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FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
In the Matter of the Application of
ONEDOL ROCK HOLDINGS LP, Index No. 54241/2021
Petitioner-Plaintiff,
For a Judgment and Order pursuant to Article 78 of the CPLR
and for declaratory relief,
-against-
THE VILLAGE OF SCARSDALE, THE VILLAGE OF
SCARSDALE COMMITTEE FOR HISTORIC
PRESERVATION and THE VILLAGE OF SCARSDALE
BOARD OF TRUSTEES,
Respondents-Defendants.
MEMORANDUM OF LAW
IN OPPOSITION
McCULLOUGH, GOLDBERGER & STAUDT, LLP
Attorneys for Respondent Village of Scarsdale Committee
for Historic Preservation
1311 Mamaroneck Avenue, Suite 340
White Plains, New York 10605
Phone: (914) 949-6400 / Fax: (914) 949-3507
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TABLE OF CONTENTS
PRELIMINARY STATEMENT.....................................................................................................2
LEGAL ARGUMENT.....................................................................................................................7
POINT ONE.................................................................................................................................7
PETITIONER HAS FAILED TO REBUT THE HEAVY PRESUMPTION OF
CONSTITUTIONALITY.........................................................................................................7
POINT TWO................................................................................................................................9
PETITIONER DOES NOT HAVE A PROTECTED PROPERTY RIGHT NEEDED TO
ASSERT A CLAIM OF SUBSTANTIVE OR PROCEDURAL DUE PROCESS
VIOLATION............................................................................................................................9
POINT THREE..........................................................................................................................14
APPLICATION OF THE VOID-FOR-VAGUENESS STANDARD TO CRIMINAL AND
QUASI-CRIMINAL STATUTES IS HEIGHTENED...........................................................14
POINT FOUR............................................................................................................................16
PETITIONER CANNOT SATISFY THE TWO-PART VAGUENESS TEST....................16
POINT FIVE..............................................................................................................................19
A STATUTE IS NOT UNDULY VAGUE BECAUSE IT REQUIRES THE EXERCISE OF
SOME DISCRETION............................................................................................................19
POINT SIX ................................................................................................................................20
SIMILAR HISTORIC PRESTERVATION LAWS HAVE BEEN UPHELD......................20
CONCLUSION..............................................................................................................................22
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PRELIMINARY STATEMENT
The Petitioner Onedol Rock Holdings, LP ("Petitioner") concedes that the Village of
Scarsdale has a right to enact laws that seek to preserve structures or buildings of historical
importance within the Villagel. Petitioner's argument is limited to the Village's Historic
Preservation Law ("HPL") being too indefinite and allegedly unconstitutionally vague. Its
complaint alleges that the HPL, on its face, and as applied, violates Petitioner's due process
rights.
Petitioner argues that because members of the Respondent Village of Scarsdale
Committee for Historic Preservation ("Scarsdale CHP") may exercise discretion in applying the
HPL to a specific property, the law is "void-for-vagueness". Petitioner improperly alleges that
utilization of any level of discretion allows for subjective and ad hoc determinations. The facts
and the record do not support Petitioner's strained interpretation of the local law. Both the New
York State Court of Appeals and the United States Supreme Court have upheld as constitutional
similar laws containing similar review standards. Petitioner also improperly equates the
heightened standard applied to criminal statutes and regulations to regulation restricting an
owner's use of his or her property for the community's cultural, aesthetic, or historic benefit.
The role of the historic preservation experts in the review process is also misapprehended
by Petitioner. It alleges that because the Scarsdale CHP, as well as the Respondent Village of
Scarsdale Board of Trustees ("Scarsdale BOT"), accepted most, but not all, of historic
1 Given Petitioner's concession this issue will not be addressed in depth. Itis noted that local governments
have a legitimate interest inreasonably restricting an owner's use of his property for the cultural and
aesthetic benefit of the community. See, Society for Ethical Culture v. Spatt, 68 A.D. 2d 112 (lst Dep't
1979) aff'd 51 N.Y. 2d 449, 454 (1980); see also N.Y. Gen Mun. Law Section 96-a and N.Y. Mun. Home
Rule Law Section 10[1](a) (11).
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preservation expert Andrew S. Dolkart's advice, and rejected most of Petitioner's retained expert
Dr. Emily T. Cooperman's advice, that means that the respective boards do not understand the
meaning of the HPL. In fact, that means that the respective boards reviewed the two expert
opinions, analyzed and applied the HPL to the facts, and came to reasoned conclusions based on
all the evidence. If either the Scarsdale CHP or Scarsdale BOT merely rubberstamped Mr.
Dolkart's opinion, or any expert's opinion, without independent analysis, the boards would be
improperly abdicating their duties. It is a ridiculous argument to allege that if two experts
disagree, especially where one of the experts is retained to advocate a position for her client, that
means the underlying law is unconstitutionally vague. The HPL provided adequate notice for the
experts to form opinions regarding the application of the law to the Petitioner's property and the
HPL provided multiple due process protections including a right to be heard and present
evidence before the Scarsdale CHP, the right to appeal to the Scarsdale BOT, and the right to
commence an Article 78 proceeding before this Court.
Further, the Petitioner never addresses the threshold issue as to what constitutionally
protected property right the Petitioner is being deprived of. As addressed in detail below,
Petitioner never identifies a property right, shows that the Village has deprived Petitioner of that
right, and that it effected that deprivation without due process. In the absence of a protected
property interest Petitioner has no lack of constitutional due process claim.
Finally, Petitioner's claim that the HPL on its face, or as-applied, violates due process
rights, is factually unsupportable given the availability of a process that allows for hearings,
testimony, including expert witness testimony, submission of documents, site visits, and an
appeals process, all of which Petitioner availed itself of; and continues to avail itself of given the
pendency of its Article 78 proceeding.
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STATEMENT OF FACTS
According to paragraph 182 of the Petitioner's Petition/Complaint, the HPL is
unconstitutional on its face and as applied to Petitioner as it allegedly deprives property owners
in Scarsdale of due process of law guaranteed by Article I, Section 6 of the New York State
Constitution, and the Fourteenth Amendment of the United States Constitution with respect to a
protected constitutional interest.
Thus, the Petitioner's request for declaratory judgment is based on a facial and as applied
deprivation of due process.
The HPL has provisions providing for substantive and procedural due process.
Section 182-6 (c) of the HPL reads as follows:
All decisions of the Committee to approve a certificate shall be by a vote of at
least a majority of the members of the Committee and shall be in writing.
Said writing shall be made within 15 days of the close of the meeting(s) and shall
include detailed findings explaining the reasons and rationale of the Committee to
issue a certificate. A copy of the Committee's determination and findings shall be
sent to the owner by certified mail and a copy filed with the Village Clerk's office
for public inspection. If the Committee determines that a certificate should not
be granted or should be granted with conditions, the decision shall also be
supported by detailed findings explaining the reasons and criteria underlying
said decision and shall advise the owner of the right to commence a hardship
application process in accordance with § 182-8 and/or appeal the
determination to the Board of Trustees as provided in § 182-11. (emphasis
supplied).
HPL Section 182-7 states, in pertinent part, as follows:
Hardship criteria.
An owner whose certificate has been denied or granted with conditions may
apply to the Board of Trustees, within the time prescribed in § 182-8, for
relief from such denial or conditions on the grounds that such denial or
conditions constitute a hardship upon the applicant. (emphasis supplied).
HPL Section 182-8 states in pertinent part, as follows:
Application procedure for hardship; issuance of delayed certificate.
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A. Application procedures.
[1] After receiving written notification from the Committee of the
denial of a certificate or the grant with conditions, an owner
may, within one year of the mailing of the notification, file an
application with the Board of Trustees, on such form as the
Board of Trustees may require, asserting that a hardship
exists.
(21 The Board of Trustees shall hold a public hearing on the
hardship application with notice as provided for in § 182-6A and
shall render a decision in accordance with the procedures set forth
in § 182-6C within 60 days from the close of the public hearing or
within such additional time period as the Board of Trustees and the
owner may agree.
(31 If the Board of Trustees determines that a hardship exists, itshall
take one or more actions, which may include, without limitation,
the following:
(al Exercising its powers hereunder and its good offices to
assist the owner in developing an economically feasible
plan to overcome the objections to the issuing of a
certificate.
fill It may issue a certificate, if it finds such certificate may be
issued without substantial detriment to the public welfare
and without departure from the intent and purpose of this
chapter.
[cl Recommending acquisition of the historic building by the
Village where its preservation is essential to the intent and
purposes of this chapter and private preservation is not
feasible.
(dl Recommending acquisition by the Village by purchase or
condemnation of an historic building on such tenns as the
Board of Trustees may approve.
[el Issuing a delayed certificate pursuant to Subsection C of
this section.
(emphasis supplied).
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The HPL also provides for appeals to both the Scarsdale BOT and this Court.
HPL Section 182-11 is entitled Appeals and reads as follows:
A. Any owner who is aggrieved by a decision of the Committee with
respect to issuance of a certificate or the grant of a certificate with
conditions may appeal to the Board of Trustees by filing a written
notice of appeal with the Village Clerk within 30 days from the date
notice of the decision of the Committee is mailed to the owner. The
notice of appeal shall state the date, general nature of the decision
appealed from and the ground of the appeal. The Board of Trustees may
hear such appeal at a regular meeting or at a special meeting called for that
purpose. The Board of Trustees shall not be bound by the record
adduced before the Committee and may, in its discretion, affirm or
reject, in whole or in part, the determination of the Committee. The
decision of the Board of Trustees shall be rendered within 60 days after
the filing of the notice of appeal. In the event that the Board of Trustees
does not render a timely decision, the denial of a certificate shall be
deemed disapproved.
B. Any person or persons, jointly or severally, aggrieved by a decision of
the Board of Trustees on an appeal for a certificate or grant of a certificate
with conditions, or the Board of Trustee's determination regarding a
hardship application, may, within 30 days after such decision is filed
with the office of the Village Clerk, apply to the State Supreme Court
for review pursuant to Article 78 of the Civil Practice Law and Rules.
Further, a designation of historical significance under the HPL does not absolutely
prevent the maintenance, repair, or alteration of the designated structure. HPL Section 182-12
alteration"
entitled "Maintenance, repair or provides additional protections. It reads, in pertinent
part:
A. Nothing in this chapter shall be construed to prevent, under proper
permit, if applicable, the ordinary maintenance and repair of any
architectural feature of a building that has been determined to be an
historic building and denied a certificate.
B. . ..
. Any proposed addition, modification or alteration to a building that
has been identified by the Committee as an historic building and denied a
certificate shall be referred to the Board of Architectural Review (BAR)
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together with the detailed findings supporting the Committee's and/or
Board of Trustee's determination that the building is an historic building.
The detailed findings from the Committee and/or Board of Trustees shall
serve as guidance to the BAR when reviewing any proposed addition,
modification or alteration.
LEGAL ARGUMENT
POINT ONE
PETITIONER HAS FAILED TO REBUT THE HEAVY PRESUMPTION OF
CONSTITUTIONALITY
One of the basic principles of constitutional law is that every legislative enactment carries
with it a strong presumption of constitutionality; O'Gorman & Young v Hartford Ins. Co., 282
burden"
U.S. 251, 257 (1931). To rebut this presumption, Petitioner bears a "heavy of proving
doubt" Constitution."
"beyond a reasonable that the HPL is "in conflict with the See,
Overstock.com, Inc. v. New York State Department of Taxation and Finance, 20 N.Y3d 586, 593
(2013). see also Marcus Associates, Inc. v. Town of Huntington, 45 N.Y.2d 501, 506, 410
N.Y.S.2d 546 (1978) (quoting Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11, 390
N.Y.S.2d 827 (1976) ("the exceedingly strong presumption of constitutionality applies not only
to enactments of the [State] Legislature but to ordinances of municipalities as well. While this
presumption is refutable, unconstitutionality must be demonstrated beyond a reasonable doubt
and only as a last resort should courts strike down legislation on the grounds of
unconstitutionality."). Over 40 years ago the Supreme Court resolved that a municipality may
promote historic preservation goals pursuant to its police powers because those goals are directly
related to the public welfare and serve a legitimate public purpose. Penn Cent Transportation Co
v. City of New York, 438 U.S. 104, 129 (1978). The HPL will be upheld if there is a reasonable
relation between the end sought to be achieved and the means used to achieve that end.
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Therefore, ifthe law is adopted for a legitimate governmental purpose and there is a reasonable
relation between the end sought (preservation of property that provides a cultural, aesthetic, or
historical benefit to the Village) and the means used to achieve that end, the law will be upheld;
see Asian Ams for Equality v. Koch, 2 N.Y. 2d 121, 131-32 (1988). In addition, there is statutory
to enact historic preservation laws. New York General Municipal Law Section 96-
authority See,
a.
Here, Petitioner has conceded that the Village has the constitutional right to enact the
HPL and that the law bears a rational relationship to a legitimate government interest. Petitioner
writes: "The constitutional question raised in this case is not whether the Village has the right or
even the authority to enact laws that seek to preserve structure or buildings of historical
importance2 do."
in Scarsdale. They Petitioner goes on to argue that although the law bears a
rational relationship to a legitimate government interest itis nonetheless unconstitutional because
its language is allegedly vague and allows "those in charge of enforcing the law to do so on
completely arbitrary and subjective grounds without any checks and balances over their power to
Court."
do so, including by this This is an odd statement given that this is a hybrid proceeding
and Petitioner has a cause of action alleging that Respondent BOT's decision was arbitrary and
capricious and requesting that this Court overturn it as such. Petitioner also exercised its right to
appeal the Scarsdale CHP's decision to the Scarsdale BOT. The process outlined in the HPL also
allows for submission of documentation, public hearing, and site visits. Clearly, several "checks
balances"
and are in place. In addition, the HPL provides for a hardship application and
alterations to properties that have found to be of historic significance. Petitioner had a full and
2
Case law, including Penn Cent Transportation Co v. City of New York, 438 U.S. 104 (1978) indicate
importance"
that the term "historic encompasses aesthetic and cultural importance.
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fair opportunity to be heard and has availed itself of the right to an appeal to the BOT as well as
the right to appeal to this Court.
Momentarily leaving aside the fact that Petitioner does not have a protected property
right, and this Court review should focus only on the HPL's rational relationship to a legitimate
governmental interest, it isthe Scarsdale CHP's position that the HPL is not unduly vague, and
that the issues raised by Petitioner do not rise to the level of a due process violation. Petitioner
has come nowhere near meeting its heavy burden of proving unconstitutionality beyond a
reasonable doubt. Therefore, to the extent that Petitioner's argument regarding alleged vagueness
implies that the HPL does not provide due process protections to applicants, as will be discussed
below, there is ample evidence of procedural and substantive due process built into the HPL's
provisions, which provisions were applied to Petitioner's application for a demolition permit.
POINT TWO
PETITIONER DOES NOT HAVE A PROTECTED PROPERTY RIGHT NEEDED TO
ASSERT A CLAIM OF SUBSTANTIVE OR PROCEDURAL DUE PROCESS VIOLATION
"void-for-vagueness"
Petitioner's argument is a due process argument. In Gurnsey v.
Sampson, 151 A.D. 3d 1928, 57 N.Y.S. 3d 855 (4th Dept. 2017), the Court stated: "Due process
of law requires that a statute or regulation be sufficiently definite such that persons of common
intelligence need not guess at is meaning (see Matter of Kauer v. New York State Urban Dev.
1377-1378)."
Corp., 15 N.Y. 3d 235, 256, 907 N.Y.S. 2d 122, Turner, 122 A.D. 3d
However, here, Petitioner has no constitutional right to allege violation of either
substantive or procedural due process given it does not have a protected property right in the
issuance of a demolition permit. In Deane v. City of New York Dept. of Bldgs., 177 Misc. 2d 687,
677 N.Y.S. 2d 416 (Sup. Ct. NY County 1998), the Court reiterated the well settled law that a
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Petitioner cannot have a property interest that is protected by due process ifthe matter that gives
rise to that interest is discretionary; see, also, Matter of Doe v. Coughlin, 71 N.Y. 2d 48, 55
(1987). Where the challenged legislation does not interfere with the exercise of a fundamental
right, judicial review is limited to whether the legislation is rationally related to a legitimate state
interest; see People v Knox, 12 N.Y. 3d 60, 67 (2009); see also Washington v Glucksberg, 521
US 702, 722 (1997); Myers v Schneiderman, 30 NY3d 1, 16 (2017). "A legitimate governmental
welfare"
purpose is,of course, one which furthers the public health, safety, morals or general
Fred F. French Inv. Co. v City of New York, 39 N.Y. 2d 587, 596 (1976). Here, Petitioner has
already conceded that the HPL is rationally related to a legitimate municipal interest and as set
forth below there is well settled case law that preservation laws have a rational relationship to the
public good.
Therefore, in order to establish a federally protectable property interest in a state or local
permit for which a plaintiff has applied, the plaintiff must show that, at the time the permit was
denied, there was no uncertainty regarding his entitlement to itunder applicable state or local
law, and the issuing authority had no discretion to withhold itin his particular case; Natale v
Town of Ridgefield, 170 F.3d 258, 263 (2d Cir 1999). Quite simply, Petitioner cannot establish a
protected property interest under these facts.
The Court in 33 Seminary LLC v. City of Binghamton, 120 F. Supp. 3d 223, 244-245
(NDNY 2015) aff'd sub nom., 670 Fed. Appx. 727 (2d Cir. 2016) reiterated the concept of a
protected property interest being a precursor to a due process claim:
In order. for an interest in a particular land-use benefit to qualify as a
property interest for purposes of the substantive due process clause [,]a
entitlement' benefit."
landowner must show a 'clear to that O'Mara v.
Town of Wappinger, 485 F.3d 693, 700 (2d Cir.2007) (quoting Clubside,
Inc. v. Valentin, 468 F.3d 144, 152 (2d Cir.2006)). . . The court's analysis
of the plaintiffs property interest 'therefore turns on the degree to which
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state and local law unambiguously limits the [defendants'] discretion to
petition."
deny [the plaintiff's] Clubside, 468 F.3d at 154. "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."
RRI Realty Corp. v. Incorporated Village of Southampton, 870
Cir.1989)."
F.2d 911, 918 (2d
Here, the Petitioner cannot show that it had clear entitlement to a demolition permit as both the
Scarsdale CHP and the Scarsdale BOT have a certain level of discretion in deciding. If the
Petitioner were entitled to a permit as of right it would have been issued by the Scarsdale
Building Department rather than referred to the Scarsdale CHP for further review. "The first
inquiry in every due process challenge is whether the plaintiff has been deprived of a protected
"property" "liberty."
interest in or See U. S. Const., Amdt. 14 ("nor shall any State deprive any
person of life, liberty, or property, without due process of law"); Mathews v. Eldridge, 424 U.S.
319, 332 (1976)". American Manufacturers v. Sullivan, 526 U.S. 40, 59 (1999). Only after
finding a deprivation of a protected interest does a Court look to see if the statute's procedures
comport with due process American Manufacturers v. Sullivan, 526 U.S. at 59 (1999).
Even assuming arguendo that Petitioner had a protected property right, the HPL provides
more than adequate procedural due process safeguards. The Due Process Clauses of the United
"
States and New York Constitutions require that 'deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the
case' "
Brancato v City ofNew York, 244 F. Supp. 2d 239, 242 (SDNY 2003), quoting Mullane
v Central Hanover Bank & Trust Co., 339 US 306, 313 (1950). The procedural safeguards
required by due process are flexible and vary with the circumstances and type of proceeding; see,
Goss v Lopez, 419 US 565, 578 (1975); Matter of Vector E. Realty Corp. v Abrams, 89 A.D. 2d
453, 456-457, 455 N.Y.S.2d 773 (1st Dept. 1982). Due process mandates only persons be
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heard' "
accorded "an opportunity 'tobe Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop.
Educ. Servs., 77 NY2d 753, 757 (1991) and to submit evidence supporting their position; see,
Matter of Akshar v Mills, 249 AD2d 786 (3d Dep't 1998); Vector E. Realty, 89 AD2d at 455 (1st
Dep't 1982). That opportunity to be heard and submit evidence is provided under the HPL and
was provided to Petitioner.
In Grossi v City of New York, 08-CV-1083 RRM ALC, 2009 WL 4456307, at *10
(EDNY Nov. 30, 2009), the District Court explained that for a plaintiff to demonstrate a
violation of procedural Due Process rights based upon a land regulation, a plaintiff "must first
demonstrate the possession of a federally protected property right to the relief sought and the
remedy."
insufficiency of any state The District Court went on to hold: "post deprivation
Clause"
remedies made available by the State can satisfy the Due Process and "predeprivation
notice and opportunity to be heard is pretermitted if the State provides a post deprivation
remedy."
Parratt v. Taylor, 451 US 527, 538 (1981), overruled on other grounds, Daniels v.
Williams, 474 US 327 (1986). Thus, it is well established in the Second Circuit that the
availability of an Article 78 proceeding provides a homeowner with the procedural Due Process
rights which are due;_see, Rector, Wardens, and Members of the Vestry of St. Bartholomew's
Church v. City of New York, 728 F. Supp. 958, 965 n. 12 (S.D.N.Y.1989) (declining to decide
whether the Landmarks Preservation Commission denied the plaintiff itsprocedural Due Process
rights because any defects should have been addressed through an Article 78 hearing in state
court). Here, Petitioner has a pending Article 78 proceeding satisfying its procedural Due
Process rights.
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33 Seminary LLC v City of Binghamton, 120 F. Supp 3d 223, 248-49 (NDNY 2015), affd
sub nom. , 670 Fed Appx 727 (2d Cir 2016) summarizes the steps involved in a review of a
procedural Due Process claim as follows:
In order to establish a violation of procedural due process, "a plaintiff
must 'first identify a property right, second show that the state has
deprived him of that right, and third show that the deprivation was
process.' "
effected without due Local 342, Long Island Pub. Serv. Emps.
v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1194 (2d Cir.1994)
(quoting Mehta v. Surles, 905 F.2d 595, 598
Preview
FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER In the Matter of the Application of ONEDOL ROCK HOLDINGS LP, Index No. 54241/2021 Petitioner-Plaintiff, For a Judgment and Order pursuant to Article 78 of the CPLR and for declaratory relief, -against- THE VILLAGE OF SCARSDALE, THE VILLAGE OF SCARSDALE COMMITTEE FOR HISTORIC PRESERVATION and THE VILLAGE OF SCARSDALE BOARD OF TRUSTEES, Respondents-Defendants. MEMORANDUM OF LAW IN OPPOSITION McCULLOUGH, GOLDBERGER & STAUDT, LLP Attorneys for Respondent Village of Scarsdale Committee for Historic Preservation 1311 Mamaroneck Avenue, Suite 340 White Plains, New York 10605 Phone: (914) 949-6400 / Fax: (914) 949-3507 1 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 TABLE OF CONTENTS PRELIMINARY STATEMENT.....................................................................................................2 LEGAL ARGUMENT.....................................................................................................................7 POINT ONE.................................................................................................................................7 PETITIONER HAS FAILED TO REBUT THE HEAVY PRESUMPTION OF CONSTITUTIONALITY.........................................................................................................7 POINT TWO................................................................................................................................9 PETITIONER DOES NOT HAVE A PROTECTED PROPERTY RIGHT NEEDED TO ASSERT A CLAIM OF SUBSTANTIVE OR PROCEDURAL DUE PROCESS VIOLATION............................................................................................................................9 POINT THREE..........................................................................................................................14 APPLICATION OF THE VOID-FOR-VAGUENESS STANDARD TO CRIMINAL AND QUASI-CRIMINAL STATUTES IS HEIGHTENED...........................................................14 POINT FOUR............................................................................................................................16 PETITIONER CANNOT SATISFY THE TWO-PART VAGUENESS TEST....................16 POINT FIVE..............................................................................................................................19 A STATUTE IS NOT UNDULY VAGUE BECAUSE IT REQUIRES THE EXERCISE OF SOME DISCRETION............................................................................................................19 POINT SIX ................................................................................................................................20 SIMILAR HISTORIC PRESTERVATION LAWS HAVE BEEN UPHELD......................20 CONCLUSION..............................................................................................................................22 i 2 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 PRELIMINARY STATEMENT The Petitioner Onedol Rock Holdings, LP ("Petitioner") concedes that the Village of Scarsdale has a right to enact laws that seek to preserve structures or buildings of historical importance within the Villagel. Petitioner's argument is limited to the Village's Historic Preservation Law ("HPL") being too indefinite and allegedly unconstitutionally vague. Its complaint alleges that the HPL, on its face, and as applied, violates Petitioner's due process rights. Petitioner argues that because members of the Respondent Village of Scarsdale Committee for Historic Preservation ("Scarsdale CHP") may exercise discretion in applying the HPL to a specific property, the law is "void-for-vagueness". Petitioner improperly alleges that utilization of any level of discretion allows for subjective and ad hoc determinations. The facts and the record do not support Petitioner's strained interpretation of the local law. Both the New York State Court of Appeals and the United States Supreme Court have upheld as constitutional similar laws containing similar review standards. Petitioner also improperly equates the heightened standard applied to criminal statutes and regulations to regulation restricting an owner's use of his or her property for the community's cultural, aesthetic, or historic benefit. The role of the historic preservation experts in the review process is also misapprehended by Petitioner. It alleges that because the Scarsdale CHP, as well as the Respondent Village of Scarsdale Board of Trustees ("Scarsdale BOT"), accepted most, but not all, of historic 1 Given Petitioner's concession this issue will not be addressed in depth. Itis noted that local governments have a legitimate interest inreasonably restricting an owner's use of his property for the cultural and aesthetic benefit of the community. See, Society for Ethical Culture v. Spatt, 68 A.D. 2d 112 (lst Dep't 1979) aff'd 51 N.Y. 2d 449, 454 (1980); see also N.Y. Gen Mun. Law Section 96-a and N.Y. Mun. Home Rule Law Section 10[1](a) (11). 2 3 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 preservation expert Andrew S. Dolkart's advice, and rejected most of Petitioner's retained expert Dr. Emily T. Cooperman's advice, that means that the respective boards do not understand the meaning of the HPL. In fact, that means that the respective boards reviewed the two expert opinions, analyzed and applied the HPL to the facts, and came to reasoned conclusions based on all the evidence. If either the Scarsdale CHP or Scarsdale BOT merely rubberstamped Mr. Dolkart's opinion, or any expert's opinion, without independent analysis, the boards would be improperly abdicating their duties. It is a ridiculous argument to allege that if two experts disagree, especially where one of the experts is retained to advocate a position for her client, that means the underlying law is unconstitutionally vague. The HPL provided adequate notice for the experts to form opinions regarding the application of the law to the Petitioner's property and the HPL provided multiple due process protections including a right to be heard and present evidence before the Scarsdale CHP, the right to appeal to the Scarsdale BOT, and the right to commence an Article 78 proceeding before this Court. Further, the Petitioner never addresses the threshold issue as to what constitutionally protected property right the Petitioner is being deprived of. As addressed in detail below, Petitioner never identifies a property right, shows that the Village has deprived Petitioner of that right, and that it effected that deprivation without due process. In the absence of a protected property interest Petitioner has no lack of constitutional due process claim. Finally, Petitioner's claim that the HPL on its face, or as-applied, violates due process rights, is factually unsupportable given the availability of a process that allows for hearings, testimony, including expert witness testimony, submission of documents, site visits, and an appeals process, all of which Petitioner availed itself of; and continues to avail itself of given the pendency of its Article 78 proceeding. 3 4 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 STATEMENT OF FACTS According to paragraph 182 of the Petitioner's Petition/Complaint, the HPL is unconstitutional on its face and as applied to Petitioner as it allegedly deprives property owners in Scarsdale of due process of law guaranteed by Article I, Section 6 of the New York State Constitution, and the Fourteenth Amendment of the United States Constitution with respect to a protected constitutional interest. Thus, the Petitioner's request for declaratory judgment is based on a facial and as applied deprivation of due process. The HPL has provisions providing for substantive and procedural due process. Section 182-6 (c) of the HPL reads as follows: All decisions of the Committee to approve a certificate shall be by a vote of at least a majority of the members of the Committee and shall be in writing. Said writing shall be made within 15 days of the close of the meeting(s) and shall include detailed findings explaining the reasons and rationale of the Committee to issue a certificate. A copy of the Committee's determination and findings shall be sent to the owner by certified mail and a copy filed with the Village Clerk's office for public inspection. If the Committee determines that a certificate should not be granted or should be granted with conditions, the decision shall also be supported by detailed findings explaining the reasons and criteria underlying said decision and shall advise the owner of the right to commence a hardship application process in accordance with § 182-8 and/or appeal the determination to the Board of Trustees as provided in § 182-11. (emphasis supplied). HPL Section 182-7 states, in pertinent part, as follows: Hardship criteria. An owner whose certificate has been denied or granted with conditions may apply to the Board of Trustees, within the time prescribed in § 182-8, for relief from such denial or conditions on the grounds that such denial or conditions constitute a hardship upon the applicant. (emphasis supplied). HPL Section 182-8 states in pertinent part, as follows: Application procedure for hardship; issuance of delayed certificate. 4 5 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 A. Application procedures. [1] After receiving written notification from the Committee of the denial of a certificate or the grant with conditions, an owner may, within one year of the mailing of the notification, file an application with the Board of Trustees, on such form as the Board of Trustees may require, asserting that a hardship exists. (21 The Board of Trustees shall hold a public hearing on the hardship application with notice as provided for in § 182-6A and shall render a decision in accordance with the procedures set forth in § 182-6C within 60 days from the close of the public hearing or within such additional time period as the Board of Trustees and the owner may agree. (31 If the Board of Trustees determines that a hardship exists, itshall take one or more actions, which may include, without limitation, the following: (al Exercising its powers hereunder and its good offices to assist the owner in developing an economically feasible plan to overcome the objections to the issuing of a certificate. fill It may issue a certificate, if it finds such certificate may be issued without substantial detriment to the public welfare and without departure from the intent and purpose of this chapter. [cl Recommending acquisition of the historic building by the Village where its preservation is essential to the intent and purposes of this chapter and private preservation is not feasible. (dl Recommending acquisition by the Village by purchase or condemnation of an historic building on such tenns as the Board of Trustees may approve. [el Issuing a delayed certificate pursuant to Subsection C of this section. (emphasis supplied). 5 6 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 The HPL also provides for appeals to both the Scarsdale BOT and this Court. HPL Section 182-11 is entitled Appeals and reads as follows: A. Any owner who is aggrieved by a decision of the Committee with respect to issuance of a certificate or the grant of a certificate with conditions may appeal to the Board of Trustees by filing a written notice of appeal with the Village Clerk within 30 days from the date notice of the decision of the Committee is mailed to the owner. The notice of appeal shall state the date, general nature of the decision appealed from and the ground of the appeal. The Board of Trustees may hear such appeal at a regular meeting or at a special meeting called for that purpose. The Board of Trustees shall not be bound by the record adduced before the Committee and may, in its discretion, affirm or reject, in whole or in part, the determination of the Committee. The decision of the Board of Trustees shall be rendered within 60 days after the filing of the notice of appeal. In the event that the Board of Trustees does not render a timely decision, the denial of a certificate shall be deemed disapproved. B. Any person or persons, jointly or severally, aggrieved by a decision of the Board of Trustees on an appeal for a certificate or grant of a certificate with conditions, or the Board of Trustee's determination regarding a hardship application, may, within 30 days after such decision is filed with the office of the Village Clerk, apply to the State Supreme Court for review pursuant to Article 78 of the Civil Practice Law and Rules. Further, a designation of historical significance under the HPL does not absolutely prevent the maintenance, repair, or alteration of the designated structure. HPL Section 182-12 alteration" entitled "Maintenance, repair or provides additional protections. It reads, in pertinent part: A. Nothing in this chapter shall be construed to prevent, under proper permit, if applicable, the ordinary maintenance and repair of any architectural feature of a building that has been determined to be an historic building and denied a certificate. B. . .. . Any proposed addition, modification or alteration to a building that has been identified by the Committee as an historic building and denied a certificate shall be referred to the Board of Architectural Review (BAR) 6 7 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 together with the detailed findings supporting the Committee's and/or Board of Trustee's determination that the building is an historic building. The detailed findings from the Committee and/or Board of Trustees shall serve as guidance to the BAR when reviewing any proposed addition, modification or alteration. LEGAL ARGUMENT POINT ONE PETITIONER HAS FAILED TO REBUT THE HEAVY PRESUMPTION OF CONSTITUTIONALITY One of the basic principles of constitutional law is that every legislative enactment carries with it a strong presumption of constitutionality; O'Gorman & Young v Hartford Ins. Co., 282 burden" U.S. 251, 257 (1931). To rebut this presumption, Petitioner bears a "heavy of proving doubt" Constitution." "beyond a reasonable that the HPL is "in conflict with the See, Overstock.com, Inc. v. New York State Department of Taxation and Finance, 20 N.Y3d 586, 593 (2013). see also Marcus Associates, Inc. v. Town of Huntington, 45 N.Y.2d 501, 506, 410 N.Y.S.2d 546 (1978) (quoting Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11, 390 N.Y.S.2d 827 (1976) ("the exceedingly strong presumption of constitutionality applies not only to enactments of the [State] Legislature but to ordinances of municipalities as well. While this presumption is refutable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the grounds of unconstitutionality."). Over 40 years ago the Supreme Court resolved that a municipality may promote historic preservation goals pursuant to its police powers because those goals are directly related to the public welfare and serve a legitimate public purpose. Penn Cent Transportation Co v. City of New York, 438 U.S. 104, 129 (1978). The HPL will be upheld if there is a reasonable relation between the end sought to be achieved and the means used to achieve that end. 7 8 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 Therefore, ifthe law is adopted for a legitimate governmental purpose and there is a reasonable relation between the end sought (preservation of property that provides a cultural, aesthetic, or historical benefit to the Village) and the means used to achieve that end, the law will be upheld; see Asian Ams for Equality v. Koch, 2 N.Y. 2d 121, 131-32 (1988). In addition, there is statutory to enact historic preservation laws. New York General Municipal Law Section 96- authority See, a. Here, Petitioner has conceded that the Village has the constitutional right to enact the HPL and that the law bears a rational relationship to a legitimate government interest. Petitioner writes: "The constitutional question raised in this case is not whether the Village has the right or even the authority to enact laws that seek to preserve structure or buildings of historical importance2 do." in Scarsdale. They Petitioner goes on to argue that although the law bears a rational relationship to a legitimate government interest itis nonetheless unconstitutional because its language is allegedly vague and allows "those in charge of enforcing the law to do so on completely arbitrary and subjective grounds without any checks and balances over their power to Court." do so, including by this This is an odd statement given that this is a hybrid proceeding and Petitioner has a cause of action alleging that Respondent BOT's decision was arbitrary and capricious and requesting that this Court overturn it as such. Petitioner also exercised its right to appeal the Scarsdale CHP's decision to the Scarsdale BOT. The process outlined in the HPL also allows for submission of documentation, public hearing, and site visits. Clearly, several "checks balances" and are in place. In addition, the HPL provides for a hardship application and alterations to properties that have found to be of historic significance. Petitioner had a full and 2 Case law, including Penn Cent Transportation Co v. City of New York, 438 U.S. 104 (1978) indicate importance" that the term "historic encompasses aesthetic and cultural importance. 8 9 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 fair opportunity to be heard and has availed itself of the right to an appeal to the BOT as well as the right to appeal to this Court. Momentarily leaving aside the fact that Petitioner does not have a protected property right, and this Court review should focus only on the HPL's rational relationship to a legitimate governmental interest, it isthe Scarsdale CHP's position that the HPL is not unduly vague, and that the issues raised by Petitioner do not rise to the level of a due process violation. Petitioner has come nowhere near meeting its heavy burden of proving unconstitutionality beyond a reasonable doubt. Therefore, to the extent that Petitioner's argument regarding alleged vagueness implies that the HPL does not provide due process protections to applicants, as will be discussed below, there is ample evidence of procedural and substantive due process built into the HPL's provisions, which provisions were applied to Petitioner's application for a demolition permit. POINT TWO PETITIONER DOES NOT HAVE A PROTECTED PROPERTY RIGHT NEEDED TO ASSERT A CLAIM OF SUBSTANTIVE OR PROCEDURAL DUE PROCESS VIOLATION "void-for-vagueness" Petitioner's argument is a due process argument. In Gurnsey v. Sampson, 151 A.D. 3d 1928, 57 N.Y.S. 3d 855 (4th Dept. 2017), the Court stated: "Due process of law requires that a statute or regulation be sufficiently definite such that persons of common intelligence need not guess at is meaning (see Matter of Kauer v. New York State Urban Dev. 1377-1378)." Corp., 15 N.Y. 3d 235, 256, 907 N.Y.S. 2d 122, Turner, 122 A.D. 3d However, here, Petitioner has no constitutional right to allege violation of either substantive or procedural due process given it does not have a protected property right in the issuance of a demolition permit. In Deane v. City of New York Dept. of Bldgs., 177 Misc. 2d 687, 677 N.Y.S. 2d 416 (Sup. Ct. NY County 1998), the Court reiterated the well settled law that a 9 10 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 Petitioner cannot have a property interest that is protected by due process ifthe matter that gives rise to that interest is discretionary; see, also, Matter of Doe v. Coughlin, 71 N.Y. 2d 48, 55 (1987). Where the challenged legislation does not interfere with the exercise of a fundamental right, judicial review is limited to whether the legislation is rationally related to a legitimate state interest; see People v Knox, 12 N.Y. 3d 60, 67 (2009); see also Washington v Glucksberg, 521 US 702, 722 (1997); Myers v Schneiderman, 30 NY3d 1, 16 (2017). "A legitimate governmental welfare" purpose is,of course, one which furthers the public health, safety, morals or general Fred F. French Inv. Co. v City of New York, 39 N.Y. 2d 587, 596 (1976). Here, Petitioner has already conceded that the HPL is rationally related to a legitimate municipal interest and as set forth below there is well settled case law that preservation laws have a rational relationship to the public good. Therefore, in order to establish a federally protectable property interest in a state or local permit for which a plaintiff has applied, the plaintiff must show that, at the time the permit was denied, there was no uncertainty regarding his entitlement to itunder applicable state or local law, and the issuing authority had no discretion to withhold itin his particular case; Natale v Town of Ridgefield, 170 F.3d 258, 263 (2d Cir 1999). Quite simply, Petitioner cannot establish a protected property interest under these facts. The Court in 33 Seminary LLC v. City of Binghamton, 120 F. Supp. 3d 223, 244-245 (NDNY 2015) aff'd sub nom., 670 Fed. Appx. 727 (2d Cir. 2016) reiterated the concept of a protected property interest being a precursor to a due process claim: In order. for an interest in a particular land-use benefit to qualify as a property interest for purposes of the substantive due process clause [,]a entitlement' benefit." landowner must show a 'clear to that O'Mara v. Town of Wappinger, 485 F.3d 693, 700 (2d Cir.2007) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 152 (2d Cir.2006)). . . The court's analysis of the plaintiffs property interest 'therefore turns on the degree to which 10 11 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 state and local law unambiguously limits the [defendants'] discretion to petition." deny [the plaintiff's] Clubside, 468 F.3d at 154. "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." RRI Realty Corp. v. Incorporated Village of Southampton, 870 Cir.1989)." F.2d 911, 918 (2d Here, the Petitioner cannot show that it had clear entitlement to a demolition permit as both the Scarsdale CHP and the Scarsdale BOT have a certain level of discretion in deciding. If the Petitioner were entitled to a permit as of right it would have been issued by the Scarsdale Building Department rather than referred to the Scarsdale CHP for further review. "The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected "property" "liberty." interest in or See U. S. Const., Amdt. 14 ("nor shall any State deprive any person of life, liberty, or property, without due process of law"); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)". American Manufacturers v. Sullivan, 526 U.S. 40, 59 (1999). Only after finding a deprivation of a protected interest does a Court look to see if the statute's procedures comport with due process American Manufacturers v. Sullivan, 526 U.S. at 59 (1999). Even assuming arguendo that Petitioner had a protected property right, the HPL provides more than adequate procedural due process safeguards. The Due Process Clauses of the United " States and New York Constitutions require that 'deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case' " Brancato v City ofNew York, 244 F. Supp. 2d 239, 242 (SDNY 2003), quoting Mullane v Central Hanover Bank & Trust Co., 339 US 306, 313 (1950). The procedural safeguards required by due process are flexible and vary with the circumstances and type of proceeding; see, Goss v Lopez, 419 US 565, 578 (1975); Matter of Vector E. Realty Corp. v Abrams, 89 A.D. 2d 453, 456-457, 455 N.Y.S.2d 773 (1st Dept. 1982). Due process mandates only persons be 11 12 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 heard' " accorded "an opportunity 'tobe Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 (1991) and to submit evidence supporting their position; see, Matter of Akshar v Mills, 249 AD2d 786 (3d Dep't 1998); Vector E. Realty, 89 AD2d at 455 (1st Dep't 1982). That opportunity to be heard and submit evidence is provided under the HPL and was provided to Petitioner. In Grossi v City of New York, 08-CV-1083 RRM ALC, 2009 WL 4456307, at *10 (EDNY Nov. 30, 2009), the District Court explained that for a plaintiff to demonstrate a violation of procedural Due Process rights based upon a land regulation, a plaintiff "must first demonstrate the possession of a federally protected property right to the relief sought and the remedy." insufficiency of any state The District Court went on to hold: "post deprivation Clause" remedies made available by the State can satisfy the Due Process and "predeprivation notice and opportunity to be heard is pretermitted if the State provides a post deprivation remedy." Parratt v. Taylor, 451 US 527, 538 (1981), overruled on other grounds, Daniels v. Williams, 474 US 327 (1986). Thus, it is well established in the Second Circuit that the availability of an Article 78 proceeding provides a homeowner with the procedural Due Process rights which are due;_see, Rector, Wardens, and Members of the Vestry of St. Bartholomew's Church v. City of New York, 728 F. Supp. 958, 965 n. 12 (S.D.N.Y.1989) (declining to decide whether the Landmarks Preservation Commission denied the plaintiff itsprocedural Due Process rights because any defects should have been addressed through an Article 78 hearing in state court). Here, Petitioner has a pending Article 78 proceeding satisfying its procedural Due Process rights. 12 13 of 24 FILED: WESTCHESTER COUNTY CLERK 10/18/2021 02:33 PM INDEX NO. 54241/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 10/18/2021 33 Seminary LLC v City of Binghamton, 120 F. Supp 3d 223, 248-49 (NDNY 2015), affd sub nom. , 670 Fed Appx 727 (2d Cir 2016) summarizes the steps involved in a review of a procedural Due Process claim as follows: In order to establish a violation of procedural due process, "a plaintiff must 'first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was process.' " effected without due Local 342, Long Island Pub. Serv. Emps. v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1194 (2d Cir.1994) (quoting Mehta v. Surles, 905 F.2d 595, 598