RAMOS, District Judge:
This case arises out of the efforts of a Westchester County couple to repair their home after it was rendered uninhabitable by Hurricane Irene. Plaintiffs David Witt and Kinuyo Gochaku Witt (together, "Plaintiffs") are residents of the Village of Mamaroneck (the "Village") who purchased their home in April 2009. Less than three years later, Hurricane Irene caused the Mamaroneck River to overflow, flooding Plaintiffs' home and causing substantial damage. Then followed a series of events, described in detail below, that prevented Plaintiffs from successfully completing the necessary repairs: they were initially issued a building permit but subsequently received a verbal stop-work order, after which they were required to seek a variance exempting them from certain local land use requirements. The end result was that Plaintiffs ran out of money to complete repairs, defaulted on their mortgage, and had foreclosure proceedings brought against them.
Plaintiffs bring suit, pursuant to 42 U.S.C. § 1983 ("Section 1983"), against the Village, the Village of Mamaroneck Planning Board (the "Board") and Building Inspector Robert Melillo ("Melillo") (collectively, "Defendants"). Doc. 4. Melillo is named both individually and in his official capacity. Id. Plaintiffs allege causes of action for equal protection, substantive due process, and procedural due process violations, along with a Monell claim against the Village.
The following facts are based on the allegations in the Amended Complaint, which the Court accepts as true for purposes of the instant motion. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010).
Plaintiffs purchased their home for $366,500 in April 2009. Am. Compl. ¶¶ 14, 16. The home consisted of two stories and an unfinished basement. Id. ¶ 26. It was located across the street from the Mamaroneck River; there were homes on the other side of the street with backyards abutting the river. Id. ¶ 17.
In August 2011, the Village issued an evacuation notice in anticipation of Hurricane Irene. Id. ¶ 23. Plaintiffs evacuated, but their home — like most homes in the neighborhood — suffered severe flood damage when the river overflowed. Id. ¶¶ 23-25. The flooding reached the first floor of the home, and the resultant damage rendered it uninhabitable. Id. ¶¶ 26-27.
Plaintiffs applied for a building permit on September 29, 2011. Id. ¶ 34. The process was delayed because Plaintiffs' flood insurance carrier required that an engineering inspection be performed before the claim could be processed, thus preventing them from hiring a contractor to begin repairs. Id. ¶ 35. Once the inspector's report was filed, Plaintiffs' contractor submitted plans for review by the Village's Building Department. Id. ¶ 37. The Village approved the building permit on November 29, 2011, by which point Plaintiffs' neighbors has "substantially completed" their own repairs. Id. ¶¶ 40-41.
Work on Plaintiffs' home began on December 5, 2011 and continued for four weeks, during which time the Village conducted three inspections of the property without incident. Id. ¶¶ 43-44. The entire project was expected to take eight to ten weeks and cost approximately $115,000. Id. ¶ 38. After the first four weeks, with approximately fifty percent of the repair work having been completed, Melillo visited the site and subsequently issued a verbal stop work order to Plaintiffs' contractor. Id. ¶¶ 45, 48-49. He did not provide an explanation or issue a written order stating the grounds for halting the project. Id. ¶ 50. Shortly thereafter, however, Melillo spoke to David Witt and indicated that he had issued the order because Plaintiffs' building permit had been issued in error. Id. ¶ 51.
Melillo informed Plaintiffs that he was deeming their repair work to be a "substantial improvement" under Chapter 186 of the Village Code. Id. ¶ 56.
Initially, Melillo told David Witt that Plaintiffs needed to obtain a New York State variance prior to making their application to the Board. Id. ¶ 64. A state official, however, indicated that she did not think the repairs fell within Chapter 186's definition of "substantial improvement," such that a state variance would not be required. Id. ¶¶ 65-66. A site visit in late January 2012 confirmed that Plaintiffs did not need a state variance. Id. ¶ 67.
Melillo rejected Plaintiffs' offer to limit the work being done on their home so that the cost would not qualify as a "substantial improvement." Id. ¶ 71. When asked why the other residents in the neighborhood had been able to complete their repairs without a permit or a variance, Melillo told Plaintiffs that those residents had performed the work illegally or failed to file for permits, adding that Plaintiffs were "being punished for doing the right thing." Id. ¶¶ 72-73 (internal quotation marks omitted). Days later, Melillo informed David Witt that he had spoken to the Board and that Plaintiffs would "have a hard time getting this variance." Id. ¶ 76 (internal quotation marks omitted).
Plaintiffs submitted their variance application on January 27, 2012 and made a mandatory $2,000 escrow deposit to cover the Board's consultant fees. Id. ¶ 78. They also spoke with Village Manager Richard Slingerland, asking him why no other homes on their block had been required to obtain a variance. Id. ¶ 79. Slingerland told them that the other homes had obtained permits but that the work had been performed illegally and the Village was taking corrective measures. Id.
On February 6, 2012, Plaintiffs attended a meeting with Melillo and the Board's consultant, Susan Favarte. Id. ¶ 80. Favarte indicated that Plaintiffs would be eligible for a variance on the basis of hardship, but Melillo again indicated that it would be difficult for them to obtain a variance, explaining that he was "getting beat up by all these agencies and [the Federal Emergency Management Agency ("FEMA") ]." Id. ¶¶ 81-82 (internal quotation marks omitted).
Plaintiffs appeared before the Board on February 8, 2012. Id. ¶ 85. At the meeting, the Board's attorney told the Board that their decision could have ramifications because "other agencies" were monitoring the Village and the way it was handling Chapter 186. Id. ¶ 90. Plaintiffs were told to submit a Floodplain Development Permit Application and to meet with Melillo and the Village Engineer to identify the
By this point, Plaintiffs had run out of money to pay for the necessary repairs or to pay their mortgage. Id. ¶ 105. They defaulted on the mortgage, foreclosure proceedings commenced, and their credit was ruined. Id.
Plaintiffs filed suit on December 4, 2012 and amended their Complaint on February 15, 2013. Docs. 1, 4. They allege that, after ignoring other homeowners' unauthorized and noncompliant repair work, Defendants selectively enforced Chapter 186 against them in order to convince state and federal authorities that the Village was remedying its past failure to enforce flood-zone regulations. Am. Compl. ¶ 116.
Defendants ask the Court to dismiss the Amended Complaint in its entirety. Doc. 8.
Defendants' threshold argument in favor of dismissal is that Plaintiffs' federal claims are not ripe to the extent they are based on Melillo's stop work order or his determination that a variance and/or a floodplain permit was required. See Defs.' Mem. of Law in Supp. at 2-4. Because ripeness is a jurisdictional issue, it is properly considered under Rule 12(b)(1). See Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 261 F.Supp.2d 293, 294 (S.D.N.Y.2003).
Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate the case. Fed.R.Civ.P. 12(b)(1). The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)). On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, evidence outside of the pleadings, such as affidavits, may be considered by the court to resolve the disputed jurisdictional fact issues. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir.2000); see also Morrison, 547 F.3d at 170 (citing Makarova, 201 F.3d at 113). When evaluating a motion to dismiss for lack of subject matter jurisdiction, the court accepts all material factual allegations in the complaint as true, but does not draw inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998)).
Where, as here, a party also seeks dismissal on Rule 12(b)(6) grounds, the court must consider the Rule 12(b)(1) motion first. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F.Supp.2d 490, 499 (S.D.N.Y.2011), aff'd sub nom. Baldessarre ex rel. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 Fed.Appx. 131 (2d Cir.2012).
The "basic rationale" for the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court set forth specific ripeness requirements for land use disputes. The Court held that a Fifth Amendment Takings Clause claim was not ripe because the respondent had neither (1) obtained a "final decision" from the relevant state regulatory authority nor (2) sought just compensation from the state. Id. at 186, 105 S.Ct. 3108. While the latter requirement is unique to the Takings Clause context, the former has since been applied to equal protection and procedural and substantive due process claims. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88-89 (2d Cir.2002); Hunter v. Town of Chili, No. 09-CV-6285, 2010 WL 598679, at *2 n. 3 (W.D.N.Y. Feb. 18, 2010). Before proceeding to the merits of Plaintiffs' claims, therefore, the Court must determine whether the challenged conduct satisfies Williamson's finality requirement. The Court concludes that it does.
While Plaintiffs sought — and were granted — a variance, nothing in the Amended Complaint suggests that they appealed any of Melillo's determinations in the first instance.
Id. at 193, 105 S.Ct. 3108.
The very fact that Plaintiffs obtained a variance from the Board highlights that the finality requirement has been satisfied in this case. The Second Circuit has identified four considerations underlying Williamson's holding: (1) requiring a final decision aids in developing a full record; (2) a final decision allows a court to "know precisely how a regulation will be applied" to the property in question; (3) the property owner may obtain the desired relief without the need for judicial resolution of constitutional questions; and (4) land use disputes are better resolved at the local level if possible. Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 348-49 (2d Cir.2005). None of these concerns is implicated in this case. To the contrary, the Board has already reached a determination clarifying precisely how Chapter 186 will apply to Plaintiffs' property — the floodplain regulations will be waived with respect to Plaintiffs' desired repairs as long as Plaintiffs comply with the stated conditions of the variance. That Plaintiffs could have pursued an alternative avenue — an appeal of Melillo's initial determinations — at an earlier stage of the process does not affect the current status of their claims. In other words, Plaintiffs may not have exhausted every avenue available to them along the way, but Williamson does not demand that they do so. The failure to appeal may have rendered Plaintiffs' claims unripe had they been brought prior to having pursued the variance,
Melillo's actions and determinations with respect to Plaintiffs' repair work are therefore final and subject to review by this Court. To hold otherwise merely because Plaintiffs did not previously appeal those determinations to the Board would be to improperly impose an exhaustion requirement as part of the ripeness analysis. To the extent Defendants bring their motion under Rule 12(b)(1), that motion is denied.
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court
Plaintiffs' first cause of action alleges a violation of the Fourteenth Amendment's Equal Protection Clause. Am. Compl. ¶¶ 127-132. The claim is rooted in Plaintiffs' contention that they were treated differently from their neighbors, both in Defendants' initial application of Chapter 186 to Plaintiffs' repair work and in their imposition of variance conditions. Id. ¶¶ 128-29.
Because Plaintiffs do not claim to be members of a constitutionally protected class, they may bring their equal protection claim pursuant to one of two theories: (1) selective enforcement, or (2) "class of one." In their opposition papers, Plaintiffs indicate that they are relying on both theories. Pls.' Mem. of Law in Opp'n at 19. The Court therefore analyzes the sufficiency of the pleadings under each.
Plaintiffs are required to allege differential treatment from "similarly situated" individuals in order to state a viable equal protection claim under either theory.
Plaintiffs allege that their home "was similar in size, style, and value to neighboring homes" and that many of these "similarly sized and valued homes experienced comparable damage" after Hurricane Irene. Am. Compl. ¶¶ 15, 72. Such allegations, standing alone, are too conclusory to satisfy Twombly's plausibility standard.
Elsewhere in the Amended Complaint, Plaintiffs provide more specific allegations about three nearby properties that "sustained cumulative damage from Hurricane Irene and prior flooding incidents comparable to that sustained by Plaintiffs' home." Id. ¶¶ 112-15. Plaintiffs provide street addresses for all three and repair costs for two of the three. Id. ¶¶ 113-15. Only one, however, is specifically alleged to have incurred those costs as a result of the hurricane. See id. ¶ 113. Plaintiffs allege that one of the others was repaired "during the period between a 2007 flooding event and Hurricane Irene," and that the third "undertook substantial improvements between 2007 and 2011." Id. ¶¶ 114-15.
Timing is of crucial significance to Plaintiffs' equal protection claim. The crux of their complaint is that Defendants improperly singled them out for enforcement of the floodplain regulations in response to pressure from FEMA and other agencies. See id. ¶ 130. But Plaintiffs admit that, due to unavoidable insurance-related delays, they did not obtain their permit and begin repairs until their neighbors "had
Finally, the Amended Complaint itself belies any argument that similarly situated comparators exist with respect to the allegedly "unprecedented" variance conditions. Am. Compl. ¶ 129. The pleadings expressly allege that Plaintiffs' neighbors were not required to pursue a variance at all. See id. ¶ 104 ("Planning Board minutes... show that Plaintiffs were the only homeowners in the Village of Mamaroneck required to seek a variance to the requirements of [Chapter] 186 in the wake of Hurricane Irene...."). Plaintiffs cannot, therefore, claim disparate treatment based on the outcome of their variance application.
Even if Plaintiffs had sufficiently alleged that their neighbors were similarly situated, their selective enforcement claim
Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992)).
Here, nothing in the Amended Complaint suggests that Plaintiffs are even attempting to allege that Defendants were motivated by impermissible discriminatory considerations or a desire to punish or inhibit Plaintiffs' exercise of their constitutional rights. In order to state a claim, then, Plaintiffs need to have alleged that Defendants acted with a malicious or bad-faith intent to injure them. The Amended Complaint does no such thing. In fact, the pleadings do not suggest that Defendants were motivated by any feelings toward Plaintiffs at all; instead, the alleged selective enforcement is said to be premised on pressure to conform to FEMA's expectations in order to obtain flood money for the Village.
In order to adequately allege an equal protection claim on a "class of one" theory, a plaintiff must demonstrate (1) that he was "intentionally treated differently from others similarly situated," and (2) "that there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam); see also Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (examining Olech's reasoning and determining that it does not apply to public employment cases). Stated differently, a plaintiff asserting a "class of one" equal protection claim must allege that the intentional disparate treatment was "wholly arbitrary" or "irrational." Aliberti v. Town of Brookhaven, 876 F.Supp.2d 153 (E.D.N.Y.2012) (citing Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir.2001)).
Id. Thus, the Second Circuit has made clear that both elements of a "class of one" equal protection claim — intentional disparate treatment and lack of rational basis — must be analyzed by comparing the plaintiff to those who are similarly situated. In other words, the question is not whether there was a legitimate basis for Defendants' specific actions with respect to Plaintiffs' property, but rather whether there was a legitimate basis for the alleged disparities between those actions and the ones directed at surrounding properties. Without adequate comparators, it is impossible to make this assessment.
Indeed, the parties' briefing on these points further highlights the deficiency in Plaintiffs' identification of comparators. Plaintiffs' rationality arguments focus on allegations of contradictory instructions regarding regulatory requirements or confusion among the Board members who were applying Chapter 186. See Pls.' Mem. of Law in Opp'n at 27-28.
It is fairly self-evident that, to the extent Defendants decided to step up their enforcement efforts in order to qualify for FEMA flood relief, that motivation provides a rational basis for changing the enforcement policy across the board (i.e., for treating everyone who undertook repairs after the change in policy differently from everyone who had undertaken repairs prior to the change in policy). That is why, in order to state this particular "class of one" claim, it is essential that Plaintiffs establish an appropriate temporal nexus between themselves and their comparators. Absent sufficient allegations in this regard, Plaintiffs will be unable to demonstrate that there was no legitimate government purpose supporting Defendants' treatment of their property.
Plaintiffs' second cause of action alleges substantive due process violations under the Fourteenth Amendment. Am. Compl. ¶¶ 133-40. The third cause of action alleges a procedural due process claim under the Fifth and Fourteenth Amendments.
To possess a federally protected property interest, a person must have a "legitimate claim of entitlement to it." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Such a claim does not arise from the Constitution, but rather from an independent source such as state or local law. See id.; Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 629 (2d Cir.1996); G.I. Home Developing Corp. v. Weis, No. 07-CV-4115 (DRH), 2009 WL
To the extent Plaintiffs allege a property interest in their building permit, this Court has already confronted and resolved this issue in an analogous case. See Gottlieb, 69 F.Supp.2d at 556. The Court's reasoning in that case is applicable here and explains why Plaintiffs are unable to plausibly allege that they were deprived of a valid property interest in their building permit:
Gottlieb, 69 F.Supp.2d at 556 (citations omitted).
Gottlieb was resolved on a motion for summary judgment, such that the Court had the benefit of a fully developed factual record. Ordinarily, there might be a question as to whether Plaintiffs' permit was, in fact, erroneously issued, thus rendering the matter inappropriate for disposition on a 12(b)(6) motion. The problem, however, is that Plaintiffs have not even presented conclusory allegations — let alone the factual allegations required under Twombly — allowing the Court to infer that Plaintiffs' repair work was in compliance with Chapter 186. The underlying theory of the case implicitly promotes the opposite inference. Plaintiffs' objections are focused not on the legitimacy of Defendants' actions with respect to their property, but rather with the fact that similar actions were not taken with respect to neighboring properties. The natural implication is that, had Chapter 186 been enforced uniformly, there would have been no basis for a constitutional claim. If Plaintiffs separately contend that Chapter 186 was misapplied with respect to their property in particular, such a contention is not captured in the allegations pled.
The fact that construction was fifty-percent complete at the time Melillo issued the stop work order does not aid Plaintiffs'
Moreover, even if the building permit itself represented a valid property interest, Gottlieb makes clear that, because that permit was never actually revoked, any such property interest was never denied. Indeed, Plaintiffs were granted the variance they required, albeit subject to conditions they perceived to be onerous. Melillo's alleged instruction that an additional variance would be required from New York State, while presenting a further hurdle to having the stop work order removed, does not amount to a revocation of the underlying permit. Indeed, the whole purpose behind obtaining a variance is so that work can resume in accordance with that permit.
Plaintiffs also assert a property interest in their home itself. See Am. Compl. ¶¶ 136-37; Pls.' Mem. of Law in Opp'n at 29-30 (discussing Plaintiffs interest in the "use, enjoyment and ownership of their home"). While it is certainly true that Plaintiffs have a property interest in their home, they only assert a "deprivation" of that interest to the extent that they claim Melillo's determinations and the variance conditions had the effect of rendering them unable to afford the remaining repair work. The state did not directly take Plaintiffs' home away from them, nor did it render the property itself valueless.
Since the variance itself was granted, Plaintiffs can only allege a plausible property interest if they can demonstrate a clear entitlement to receive that variance without the challenged conditions attached.
Because Plaintiffs have failed to allege a valid property interest, both their substantive and procedural due process claims are dismissed.
Plaintiffs' fourth cause of action asserts a Monell claim for municipal liability against the Village. Am. Compl. ¶¶ 149-56. However, the Court need not reach the merits of that claim. As the Second Circuit has explained, "Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation." Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006) (emphasis in original). When a district court concludes that there is "no underlying constitutional violation," it need not address "the municipal defendants' liability under Monell." Id. Because all of Plaintiffs' underlying constitutional claims have been dismissed, their Monell claim fails as well.
For the reasons set forth above, Defendants' motion to dismiss is GRANTED. All dismissals are without prejudice.
It is SO ORDERED.
Defendants also contend that a "class of one" claim requires a showing of malicious or vindictive intent. See Defs.' Mem. of Law in Supp. at 15-17. However, "[w]hile the Second Circuit has repeatedly deferred the question of whether Olech eliminated the inquiry into defendant's bad faith intent, district courts have generally assumed that it did and allowed a `class of one' claim to proceed based only on the government's arbitrary conduct." Assoko v. City of New York, 539 F.Supp.2d 728, 735 n. 7 (S.D.N.Y.2008) (citation omitted). Indeed, one Second Circuit opinion expressly stated that "proof of subjective ill will is not an essential element of a `class of one' equal protection claim," Jackson v. Burke, 256 F.3d 93, 97 (2d Cir.2001) (per curiam), though a subsequent panel described this statement as dicta and declined to resolve the issue. Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 500 (2d Cir.2001). The Second Circuit and New York district court cases to which Defendants cite are inapposite, as all but two dealt with selective enforcement claims. See Defs.' Mem. of Law in Opp'n at 16-17. Millar v. Ojima, 354 F.Supp.2d 220 (E.D.N.Y.2005), did apply a bad-faith requirement in the "class of one" context, but in doing so it relied on a portion of a Second Circuit opinion that was addressing a selective enforcement claim. See id. at 227-28 (quoting Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir.2005)). Citizens Accord, Inc. v. Town of Rochester, No. 98-CV-0715, 2000 WL 504132 (N.D.N.Y. Apr. 18, 2000), aff'd, 29 Fed.Appx. 767 (2d Cir.2002), discussed vindictive conduct but cited primarily to the Seventh Circuit's decision below in Olech; the only citation to the Supreme Court opinion was focused solely on rational basis. Id. at *27.
A copy of the resolution adopting the variance and imposing the conditions is attached as Exhibit D to the Declaration of Terry Rice in support of Defendants' motion to dismiss. Doc. 9 ("Decl."). Because that resolution and its contents are incorporated by reference into the Amended Complaint, the Court may properly consider them on a 12(b)(6) motion. See Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). The condition in question provides that "[a]ny expenditures made to date to remediate damage from flooding events will count toward the future determination of substantial improvements, as defined in Section 186-2." Decl. Ex. D, at 2. As the actual text of the resolution makes clear, the Board did not shift the burden of elevating the foundation to the subsequent owner of the home; it merely deferred that burden until the next event triggering a Chapter 186 computation, regardless of who the owner might be at the time. During the time period at issue, Chapter 186 required homeowners to elevate the foundation of their home if they undertook repairs or incurred damage exceeding fifty percent of the home's existing market value. The "cumulative substantial improvement" provision essentially made this a rolling calculation, such that multiple non-substantial improvements within a given time period were aggregated for purposes of determining whether Chapter 186 was triggered. In Plaintiffs' case, their repairs were deemed a "substantial improvement." Therefore, absent a variance, they would have needed to raise their home's foundation if they wanted to continue with their repairs. The variance allowed Plaintiffs to defer that requirement, while the condition clarified that existing repair work would still count toward future "substantial improvement" calculations.
To the extent that this approach had the effect of shifting the burden of elevating the foundation to a potential buyer, that outcome is merely the product of Plaintiffs' request that the requirement be waived in this instance. Thus, any consequential reduction in property value cannot properly be attributed to the Board's decision. Since Chapter 186 would have applied to Plaintiffs' property anyway in the absence of a variance, the Court cannot reasonably infer that the Board's actions increased the regulations' effect on Plaintiffs' property value. In other words, since the plain terms of Chapter 186 required Plaintiffs to elevate their foundation once their repairs were deemed "substantial," nothing the Board did in enforcing the chapter affected the home's value at all. In any event, even if the conditions did affect the value of the property to an extent, Plaintiffs have provided absolutely no basis for their allegation that the home was rendered completely "worthless."
