Agenda - Planning Commission - 02/02/2012

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November 25, 2011 Volume 5 I No. 22 Zoning Bulletin Following completion of the construction of his house, in August 2007, Cunney applied to the Village for a certificate of occupancy ("CO"). In De- cember 2007, Cunney's CO application was denied. The denial was based on a compliance determination by the Village engineer, which found that from one station on Cunney's lot, Cunney's roof height was "greater than allowed." Cunney appealed to the ZBA, arguing among other things that section E was ambiguous. The ZBA concluded that section E was not ambiguous and that Cunney's house exceed section E's restrictions. The ZBA did grant Cunney a conditional variance. Cunney then filed a complaint in court. He asserted that section E was "void for vagueness both as applied to his property and on its face." He also contended that the Board of Trustees of the Village of Grand-View- on-Hudson, the ZBA and the building inspector (collectively, the "Village Defendants") violated his substantive due process rights by denying his ap- plication for a CO. Finding there were no material issues of fact in dispute and deciding the matter on the law alone, the district court issued summary judgment in favor of the Village on the void-for-vagueness and substantive due process claims. Cunney appealed. On appeal, Cunney again argued that section E was void-for-vagueness as applied because it did not provide adequate guid- ance as to the elevation point on River Road adjacent to his property from which he should measure the height of his house. He also argued that sec- tion E was unconstitutionally vague because it authorized arbitrary and discriminatory enforcement by the Village. Cunney further argued that his substantive due process rights were violated by the Village's "post hoc in- terpretation of section ,E to justify the denial of his CO." DECISION: Judgment of district court reversed in part, vacated in part, and remanded. The United States Court of Appeals, Second Circuit, agreed with Cun- ney. The court held that section E was unconstitutionally vague as applied to Cunney's property because: (1) it provided inadequate notice of the elevation point on River Road from which Cunney should measure the height of his house to determine compliance; and (2) it authorized arbitrary and discrimi- natory enforcement. Since the district court had denied Cunney's substantive due process claim based on its denial of his void-for-vagueness claim (which was now overturned by the Second Circuit court), the court also remanded the substantive due process claim to the district court to decide. In so concluding, the court explained that the 14th Amendment • to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property without due process of law." For the protection of such due process, "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of ... statutes." A statute's lan- guage may be so vague as to deny due process if: (1) it fails to provide peo- ple of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; and (2) it authorizes or even encourages arbitrary and discriminatory enforcement. 8 © 2011 Thomson Reuters