Plaintiff sought to construct a driveway on part of a 77-acre unimproved parcel of land. After obtaining a fill permit and development, the Plaintiff arranged for 1500 truckloads of fill to be delivered to the property. Shortly after the fill started to arrive, the Town building inspector removed the fill permit and ordered the Plaintiff to cease receiving fill and ordered the local delivery company to stop hauling fill to the property after informing the Plaintiff that a site plan must be filed for the proposed driveway along with the application for a fill permit. Plaintiff did file the fill permit, but it was denied since he did not include a site plan. Plaintiff then commenced an action under 42 USC 1983 claiming a violation of procedural and substantive due process rights, a violation of equal protection rights and a violation of his First Amendment rights.
The federal district court dismissed the claims on ripeness grounds. The Court noted that since the Plaintiff failed to appeal the initial decision denying his request for a fill permit pursuant to Town regulations, he has not exhausted his administrative remedies. Although the requirement for finality would be relaxed if the appeal (or a variance request) would be futile, the Court said that there was nothing in the record to support the Plaintiff’s claim that the zoning board “dug in its heals” or otherwise stonewalled the plaintiff.
Hunter v Town of Chili, 2010 WL 598679 (W.D.N.Y. 2/18/2010).
