Plaintiff sought to build upon his property, which was subject to a restrictive covenant that protects his neighbors’ views of Oyster Bay.  Plaintiff brought claims under 42 U.S.C. § 1983 and state law against the Incorporated Village of Centre Island (“Village”), the Village's Board of Zoning Appeals (“BZA”), Deputy Mayor Lawrence Schmidlapp, the Village’s Board of Trustees (collectively, “the Village defendants”), and Laura Sweeney Chuba (“Chuba”), plaintiff’s neighbor and a member of the Village's Board of Trustees. Plaintiff alleged that the Defendants purposefully frustrated his efforts to seek zoning variances and building permits. The Village defendants and Chuba separately filed and were granted motions to dismiss. Plaintiff was then granted leave to file an amended complaint “to address the pleading deficiencies identified by the Court with respect to his substantive due process, equal protection, and First Amendment retaliation claims.”

For his substantive due process claim, Plaintiff claims the denial of his “as-of-right” application was arbitrary and capricious because his architect and the Village building inspector believed that the proposed construction did not violate the covenant. As the Court previously held Plaintiff plausibly alleged that his building plans did not violate the covenant, the Court focused on the second prong of a substantive due process claim: whether Plaintiff’s amended complaint plausibly alleged that the Village’s view that the covenant barred Plaintiff’s application was entirely baseless or in bad faith. The Court ruled it did not, and dismissed the claim.

Plaintiff’s Equal Protection claim similarly failed.  While Plaintiff asserted similarly situated applicants were treated differently, his assertions were conclusory and did not show “that the Village granted virtually identical applications submitted by other persons in comparable zoning districts.” The Court also rejected Plaintiff’s retaliation claim, holding that requesting a building permit and variance did not constitute protected speech. As Plaintiff failed to adequately plead a constitutional claim, the Court also held that he failed to plead a conspiracy claim. Having dismissed all federal constitutional claims, the Court declined jurisdiction over the remaining state law claims and dismissed the case.

The case was Gregory v Incorporated Village of Centre Island, 2016 WL 4033171 (EDNY July 27, 2016)