Plaintiff resided in a single-family dwelling in Middletown, New York on a hundred and fifty acre parcel of land. In 2005, he was issued a building permit by Defendant, Code Enforcement Officer Davis, in order to construct another single-family dwelling on the same property, which was approved by the Defendant. In 2006, after the Plaintiff spent $450,000 to construct the second dwelling, he was informed when he applied for a Certificate of Occupancy that the town’s zoning regulations prohibited the placement of two single-family dwellings on one lot. Davis issued the Certificate of Occupancy on the condition that the Plaintiff sign an affidavit promising he would use the first dwelling only for storage, although he did not want to do so. Therefore, Plaintiff brought this action maintaining that by restricting the use of his two dwellings, he was deprived of his property rights without due process of law by both Davis and Middletown.
In Plaintiff’s first action, Hennelly I, Defendants moved to dismiss claiming that the constitutional challenge was “not ripe for adjudication” because Plaintiff failed to use administrative mechanisms to obtain approval for both structures as single-family dwellings. The Court agreed and dismissed the action without prejudice, stating that Plaintiff has not alleged either in is Complaint or in opposition to the instant motion that any Town official indicated that he would be denied a variance had he applied for one.” Because of this, the futility exception did not apply. In this action, Plaintiff made the same allegations as in Hennelly I, yet adding that the Defendant Davis told the Plaintiff that appealing the denial of the certificate of occupancy would be unsuccessful, as “there is no way the town would ever let the plaintiff use both dwellings on his parcel as single family residences.”
The Court found that the dismissal in the first Hennelly action was not made so that Plaintiff could fix the gaps in his futility argument by filing a new action. Additionally, Plaintiff is barred by the doctrine of collateral estoppel, as he had been given “a full and fair opportunity to litigate the futility defense in Hennelly I.” The Court went as far to say that even if it had not been barred by collateral estoppel, Plaintiff’s new argument is not enough to withstand the ripeness challenge. Specifically, Defendant Davis although might have expressed his opinion based on experience did not speak for the Zoning Board of Appeals or the Town Planning Board. Therefore, the Plaintiff’s due process claim is not ripe for adjudication. Furthermore, Plaintiff’s claims are barred by a statute of limitations of three years, which accrues when Plaintiff “knows or has reason to know of the harm.” Therefore, the statute of limitations ran as of April of 2006, when Plaintiff first knew Davis would not issue a Certificate of Occupancy unless he signed an affidavit. This was when the harm first occurred, and because Plaintiff did not commence this action until November of 2010, the claim is barred by the statute of limitations.
Hennelly v. Town of Middletown, 2011 WL 98292 (N.D.N.Y. 1/12/2011)
The opinion can be accessed at: http://docs.justia.com/cases/federal/district-courts/new-york/nyndce/3:2010cv01398/83168/16/
