12-3923-cv
Edelhertz v. City of Middletown



                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  August Term, 2012

(Argued: May 7, 2013                                                                         Decided: May 8, 2013)

                                               Docket No. 12-3923-cv


               _______________________________________________________________


                          MELVYN EDELHERTZ and HELAINE EDELHERTZ, as trustees
                          of the Melvyn and Helaine Edelhertz Revocable Living Trust,

                                                  Plaintiffs-Appellants,


                                                            v.


                                        CITY OF MIDDLETOWN, NEW YORK,

                                                   Defendant-Appellee.*


                  _______________________________________________________________


Before: CABRANES, WESLEY, and WALLACE,† Circuit Judges.

            In 2009, the Common Council of the City of Middletown, New York (“the City”), amended

the City’s zoning laws to prohibit the nonconforming use of non-owner-occupied multiple dwellings

in various zoning districts. The plaintiffs allege that the City’s failure to notify them, as affected

property owners, prior to enacting this zoning change violated their due process rights under the


     *   The Clerk of Court is directed to amend the caption as shown above.

     †The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by
designation.

                                                             1
Fourteenth Amendment. The United States District Court for the Southern District of New York

(Edgardo Ramos, Judge) granted summary judgment to the City, concluding that the change of

zoning rules did not offend the procedural guarantees of the Due Process Clause because the zoning

amendment was prospective and generally applicable, and was therefore “legislative” in character

rather than “adjudicative.” We affirm for substantially the reasons stated in the District Court’s

opinion.

        Affirmed.

                                         JAMES G. SWEENEY, James G. Sweeney, P.C., Goshen, NY,
                                               for Plaintiff-Appellant.

                                         ALEX SMITH, Assistant Corporation Counsel of the City of
                                               Middletown, Middletown, NY, for Defendant-Appellee.

PER CURIAM:

        In 2009, the Common Council of the City of Middletown, New York (“the City”), amended

the City’s zoning laws to prohibit the nonconforming use of non-owner-occupied multiple dwellings

in various zoning districts. The plaintiffs allege that the City’s failure to notify them, as affected

property owners, prior to enacting this zoning change violated their due process rights under the

Fourteenth Amendment. The United States District Court for the Southern District of New York

(Edgardo Ramos, Judge) granted summary judgment to the City, concluding that the change of

zoning rules did not offend due process principles because the zoning amendment was prospective

and generally applicable, and was therefore “legislative” in character rather than “adjudicative.”

        Having conducted a de novo review, see Bailey v. Pataki, 708 F.3d 391, 399 (2d Cir. 2013),

we agree with the analysis of the District Court and affirm for substantially the reasons stated its

excellent opinion and order of September 14, 2012. See Edelhertz v. City of Middletown, No. 11-CV-

1943 (ER), --- F. Supp. 2d ---- (S.D.N.Y. Sept. 14, 2012). Although actions by legislative bodies can,

in some circumstances, offend constitutional principles of due process, see, e.g., Nathan S. Chapman


                                                     2
& Michael W. McConnell, Due Process as Separation of Powers, 121 YALE L.J. 1672 (2012) (discussing

historical and jurisprudential bases for various due process constraints on legislative action), the

District Court ably explained why the City’s failure to provide notice before it adopted a prospective

and generally applicable zoning amendment did not violate the Due Process Clause of the

Fourteenth Amendment.

        Accordingly, the judgment of the District Court is AFFIRMED.




                                                    3
