Supreme Court, Suffolk County

Decided on April 10, 2026

Index No. 628800/2024

Joseph C. Pastoressa, J.

[*1]

I. Facts and procedural history

This hybrid proceeding/action revolves around the Huntting Inn (the Inn), an historic inn in the Village of East Hampton. The Inn contains a restaurant and guest rooms for lodging. It is a pre-existing, nonconforming commercial use in a residential zoning district. Petitioner/plaintiff, Huntting Hospitality LLC, has owned the Inn since March 2020. In January 2022, plaintiff applied for a building permit to construct, as pertinent here, a pool, spa, patio (collectively, referring to either the variances or the amenities themselves, as the pool variances), covered porch, ADA access ramp, and three-story addition to house an elevator.FN1

The Village's code enforcement officer denied the application for a building permit in January 2022. The denial noted, inter alia, that the Inn was a pre-existing nonconforming commercial use in a residential district, so any extension or alteration required a variance. The denial did not claim that any portion of the application violated East Hampton Village Code [*2](Village Code) § 278-7 (C) (2) (d) (3).FN2

Plaintiff then appealed to defendant Zoning Board of Appeals of the Village of East Hampton (ZBA) for area variances. After numerous hearings, the ZBA, as pertinent here, (1) determined that it had no authority to grant the pool variances and (2) granted the remainder of the application. Specifically, the ZBA determined that Village Code § 278-7 (C) (2) (d) (3)FN3 precluded it from granting the pool variances, as the pool variances "involve[d] the introduction of an outdoor use to a preexisting nonconforming commercial use in a residential district" (ZBA Determination, NYSCEF doc. 3, at 3).

Plaintiff commenced this hybrid proceeding/action in Supreme Court, Suffolk County, in November 2024. Plaintiff challenges so much of the ZBA's determination as denied the pool variances. The amended petition/complaint includes claims (1) to set aside that portion of the ZBA's determination as arbitrary, capricious, an abuse of discretion, affected by an error of law, made in bath faith, and not supported by substantial evidence; (2) to declare section 278-7 (C) (2) (d) (3) null and void; (3) alleging due process violations under the state and federal constitutions; (4) alleging equal protection violations under the state and federal constitutions; (5) alleging that section 278-7 (C) (2) (d) (3) constitutes an unlawful taking under the state and federal constitutions; (6) alleging that that section 278-7 (C) (2) (d) (3) constitutes a de facto taking under the state and federal constitutions; and (7) under 42 USC § 1983.

Defendants removed this action from state court to the United States District Court for the Eastern District of New York in December 2024. In January 2025, the parties stipulated to remand this action back to this Court. As part of that stipulation, plaintiff agreed to withdraw its section 1983 claim,FN4 without prejudice, and the District Court so-ordered the stipulation.

Defendant now moves to dismiss the amended petition/complaint under CPLR 3211 (a) (2) and (7) and 7804 (f).

II. Analysis

Initially, to the extent that defendants allege that the form of action is improper, the Court may convert the form of the action or proceeding so that it is proper (CPLR 103 [c]). To the extent needed, the Court hereby does so.

CPLR 3211 (a) (7) allows a defendant to seek dismissal of the complaint for failure to state a cause of action. "When reviewing a defendant's motion to dismiss a complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true[,] and provide plaintiffs with the benefit of every favorable inference" (Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 NY3d 572, 582 [quotation marks and citations omitted]; see Sunyoung Jung v Reiner & Kaiser Assoc., 220 AD3d 643, 645). However, the Court is not required to accept bare legal conclusions or facts that are utterly contradicted by documentary evidence (Chic Realty 712, LLC v GSA Holding Corp., 220 AD3d 914, 916; Browne v Lyft, Inc., 219 AD3d 445, 446). Whether a plaintiff can ultimately prevail is irrelevant (Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30, 38; Grabowski v Orange County, 219 AD3d 1314, 1314). "Although inartfully pleaded, a claim should not be dismissed when the facts stated are sufficient to make out a cause of action" (Houtenbos v Fordune Assn., Inc., 200 AD3d 662, 664; see Lam v Weiss, 219 AD3d 713, 715). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint" for failure to state a cause of action, "the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (BT Holdings, LLC v Village of Chester, 189 AD3d 754, 759 [quotation marks and citations omitted], lv denied 36 NY3d 912; see Whelan v Cuomo, 220 AD3d 979, 980).

A. Ripeness

Defendants argue that the CPLR article 78 claims are not ripe because the ZBA did not determine on the merits so much of the application as sought the pool variances. Without a determination on the merits, defendants claim, the ZBA's determination was not final.

An administrative determination must be final before it can be challenged (e.g. Matter of Ranco Sand & Stone Corp. v Vecchio, 27 NY3d 92, 98). "The finality requirement draws from case law on ripeness for judicial review . . . [and] the ripeness doctrine is closely related to the finality requirement" (id. [quotation marks omitted]; see Matter of Rosado-Ciriello v Board of Educ. of the Yonkers City Sch. Dist., 219 AD3d 839, 840). There are two requirements for administrative action to be final: (1) the agency must have arrived at a definitive position that inflicts an actual injury, and (2) the injury may not be prevented or significantly reduced by further administrative proceedings (Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194; Matter of Meyer v Nassau County Police Dept., 235 AD3d 641, 642). Under the first element, "the action must impose an obligation, deny a right[,] or fix some legal relationship as a consummation of the administrative process. In other words, a pragmatic evaluation must be made of whether the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury" (Matter of Gordon v Rush, 100 NY2d 236, 242 [quotation marks and citations omitted]). Ripeness is measured at an action's commencement (Grand S. Point, LLC v Bassett, 230 AD3d 49, 61, appeal dismissed 42 NY3d 1025, lv denied 43 NY3d 907).

Defendants' argument borders on frivolity. The ZBA had the ability to review the merits of the pool variances. It just chose not to do so, claiming that it lacked jurisdiction (cf. Matter of Zagata v Freshwater Wetlands Appeal Bd., 244 AD2d 343, 344 [matter not ripe when the agency "has had no opportunity to review the merits of the permit application"]). There is no further [*3]recourse to be had before the ZBA (see Matter of Village of Kiryas Joel v County of Orange, 181 AD3d 681, 685). The ZBA's holding that it has no authority to entertain the pool variance application is a final determination.

To be sure, defendants' argument that a determination on the merits is required for finality would put plaintiff in legal purgatory. The ZBA refused to entertain the pool variances on the merits, and plaintiff would be left without any recourse because the ZBA's refusal would make the matter unripe. Of course, the matter could never be ripe under defendants' argument. In other words, the ZBA refused to provide the very thing that it claims is needed for finality. The Court rejects this Kafkaesque argument.

B. Notice of claim

Defendants argue that plaintiff's state constitutional claims should be dismissed because plaintiff never served a notice of claim. It is undisputed that plaintiff did not serve defendants with a notice of claim before commencing this action, and only did so in January 2025, two months after commencement.

CPLR 9802 states, as pertinent here:

[N]o other action shall be maintained against the village . . . unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law. The omission to present a claim or to commence an action thereon within the respective periods of time above stated applicable to such claim, shall be a bar to any claim or action therefor against said village; but no action shall be brought upon any such claim until forty days have elapsed after the filing of the claim in the office of the village clerk

(emphasis added). General Municipal Law § 50-e provides, inter alia, that a notice of claim must be served "within ninety days after the claim arises." The notice of claim requirement applies to actions seeking a declaratory judgment (Marsh Sanctuary, Inc. v Town of Mount Kisco, 241 AD3d 1329, 1330-1331; Matter of BT Holdings, LLC v Village of Chester, 162 AD3d 881, 881, lv denied 32 NY3d 913) and, generally, to state constitutional claims (Mirro v City of New York, 159 AD3d 964, 966).

Again, it is undisputed that plaintiff did not serve a notice of claim on defendants before commencing this action, so defendants have shown that the state constitutional claims should be dismissed.

Plaintiff's arguments in opposition are unavailing. Plaintiff largely argues that a notice of claim is not required for a section 1983 claim. That is true (Felder v Casey, 487 US 131, 141-152). It is also irrelevant. Plaintiff withdrew its section 1983 claim. And defendants, in any event, are only seeking dismissal of the state constitutional claims on this basis. For the same reason, plaintiff's argument related to the timeframe for bringing a CPLR article 78 proceeding is similarly unavailing.

Plaintiff's argument that it served a timely notice of claim by serving one within 90 days of removal to federal court is simply wrong. A notice of claim must be served before commencement, not removal (CPLR 9802; General Municipal Law § 50-e [1] [a]).

Plaintiff also claims that defendants' notice of claim argument is precluded by defendants' [*4]waiver of "all defenses based upon or relating to [p]laintiff's withdrawing, without prejudice, and preserving its Federal Claims by virtue of this [s]tipulation." Again, plaintiff fails to understand that this argument is directed solely toward the state constitutional claims. It just has nothing to do with any federal claims.

Some of plaintiff's other arguments, such as the alleged lack of prejudice and defendants' knowledge of the underlying facts, are relevant only to a motion for leave to serve a late notice of claim. Plaintiff has not moved or cross-moved for such relief, so these arguments simply do not matter.

Accordingly, all of plaintiff's state constitutional claims are dismissed.

C. Proper parties

Defendants next argue that the Village is the only proper party to this action, and that the Village's mayor and the ZBA are improperly named. The amended petition/complaint does not seek any relief against the mayor, and plaintiff does not dispute that he is improperly named as a defendant. Thus, so much of the motion as seeks to dismiss so much of the petition/complaint as asserted against the Village's mayor is granted.

As plaintiff is challenging a determination by the ZBA, the ZBA is not just a proper party, but is a necessary party (Matter of Wittenberg Sportsmen's Club, Inc. v Town of Woodstock Planning Bd., 16 AD3d 991, 993; Matter of Emmett v Town of Edmeston, 3 AD3d 816, 818, affd 2 NY3d 817). So the Court will not dismiss the ZBA from this action.

D. Equal protection

Defendants next posit that plaintiff's equal protection claim is deficient because (1) plaintiff failed to allege a suitable comparator who was treated differently under a class-of-one theory and (2) plaintiff failed to allege that section 278-7 (C) (2) (d) (3) implicates a suspect class or fundamental right.FN5 The equal protection claim seeks a judgment declaring that section 278-7 (C) (2) (d) (3) and its application violate plaintiff's equal protection rights. Plaintiff alleges that defendants used section 287-7 (C) (2) (d) (3) to preclude plaintiff from seeking variances, while determining that that ordinance was not a barrier to granting variances to others who are similarly situated. Plaintiff also posits that such disparate treatment was an attempt by the Village to decrease the Inn's value so that the Village could purchase it.

When, as here, "a plaintiff does not claim to be a member of a constitutionally[-]protected class, he may bring an equal protection claim pursuant to one of two theories: (1) selective enforcement, or (2) class of one" (Panzella v City of Newburgh, 231 F Supp 3d 1, 6-7 [quotation marks and alterations omitted], affd 705 Fed Appx 50; see Bill & Ted's Riviera, Inc. v Cuomo, 494 F Supp 3d 238, 245). As the Supreme Court has explained, "[t]he Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike" [*5](Nordlinger v Hahn, 505 US 1, 10).

1. Selective enforcement

In a selective enforcement claim, a plaintiff must allege "that 1) he was treated differently from other similarly[-]situated comparators, and 2) that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person" (Cheng v United States, 725 F Supp 3d 432, 438 [quotation marks omitted], affd 132 F4th 655; see Dean v Town of Hempstead, 527 F Supp 3d 347, 431-432). In order to show differential treatment, a plaintiff must demonstrate that the defendant "consciously applied a different standard of enforcement to similarly[-]situated" persons (LaTrieste Restaurant v Village of Port Chester, 188 F3d 65, 70, cert denied 528 US 1187; see Bernstein v Village of Wesley Hills, 95 F Supp 3d 547, 571-572). And the comparators proffered by the plaintiff need not be identical; they just have to be similarly-situated in all relevant respects (see Hu v City of New York, 927 F3d 81, 96; Thomas v Genova, 698 F Supp 3d 493, 512, affd — Fed Appx —, 2025 WL 583182).

Contrary to defendants' argument, the amended petition/complaint adequately pleads an equal protection violation based on selective enforcement. Plaintiff has sufficiently alleged that the Hedges Inn is a similarly-situated entity that was given more favorable treatment. Like plaintiff, the Hedges Inn was "an historic inn and restaurant" that was a pre-existing nonconforming commercial use in a residential district (Matter of Hedges Inn, LLC v Zoning Bd. of Appeals of the Vil. of E. Hampton, Sup Ct, Suffolk County, Jan 6, 2021, Luft, A.J., index No. 201/2019 [Exhibit MM to the amended petition/complaint, NYSCEF doc. 86]). The Hedges Inn requested tent permits for outdoor events, which the Village denied. In a stipulation of settlement between the ZBA and the Hedges Inn, the ZBA agreed

that the Hedges Inn may construct a swimming pool subject to receipt of a building permit[,] provided [the] dimensional requirements of the zoning code can be met or[,] in the alternative, a variance is granted for same. No use variance shall be required for construction of a pool[,] as the pool is deemed an appurtenant accessory use of the Inn. It is further stipulated that any proposed pool will not be prohibited from obtaining a variance by the provisions of Village Code §278-7 C(2)(d)(3) concerning introduction of outdoor uses on preexisting commercial properties located in residential districts.

(Stipulation of Settlement, NYSCEF doc. 53, at ¶ 5). The ZBA agreed to this even though, based on the Supreme Court order, the Hedges Inn had not yet sought a variance to construct a pool.FN6

The ZBA's treatment of the Hedges Inn was, therefore, diametrically different from the [*6]ZBA's treatment of plaintiff, even though both cases involved an inn and restaurant operating as a pre-existing, nonconforming commercial use in a residential zoning district. With the Hedges Inn, the ZBA conceded that a swimming pool was an accessory use to the inn and that section 278-7 (C) (2) (d) (3) was no barrier to obtaining a variance. With plaintiff, the ZBA took the polar opposite position, declaring that section 278-7 (C) (2) (d) (3) divested it of jurisdiction to even consider the pool variance application.

Plaintiff also satisfied the second prong of a selective enforcement claim by pleading a malicious or bad-faith attempt to injure it. The amended petition/complaint sufficiently alleges that the ZBA did not grant the pool variances "for the unjust and injurious purpose of lowering the value of [p]etitioner's [p]roperty so the Village could purchase the historic inn" (Amended Petition/Complaint, NYSCEF doc. 111, at ¶ 217; see also Amended Petition/Complaint, NYSCEF doc. 111, at ¶¶ 42-52).

Defendants' arguments in opposition are not persuasive. They claim that the Hedges Inn stipulation "is not applicable here" (Mem of Law, NYSCEF doc. 114, at 20). But they do not explain why. And neither can the Court. Surely, if the ZBA did not agree with the above-quoted language, it did not have to sign off on it. But it did.

To the extent that defendants contend that the Hedges Inn never requested a variance for a pool, and so it is not a similar comparator, that is all the more problematic for defendants. Plaintiff went through a formal application process and was told that section 278-7 (C) (2) (d) (3) barred the ZBA from even considering the pool variances. The Hedges Inn never even requested a variance for a pool, but was told by the ZBA anyway that (1) a pool was an accessory use, and (2) it could apply for a pool variance notwithstanding section 278-7 (C) (2) (d) (3). In other words, this highlights, rather than undercuts, plaintiff's claim of disparate treatment.

2. Class of one

In a class of one claim, the plaintiff must show that it has '"been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment"' (Eric Adams 2025 v New York City Campaign Fin. Bd., 790 F Supp 3d 170, 208, quoting Village of Willowbrook v Olech, 528 US 562, 564). This is because "the purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents" (Village of Willowbrook, 528 US at 564 [quotation marks omitted] [also holding that a complaint sufficiently pleaded a class of one claim "quite apart from the Village's subjective motivation"]). Under a class of one theory, though, there must be "an extremely high degree of similarity between plaintiff and [a] comparator," more so than in a selective enforcement claim (Hu v City of New York, 927 F3d 81, 93 [quotation marks omitted]; see Eric Adams 2025, 790 F Supp 3d at 208).

Under a class of one theory, plaintiff has sufficiently pleaded that there was no rational basis for the difference in treatment. Again, the Huntting Inn and the Hedges Inn are identical for all relevant purposes, yet the ZBA treated them diametrically differently regarding pools. Plaintiff has also sufficiently alleged that there was " no rational basis for the difference in treatment" (Village of Willowbrook, 528 US at 564 [holding that a complaint was sufficient when [*7]it alleged that the defendant "intentionally demanded a 33-foot easement as a condition of connecting (the plaintiff's) property to the municipal water supply" when it "required only a 15-foot easement from other similarly situated property owners," regardless of the defendant's "subjective motivation"]).

Thus, so much of defendants' motion as seeks to dismiss the equal protection claim is denied.

E. Due process

Defendants also seek dismissal of the federal due process claims for lack of a protected property interest. Plaintiff seeks a judgment declaring that section 278-7 (C) (2) (d) (3) is a nullity under the due process clause because it (1) prevents it from seeking certain variances and (2) is not rationally related to a legitimate governmental objective.

When a substantive or procedural due process claim pertains to land use or property, a plaintiff must show, as a threshold matter, that the claim involves a protected property interest (Ace Partners, LLC v Town of E. Hartford, 883 F3d 190, 195 [procedural due process], cert denied 586 US 821; Looney v Black, 702 F3d 701, 706 [procedural due process]; O'Mara v Town of Wappinger, 485 F3d 693, 700 [substantive due process]; Harlen Assoc. v Incorporated Vil. of Mineola, 273 F3 494, 503-504 [substantive due process]).

In order to have a protected property interest, "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it" (Board of Regents of State Colleges v Roth, 408 US 564, 577; see Looney, 702 F3d at 706). "Thus, a property interest in a license or permit largely turns on whether the issuing authority lacks discretion to deny the permit, i.e., whether the authority is required to issue it upon ascertainment that certain objectively ascertainable criteria have been met" (Ace Partners, LLC, 883 F3d at 195 [quotation marks omitted]; see Natale v Town of Ridgefield, 170 F3d 258, 263). "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 Vil. of Southampton, 870 F2d 911, 918, cert denied 493 US 893; see Clubside, Inc. v Valentin, 468 F3d 144, 153).

1. Property right in a variance

To the extent that the due process claim is based on a property right in the pool variances, it fails for lack of a protected property right, regardless of whether section 278-7 (C) (2) (d) (3) is valid. If section 278-7 (C) (2) (d) (3) is invalid, as plaintiff argues, then the ZBA had discretion to grant or deny the pool variances. "The discretion of zoning boards of appeals in granting or denying variances from zoning codes is well-settled" (Bristol v Town of Camden, 669 F Supp 3d 135, 150 [quotation marks omitted]; see DeFalco v Dechance, 949 F Supp 2d 422, 432-433). So the ZBA's discretion, even if unexercised, precludes any protected property right in a variance.

If plaintiff is incorrect, and section 278-7 (C) (2) (d) (3) is valid, then plaintiff had no "legitimate claim of entitlement to" the pool variances (Board of Regents of State Colleges, 408 US at 577). Indeed, under this scenario, the ZBA had no authority to grant the pool variances at all.

2. Due process right in an accessory use

In opposition, plaintiff claims that it has a due process right not in the variances themselves, but in accessory uses to the Inn's prior, nonconforming use. Village Code § 278-1 (A) defines "accessory use, building or structure" as "[a] subordinate use, building or structure customarily incidental to and located on the same lot occupied by the main use, building or structure."

As the Court of Appeals has explained,

[w]hether a proposed accessory use is clearly incidental to and customarily found in connection with the principal use depends on an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all character of the particular area in question. This analysis is, to a great extent, fact-based

(Matter of New York Botanical Garden v Board of Stds. & Appeals of City of NY, 91 NY2d 413, 420). "The limited case law on the definition of accessory use has accorded significant flexibility to the term, albeit turning on particular factual circumstances, so that the application of the term, it seems, remains ad hoc" (Matter of Mason v Department of Bldgs. of City of NY, 307 AD2d 94, 101, appeal dismissed 100 NY2d 613, lv denied 1 NY3d 503; see Matter of Mecox Bay Civic Assn., Inc. v Town of Southampton Zoning Bd. of Appeals, 145 AD3d 725, 726 [a determination of whether a structure is an accessory use is "largely fact-based"]). A zoning board must evaluate the factual circumstances of the proposed accessory use, the permitted use, and what is customary in similar circumstances (see Matter of East Hampton Indoor Tennis Club, LLC v Zoning Bd. of Appeals of Town of E. Hampton, 83 AD3d 935, 938 [noting that "(t)he ZBA considered this proposed use (recreational fields, a basketball court, and a tennis court), inquired into the customary practices at other local schools, and reasonably determined that the subject facilities would still constitute uses accessory to the primary educational purpose of the school so long as any public use was restricted to hours when school was not in session"]). A zoning board must then make a discretionary determination based on the facts and proposed use (see Matter of Casey v Town of Arietta Zoning Bd. of Appeals, 169 AD3d 1231, 1235; Matter of Lavender v Zoning Bd. of Appeals of the Town of Bolton, 141 AD3d 970, 972, appeal dismissed 28 NY3d 1051, lv denied 29 NY3d 907; see also Verstandig's Florist v Board of Appeals of Town of Bethlehem, 229 AD2d 851, 852 [a zoning board of appeals' determination that a particular use was not an accessory use to a nonconforming use was "rational and is in accord with public policy relating to nonconforming uses"]; Matter of Palm Mgt. Corp. v Goldstein, 29 AD3d 801, 803 [a zoning board's determination that a patio for outdoor dining was not an accessory use to an inn and restaurant was "entitled to great deference"], affd on other grounds 8 NY3d 337).

In other words, any claimed due process right in what plaintiff claims is an accessory use suffers from the same defect as a due process right in a variance: the ZBA's ability to exercise its discretion. Neither the ZBA nor any other governmental entity has exercised that discretion in evaluating the factual circumstances of the proposed accessory use, the permitted use, and what is customary in similar circumstances. As explained above, that discretion precludes any protected property right in an accessory use.

As plaintiff failed to show a protected property right, all of its claims based on alleged due process violations are dismissed.

F. Unlawful taking

Under the federal constitution, plaintiff alleges that the ZBA's use of section 278-7 (C) (2) (d) (3) constituted a regulatory taking because the pool variances constituted permitted accessory uses, and seeks a judgment declaring as such.

There are two types of takings: physical takings and regulatory takings (Buffalo Teachers Fed. v Tobe, 464 F3d 362, 374; Yu v Incorporated Vil. of Oyster Bay Cove, 579 F Supp 3d 391, 398). A physical taking happens "when the government physically takes possession of an interest in property for some public purpose" (Buffalo Teachers Fed., 464 F3d at 374). As it is undisputed that defendants have not physically taken possession of plaintiff's property or any portion thereof, there has been no physical taking (Yu, 579 F Supp 3d at 398-399).

Regulatory takings are further divided into categorical and non-categorical takings (Sherman v Town of Chester, 752 F3d 554, 564; Yu, 579 F Supp 3d at 399). "A categorical taking occurs in the extraordinary circumstance when no productive or economically beneficial use of land is permitted. Anything less than complete elimination of value, or a total loss, is a non-categorical taking" (Sherman, 752 F3d at 564 [quotation marks and citations omitted]; see Yu, 579 F Supp 3d at 399). As it is undisputed that plaintiff still operates the Inn as a restaurant and inn with guest rooms, there has been no categorical regulatory taking.

Non-categorical regulatory takings are analyzed under the factors enunciated in Penn Cent. Transp. Co. v New York City (438 US 104). Courts weigh three factors in determining whether there has been a non-categorical regulatory taking: "(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action" (Sherman, 752 F3d at 565 [quotation marks omitted]; see Penn Cent. Transp. Co., 438 US at 124; Yu, 579 F Supp 3d at 399).

Plaintiff has not pleaded a non-categorical regulatory taking. The first Penn Central factor, the economic impact on plaintiff in failing to obtain the pool variances, is insubstantial and favors defendants. A mere devaluation in property is insufficient for a regulatory taking; the government must have deprived the plaintiff of all reasonable uses of its property (Yu, 579 F Supp 3d at 399). Again, it is undisputed that plaintiff can, and does, continue to operate the Inn as a restaurant and inn with guest rooms (see Bristol, 669 F Supp 3d at 156 [plaintiffs "admit(ted) that they continued to operate both of their businesses on the property, and do not complain that they could not operate the businesses due to the regulations"]). Indeed, plaintiff pleads that the Inn "has been used for the lodging of transient guests since the 1870's [sic]." In other words, the Inn has existed as a business for lodging for approximately 150 years without a pool, spa, or patio. It can continue to do so. So too can the restaurant. And plaintiff conceded that the pool variances would be "an amenity for use by inn guests only," i.e., not for use by restaurant patrons.

The second Penn Central factor examines "the extent to which the regulatory action has upset plaintiff's investment-backed economic expectations by altering its rights to a constitutionally protected property interest" (South Nassau Bldg. Corp. v Town Bd. of Town of Hempstead, 624 F Supp 3d 261, 276; see 1256 Hertel Ave. Assoc., LLC v Calloway, 761 F3d [*8]252, 265-266). The purpose of this factor "is to limit recovery to owners who could demonstrate that they bought their property in reliance on a state of affairs that did not include the challenged regulatory regime" (Allen v Cuomo, 100 F3d 253, 262). The requirement of a constitutionally-protected property interest in a takings analysis is the same as under a due process analysis (see South Nassau Building Corp., 624 F Supp 3d 261, 276-277; 31FO, LLC v Incorporated Vil. of Lloyd Harbor, 2023 WL 6385187, *9 [Sept 29, 2023, No. CV 22-3303 (GRB)(ARL)]). Investment-backed expectations are evaluated at "the time a property is acquired" (Meridien Trust & Safe Deposit Co. v F.D.I.C., 62 F3d 449, 454).

The second Penn Central factor favors defendants too. For the reasons explained above, plaintiff had no protected property interest in the pool variances. Moreover, plaintiff does not allege that it reasonably relied on its ability to construct the pool variances when it purchased the Inn in March 2020. And it could not have done so, as section 278-7 (C) (2) (d) (3) was enacted in November 2014, more than five years before plaintiff purchased the Inn (see 74 Pinehurst LLC v New York, 59 F4th 557, 567, cert denied — US —, 2024 WL 675658; Ganci v New York City Tr. Auth., 420 F Supp 2d 190, 204, affd 163 Fed Appx 7; Legislative history notations of section 278-7 (C) (2) (d) (3), PDF of East Hampton Village Code, https://storage.googleapis.com/proudcity/easthamptonvillageny/uploads/2022/01/Village-Code.pdf , at 549-550 [page numbers are of the PDF document] [accessed Jan 30, 2026]; Amended Petition/Complaint, NYSCEF doc. 111, at ¶ 19 [including the notation of legislative history when quoting section 278-7 (C) (2) (d) (3)]).

The third factor also weighs in favor of defendants. As the Second Circuit has explained, "a taking may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good" (Sherman, 752 F3d at 565 [alterations and quotation marks omitted]; see Bristol, 669 F Supp 3d at 158).

Important to this factor is the undisputed fact that the Inn is a pre-existing, nonconforming commercial use in a residential zoning district. Zoning is designed "to serve as a vital tool for maintaining a civilized form of existence for the benefit and welfare of an entire community" (Little Joseph Realty v Town of Babylon, 41 NY2d 738, 745 [quotation marks omitted]). "One of the basic purposes of zoning is to provide an orderly fashion for the residents' need for various types of residential, commercial[,] and industrial structures" (Marx v Zoning Bd of Appeals of Vil. of Mill Neck, 137 AD2d 333, 337). As prior nonconforming uses are repulsive to zoning schemes, public policy favors their elimination (Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison, 1 NY3d 561, 562; Matter of Toys "R" Us v Silva, 89 NY2d 411, 417). For the same reasons, municipalities may restrict the expansion of nonconforming uses (Matter of Nabe v Sosis, 175 AD3d 500, 501; Matter of Nadell v Horsley, 264 AD2d 422, 422-423).

Ultimately, the ZBA's disallowance of the pool variances was consistent with public policy. As a nonconforming use, the Inn's mere existence is contrary to the Village's zoning scheme, and public policy favors its extinction. At a minimum, the Inn cannot expand its nonconforming use. The pool variances would constitute such an expansion. Thus, the character of the ZBA's determination was to "enhance the quality of life by preserving the character and desirable aesthetic features of" the Village (Penn Cent. Transp. Co., 438 US at 129), which favors defendants. As all three Penn Central factors weigh in favor of defendants, there has been no non-categorical regulatory taking.

So all of plaintiff's claims based on an unconstitutional taking are dismissed.

G. Remedy

Defendants also seek dismissal of so much of the petition as seeks "an order compelling the ZBA to hear the merits of its variance application and/or issue the [p]ool [v]ariances." They claim the ZBA has not entertained the merits of the pool variances, so the Court cannot order the issuance of these discretionary variances.

Courts have the power to remit matters to a zoning board of appeals for a determination of a variance on the merits (see Matter of Kodogiannis v Zoning Bd. of Appeals of Town of Malta, 42 AD3d 739, 740; Matter of Hannett v Scheyer, 37 AD3d 603, 605). Courts also have the power to remit matters to a zoning board of appeals with a directive to issue the requested variance (see Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, 93 AD3d 731, 733; Matter of Cacsire v City of White Plains Zoning Bd. of Appeals, 87 AD3d 1135, 1138, lv denied 18 NY3d 802). At this juncture, when the Court has not determined the merits of any of plaintiff's surviving claims, it is premature to determine what remedy, if any, will be available to plaintiff. The denial of this branch of the motion is without prejudice.

III. Conclusion

Within 10 days of service of this order with notice of its entry, defendants shall file an answer to the remaining portions of the amended petition/complaint and an accompanying memorandum of law (CPLR 3211 [f]; 7804 [f]). Plaintiff shall re-notice so much of the amended petition/complaint as seeks relief under CPLR article 78 (CPLR 7804 [f]).

This shall constitute the decision and order of the Court.

Dated: April 10, 2026

Hon. Joseph C. Pastoressa, J.S.C.

Papers considered: NYSCEF documents 1 through 132