The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 154-174; 177-181, 188-193 Answering Papers 183; 194 Reply 182:184; 195; 197 Decision/Order The plaintiffs and the defendants each move for summary judgment against their respective opponents in this action arising from a dispute over land use and mixed-use development. The parties to this litigation agree that there are no material factual disputes, but that as a matter of law, they respectively assert that they are entitled to summary judgment concerning the causes of action asserted in the second amended complaint based upon the submitted evidence, including the minutes of the Town Board meeting where the plaintiffs’ project was defeated. Plaintiffs seek declarations that the nay votes cast by Town Board Members Bouvier and Lofstad effectively defeating plaintiffs’ ability to develop the commercial golf club aspect of the overall project be overturned, that the project local law be deemed enacted/directing the Town Board to enact the local law and approve the project; that damages be awarded to plaintiffs, and that reasonable attorneys’ fees and costs of litigation also be awarded to plaintiffs. Plaintiffs seek this relief by alleging that they had a property right in the approval of the mixed-use application to develop the subject property (The Hills-MUPDD Application), and that the two nay votes clearly violated plaintiffs’ right to substantive and procedural due process under 42 USC §1983, as well as State law. Relevant Chronology In 2008, the Town adopted what is referred to as its Comprehensive Plan. Pursuant to that Plan, the Town re-zoned the subject property to CR-200, allowing residential development and a private golf course as an accessory use, and a minimum lot size of 200,000 square feet to cap the property’s residential density. Such uses/development would be as-of-right. Thereafter, the Town updated the Comprehensive Plan, designating the subject property eligible for approval as a mixed-use planned development (MUPDD) pursuant to the Planned Development District Law (PDD). In the context of this background, plaintiffs acquired the subject property with the intent of developing it as a MUPDD. In 2013, plaintiffs then applied to the Town for permission to file a formal application for the entire project seeking approval of a mixed-use commercial golf club and resort residential community known as The Hills at Southampton (The Hills or the Project). In view of the fact that the residential aspect and golf course as accessory use aspect were as-of-right due to the re-zoning, the crux of the matter was whether the Town would permit the commercial golf club use (i.e., selling club memberships to non-residents of The Hills). By Town Board Resolution 2014-120, the Town Board “elected to consider a formal application for ‘The Hills at Southampton’ MUPDD,” permitting plaintiffs to submit a formal mixed-use planned development district application for the Project. As part of the pre-application process, the plaintiffs were required to file a site-specific environmental impact study in addition to a generic environmental impact study that had been done. Regarding the site-specific environmental impact study, the draft of that study was unanimously accepted by the Town Board in October 2016. While plaintiffs were preparing the final environmental impact study for The Hills, the Town Board imposed a moratorium on PDD applications, and repealed the PDD law entirely in July 2017. Although the Town could have terminated plaintiffs’ MUPDD application for The Hills, the Town Board “grandfathered” plaintiffs’ MUPDD application for The Hills. The draft environmental impact study outlined the measures that would be taken to mitigate any impact on groundwater resources, concluding, in sum and substance, that the golf course would not generate any significant adverse impact thereon. After the draft environmental impact study, and in response to public hearings spanning from late 2016 through early 2017, plus government agency comments, certain changes were incorporated into The Hills final environmental impact study, improving certain aspects beyond what existing laws and applicable regulations required. In September 2017, the Town Board unanimously accepted The Hills final environmental impact statement. Apparently, in October 2017, the Suffolk County Planning Commission recommended approval of The Hills Project by a vote of eleven to one. On December 5, 2017, the Town Board held a public hearing on The Hills Project. Plaintiffs’ representatives and members of the public were present and were permitted to express their views. By the time that this December 5, 2017 meeting was held, the Project had been in development and discussion, including being the subject of environmental studies and public comment, for approximately four to five years. It was at this December meeting that the Board completed its environmental review (SEQRA) by adopting The Hills Finding Statement that determined that the Project would not have the potential to generate any significant adverse environmental impacts. Quoting the final environmental impact statement (FEIS, I-26), the Findings Statement sets forth that the Project “offers the greatest level of protection to the environment and the greatest set of benefits to the community.’” The Town Board adopted the Findings Statement by a majority vote of three to two. The two nay votes rejecting the Findings Statement were cast by the same two Board members who later in the same meeting voted nay on The Hills MUPDD application. These same two Board members (Bouvier and Lofstad) had, however, voted in September 2017 to accept The Hills final environmental impact statement. Once the Findings Statement was adopted, the Board was able to move on to the vote on whether to approve The Hills MUPDD application. The vote on the MUPDD application required a four-vote supermajority out of five Board members. Prior to the adoption of the Findings Statement and the vote on the MUPDD application, members of the public were permitted time to express their view on the project, as were various representatives of the plaintiffs. When the vote on The Hills MUPDD application was taken. Board members Bouvier and Lofstad voted nay, resulting in the denial of plaintiffs’ MUPDD application.1 The instant action was commenced by the plaintiffs on April 4, 2018. Substantive Due Process Analysis 42 USC §1983, upon which the plaintiffs rely, permits an action for damages and injunctive relief when there is governmental deprivation of, inter alia, property without due process of law. Likewise, the New York State Constitution provides for similar relief (Article 1, §1; Bower Associates v. Town of Pleasant Valley, 2 NY3d 617, 626 [2004]). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it” (Board of Regents v. Roth, 408 US 564, 577 [1972]). “[T]he question of whether an applicant has a legitimate claim of entitlement to the issuance of a license or certificate should depend on whether, absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted. Otherwise the application would amount to a mere unilateral expectancy not rising to the level of a property right guaranteed against deprivation by the Fourteenth Amendment” (Yale Auto Parts, Inc., v. Johnson, 758 F2d 54, 59 [2d Cir 1985]). “[T]he entitlement test of Yale Auto Parts — ‘certainty or a very strong likelihood’ of issuance — must be applied with considerable rigor. Application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case” (RRI Realty Corp. v. Southampton, 870 F2d 911, 918 [2d Cir 1989]). “Yale Auto Parts rejected the claim of a property interest in the permit being sought because of the discretion of the local regulating body. Even if in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest. The ‘strong likelihood’ aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised. Since the entitlement analysis focuses on the degree of official discretion and not on the probability of its favorable exercise, the question of whether an applicant has a property interest will normally be a matter of law for the court” (Id.). “Drawing on federal precedents, we set out the two-part test for substantive due process violations. First, claimants must establish a cognizable property interest, meaning a vested property interest, or ‘more than a mere expectation or hope to retain the permit and continue their improvements; they must show that pursuant to State or local law, they had a legitimate claim of entitlement to continue construction’. Second, claimants must show that the governmental action was wholly without legal justification” (Bower Associates, supra at 627, citing Town of Orangetown v. Magee, 88 NY2d 41, 52, 53 [1996]). Mirroring the federal standard, a legitimate claim of entitlement can exist only when there is either certainty or strong likelihood that an application would have been granted, and where an issuing authority has discretion in approving or denying an application, a clear entitlement/property interest can exist only when that discretion is narrowly circumscribed such that approval is virtually assured (Bower Associates, supra at 628). As for the second element of the two-part test, only the most egregious official conduct will be considered to be arbitrary in the constitutional sense (Id.). “The two-part test strikes an appropriate balance between the role of local governments in regulatory matters affecting the health, welfare and safety of their citizens, and the protection of constitutional rights…” (Id. at 629). The entirety of the submitted record, including the transcript of the December 5, 2017 public hearing at the conclusion of which The Hills Project was defeated by the two nay votes, is not in dispute. That evidence establishes as follows that by the time that The Hills MUPDD application came before the Town Board on that date: 1) the Findings Statement in connection with the Final Generic Environmental Impact Statement for the East Quogue Study Area was accepted and the Recommended Plan as a component of the comprehensive plan was adopted on November 25, 2008; 2) that the foregoing acceptance and adoption recognized that the Recommended Plan “would be a growth management tool for the study area that, in conjunction with other techniques such as upzoning, use changes, transfer of development rights, and acquisition of sensitive lands, would address the community’s needs, allow for growth, provide more land uses with diverse tax ratables, and protect natural features while providing an active recreation/resort/residential destination;” that the intention of the Recommended Plan was “to be flexible on the location of resort/recreation types of uses…[including] a small inn, equestrian facilities, bed and breakfasts, health spa…[to] generate positive net tax ratables, while having little or no adverse financial impact on the school district;” that the Town Board considered the potential environmental impacts resulting from the Recommended Plan based upon the environmental impact statements and determined that it was “consistent with social, economic, and other essential considerations from among the reasonable alternatives available, and that it avoids or minimizes adverse environmental effects to the maximum extent practicable;” and that in order to implement the Recommended Plan, one of the necessary actions would be for a “zoning map change to allow for the resort/recreation/residential uses…assum[ing] that this would be implemented by a private application for a PDD;” 3) that the Town Board had already re-zoned the Project site CR-200 permitting a residential subdivision with accessory private golf course use; 4) that on January 14, 2014, the Town Board elected to consider plaintiffs’ MUPDD application for The Hills that was in conformity with the Comprehensive Plan and its 2008 amendment set forth herein above; and 5) that the Town Board repealed the PDD law entirely in July 2017 but “grandfathered” plaintiffs’ MUPDD application for The Hills rather than terminating it, and 6) The Town Board had completed its environmental review specifically of the Project site and adopted The Hills Findings Statement concluding that the Project would not have the potential to generate any significant adverse environmental impacts. Moreover, Town Law §272-a, specifically section 11 thereof, provides that the “[e]ffect of adoption of the town comprehensive plan [is that] (a) [a]ll town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section.” “In exercising their zoning powers, the local authorities must act for the benefit of the community as a whole following a calm and deliberate consideration of the alternatives, and not because of the whims of either an articulate minority or even majority of the community” (Udell v. Haas, 21 NY2d 463, 469 [1968]). Accordingly, by December 5, 2017, there was a strong likelihood that the Project would be approved since it was in accordance with the Comprehensive Plan and the Recommended Plan, and environmental review was satisfactorily completed with no significant adverse environmental impacts. Also, the Town Board’s discretion in considering the MUPDD was so narrowly circumscribed by that point based upon its adoption of the Comprehensive and Recommended Plans, the adoption of the generic environmental impact statement for the East Quogue area, the adoption of the East Quogue Findings Statement, the re-zoning that already permitted residential use with accessory golf course use, the consideration of the final environmental impact statement specific to The Hills and the adoption of the Findings Statement specific to The Hills, that approval of the MUPDD was virtually assured, thereby giving rise to a property right in the approval of the MUPDD application. At its core, the only infinitesimal bit of apparent administrative discretion left to the Board was whether the golf club, not the golf course, was to be approved. Based on the foregoing, there was to this Court’s view, no true discretion left but to approve the Project, which includes the golf club aspect. Plaintiffs having established a property right in approval of the MUPDD application, the Court now turns to the alleged violation and whether it constitutes egregious and arbitrary official conduct in the constitutional sense. The transcript of the December 5, 2017 Town Board meeting reflects that the remarks of Board Members Bouvier and Lofstad are utterly devoid of any reference to the golf club aspect of the MUPDD application. Moreover, their respective objections and statements explaining their nay votes center nearly entirely on environmental concerns about the golf course that were already allayed by the extensive environmental studies performed over the course of years, and by the adoption of The Hills Findings Statement during the very same meeting, prior to the vote on the approval of the MUPDD application. The purpose of requiring environmental studies to be conducted in connection with land use is to put the environmental concerns squarely within the ambit of governmental decision making, to ensure that the governmental agency takes a “hard look” at the proposed project and makes a reasoned determination (see WEOK Broadcasting Corp. v. Planning Board of Lloyd, 79 NY2d 373 [1992]), which is what the majority of the Town Board did here. Notwithstanding that in September 2017, the Town Board unanimously accepted The Hills final environmental impact statement, which included the aye votes of Board Members Bouvier and Lofstad without raising any environmental concerns, and the Board’s adoption of The Hills Findings Statement at the December 5, 2017 meeting by simple majority vote, those two Board members clearly disregarded not only their own prior votes accepting The Hills’ final environmental impact statement, but they also disregarded the majority of the Board who adopted The Hills Findings Statement, signaling the end of the SEQRA process. In addition, they also acted in derogation of the Comprehensive plan. There is no other conclusion that can be reached other than that Board members Bouvier and Lofstad acted in an arbitrary manner on December 5, 2017 (see SCI Funeral Services of New York, Inc. v. Planning Board of the Town of Babylon, 277 AD2d 319 [2d Dept 2000]). Notably, Board members Bouvier and Lofstad did not mention the words “golf club” at all in their December 5, 2017 remarks opposing approval of the application, which was, as noted, the only remaining infinitesimal bit of discretion available to the Town Board. Thus, it is reasonable to conclude that neither Mr. Bouvier nor Ms. Lofstad had any objection to that particular aspect of the Project, making their nay votes egregious and shocking in view of their history of voting in favor of not only the final environmental impact statement (FEIS) for The Hills, but also their votes in favor of the draft environmental impact statement (DEIS) that preceded the FEIS. Based upon the submitted record, it appears that Mr. Bouvier and Ms. Lofstad acceded to the community voices in opposition to the project rather than basing their votes on a dispassionate and reasoned review of the environmental studies conducted over the course of years preceding the vote. Moreover, they each appear to have decided to vote nay prior to the holding of the December 5, 2017 meeting, which also establishes the Town’s violation of plaintiffs’ procedural due process right to a fair hearing. Procedural Due Process Analysis In order to fulfill the promise of the due process clause in the United States and New York Constitutions, the governmental authority must afford “all individuals a meaningful opportunity to be heard” (Boddie v. Connecticut, 401 US 371, 379 [1971]; Brady v. Colchester, 863 F2d 205, 211 [1988]). The transcript of the December 5, 2017 Town Board meeting demonstrates that Mr. Bouvier and Ms. Lofstad had pre-determined their nay votes, and that they read from previously composed written statements. Before any vote was taken by the Town Board, Richard Amper of the Long Island Pine Barrens Society spoke at the meeting in opposition to the Project. He lauded Mr. Bouvier and Ms. Lofstad, closing with the remark “[t]o the people of Southampton, thank you and God bless you, good luck and congratulations. I think you’ll beat the bad guys” (emphasis added). A resident of Westhampton Beach, Camden Ackerman, expressed his concern with Mr. Amper’s comments, stating, “I was a little troubled a couple of [ ] ago when I listened to Mr. Amper’s pat on the back to everybody. I’ve attended all of these hearings and I’ve been very active in this process because I feel very strongly that this is an incredible opportunity for my community…It’s troubling to me that I’m sitting here, and it feels like, you know, it’s a done deal and the opposition who has spent two years spreading misinformation all over the place is now applauding themselves before the votes even happened.” Dan Farrow, a resident of East Quogue, stated that “two of the board members said they would vote against the Findings, which doesn’t make sense. So, this latest Findings was November 27th, we had the board meeting last week, the 28th when Mr. Bouvier said he never read the Findings when they came out and Mr. Glinka had a copy in his hands and handed it to him. So obviously I don’t know if you’re taking this seriously but essentially it said, this was the best environmental, social, and economic plan.” Not only did some of the residents clearly get the feeling that this vote was pre-determined, but the transcript bears witness to the fact that Joe Aaronson, a partner with Discovery Land Company who spoke in support of the Project, felt that the result was pre-determined before the vote was to be taken when he said, “we feel that this process should be one of the great examples of how this process works. We took our plan, we listened to the community, we should be celebrating a victory, a victory for the environment, for the school, for everyone. But for some reason I have a very hollow feeling in my stomach like the process has let us down or is about to let us down.” Accordingly, and although the hearing was held, it appears not to have afforded plaintiffs a meaningful opportunity to be heard because the defeat of plaintiffs’ MUPDD application was a fait accompli before the vote was taken. Since this procedural due process violation occurred in the context of an existing Town procedure (the hearing), contrary to defendants’ position that plaintiffs could have brought an Article 78 proceeding, no post-deprivation hearing can suffice to remedy the violation (Hellenic Neighborhood Action Committee v. City of New York, 101 F3d 877, 880 [2d Cir 1996]). Since the plaintiffs have demonstrated that that they have a property interest in approval of their MUPDD application, that the Town defendants violated plaintiffs’ right to substantive due process of law, as well as plaintiffs’ right to procedural due process in the framework of the decision adopted by the Town Board, a final policymaking authority under State and local law, the Town of Southampton, is liable (Monell v. Department of Social Services of the City of New York, 436 US 658 [1978]), even if it is a single decision of the municipal body as opposed to a series thereof. “[I]t is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. No one has ever doubted, for instance, that a municipality may be liable under §1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy” (Pembaur v. City of Cincinnati, 475 US 469, 480 [1986]). State Law Violations The plaintiffs allege that the defendants, specifically the Town Board, violated Town Law §272-a by failing to zone in accordance with the Comprehensive Plan. In fact, one of the Board members, Christine Scalera, stated to the Board members prior to the vote that “[v]oting no is a vote in contravention of the land use plan and many policies of the Town enumerated in the comprehensive plan. It is a vote in contravention of other votes previously cast by this very board as the Findings Statement, which supports this project, brings to conclusion all the offered and accepted remediation urged by the public and experts that was unanimously accepted in the DEIS (Draft Environmental Impact Statement) and the FEIS (Final Environmental Impact Statement).” By these actions, the plaintiffs allege that the defendants violated the plaintiffs’ procedural and substantive due process rights under the Constitution of the State of New York as well as under the United States Constitution and 42 USC §1983. Notice of Claim Inasmuch as the plaintiffs seek damages for violations of its federal constitutional rights under 42 USC §1983, and Section 50-e of the General Municipal Law applies only to state law claims for monetary damages, no notice of claim is required for the causes of action asserting violations of plaintiff’s federal constitutional rights. In addition, as noted herein above, the due process violation claims alleged under the federal Constitution are coextensive with due process claims under the New York State Constitution; therefore, a notice of claim for the state law claims is not required in this matter (see Hernandez v. United States, 939 F3d 191, 205 [2d Cir 2019]). The Defendants’ Cross-Motion The defendants do not dispute the relevant chronology set forth herein, nor do they dispute the contents of the Comprehensive Plan, Recommended Plan, Town resolutions passed in furtherance of the Comprehensive Plan, the results of the many environmental studies, or the events of the December 5, 2017 Town Board meeting. Instead, the defendants maintain that the plaintiffs do not have a protected property interest in the application and thus their claims for violation of substantive and procedural due process must fail. For this contention, the defendants rely upon Southampton Town Code, Section 330-244 (B)(7). Defendants assert that the Town Board had complete discretion as to whether to approve the proposed PDD/MUPDD. That section of the Code reads as follows: Nothing contained herein shall be construed to preclude or bind the Town Board from issuing or changing its decision or recommendation if new information or a change in circumstances arises at or prior to the formal application stage, nor shall anything herein be construed to bind the Town Board to any approval of the proposed PDD.” Reliance on that Code provision without regard to the developments specific to The Hills project since the pre-application process was commenced in or about 2013 is misplaced. As discussed herein, the Town Board had engaged in a number of actions that incrementally circumscribed its discretion, including the grandfathering of plaintiffs’ application thereby saving it from repeal of the PDD law, the Planning Board’s approval of a golf course on the property, unanimous acceptance of the DEIS and FEIS for The Hills, and adoption of The Hills Findings Statement at the December 5, 2017 Town Board meeting. The defendants’ position also fails to account for Town Law §272-a mandating zoning to be accomplished in accordance with the Comprehensive Plan. The defendants merely assert that denial of the MUPDD is not inconsistent with the Comprehensive Plan since they cannot credibly assert that it is in accord with it. Notably, the Comprehensive Plan has not been amended, and, in fact, the defendants do not dispute that the 1999 and 2008 Comprehensive Plan Updates were adopted by the defendants pursuant to Town Law §272-a; therefore, the defendants are bound by Town Law §272-a. In addition, the defendants maintain that the Board members who cast the nay votes based their votes “upon multiple considerations.” The transcript of the December 5, 2017 hearing belies defendants’ argument that Mr. Bouvier and Ms. Lofstad based their votes against the project “upon multiple considerations.” Based upon all the foregoing, the Court determines that the plaintiffs have established their entitlement to summary judgment as a matter of law on the issues of liability asserted in their second amended complaint, warranting the relief requested in paragraphs A and B of plaintiffs’ “Wherefore” clause, namely overturning and declaring void the votes against the Project cast by Board members Bouvier and Lofstad and requiring the Town Board to enact the Project Local Law or another local law approving the project. The issue of damages and reasonable attorneys’ fees and costs of litigation shall be determined at an inquest to be held at a time mutually convenient to the Court and counsel for the parties. Based upon the foregoing analysis and that undertaken in connection with plaintiffs’ summary judgment motion, the defendants’ cross-motion for summary judgment is denied. The foregoing constitutes the Decision and Order of this Court. Dated: January 30, 2024
