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Second Circuit Holds Zoning Provision Unconstitutionally Vague

The Second Circuit Court of Appeals held a local zoning provision, relating to the measurement of the height of a building, to be unconstitutionally vague and remanded the matter for consideration of the Plaintiff’s substantive due process claim. In Cunney v. Bd. of Trustees of the Village of Grand View, the court reversed the granting of summary judgment on behalf of the Village and upheld the void for vagueness claim of Plaintiff. The court noted that the Village officials had several varying interpretations of the ordinance themselves, originally granting a building permit, then interpreting the construction as compliant with the ordinance and finally reversing themselves and finding the construction violated the ordinance.

The matter involves construction of a house along the Hudson River in New York, at a point where the land drops down below the height of the adjacent roadway. The ordinance, adopted to preserve views of the river, provides that no building may rise more than 4 1/2 feet above the easterly side of River Road. Initially, the Plaintiff sought variances and an interpretation of the provision from the local zoning board. The issue is that the property borders the road for 149 feet and the height of the road varies by 6 feet. The Plaintiff requested that the zoning board interpret the point or points from which the height of the road should be measured.

The zoning board declined to issue a finding on that issue, although three of the members gave two different interpretations of the provision. Thereafter, the Plaintiff, through his surveyor, provided various measurements of the road height and applied for and obtained a building permit. However, after the house was constructed the Village engineer was asked to confirm the heights based upon complaints by the neighbors. He at first found the structure to be compliant but later applied a different calculation to the manner of determining height and concluded the structure was not compliant. Based upon that determination the Plaintiff was denied a certificate of occupancy.

The Plaintiff then went back to the zoning board seeking alternatively an interpretation that the house was compliant or variances. The zoning board found that the house was not compliant but granted the variance with significant conditions. Plaintiff brought an action to review in state court and the matter was removed to the District Court.

Reviewing the law on vagueness the Court noted:

“a law violates due process “if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.” Hill v. Colorado, 530 U.S. 703, 732 (2000). “Animating this first vagueness ground is the constitutional principle that individuals should receive fair notice or warning when the state has prohibited specific behavior or acts.” Thibodeau v. Portuondo, 486 F.3d 61,65 (2d Cir. 2007); Smith v. Goguen, 415 U.S. 566, 572 (1974) (“The doctrine incorporates notions of fair notice or warning.”). Second, a law is unconstitutionally vague “if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732. Statutes must “provide explicit standards for those who apply” them to avoid “resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).”

The Court then went on to hold:

“In arriving at this decision, however, the ZBA declined to address the question placed squarely before it by Cunney and his engineer at the design stage of the project-from what adjacent point or points on River Road the ordinance required the height of the house to be measured. For these reasons, we agree with the district court that “the Village’s actions-its measurement procedure at the Property-and its own admissions [by ZBA members], demonstrate that no explicit standards exist regarding the method with which to measure from the easterly side of River Road. Thus, [section E] could encourage potentially arbitrary or ad hoc enforcement.” Cunney, 675 F. Supp. 2d at 400….We recognize that “[ w ]here an ordinance provides insufficient general guidance, an as applied vagueness challenge may nonetheless fail if the [ordinance’s] meaning has a clear core.”Farrell, 449 F.3d at 493; Brache v. Cnty. of Westchester, 658 F.2d 47,51 (2d Cir. 1981)…we do not see how section E’s imprecise core meaning-the preservation of river views-translates into the precise construct laid out by the district court. While there is no question that the ordinance could have been drafted to do exactly what the district court suggests, or could have been interpreted by the ZBA to call for this result, the ZBA refused to provide such guidance, and the ordinance’s statement of core purpose is not so explicitly demanding….Based on the record before us, because a reasonable enforcement officer could find that Cunney’s house does comply with the ordinance, we conclude that the height of Cunney’s house does not constitute a “hard-core” violation of section E, and thus does not fit squarely within the ordinance’s core prohibition. See Goguen, 415 U.S. at 577-78. Our review of the record gives us substantial concern that the ordinance was arbitrarily applied to Cunney’s property. We therefore reverse the district court’s dismissal of this claim.”

The Court went on to direct that the District Court issue judgment in favor of the Plaintiff on the claim of unconstitutional vagueness.

In remanding the substantive due process claim the Court stated:

“[i]n the land use context, an action for violation of substantive due process rights is “intended to be a tool capable of measuring particular applications to determine if the applicant had a legitimate claim of entitlement based on the likelihood that without the due process violation that application would have been granted.” Sullivan v. Town of Salem, 805 F .2d 81, 85 (2d Cir. 1986). The record is clear that the only reason provided by the Village for the denial of Cunney’s CO application was that his house exceeded section E’s height restriction….In light of our holding today that section E is unconstitutionally vague, and thus may not be applied as a basis for denying Cunney a CO for the house that has been erected on his property, we will leave it to the district court to decide in the first instance the viability and merits of Cunney’s substantive due process claim. See City of Chicago v. Morales, 527 U.S. 41, 64 n.35 (1999).”


-Steven Silverberg