RAMOS, D.J.

OPINION AND ORDER :

Plaintiffs David Witt and Kinuyo Gochaku Witt (together, "Plaintiffs") bring this action against the Village of Mamaroneck (the "Village") and Building Inspector Robert Melillo ("Melillo") (collectively, "Defendants") pursuant to 42 U.S.C. § 1983. The action arises from the legal requirements Defendants imposed on Plaintiffs in connection with their efforts to repair their home in the aftermath of Hurricane Irene. Plaintiffs maintain that similarly situated homeowners were not subjected to the same treatment, which therefore constitutes a violation of their equal protection and substantive due process rights under the Fourteenth Amendment. Plaintiffs also allege a Monell claim against the Village.

On March 31, 2014, this Court dismissed Plaintiffs' claims without prejudice. See Doc. 18. Accordingly, Plaintiffs amended their complaint, which Defendants again move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion to dismiss is GRANTED. I. Background

A. Factual Background

The Court presumes familiarity with the facts and procedural history of this case, which are detailed in its March 31, 2014 Order (the "March 2014 Order"), granting Defendants' motion to dismiss without prejudice. See Doc. 18.

The thrust of Plaintiffs' action is unaffected by the amended pleading. Plaintiffs owned a home in the Village of Mamaroneck (the "Village"), which they purchased in April 2009 for $366,500. Second Amended Complaint ("SAC"), Doc. 19 at ¶¶ 36-38. Less than three years later, on August 28, 2011, Hurricane Irene caused the Mamaroneck River to overflow, flooding Plaintiffs' home and causing substantial damage. Id. at ¶¶ 44-45, 56. A series of events that form the basis for the instant action prevented Plaintiffs from successfully completing the necessary repairs. First, they were initially issued a building permit but subsequently received a verbal stop-work order by Melillo. Id. at ¶ 73. According to Melillo, the building permit was issued in error because Plaintiffs' repair work constituted a "substantial improvement" under Chapter 186 of the Village Code. Id. at ¶¶ 75, 78. In relevant part, the code defined "substantial improvement" as follows:

Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement. Substantial improvement also means "cumulative substantial improvement." The term includes structures which

have incurred substantial damage, regardless of the actual repair work performed.

The following facts were not plead in the Amended Complaint ("Am. Compl.") and are drawn solely from the SAC.

First, Plaintiffs provide additional contextual details. Plaintiffs lived on a block on First Street "lined with 14 modest single family homes all similar in size, design, and value as Plaintiffs'." Id. at ¶ 39. All of First Street—the street on which Plaintiffs resided—was located in a Federal Emergency Management Agency ("FEMA") designated high risk "AE" special Flood Hazard Area. Id. at ¶ 3. At the time the dispute arose, Plaintiffs were the only homeowners on the block of mixed race and were the sole residents on their street who were not long-time residents of the Village. Id. at ¶¶ 6, 9. While Plaintiffs lacked any personal relationships with Village officials or employees, many of their neighbors worked for the Village or were friends with past or present Village officials. Id. at ¶¶ 8, 9. The SAC identifies three sets of neighbors—one that included a former Village employee, another that were friends with members of the local police department, and a final set that were close family friends of the former Board chairperson. Id. at ¶¶ 95-97. As a result, Plaintiffs were "vulnerable . . . targets[.]" Id. at ¶ 160.

Second, the SAC further describes Plaintiffs' experience in rebuilding their home in the aftermath of Hurricane Irene vis-à-vis their neighbors. All twelve homes located on First Street were severely damaged as a result of flooding that occurred when the Mamaroneck River overflowed. Id. at ¶¶ 45, 46. These homes had also sustained damage from prior unspecified "flooding events" which required extensive repairs. Id. at ¶ 41. Plaintiffs filed their building permit application on September 29, 2011, within the same one-month time frame that other neighbors on the block filed theirs. Id. at ¶¶ 54-55. Plaintiffs' contractor estimated that their repair work would cost approximately $115,000 and require eight to ten weeks to complete. Id. at ¶ 63. Plaintiffs' repair plans included renovations that required spending extra money to mitigate against future flood damage by raising "mechanicals and electrical" above flood levels, along with other structural improvements. Id. at ¶ 64. Defendants knew that Plaintiffs' neighbors along First Street and Barry Avenue "suffered the same degree of damage to their homes." Id. at ¶¶ 85, 85. Nonetheless, several "comparably damaged" homes within five hundred feet of Plaintiffs' house were permitted to complete repairs without the Village requiring them to adhere to Chapter 186 requirements. Id. at ¶ 138.

Finally, the SAC contains additional allegations concerning the context in which Chapter 186 was enforced against them. Plaintiffs claim that (1) "[n]o other homeowners on First Street or in the vicinity" were required to comply with Chapter 186; (2) "[a]ll the other homeowners on First Street were allowed to continue with their repairs and move back into their houses even though Melillo knew that they had all sustained comparable cumulative flood damage in 2007 and 2001[;]" and (3) "[n]or did Melillo impose [Chapter] 186's flood damage prevention requirements on other nearby homes in the AE zone that, even more than Plaintiffs' home, clearly surpassed the 'cumulative substantial improvement threshold for damage[.]" Id. at ¶¶ 19-21.

Melillo allegedly assisted Plaintiffs' neighbors by advising them on how to circumvent Chapter 186 by misrepresenting the actual extent and cost of flood damage repairs on their building permit applications. Id. at ¶ 161. As a result, these homeowners were allowed to proceed with undocumented and more extensive repairs without being subject to Chapter 186. Id. at ¶ 164. As to Plaintiffs, Melillo calculated the value of their house using the tax assessor's valuation, rather than the market value, as required by the regulation. Id. at ¶ 82. In addition, after the Board granted Plaintiffs a variance with respect to Chapter 186, Melillo informed them that they would not be allowed to recommence work until they obtained a State variance for having a bathroom on the first floor and a washing machine in the basement. Id. at ¶ 187.

Plaintiffs conclude by stating that they have been unable to sell their home because of the condition attached to the variance that any future owner would be required to elevate the house in the event that any future repairs were required within a ten-year period. Id. at ¶ 191.

B. Procedural History

Plaintiffs filed suit on December 4, 2012 and amended their Complaint on February 15, 2013. Docs. 1, 4. The Amended Complaint consisted of equal protection, substantive due process, and procedural due process claims, along with a Monell claim against the Village and various claims for relief under state law. See Am. Compl., Doc. 4. Defendants filed a motion to dismiss the Amended Complaint on May 31, 2013, Doc. 8, which the Court granted in its entirety on March 31, 2014, subject to the specification that "[a]ll dismissals are without prejudice." Doc. 18 at 28.

The SAC asserts three causes of action against Defendants, consisting of an equal protection claim, violations of their substantive due process rights, and a Monell claim against the Village. See SAC ¶¶ 194-226. In their opposition papers, Plaintiffs also allege that Defendants violated their procedural due process rights. See Pls.' Opp., Doc. 32 at 33-37.

II. Discussion

A. 12(b)(6) Motion to Dismiss Standard

When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also id. at 681 (citing Twombly, 550 U.S. at 551). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully." Id. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 680.

The question in a Rule 12 motion to dismiss "'is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 278 (2d Cir.1995)). "[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) 'is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits,'" and without regard for the weight of the evidence that might be offered in support of Plaintiffs' claims. Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (quoting Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006)).

B. Ripeness

Once again, Defendants argue that Plaintiffs' claims are not ripe because they did not appeal the stop work order or variance to the Planning Board. Doc. 30 at 5. The Court rejected this argument in its March 2014 Order when it determined that the finality requirement does not mandate that a party exhaust its administrative remedies prior to bringing a federal claim. See Doc. 18 at 9 (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 192-193 (1985)). The Court noted that, although "Plaintiffs may not have exhausted every avenue available to them along the way . . . Williamson does not demand that they do so." Id. at 10. "The failure to appeal may have rendered Plaintiffs' claims unripe had they been brought prior to having pursued the variance, but there is nothing in the record indicating that the current state of affairs with respect to Plaintiffs' property is anything less than final." Id. (emphasis in original).

Defendants have not asked the Court to reconsider its opinion, nor have they cited any mistakes in its reasoning or an intervening change in the law. To the extent Defendants base their motion on their argument that Plaintiffs' claims are not ripe, it is denied.

C. Fourteenth Amendment Equal Protection

The Equal Protection clause of the Fourteenth Amendment commands that "all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). There are many ways in which a plaintiff may plead intentional discrimination that violates the Equal Protection Clause. For example, "a plaintiff may claim . . . selective enforcement of the law . . . based upon his or her membership in a particular class, compared with others similarly situated[.]" Savino v. Town of Se., 983 F. Supp. 2d 293, 301 (S.D.N.Y. 2013) aff'd, 572 F. App'x 15 (2d Cir. 2014) (internal citations omitted). Alternatively, a plaintiff may seek to prove discrimination under a "class of one" analysis, which consists of: (1) intentional disparate treatment, (2) from other similarly situated individuals, (3) without a rational basis for the difference in treatment, and (4) without otherwise claiming membership in a particular class or group. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiffs proceed under both theories.

i. "Similarly Situated" Analysis

Both selective enforcement and class of one claims require a showing of similarly situated individuals or groups who were treated differently. See Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 693 (S.D.N.Y. 2011).

The Court of Appeals has made clear that, in a "class of one" case, "plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). That is because, in such cases, similarity "is offered to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose—whether personal or otherwise—is all but certain." Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008) (per curiam). A plaintiff is required to show that (1) "no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy;" and (2) "the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake." Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)).

However, there is disagreement within the Second Circuit regarding the degree of similarity that a plaintiff must show in order to adequately allege an equal protection claim under the selective enforcement theory. See Mosdos Chofetz Chaim, 815 F. Supp. 2d at 693-97 (discussing the alternative standards and surveying the disagreement among courts in this Circuit). It is unsettled whether selective enforcement cases require the same high degree of similarity, or whether a "slightly less stringent" standard applies wherein plaintiffs must show that the comparators are "similarly situated in all material respects." Id. at 696 (internal quotation marks omitted) (quoting Vassallo v. Lando, 591 F. Supp. 2d 172, 184 (E.D.N.Y. 2008)). As one court put it:

The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as the lawyer's art of distinguishing cases, the 'relevant aspects' are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely or necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.

In the March 2014 Order, the Court did not have to decide which standard should be applied because the selective enforcement claim failed to satisfy even the more lenient standard. See Doc. 19 at 12-13 n.9. In the Amended Complaint, Plaintiffs broadly alleged that 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. Although they provided more specific allegations about the costs expended on repairs to three nearby properties, they did not allege that the homes were located in an applicable floodplain or that the repairs exceeded fifty percent of their market value. Id. at ¶¶ 113-115. Only one property was specifically alleged to have incurred those costs as a result of Hurricane Irene. See id. ¶ 113. The Court noted that "there is nothing inherently wrongful in Defendants' deciding to respond to external pressures by enforcing existing regulations[.]" Doc. 19 at 14. Therefore, "in order to demonstrate that their neighbors were similarly situated in all material respects, Plaintiffs must identify comparators who were undertaking repairs concurrently, subsequently, or at least within sufficiently close temporal proximity so as to suggest that a proper comparison may be drawn for purposes of the equal protection analysis." Id. (citing Mosdos Chofetz Chaim, 815 F. Supp. 2d at 698-99) (considering the relative timing of project approvals as a relevant factor in assessing the adequacy of the pleadings). Furthermore, the Court reasoned that since the pleadings expressly alleged that Plainiffs' neighbors were not required to pursue a variance, they could not claim disparate treatment based on the outcome of their variance. Id. at 15.

Yet again, the SAC fails to allege that any other homeowners were similarly situated in all material respects, let alone establish a high degree of similarity under the more stringent class of one standard.

To begin with, Plaintiffs do not allege that other damaged properties had a similar market value and required the same relative dollar amount of repairs. Plaintiffs' entire street was a "designated high risk flood zone" subject to Chapter 186. SAC ¶ 92. Plaintiffs maintain that the houses on their block were "similar in size, design and value as Plaintiffs[,]" id. at ¶ 39, and that all of the houses on their street sustained the same degree of damage from the 2007 and 2011 flooding events. Id. at ¶¶ 85, 87. Yet, the applicability of Chapter 186 hinges on "the cost of any reconstruction, rehabilitation, or other improvement" and whether it "equals or exceeds 50% of the market value of the structure before the start of construction of the improvement." Village Code § 186-2 (emphasis added). Beyond the houses located on their street block, Plaintiffs do not make any allegations with respect to the market value of the other homes identified in the SAC. More importantly, Plaintiffs admit that they spent more money on their own repairs to prevent future flood damage, as opposed to simply repairing the damage caused by Hurricane Irene. SAC ¶ 63. Plaintiffs never contend that any of their neighbors similarly went beyond simply repairing the damage to their homes and invested in additional alterations. In fact, the SAC is silent as to whether the other homeowners on Plaintiffs' block spent the same, or even a similar amount, on repairing their homes.

The Court also notes that Chapter 186 was only one of the reasons Melillo provided for issuing his stop work order. Plaintiffs admit that Melillo also cited the fact that they failed to file a Flood Development Permit application with their building permit application. SAC ¶ 78. Moreover, after the Board issued the variance with respect to Chapter 186, Melillo advised Plaintiffs that they would not be permitted to recommence repairs until they obtained a New York State variance for having a bathroom on the first floor or a washing machine in the basement. Id. at ¶ 187. Plaintiffs do not allege that their neighbors also did not submit a Flood Development Permit application, or that they undertook other repairs requiring a state variance.

Finally, as was the case with the Amended Complaint, the fact that Plaintiffs' neighbors were not required to pursue a variance at all, see SAC at ¶ 185, "belies any argument that similarly situated comparators exist with respect to the allegedly 'unprecedented' variance conditions." See Doc. 18 at 15; see also SAC at ¶¶ 174, 184 (explaining that the variance conditions "had never been imposed on a homeowner seeking a Section 186 variance prior to Plaintiffs' application nor has been imposed on any homeowner since").

Since Plaintiffs have failed to allege differential treatment from similarly situated individuals, their equal protection claim must be dismissed.

ii. Selective Enforcement

Even if Plaintiffs had sufficiently alleged that their neighbors were similarly situated, their selective enforcement claim would once again fail. In order to state a viable equal protection claim under the selective enforcement theory, a plaintiff must show that:

(1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, or to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the [plaintiff].

For the first time in this litigation, the SAC makes a point of calling attention to the fact that, when the events at issue took place, Plaintiffs were the only interracial couple on their block. SAC ¶¶ 9, 27. It also notes that, Plaintiffs "lacked the personal relationships with Village officials that protected their Neighbors." Id. at ¶ 160. Taken together, the SAC posits that:

Melillo transferred his animus to the Plaintiffs who, as new residents of the Village, had no personal ties to Village insiders or decision-makers, and as a young mixed race couple, were convenient targets to serve as his sacrificial lambs in a community where Village affairs were dominated by longtime residents, predominantly white, and many a part of a close knit Italian community.

Besides the fact that Plaintiffs have failed to allege the existence of similarly situated homeowners, they also have not shown that "the disparate treatment was caused by the impermissible motivation." Anderson v. City of New York, 817 F. Supp. 2d 77, 94-95 (E.D.N.Y. 2011) (quoting Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir. 2005)) (emphasis in original). Plaintiffs "must demonstrate that a discriminatory purpose was a 'motivating factor' in the government decision." Adler v. Kent Vill. Hous. Co., 123 F. Supp. 2d 91, 98 (E.D.N.Y. 2000) (quoting Estate of Rosenbaum by Plotkin v. City of New York, 975 F. Supp. 206, 223 (E.D.N.Y. 1997)). "Discriminatory purpose implies that the decisionmaker selected or reaffirmed a particular course of action at least in part because of[,] not merely in spite of its adverse effects upon an identifiable group." Id. (quoting Rosenbaum, 975 F. Supp. at 223). Throughout the SAC, Plaintiffs contend that the fact that they are a mixed-race couple rendered them vulnerable or convenient targets; however they never claim that they were actually singled out on the basis of their race. See SAC ¶¶ 9, 27. Furthermore, although the SAC states that "Plaintiffs were targeted . . . because the other homeowners were all longtime Village residents[,]" id. at ¶ 94, "such a consideration is not on the same level as race, religion, sex, intent to injure, or a desire to punish plaintiff[s] for exercising [their] constitutional rights." Payne v. Huntington Union Free Sch. Dist, 101 F. Supp. 2d 116, 119 (E.D.N.Y. 2000) (holding that a plaintiff's claim that she was fired because she was married to the District's superintendent did not constitute a constitutionally impermissible consideration). Furthermore, the SAC does not allege that Defendants selectively enforced Chapter 186 because of its adverse effects on village newcomers as a group.

Nor do Plaintiffs sufficiently allege that the purported selective treatment was motivated by a malicious or bad-faith intent to injure them. The SAC states that "[t]he genesis of Melillo's actions arose from his animus towards federal and state officials, and some vocal local residents, who criticized Melillo for being lax in his enforcement of flood damage prevention regulations." SAC ¶ 26. As examples of Melillo's "animus" being channeled toward Plaintiffs, the SAC broadly cites "the tone and content of his communications with them and the detrimental and unreasonable decisions he was making in regard to their dire situation." Id. at ¶ 144. It also claims that Melillo demonstrated his "animus" at the February 6, 2012 meeting with the Planning Board consultant, in which he stated that Plaintiffs were going to "have a hard time getting the variance" because he was "getting beat up by all these agencies and FEMA[.]" Id. at ¶¶ 156. Plaintiffs conclude "[i]t was clear . . . that Melillo was targeting Plaintiffs and trying to force them to undertake this more expensive and time consuming option of elevating their house for his own self-serving reasons, i.e. to save his job by creating a false impression to federal and state authorities and local critics that he was enforcing Section 186." Id. at ¶ 158. Yet, as was the case before, "[n]one of these allegations suggests any ill will—on the part of any party—directed toward Plaintiffs." Doc. 18 at 17.

Therefore, even if Plaintiffs had adequately alleged selective enforcement relative to others who were similarly situated, their claim would be dismissed for failure to plead an intention to discriminate on the basis of impermissible considerations.

iii. "Class of One"

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 (2000) (per curiam); see also Engquist v. Oregon Dep't of Agric., 553 U.S. 591 (2010) (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)). 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. Neilson, 409 F.3d at 105.

The Court previously found that, without adequate comparators, it was impossible to determine whether there was a legitimate basis for the alleged disparities between Defendants' specific actions with respect to Plaintiffs' property and the ones directed at surrounding properties. Since Plaintiffs are, yet again, unable to identify materially similar, let alone identical comparators, the Court's analysis cannot proceed any further. The Village was certainly within its right to enforce Chapter 186. The question here is whether there were other local residents besides Plaintiffs whose repairs triggered the regulation's provisions. Although Plaintiffs insist that "other nearby homes in the AE zone . . . clearly surpassed the 'cumulative substantial improvement' threshold[,]" they fail to proffer the necessary combination of facts to support this conclusory statement. See supra Part.II.C.i.

In their papers, Plaintiffs rely on several decisions that predate Ruston, the case in which the Second Circuit set out the pleading standard for "class of one" claims in light of the Supreme Court's holding in Iqbal. See Ruston, 610 F.3d at 59. Prior to Ruston, plaintiffs alleging class of one claims did not have to plead "actual instances where others have been treated differently for the purposes of equal protection" in order to overcome a motion to dismiss. DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003), abrogated by Ruston, 610 F.3d at 59. Furthermore, "[f]ederal courts must be wary 'about transforming run-of-the-mill zoning cases into cases of constitutional right.'" Adam J. v. Vill. of Greenwood Lake, No. 10-CV-1753 (CS), 2013 WL 3357174, at *9 (S.D.N.Y. July 3, 2013) (citing Olech, 528 U .S at 566 (Breyer, J., concurring)).

Given that Plaintiffs have failed to show "an extremely high degree of similarity between themselves and the persons to whom they compare themselves[,]" Clubside, 468 F.3d at 159, they cannot sustain an equal protection claim under a "class of one" theory.

D. Fourteenth Amendment Substantive Due Process

i. Property Interest

In order to sustain a due process claim, Plaintiffs must have possessed a valid property interest. See Zahra, 48 F.3d at 680 ("To state a substantive due process claim, a party must first establish that he had a valid 'property interest' in a benefit that was entitled to constitutional protection at the time he was deprived of that benefit.") (emphasis in original) (citing Brady v. Town of Colchester, 863 F.2d 205, 211-12 (2d Cir. 1988)). Because Plaintiffs have failed to plausibly allege the existence of a cognizable property interest, their due process claim must be dismissed. 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 (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 962696, at *5 (E.D.N.Y. Mar. 31, 2009). "An abstract need, desire or unilateral expectation is not enough." Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (citing Roth, 408 U.S. at 577).

The Court previously dismissed Plaintiffs' due process claims for failure to allege a property interest. The Court determined that the Plaintiffs did not have a property right in the building permit, which was erroneously issued. Doc. 18 at 22-23. It did not make a difference that construction was fifty-percent complete at the time Melillo issued the stop work order. Id. at 23. Furthermore, even if the building permit constituted a valid property interest, the fact that Plaintiffs were granted a variance and the permit was never actually revoked implies that any such property interest was never denied. Id. at 24.

Plaintiffs have modified their pleadings to allege that the building permit in question was not erroneously issued. The SAC claims that, in his calculations, Melillo wrongly used the tax assessor's valuation of their home rather than "market value," as required by Chapter 186. SAC ¶ 208. As a result, "Melillo's actions denied Plaintiffs their protected property interest in a validly issued building permit," id. at ¶ 209, because "[i]f the improvements were calculated related to 'market value,' the repairs would not have met the 'cumulative substantial improvement' threshold." Id. at ¶ 84. However, the SAC also contradicts itself by suggesting that Plaintiffs' repairs did in fact constitute a cumulative substantial improvement, stating "other nearby homes in the AE zone . . . even more than Plaintiffs' home, clearly surpassed the 'cumulative substantial improvement' threshold for damage sustained over a 10 year period[.]" Id. at ¶ 21 (emphasis added). The Court need not attempt to resolve these inconsistencies because Plaintiffs still have not alleged that their building permit was revoked. As was the case before, "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." Doc. 18 at 24.

In its March 2014 Order, the Court also found that Plaintiffs did not allege a deprivation of their property interest in their home. Doc. 18 at 24. Notably, Defendants' actions "did not directly take Plaintiffs' home away from them, nor did [they] render the property itself valueless." Id. Once again, Plaintiffs claim that they were deprived of their property interest in their home to the extent variance conditions had the effect of rendering them unable to afford the remaining repair work. See id.; see also SAC ¶ 186 ("By the time the Planning Board made a final decision in February 2012 regarding the variance application, Plaintiffs had run out of money to repair their home and to pay their mortgage."). Plaintiffs further contend that they are unable to sell their home because of the condition placed on the issuance of the variance that any future owner would be required to elevate the house if any subsequent repairs were required within a ten-year period. SAC ¶ 191. However, 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. Regardless, through these allegations, Plaintiffs are once again essentially alleging that they were entitled to the building permit and to a conditions-free variance. Doc. 18 at 25 (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 131 (2d Cir. 1998)) (holding that land ownership alone does not establish a right to a particular zoning status because, if it did, "any owner of zoned land, which presumably includes the vast majority of landowners, would be entitled to assert a claim in federal court alleging a substantive due process violation each time a local governing body rezoned that land under questionable or unfair circumstances"). They have not effectively alleged a property interest in their home independent of the property interest they claim to have in the building permit and a conditions-free variance.

Since the Court has found that Plaintiffs have not alleged a deprivation of any property interest they may have had in the building permit, the question is whether they have a property interest in a variance without the challenged conditions attached. In order to establish a constitutionally cognizable property interest, Plaintiffs must demonstrate that they have a "'clear entitlement' to the approval sought from the government official or administrative body." Villager Pond, 56 F.3d at 378 (quoting Walz v. Town of Smithtown, 46 F.3d 162, 168 (2d Cir. 1995)). Whether an entitlement is "clear" depends on the extent to which the authority has the power to exercise discretion. Id. "A clear entitlement, and, in turn, a constitutionally protected property interest, exists only when 'the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.'" Id. (quoting RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d Cir. 1989)). It is well-settled that zoning boards have discretion in granting or denying variances. See Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357, 369 (S.D.N.Y. 2011) (citing Lamar Adver. of Penn. LLC v. Pitman, 573 F.Supp.2d 700, 707 (N.D.N.Y. 2008)) ("It is well established under New York law that '[l]ocal zoning boards have broad discretion in considering applications for variances[.]'"). As this Court noted in the March 2014 Order, Chapter 186 expressly provides that "the Planning Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this article." Village Code § 186-6(A)(5) (emphasis added). Thus, for the same reasons the Court provided before, Plaintiffs do not have a cognizable property interest in a variance free of any conditions.

The Court also notes that, in a case such as this that involves a substantive due process claim implicating local land-use management, "the Second Circuit has been 'mindful of the general proscription that federal courts should not become zoning boards of appeal to review nonconstitutional land [-]use determinations by the [C]ircuit's many local legislative and administrative agencies." Schubert v. City of Rye, 775 F. Supp. 2d 689, 705 (S.D.N.Y. 2011) (alterations in original) (quoting Zahra, 48 F.3d at 679).

ii. Deprivation of a Property Interest

Even if Plaintiffs had carried their burden of establishing the deprivation of a cognizable property interest, it is doubtful that Defendants' acts against their land were "'arbitrary,' 'conscience-shocking,' or 'oppressive in the constitutional sense,' not merely 'incorrect or ill-advised.'" Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir. 2006) (quoting Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)). "Government regulation of a landowner's use of his property is deemed arbitrary or irrational, and thus violates his right to substantive due process, only when government acts with no legitimate reason for its decision." Ahmed v. Town of Oyster Bay, 7 F.Supp.3d 245, 259 (E.D.N.Y. Mar. 18, 2014) (quoting Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 102 (2d Cir. 1992)). "[T]he Second Circuit has also held 'numerous times' that 'substantive due process does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit[;] [its] standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.'" TZ Manor, LLC v. Daines, 815 F. Supp. 2d 726, 746 (S.D.N.Y. 2011) aff'd, 503 F. App'x 82 (2d Cir. 2012) (citing Harlen Associates v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001)) (alternations in original).

Under Chapter 186, a homeowner may appeal the application of Chapter 186 by the building inspector to the Board. Village Code § 186-6(A)(2). In turn, "[t]hose aggrieved by the decision of the Planning Board may appeal such decision to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules." Id. at § 186-6(A)(3). Therefore, to the extent that Plaintiffs thought that Chapter 186 was inapplicable, they could have pursued their grievances in state court. Furthermore, throughout the SAC, Plaintiffs allude to the fact that Defendants' enforcement of Chapter 186 was in response to pressure from the FEMA to enforce flood regulations. SAC ¶¶ 156, 158, 165. They also concede that Melillo issued a stop work order, in part, because Plaintiffs had failed to file a Flood Development Permit, as required by Chapter 186. Id. at ¶ 78, see also Village Code §§ 186-4(B)(1); 186-4(D)(a). To the extent that Defendants genuinely believed that Plaintiffs were subject to Chapter 186, they were within their right to enforce it.

Therefore, Plaintiffs' substantive due process claim is dismissed.

E. Monell Claim

A municipality cannot be held liable under § 1983 solely on a theory of respondeat superior. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). A § 1983 claim can only be brought against a municipality if the action that is alleged to be unconstitutional was the result of an official policy or custom. Id. at 690-91. Thus, a plaintiff must allege that such a municipal policy or custom is responsible for his injury. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); see also Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) ("A municipality or other local government may be liable under this section [1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell, 436 U.S. at 692)).

A Monell claim cannot lie absent an underlying constitutional violation. Bolden v. Cnty. of Sullivan, 523 Fed. Appx. 832, 834 (2d Cir. 2013) (summary order) ("[B]ecause the district court properly found no underlying constitutional violation, its decision not to address the County defendants' liability under Monell was correct.") (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)) ("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.") (emphasis in original). Since Plaintiffs have not established a constitutional violation, their Monell claim also fails.

III. Conclusion

For the reasons set forth above, Defendants' motion to dismiss is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 28, and to close the case. It is SO ORDERED. Dated: March 27, 2015

New York, New York

/s/_________

Edgardo Ramos, U.S.D.J.