellenburg, 229 A.D.2d 877, 879, 646 N.Y.S.2d 205, 206 (3rd Dept.1996).   In instances in which construction has been improperly delayed by town officials in an attempt to prevent vesting, the right to an existing zoning status may also vest by equitable estoppel.   See In the Matter of Lawrence School Corp. v. Morris, 167 A.D.2d 467, 468, 562 N.Y.S.2d 707, 708 (2d Dept.1990);  In the Matter of Faymor Dev. Co. v. Board of Standards & Appeals of City of New York, 45 N.Y.2d 560, 566, 383 N.E.2d 100, 103, 410 N.Y.S.2d 798, 801 (1978).

DLC Management Corp., 163 F.3d at 130-31.   Plaintiff does not claim that it began construction and expended, in connection therewith, substantial sums.   Compare Town of Orangetown v. Magee, 88 N.Y.2d 41, 47-48, 52-53, 643 N.Y.S.2d 21, 665 N.E.2d 1061 (1996).   Nor does it contend that defendants gave it an approval or a permit upon which it could peg a property interest.   Compare id. 88 N.Y.2d at 52-53, 643 N.Y.S.2d 21, 665 N.E.2d 1061;  Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379 (2d Cir.1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996).   Instead, plaintiff argues that its interest in the existing R-2 zoning classification of the land, which permitted construction of two-family duplexes, “vested” by the operation of equitable estoppel because defendants, by means of securing an agreement to delay consideration of the project and setting plaintiff off on another course, induced plaintiff to believe that the alternative project for large-lot single-family homes and patio homes would be approved under a change in the zoning law that, for a long time, defendants wished to enact anyway.   According to this theory of the case, town officials improperly delayed consideration of a simple R-2 two-family duplex project to prevent vesting under the existing zoning ordinance, which enabled them to facilitate submission of a competing application by a locally favored developer by enacting amendments to the zoning ordinance which would permit the competing project, but not plaintiff's originally planned duplex project.

 One problem with plaintiff's duplex theory of the case is that plaintiff never submitted a proposal in early 1997 for a two-family duplex project.   Plaintiff's choice to forego submission of a duplex subdivision plan in 1997, of course, prevented final, or even preliminary, agency action on it.   The court has found no case which has sustained an inchoate substantive due process land use claim of this sort.   As discussed below in connection with plaintiff's single-family and patio home proposal theory of the case, a failure to see the administrative process through a final decision renders a substantive due process claim not ripe for review.   Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 199-200, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985);  Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir.1992), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993).   A substantive due process claim is premature when, instead of seeking mandamus relief, plaintiff “went along with the political process until it was too late.”  Covington Court, Limited v. Village of Oak Brook, 77 F.3d 177, 179 (7th Cir.1996) (citing River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994)).   See Orange Lake Assocs. v. Kirkpatrick, 21 F.3d 1214, 1224-25 (2d Cir.1994) (same).   Therefore, plaintiff's claim that it had a substantive due process interest in connection with its originally intended duplex project is not ripe for review, and is by now foreclosed.

 Nevertheless, the court considers the claim on the merits, as if the originally intended proposal had been submitted for preliminary plan approval by the Planning Board, and denied.   Because it is clear from plaintiff's allegations, if taken as true, that defendants intentionally delayed or forestalled submission of plaintiff's proposed duplex project under the then existing zoning ordinance to prevent “vesting” if vesting would otherwise have occurred, Cedarwood Land Planning v. Town of Schodack, 954 F.Supp. 513, 522-23 (N.D.N.Y.1997) (collecting New York cases), the question devolves to whether, in fact, vesting was possible under the code as it existed in 1997.   If such “vesting” could not have occurred under applicable law in the absence of defendants' claimed improper delay, such delay itself cannot establish a violation of plaintiff's substantive due process rights.  Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996) (absence of valid property interest renders inquiry into defendants' alleged arbitrary conduct unnecessary).

 “Under the entitlement test, a constitutionally-protected property interest exists in a sought-after land-use permit or approval if the issuing agency lacked the authority to deny the permit or approval for a legitimate reason, or if the discretion of the issuing agency was so narrowly circumscribed that approval of a proper application was virtually assured.”   DLC Management Corp. v. Town of Hyde Park, 163 F.3d at 132.  “Because the focus of this inquiry is on the degree of the issuing agency's official discretion and not on the probability of its favorable exercise, the question of whether an applicant had a protected property interest is normally a matter of law for the court.”  Id. 163 F.3d at 132-33.   See Matter of Twin Town Little League, Inc. v. Town of Poestenkill, 249 A.D.2d 811, 671 N.Y.S.2d 831 (3d Dept.1998).   Where municipal officials “have wide discretion to deny [a] housing application, there can be no certainty or very strong likelihood that [municipal] officials, absent [the] alleged due process violation, would have approved the permit;  therefore, the applicant [would] not have an entitlement sufficient to invoke the protection of the due process clause.”  Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1225 (2d Cir.1994).   See also, Gagliardi v. Village of Pawling, 18 F.3d 188, 192 (2d Cir.1994).

 Plaintiff has variously described its originally intended project. As disclosed by the complaint, the originally intended proposal, which as stated above was never submitted in any form, was not simply for two-family duplexes permitted in R-2 districts.   According to the complaint, plaintiff originally intended a small portion of the duplex subdivision to be commercial in nature, and Multiple Family Residential (“MFR”).   Therefore, under the version of the originally intended proposal set forth in the complaint, either a rezoning of those minor portions, or variances, would have been required if plaintiff had pressed ahead with the original project it claims was forestalled by defendants' improper delay on the alternative large-lot single-family and patio home proposal.   If a variance was needed for any aspect of the proposal, plaintiff would not be able to state a substantive due process claim because the variance provisions of the Ogden Zoning Code (§ 210-100 and § 210-101) confer at least as broad a discretion on town officials to grant or deny a variance as those held to preclude a finding of an entitlement or cognizable property interest in Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996).

Plaintiff stresses in a surreply affidavit that it would have gone ahead with a simple duplex subdivision proposal if it could have foreseen defendants' subsequent alleged misconduct, and the complaint may be read to allege as much.   The pleadings at this stage must be considered liberally.   Accordingly, and notwithstanding specifically pleaded facts to the contrary, consideration of plaintiff's substantive due process claim assumes that it truly intended, at least at first, a duplex subdivision project without a need for variances or rezoning, and the court indulges the fiction, as described above, that such a project was indeed submitted to defendants for approval, and that defendants rejected it.

Although construction in an R-2, two-family district does not normally require a site plan review by the Planning Board, see Ogden Zoning Code § 210-11, § 210-29, plaintiff intended a major subdivision of 5 or more lots on a 52-acre parcel, and therefore was required to obtain Planning Board approval under Ogden Town Code § 173-5.   See also, Ogden Zoning Code § 210-12.   Although the Ogden Code provides for detailed application procedures and consideration of proposals for major subdivisions, no provision exists which prescribes the standards for approval or disapproval of a preliminary plan or final subdivision plat.   Moreover, the zoning code (Chap. 210) provides that, where subdivision approval is needed under Ogden Town Code Chapter 173 (hereinafter referred to as Subdivision Code), the proposal “shall not be subject to review under this section [sic-probably means “chapter”].”   Ogden Zoning Code § 210-12.   Accordingly, the governing criteria for approval or disapproval are found in the enabling statute itself, Town Law § 276 and § 277, as interpreted by applicable caselaw.

Under these sections, if the Planning Board provides substantial evidence for its decision and makes sufficiently detailed findings on the record, it has wide discretion in approving or disapproving a subdivision plat.  Matter of Michelson v. Warshavsky, 236 A.D.2d 406, 407, 653 N.Y.S.2d 622 (2d Dept.1997);  Thomas v. Brookins, 175 A.D.2d 619, 572 N.Y.S.2d 557 (4th Dept.1991).   These provisions of the Town Law, § 276 and § 277, have been held to confer wide enough discretion on town officials to preclude a claim of entitlement sufficient to create a property interest cognizable under the substantive due process doctrine.  Honess 52 Corp. v. Town of Fishkill, 1 F.Supp.2d 294, 304 (S.D.N.Y.1998);  Cedarwood Land Planning v. Town of Schodack, 954 F.Supp. at 524-25.   Cf. Deepwells Estates, Inc. v. Incorporated Village of Head of the Harbor, 973 F.Supp. 338, 349 (E.D.N.Y.1997) (analogous provisions for subdivision approval under the Village Law).   Accordingly, the equitable estoppel theory of recovery directed to the originally intended duplex proposal is without merit.   Even accepting plaintiff's claim that defendants' conduct was improper, it had no legitimate claim of entitlement to approval of a straight duplex subdivision proposal plaintiff contends it originally intended.   A fortiori it had no cognizable property interest in the actual subdivision proposal for duplexes and other uses submitted in 1998, which required variances for commercial and MFR uses in that R-2 district.  Crowley v. Courville, 76 F.3d at 52.   Plaintiff has no cause of action under the duplex subdivision theory of the complaint.

 The second theory of a substantive due process violation suggested by the complaint concerns plaintiff's claim that he had a substantive due process right to continued favorable consideration of the large-lot single-family and patio home project defendants told it they preferred, and enactment of amendments to the zoning code that would have been necessary to facilitate the project, i.e., rezoning to R-1, MFR and NC districts in the appropriate places on the parcel.

The assumption that a contract-vendee's rights in the prospectively purchased property were the same as the vendor-owner in the context of desired zoning changes is much harder to make than in the context discussed above.   See fn. 1, supra.   But for purposes of this discussion that assumption is made, as is the assumption, perhaps even more difficult to make in light of New York and Town of Ogden Zoning law, that state law required defendants to enact the changes made, i.e., that plaintiff would have won an Article 78 proceeding.   Plaintiff concentrates on defendants' encouragement of the single-family and patio home approach, and makes much of their subsequent delay and subterfuge.   We assume here, without deciding, that defendants were not entitled to delay consideration of the single-family and patio home project, and that plaintiff was entitled, under state law, to passage or enactment of the zoning changes needed to obtain approval of the project.

Plaintiff does not succeed in making out a § 1983 claim even with the benefit of these assumptions.   As in the case of the other, or duplex, theory of the complaint, it is important that plaintiff did not pursue the single-family and patio home proposal.   Plaintiff formally submitted it, of course, but instead of utilizing state law mechanisms such as an Article 78 mandamus proceeding to force consideration of its subdivision application, Pokoik v. Silsdorf, 40 N.Y.2d 769, 773, 390 N.Y.S.2d 49, 358 N.E.2d 874 (1976);  Huntington Ready-Mix Concrete, Inc. v. Town of Southampton, 112 A.D.2d 161, 162, 491 N.Y.S.2d 383 (2d Dept.1985), plaintiff abandoned that path and did not make any effort to obtain a vote on it from defendants.   By abandoning the approval process, plaintiff prevented a final decision by the issuing agency.   Inasmuch as plaintiff is on these facts “in about the same boat” as the unsuccessful plaintiffs in River Park, Inc. v. City of Highland Park, supra, and Covington Court, Limited v. Village of Oak Brook, 77 F.3d 177 (7th Cir.1996) (from which the quoted words are taken, id. 77 F.3d at 179), this second theory of a substantive due process claim is also held without merit.   See also, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. at 199-200, 105 S.Ct. 3108;  Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d at 1225 (“a substantive due process claim is not ripe for review absent the rendering of a final decision by the governmental entity”).

 Even if the substantive due process claim as it relates to the large-lot single-family and patio home proposal is ripe for review, plaintiff still does not have a cause of action under this theory.   Plaintiff did not begin construction, nor does it allege that it expended anything more than the normal expenditures that might reasonably be expected by a developer trying to push through a substantial housing development.   Moreover, plaintiff's claim focuses on only one aspect of the substantive due process analysis, defendants' alleged arbitrary and capricious misleading conduct, without establishing, or recognizing even, the other element of its cause of action, i.e., whether a protected property interest is invoked in the first instance.   Plaintiff's theory of the case from the single-family and patio home proposal angle focuses strictly on defendants' conduct of the application process itself without regard to the end result.   Most cases involve a plaintiff asserting a property interest in the final result of the application process.   Here, plaintiff is attempting to define a correlative property interest in a particular aspect of the application process, here the give and take between an applicant and town officials in the context of a competing application from another developer.

The case of Zahra v. Town of Southold, 48 F.3d 674 (2d Cir.1995) shows why plaintiff's claim has no merit on its face.   There, the plaintiff-developer asserted a similar scenario.   He alleged a property interest in a particular aspect of the application process, a property inspection, that state courts had earlier determined that he was entitled to under state law.   Describing plaintiff's claim of a constitutionally cognizable property interest in the inspection as “novel,” in that it “attempt[ed] to define a derivative property interest based on an [assumed] existing property interest” in the permit or end result of the administrative process, id. 48 F.3d at 681, and 681, n. 3, the court soundly rejected it, id. 48 F.3d at 681, and explained:

The mere existence of procedures for obtaining a permit or certificate do not, in and of themselves, create constitutional “property interests.”   Were we to hold otherwise, aggrieved property owners would be empowered to bring constitutional challenges at virtually every stage of the building process in municipalities.   We expressly decline to announce a rule that would obligate federal courts [i.e., in § 1983 actions] to consider endless numbers of alleged “property interests” arising not from the benefits themselves, but as extensions of existing or sought property interests.

Id. 48 F.3d at 681-82 (bracketed material supplied).   This holding recognizes the peculiar and “necessary balance” the “strict entitlement” test is designed to achieve, which leaves to local governments the discretion conferred by statute “to regulate matters of local concern” and provides protection for a “landowner's need for constitutional protection” in an extreme case.  Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379 (2d Cir.1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996).   See also, Zahra v. Town of Southold, 48 F.3d at 680 (“this standard appropriately balances the need for local autonomy, with recognition of constitutional protection at the very outer margins of municipal behavior”).

 Close examination of plaintiff's claim thus yields the ready conclusion that it seeks, under the rubric of substantive due process, to regulate the very political process the strict entitlement test is designed to preserve to local governments.   Because “decisions on matters of local concern should ordinarily be made by those whom local residents select to represent them in municipal government-not by ․ courts [in § 1983 litigation] ․ the Due Process Clause does not function as a general overseer of arbitrariness in state and local land-use decisions.”  Zahra v. Town of Southold, 48 F.3d at 680.   See also, Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir.1988) (Posner, J.) (“much governmental action is protectionist or anticompetitive, ․ and nothing is more common in zoning disputes than selfish opposition to zoning changes”-and adding:  “The Constitution does not forbid government to yield to such opposition;  it does not outlaw the characteristic operations of democratic ․ government, operations which are permeated by pressure from special interests.”).   Accordingly, plaintiff's attempt to make out a substantive due process claim on the basis of defendants' allegedly improper conduct toward it, alone and without regard to the entitlement aspect or element of a substantive due process claim, is without merit.   See also, RRI Realty Corp. v. Incorporated Vil. of Southampton, 870 F.2d 911, 919 (2d Cir.1989) (statutory discretion to deny permit defeats substantive due process claim even if officials mislead plaintiff to believe approval was forthcoming and “regardless of how unlawful under state law the ultimate denial may have been”).   In any event, the conduct of the defendants complained of is so far removed from the level of “most egregious” and conscious shocking conduct needed to make out a substantive due process violation that plaintiff's claim of constitutional arbitrariness is wholly wanting.  County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 1716-17, 140 L.Ed.2d 1043 (1998).2  Because plaintiff cannot contend, and indeed does not contend, in light of applicable state and local zoning law, that defendants otherwise were “substantively forbidden to keep the land” under the existing R-2 classification, River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994), plaintiff is relegated to established state law mechanisms (i.e., Art. 78 or a declaratory judgment action) which allow such a plaintiff to enjoin defendants to follow the procedures state law provides to effectuate the political process needed to enact the zoning changes.  Id. 23 F.3d at 167.   This is so because “the due process clause does not require a state to implement its own law correctly.”  Gosnell v. City of Troy, Illinois, 59 F.3d 654, 658 (7th Cir.1995) (“developers cannot move land-use disputes to federal court [via § 1983] by crying ‘substantive due process' ”).

One final comment is required by plaintiff's reliance on the Third Circuit's expansive view of substantive due process.   See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 593-96 (3rd Cir.1998);  DeBlasio v. Zoning Bd. of Adjustment for Township of West Amwell, 53 F.3d 592, 600-01 (3d Cir.1995), cert. denied, 516 U.S. 937, 116 S.Ct. 352, 133 L.Ed.2d 247 (1995).   Under that view, which eschews the “legitimate claim [ ] of entitlement” test, id. 53 F.3d at 600 n. 9, ownership alone establishes a cognizable property interest, id. 53 F.3d at 600-01, and a claim is made out whenever a plaintiff claims that the zoning board's “decision limiting the intended land use was arbitrarily or irrationally reached.”  Id. 53 F.3d at 601.   Indeed, under DeBlasio, an issue of fact is raised even when only one member of the board is shown to have harbored purely personal reasons for the decision.  Id. 53 F.3d at 601-02.   See also Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d at 593-94.

This court is not persuaded.   Judge Alito of the Third Circuit has persuasively argued in dissent that DeBlasio is wrongly decided.   Phillips v. Borough of Keyport, 107 F.3d 164, 184-87 (3d Cir.1997) (Alito, J., dissenting in part).   The widely held majority view adheres to the Roth strict entitlement test and the published § 1983 decisions in this state employ the legitimate claim of entitlement formulation.  Town of Orangetown v. Magee, 88 N.Y.2d at 52-53, 643 N.Y.S.2d 21, 665 N.E.2d 1061;  Matter of Twin Town Little League, Inc. v. Town of Poestenkill, 249 A.D.2d 811, 671 N.Y.S.2d 831 (3rd Dept.1998);  Reed's of Armonk Bldg. Supply, Inc. v. Curry, 246 A.D.2d 587, 667 N.Y.S.2d 302 (2d Dept.1998).   This court is, therefore, not free to adopt a contrary formulation.

 Plaintiff is entitled to no broader consideration under the state due process clause, N.Y. Const. Art. I § 6, even if plaintiff may maintain such a constitutional tort action against local government officials under Brown v. State of New York, 89 N.Y.2d 172, 192, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996) (recognizing a “narrow remedy” in damages against the state for equal protection and search and seizure claims under the N.Y. Constitution).   See Wahad v. FBI, 994 F.Supp. 237, 238-40 (S.D.N.Y.1998) (predicting that New York Courts would not sanction an action under Brown premised on a violation of N.Y. Const. Art. I § 6);  Augat v. State of New York, 244 A.D.2d 835, 666 N.Y.S.2d 249 (3d Dept.1997);  Remley v. State, 174 Misc.2d 523, 665 N.Y.S.2d 1005 (Ct.Cl.1997) (so holding).   In two decisions, the New York Court of Appeals has interpreted the state version as broader than the federal guarantee.   First, in Sharrock v. Dell Buick-Cadillac, 45 N.Y.2d 152, 159-60, 408 N.Y.S.2d 39, 379 N.E.2d 1169 (1978), the court eschewed a state action requirement in the context of a procedural due process claim.   Second, the court held that a pretrial detainee has a liberty interest in contact visitation.  Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188 (1979), cert. denied sub nom. Lombard v. Cooper, 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980) (rejecting Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).   On other occasions, however, the Court of Appeals has refused to extend the reach of the state due process clause.   See People v. Alvarez, 70 N.Y.2d 375, 379-80, 521 N.Y.S.2d 212, 515 N.E.2d 898 (1987);  People v. Kohl, 72 N.Y.2d 191, 532 N.Y.S.2d 45, 527 N.E.2d 1182 (1988).   Cf. Matter of Lee TT v. Dowling, 87 N.Y.2d 699, 713, 642 N.Y.S.2d 181, 664 N.E.2d 1243 (1996).   In the absence of a clear signal from the Court of Appeals in the substantive due process context, however, this nisi prius court should not announce a novel constitutional rule.   Plaintiff “fails to demonstrate convincingly why a standard different from that [provided by the federal constitution] should be imposed as a matter of State constitutional law.”  People v. Paris, 229 A.D.2d 926, 646 N.Y.S.2d 737 (4th Dept.1996).   Even if the New York Court of Appeals would sanction so-called constitutional tort claims based on asserted violations of the state constitutional due process guarantee in a rough and judicially created counterpart to the § 1983 action, there is no indication, however, that state administrative law under Article 78 would be dead letter such that courts would not be required in that context to determine whether claims are ripe for consideration.   Accordingly, the Third Cause of Action is dismissed.

C. Second Cause of Action:  Equal Protection

 Plaintiff contends that its treatment at the hands of defendant stands in stark contrast to the treatment it alleges was given, and currently is being given, to a locally favored developer who is represented by the husband of a defendant town counsel member.   This disparate treatment, plaintiff alleges, entitles it to relief under the equal protection clause.   There is no contention that the Subdivision Code or the Zoning Code are themselves facially discriminatory, but only that these codes were administered unequally by means of selective enforcement.   Such a claim must include allegations tending to show conduct by town officials evincing “an element of intentional or purposeful discrimination.”  Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944).   See also, Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977);  Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976);  Matter of DiMaggio v. Brown, 19 N.Y.2d 283, 290-91, 279 N.Y.S.2d 161, 225 N.E.2d 871 (1967).

At least for these purposes, analysis of plaintiff's equal protection claim is the same under the federal and state constitutions.  Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307, 319-20, 631 N.Y.S.2d 565, 655 N.E.2d 661 (1995);  Board of Education, Levittown Union Free School District v. Nyquist, 57 N.Y.2d 27, 42-44, 453 N.Y.S.2d 643, 439 N.E.2d 359 (1982).   See generally, Golden v. Clark, 76 N.Y.2d 618, 624, 563 N.Y.S.2d 1, 564 N.E.2d 611 (1990);  Matter of Esler v. Walters, 56 N.Y.2d 306, 313-14, 452 N.Y.S.2d 333, 437 N.E.2d 1090 (1982);  Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 530-31, 87 N.E.2d 541 (1949);  Gruen v. County of Suffolk, 187 A.D.2d 560, 563, 590 N.Y.S.2d 217 (2d Dept.1992).   Therefore, the Second and Fourth Causes of Action are considered together.  “Upon a careful review of the complaint, and having accepted as true the factual averments of the complaint and accorded the ‘plaintiff[ ] the benefit of all favorable inferences which may be drawn from [its] pleading, without expressing our opinion as to whether [it] can ultimately establish the truth of th[e] allegations before the trier of fact,’ ” Weinbaum v. Cuomo, 219 A.D.2d 554, 556, 631 N.Y.S.2d 825 (1st Dept.1995) (quoting Campaign for Fiscal Equity, 86 N.Y.2d at 318, 631 N.Y.S.2d 565, 655 N.E.2d 661), the court concludes that the Second and Fourth Causes of Action do not state a cause of action.   CPLR 3211(a)(7).

 A state may not “deny to any person within its jurisdiction the equal protection of the laws,” U.S. Const.Amdt. XIV § 1, “which is essentially a direction that all persons similarly situated should be treated alike.”   City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3253-54, 87 L.Ed.2d 313 (1985).  “A violation of equal protection by selective enforcement arises if:  ‘(1) the person, compared with others similarly situated, was selectively treated;  and (2) ․ such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.’ ”  Crowley v. Courville, 76 F.3d at 52-53 (quoting LaTrieste Restaurant & Cabaret, Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir.1994)).   See 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 693, 416 N.Y.S.2d 219, 389 N.E.2d 815 (1979).

 Plaintiff's difficulty is that it abandoned the project proposal that, arguably, placed it in a similar position with the competing developer, LoPresti.   Instead of sticking to its guns and riding the process out, plaintiff submitted a modified duplex subdivision proposal with some NC and MFR uses which made its project vastly different from the competing plan submitted by LoPresti.   LoPresti's project was more in line with what plaintiff alleges were defendants' long-term plans for the district than the duplex project plaintiff ultimately pursued.   Accordingly, the withdrawal of the single-family and patio home proposal, alone, takes plaintiff out of the class of those who might be similarly situated to LoPresti, both as to timing and substance.   LoPresti pressed on with his plan;  plaintiff did not even though it had legal avenues to force defendants timely to consider it.   CPLR Art. 78 (mandamus);  cf. Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769, 390 N.Y.S.2d 49, 358 N.E.2d 874 (1976);  Matter of Envirotech of America v. Dadey, 234 A.D.2d 968, 969-70, 651 N.Y.S.2d 778 (4th Dept.1996).   Plaintiff loses on this basis alone.   See Vukadinovich v. Bd. of School Trustees of the Michigan City Area Schools, 978 F.2d 403, 413-14 (7th Cir.1992) (one who has alcohol problems and has been arrested is not similarly situated to those who have alcohol problems, or to those who have been arrested, but who have not both had alcohol problems and been arrested).   See also, Mobijohn v. Ellenville Central School District, unpublished No. 92-CV-0672 at fn. 35 (N.D.N.Y. Sept. 28, 1995) (1995 WL 574461, 14) (“there is also a temporal component to the similarly situated requirement of an equal protection claim”), aff'd 101 F.3d 683 (2d Cir.1996).

 Even if, however, we assume that the simple withdrawal of the proposal without a vote by defendants does not hamstring plaintiff's effort to assert that, by virtue of its submission of the single-family and patio home proposal, it was similarly situated to LoPresti, the allegations of plaintiff's complaint negate any claim of similarity.   According to plaintiff, LoPresti planned a senior citizen apartment complex coupled with patio homes.   Plaintiff's plan, submitted in August of 1997, was for large-lot single-family homes and patio homes.   Although plaintiff would not be required to allege that the two plans were identical to survive a CPLR 3211(a)(7) motion to dismiss, because those similarly situated for equal protection purposes “ ‘need not be identical in makeup,’ ” Klinger v. Dept. of Corrections, 31 F.3d 727, 736 (8th Cir.1994) (quoting Betts v. McCaughtry, 827 F.Supp. 1400, 1405 (W.D.Wis.1993), aff'd 19 F.3d 21 (7th Cir.1994)), the complaint must allege that plaintiff and LoPresti “ ‘share[d] commonalities that merit[ed] similar treatment.’ ”  Id. 31 F.3d at 736-37 (quoting Betts, 827 F.Supp. at 1405).   The “similarly situated” requirement refers to “others similarly situated in all relevant respects save for that which furnishes the basis of the claimed discrimination.”  Matter of 303 West 42nd Street Corp. v. Klein, 46 N.Y.2d at 695, 416 N.Y.S.2d 219, 389 N.E.2d 815.   Where governmental actors are given statutory discretion, as these defendants were (see above discussion), the applicable test is that, within the limits of the discretion conferred, the targets of regulation “are similarly situated when their circumstances present no distinguishable legitimate prosecutorial [or regulatory] factors that might justify making different prosecutorial [or regulatory] decisions with respect to them.”  United States v. Olvis, 97 F.3d 739, 744 (4th Cir.1996).

Within the context of subdivision applications considered under the rubric of Town Law § 276 and § 277, that requirement must be exceedingly hard to meet, even in the pleading stage.   It is unnecessary in this case to reach the question of how similar each developer's plan must be to warrant a conclusion that plaintiff and LoPresti were similarly situated, because the two plans alleged here do not meet any conceivable test of similarity.   The only similarity alleged is that senior citizen housing was targeted by both developers and that one aspect of each proposal was patio homes.   In light of the wide discretion accorded to defendants under Town Law § 276 and § 277 to approve or deny subdivision applications of this sort for a variety of reasons having to do with the particulars of the application submitted, plaintiff's assertion that he was similarly situated to LoPresti is on these facts wholly wanting.  Indiana State Teachers Ass'n v. Bd. of School Commissioners of the City of Indianapolis, 101 F.3d 1179, 1182 (7th Cir.1996) (Rule 12[b][6] dismissal-plaintiff “failed to clear the first hurdle, that of alleging that winner and loser are identically situated in all relevant respects”).

 Putting aside this critical defect in the complaint, and assuming for the sake of argument that plaintiff has sufficiently alleged that it was similarly situated with LoPresti, plaintiff still fails to make out an equal protection claim under the second element, which requires that selective treatment be based on impermissible or discriminatory animus against a cognizable group or class of individuals, or that plaintiff was maliciously singled out for disparate treatment because of the exercise of constitutional rights, or bad faith intent to injure plaintiff.   Because plaintiff does not allege selective treatment based on cognizable group factors, or that any selective treatment resulted from an intentional effort by defendants to punish it for exercising its constitutional rights, plaintiff seeks to take advantage of those cases which hold that “evidence of a malicious or bad faith intent to injure” will support an equal protection claim.  Crowley v. Courville, 76 F.3d at 53 (quoted above).   See Zahra v. Town of Southold, 48 F.3d at 684 (where no allegation of group bias or retaliation for the exercise of constitutional rights is presented, the question is whether plaintiff alleges “a malicious or bad faith intent to injure”);  FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.1992) (same).   This theory of individual, or non-class based, discrimination grounded in malicious or bad faith intent to injure in the Snowden v. Hughes, supra, selective enforcement context, has yet to be recognized explicitly by the Supreme Court.

The federal circuit courts of appeal are not in agreement on its applicability.   Compare Futernick v. Sumpter Township, 78 F.3d 1051, 1058 (6th Cir.1996), cert. denied, 519 U.S. 928, 117 S.Ct. 296, 136 L.Ed.2d 215 (1996) (“it would be unwise to adopt the often-stated, but never-used, rule of the First and Second Circuits” because the Supreme Court “mentions only arbitrary classifications as a basis for selective enforcement liability,” and “choosing to enforce the law against a particular individual is (not) a ‘classification’ as that term is normally understood”) (citing Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962);  Wayte v. United States, 470 U.S. 598, 608 n. 10, 105 S.Ct. 1524, 1531 n. 10, 84 L.Ed.2d 547 (1985)), with the Second Circuit cases cited above, and Rubinovitz v. Rogato, 60 F.3d 906, 911-12 (1st Cir.1995) (collecting the First Circuit cases recognizing the bad faith or malicious intent to injure standard, but observing that “bad faith or malicious-intent-to-injure cases are infrequent” and that courts should “scrupulously” administer the standard).   The Seventh Circuit once eschewed the theory of non-class-based selective treatment, Herro v. City of Milwaukee, 44 F.3d 550, 552-53 (7th Cir.1995);  New Burnham Prairie Homes, Incorporated v. Village of Burnham, 910 F.2d 1474, 1481-82 (7th Cir.1990), but now holds “that the equal protection clause provides a remedy when ‘a powerful public official picked on a person out of sheer vindictiveness.’ ”  Olech v. Village of Willowbrook, 160 F.3d 386, 387 (7th Cir.1998) (quoting Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 1995)).

These latter Seventh Circuit cases seem more in line with the conventional wisdom that a plaintiff makes out a claim of malice in a case of non-class-based individual selective enforcement when he is being punished for exercising his lawful rights, particularly to petition the government for redress of grievances.   In Olech, supra, at 388, for example, the plaintiff brought a meritorious lawsuit against village officials, which so “angered” the mayor that the officials refused to hook plaintiff's house up to the municipal water supply out of “an illegitimate desire to ‘get’ him.”   In Esmail, supra, at 178, the mayor and other city officials “developed a ‘deep-seated animosity’ ” toward plaintiff “due in part to Esmail's success in getting” a prior revocation order changed to a mere suspension, again an exercise of the plaintiff's right to invoke legal process to redress grievances against the government.   This case is nothing like those cases, of course, and there is evidence that the Seventh Circuit would not approve of this complaint.   Indiana State Teachers Ass'n v. Bd. of School Commissioners, 101 F.3d at 1182 (no prima facie case even).   The point here is only to show that the law remains unsettled.3  Notwithstanding the arguments against adoption of this rule, Futernick, at 1058-59, it is assumed that the equal protection clause extends to such cases.   Acceptance of the concept, however, does not describe the circumstances which must be alleged to invoke the rule.

 An allegation of differing treatment, alone, even among those similarly situated, does not amount to an allegation of malice, or bad faith intent to injure, within the meaning of this rule.  Crowley v. Courville, 76 F.3d at 53;  Zahra v. Town of Southold, 48 F.3d at 684.   In the absence of a claim of cognizable group discrimination or retaliation for the exercise of constitutional rights, the applicability of the equal protection clause to claims of malicious treatment of an individual or entity is limited to “class-of-one plaintiffs victimized by ‘the wholly arbitrary act.’ ”  Indiana State Teachers Ass'n v. Bd. of School Commissioners of the City of Indianapolis, 101 F.3d 1179, 1181 (7th Cir.1996) (Posner, Ch.J.) (quoting City of New Orleans v. Dukes, 427 U.S. 297, 304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam)).   And by this is meant “wholly arbitrary” in a constitutional sense, not in the sense we state courts are familiar with that term in Article 78 proceedings.  “The concept of equal protection is trivialized when it is used to subject every decision [claimed to be arbitrary and capricious in the sense contemplated by principles of state administrative law] to constitutional review by federal courts.”  Id. 101 F.3d at 1181.   Cf., County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. at 1716, 140 L.Ed.2d 1043 (same observation in the substantive due process context).

 No one suggests that, in a case of this sort, a simple choice between two developers, without more, violates the equal protection clause, even if the choice is arbitrary.  Snowden v. Hughes, 321 U.S. at 8, 64 S.Ct. at 401 (“not every denial of a right conferred by state law involves a denial of the equal protection of the laws, even though the denial of the right to one person may operate to confer it on another”).   As cogently put in Indiana State Teachers Ass'n, supra:

To decide is to choose, and ordinarily to choose between-to choose one suppliant, applicant, petitioner, protester, contractor, or employee over another.   Can the loser in the contest automatically appeal [in a § 1983 action] on the ground that the decision was arbitrary and an arbitrary decision treats likes as unlike and therefore denies equal protection of the laws?   That would constitutionalize the Administrative Procedure Act․

Id. 101 F.3d at 1181.   So a choice between two developers or two subdivision applications, when only one project is desired, is not cognizable under the equal protection clause, even if the choice is between a local developer and one from out of town.  “[W]hen ․ the government is treating unequally two persons that are prima facie unequal in a rationally relevant respect”-“[t]here is nothing irrational or vicious about preferring the known quantity to the unknown”-“the equal protection clause is inapplicable because the plaintiff is asking for a revision of policy rather than for a restoration of equality.”  Id. 101 F.3d at 1182 (emphasis supplied).

But plaintiff alleges that its competitor was not merely a locally favored developer-the “known quantity”-but one connected, if only by legal representation, to a town councilwoman.   It is not alleged, however, except by reference to a conclusory claim of a conspiracy among the defendants, that the planning board itself was infected with this claimed conflict of interest when it denied plaintiff's duplex project application.   See Albiero v. City of Kankakee, 122 F.3d 417, 420 (7th Cir.1997) (“What this [i.e., allegation that defendants engaged in conspiracy] has to do with equal protection of the laws is a mystery.   A municipality acts only through agents, and that these agents have agreed (= ‘conspired’) on a course of action does not present a constitutional problem.”).   Instead, plaintiff alleges that the Town Board violated state law when it passed amendments to the zoning code designed to pave the way for approval of the LoPresti project.   These allegations are wholly conclusory, but in any event, as set forth above, a violation of state law does not a constitutional claim make.

Plaintiff places great emphasis on the fact that Councilwoman Holbrook, the wife of LoPresti's lawyer, made the motion to adopt the zoning code amendments.   She recused herself when LoPresti's project was presented at a hearing months later.   Whether Holbrook labored under a conflict of interest during any of the proceedings described in the complaint must be determined under state law in a proceeding appropriate to the purpose (no suggestion one way or another should be inferred here).   The State Constitution does not provide an ethics manual for elected local government officials.   Nor does it give a losing applicant such as plaintiff a § 1983 claim because plaintiff wishes “to break up the cozy existing relationship” it asserts exists between LoPresti and defendants.  Indiana State Teachers Ass'n v. Bd. of School Commissioners of the City of Indianapolis, 101 F.3d at 1182.   There may be good reasons to prefer plaintiff over LoPresti, although the record here provides no basis for decision, and there may have been good policy reasons to keep either one or the other of the Holbrooks out of the equation altogether, but these reasons “are remote from the considerations that inform the quest for equality whether between groups or between individuals, and they are not the business of a court in enforcing the equal protection clause.”  Id. 101 F.3d at 1182.

The available cases on point support this analysis, i.e., that political motivation of the kind alleged by plaintiff here does not establish malice within the rule of bad faith or malicious intent to injure.   In Cordeco Development Corp. v. Vasquez, 539 F.2d 256 (1st Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976), political motivation to favor another developer was held sufficient to support an equal protection verdict, but the court acknowledged in that case that the issue was not challenged at the trial or appellate level, and therefore was not “settled.”  Id. 539 F.2d at 260 n. 5.   Subsequent cases have made clear that “[t]he federal basis for liability in Cordeco ․ was never expressly litigated,” Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 (1st Cir.1982), and that the First Circuit has signaled a full retreat.   See Nestor Colon Medina & Sucesores v. Custodio, 964 F.2d 32, 43-45 (1st Cir.1992);  Carter v. Rollins Cablevision of Massachusetts, Inc., 618 F.Supp. 425, 429-30 (D.Mass.1985).   The case of Raskiewicz v. Town of New Boston, 754 F.2d 38 (1st Cir.1985), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985) shows that plaintiff has no equal protection claim.   In Raskiewicz, there were allegations that plaintiff was denied a permit because of personal bias of the Board of Selectmen against him, coupled with allegations that plaintiff was not as politically influential as a competitor who collaborated with board members against him.   Moreover, it was alleged that defendants' motivation was “rooted in their desire to acquire for themselves or others the ownership of plaintiff's land for the purpose of obtaining economic profit․”  Id. 754 F.2d at 43, 45 n. 5.   Plaintiff's attempt to make out a § 1983 due process and equal protection claim from such allegations was held frivolous.  Id. 754 F.2d at 45-46.

Although this court does not believe that the complaint is frivolous insofar as it alleges a denial of equal protection, cf. Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 61 (2d Cir.1985) (rejecting a similar equal protection claim based on political motivation to favor another, but on the ground that plaintiff failed to meet the “similarly situated” element of the claim),4 it is quite clear that plaintiff's complaint does not allege any set of facts supporting the bad faith malicious-intent-to-injure aspect of an equal protection violation.   Similar allegations of a conflict of interest against a planning board chairman were held insufficient in Reed's of Armonk Bldg. Supply, Inc. v. Curry, 246 A.D.2d 587, 667 N.Y.S.2d 302 (2d Dept.1998) (as disclosed by the record on appeal).   In summary, plaintiff does not allege any set of facts supporting a claim that it was similarly situated to LoPresti.   Nor does plaintiff allege group, class or other discriminatory animus based on individual characteristics.   Finally, plaintiff fails to show that it was maliciously singled out with an intention to injure it.   Though the complaint may contain some conclusory allegations of illegal discriminatory purpose, the balance of the complaint when accepted as true, and giving it the benefit of all favorable inferences, shows at most differing treatment, without the requisite scienter.  Weinbaum v. Cuomo, 219 A.D.2d at 556, 631 N.Y.S.2d 825.   Accordingly, the Second and Fourth Causes of Action are dismissed.

CONCLUSION

Defendant's motion to dismiss the complaint under CPLR 3211(a)(7) is granted.   The State Constitution does not permit courts to “sit as a zoning board of appeals.”  Village of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 1543, 39 L.Ed.2d 797 (1974) (Marshall, J., dissenting), quoted in Yale Auto Parts, 758 F.2d at 58.   Nor does it permit courts freely to find that substantive due process or equal protection violations are adequately pleaded when, without more, “it is manifest that plaintiffs were treated shabbily and unfairly.”  DLC Management Corp. v. Town of Hyde Park, 163 F.3d at 131.   This court must adhere to “the Supreme Court's admonition to delineate such rights only with caution and restraint.”  Id. 163 F.3d at 131 (citing Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977)).   In this case, and even after a very generous reading of the complaint, the court finds that plaintiff does not bring itself within the protection of either clause of the State Constitution.

[Portions of opinion omitted for purposes of publication.]

FOOTNOTES

1.   Under state administrative law, plaintiff would have no standing if his contract term expired.  Pioneer-Evans Co. v. Garvin, 191 A.D.2d 1026, 595 N.Y.S.2d 586 (4th Dept.1993).   It is assumed for purposes of the present motions that plaintiff's contract has been extended, and that the vendor does not oppose the action, necessary preconditions to suit if this was an Article 78 proceeding.   2 Robert M. Anderson, New York Zoning Law and Practice, § 26.08, at 375 (3d ed.).   Even this may not be enough under the federal and state constitutions, see infra, but it is unnecessary to reach this threshold issue.

2.   After decision in this case, but before the State Reporter asked for a heavily edited version of this opinion for publication, Natale v. Town of Ridgefield, 170 F.3d 258 (2d Cir.1999) was decided, which reversed a jury verdict and dismissed a complaint upon the same reasoning.

3.   The New York Court of Appeals has not settled the matter either.   The formulation of the equal protection rule applicable in the selective enforcement context that the New York Court of Appeals has articulated is as follows:  “ ‘there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification.’ ”  People v. Blount, 90 N.Y.2d 998, 999, 665 N.Y.S.2d 626, 688 N.E.2d 500 (1997) (quoting Matter of 303 West 42nd Street Corp. v. Klein, 46 N.Y.2d at 693, 416 N.Y.S.2d 219, 389 N.E.2d 815).   The reference to “classification” thus means that the New York Court of Appeals has yet to consider whether non-class-based individual discrimination is sufficient to state a selective enforcement claim under Supreme Court precedents.   This is not to say that the equal protection clause extends in the selective enforcement context “only to those groups accorded heightened scrutiny.”  Stemler v. City of Florence, 126 F.3d 856, 874 (6th Cir.1997);  cf. Matter of New York Assn. of Convenience Stores v. Urbach, 92 N.Y.2d 204, 213-15, 677 N.Y.S.2d 280, 699 N.E.2d 904 (1998) (non-suspect category of retail sales);  Archbishop Walsh High School v. Section VI of N.Y. State Pub. High School Athletic Assn., 88 N.Y.2d 131, 136, 643 N.Y.S.2d 928, 666 N.E.2d 521 (1996).   Plaintiff's complaint, however, cannot be read to allege discrimination on the basis of any arbitrarily defined group- or class-based characteristics.

4.   Yale Auto Parts cited Cordeco, but the question whether political motivation to favor another developer is the kind of malice that will satisfy a selective enforcement claim in a non-class context was not decided, for the reasons stated in the text.   If faced with a similar claim, it is doubtful, given the history of Cordeco described above, that it would be sustained.   The observation in Albiero v. City of Kankakee, 122 F.3d at 420, that plaintiff did not “contend, after the fashion of the plaintiff in Esmail v. Macrane ․ that he has been treated differently from other landlords because he is a political opponent of the mayor,” also cannot be taken as an endorsement of a theory of malice based on political motivation to favor another developer.   As explained above, Esmail and its progeny in the Seventh Circuit are really cases of singling out for punishment those who have in some measure succeeded in legal or administrative proceedings in obtaining redress of grievances.   Retaliation for the exercise of constitutional rights, something plaintiff does not allege here, has always been a proper basis for selective enforcement relief.

KENNETH R. FISHER, J.

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