MEMORANDUM AND ORDER Plaintiff Motel Morris, LLC, owns and operates a recently renovated motel in the Town of Brookhaven, New York. In this lawsuit against the Town, its Board of Zoning Appeals (“BZA”), and the BZA’s members, plaintiff alleges that the Town committed an unconstitutional taking, and that all defendants deprived plaintiff of substantive due process, because defendants denied plaintiff a zoning variance for certain motel renovations and refused to issue a Certificate of Occupancy for the as-renovated motel. Plaintiff and defendants have filed cross-motions for summary judgment. For the reasons explained below, defendants’ motion is granted and plaintiffs’ cross-motion is denied. BACKGROUND The facts in this section are taken from the parties’ statements of facts filed in accordance with Local Rule 56.1, and the accompanying exhibits, except where otherwise noted. Since 2014, plaintiff has owned a motel in the Town of Brookhaven, New York, as well as the land on which the motel sits. Pl.’s Resp. to Defs.’ Local Rule 56.1 Statement 5 (Dkt. #32) (“Pl.’s Rule 56.1 Resp.”); Decl. of Fredrick P. Stern 63–64 (Dkt. #31-2) (“Stern Decl.”).1 The property has been the site of a motel since the 1950s. Pl.’s Rule 56.1 Resp. 5. Plaintiff’s lot is currently split-zoned J-2 Business and A-1 Residence District. Pl.’s Local Rule 56.1 Statement 6 (Dkt. #31-3) (“Pl.’s Rule 56.1″). Those designations do not permit motel operation. See Brookhaven Town Code (“Town Code”) §§85-425, 431 (J-2 Business zoning); id. at §85-197 (A-1 Residence District zoning).2 But the Town has long allowed the motel to operate on the lot by issuing Certificates of Occupancy, dating to the 1950s, and a Certificate of Existing Use, dating to 1977, permitting this nonconforming use. Pl.’s Rule 56.1 Resp. 4; Decl. of Kenneth J. Lauri 4–6 (Dkt. #30-4). These certificates pre-date the J-2 and A-1 zoning designations for plaintiff’s lot. Defs.’ Mem. in Supp. of Summ. J. 12 (Dkt. #30-2); see Pl.’s Mem. in Supp. of Summ. J. 17 (Dkt. #31-4) (“Pl.’s Mem. in Supp.”). In 2015, plaintiff applied for, and received, a building permit to conduct “[i]nterior and exterior renovations” and to “[r]eplace interior finishes” and “exterior siding.” Defs.’ Mot. for Summ. J. Ex. Building Permit 2 (Dkt. #30-6). This permit provided that, before the Town would issue a new Certificate of Occupancy allowing the motel to resume operations, a building inspector would inspect the motel to ensure compliance with the Town Code. Ibid. During the renovations, “[a] stop work order was issued for various aspects of the work being performed,” Pl.’s Rule 56.1 10, and a building inspector advised plaintiff that plaintiff needed to clarify with the BZA whether the renovations might be considered an impermissible extension of a nonconforming use under the Town Code. Decl. of Robert Foley 9 (Dkt. #31-1) (“Foley Decl.”). In 2016, plaintiff applied to the BZA for variances to pave the parking lot and allow a sign setback. Pl.’s Rule 56.1 Resp. 7. The BZA held a hearing on those requests in 2017. Id. 13. In connection with the requests, plaintiff submitted a survey of the motel parcel reflecting that, as part of repairs to the motel’s foundation, plaintiff had increased the foundation’s footprint by 353 square feet, from 647 to 1,000 total square feet. Id.
8, 12. This increase became the focus of the hearing. Plaintiff’s application was held in abeyance until plaintiff also sought a variance for the square-footage increase. Stern Decl. 29–33. Plaintiff submitted that request, and the BZA held a second hearing. Pl.’s Rule 56.1 Resp. 13; Foley Decl. 5. The BZA then issued a decision denying plaintiff’s variance requests. Pl.’s Rule 56.1 Resp. 14. To justify this denial, the BZA invoked Section 85-883(A)(2) of the Town Code, which provides that “[a] nonconforming use shall not be extended,” subject to the caveat that “the extension of a lawful use to any portion of a nonconforming building or structure which existed prior to the effective date of the zoning ordinances of the Town of Brookhaven shall not be deemed the extension of such nonconforming use.” The BZA further concluded that the expansion of the motel’s footprint was not authorized under Town Code Section 85-883(A)(3), which states that “[a]dditions to existing buildings and structures with certificates of occupancy or a certificate of existing use…shall be permitted, provided that said additions do not encroach deeper into any nonconforming front yard, side yard or rear yard than the distance into said front yard, side yard or rear yard that the existing foundation encroaches.” In its decision, the BZA described plaintiff’s enlargement of the motel as a “substantial deviation from the requirements of §85-883(B)(3) of the Code, which prohibits any expansion of nonconformity resulting in an encroachment deeper into the setbacks maintained by the original nonconforming structure.” Stern Decl. 64. And it stated that the “applicant’s modification to the structure caused same to extend more than 10′ deeper into the front yard, and almost 4′ into the side yard of the parcel, in direct contradiction to §85-883(B)(3) of the Code.” Ibid. The BZA stated that plaintiff “had feasible alternatives” to operating the hotel in its modified form, because it “can feasibly return the structure to its former dimension…which will enable applicant to continue to benefit from the nonconforming use on the parcel.” Id. 65. Because the BZA denied a variance, the Town has not issued a new Certificate of Occupancy for the motel, and this refusal has precluded plaintiff from restarting motel operations on the parcel. Plaintiff challenged this variance denial in New York Supreme Court by initiating an Article 78 proceeding under the New York Civil Practice Law and Rules in New York Supreme Court. Pl.’s Rule 56.1 Resp. 17. That petition was transferred to the Appellate Division, which denied relief, concluding that “the determination denying the requested area variances was not arbitrary, irrational, or an abuse of discretion.” Pl.’s Mot. for Summ. J., Ex. 1 — Appellate Division Decision 2–3 (Dkt. #31-10). While the Article 78 action was pending, plaintiff filed this federal lawsuit, asserting constitutional violations under 42 U.S.C. §1983. Compl. (Dkt. #1). Count One alleges that defendants violated plaintiff’s right to substantive due process because the refusal to allow the as-renovated motel to operate has infringed on plaintiff’s property interests in an arbitrary and unreasonable manner. Id.
