In this action, plaintiffs Kowalczyk and Pericic filed numerous federal and state law claims against the Village of Monticello, New York. Plaintiff Kowalczyk moved for partial summary judgment on his substantive and procedural due process claims. The defendants moved for summary judgment on all the plaintiffs’ claims. The United States District Court, Southern District of New York denied the plaintiff’s motion and granted in full the defendants’ motion.
This action revolves around the plaintiffs’ ownership of properties within the Village of Monticello. Specifically, plaintiff Kowalczyk purchased property with the intent of renovating and leasing units to residential and commercial tenants. However, there were concerns from the get-go, as the land use was a nonconforming use and there was a question as to whether there was non-use for over a one year period prior to Kowalczyk’s ownership, which may have terminated the property’s nonconforming use status. At first, it was determined that the status did not terminate, then later it was determined that it had terminated and a variance would be needed. Somehow, a building permit and occupancy permit were granted to Kowalczyk. Eventually, the Village required the building to be vacated due to code violations.
Plaintiff Pericic purchased property on the same street as Kowalczyk and likewise sought to renovate and lease out units on the premises. Similar to Kowalczyk’s property, Pericic’s property was a nonconforming use and there was nonuse prior to Pericic’s ownership sufficient to terminate the status. Various permits were granted to Pericic, allowing him to renovate the building. Eventually Pericic was issued a stop work order. Later it was determined that Pericic could not be granted permits to renovate or occupy the structure because the nonconforming use status had been terminated as it was vacant for a number of years.
The District Court began their analysis of the case by focusing on the ripeness of the plaintiffs’ claims. In order to show ripeness, the plaintiffs needed to meet a two prong test: the challenged decision was final and a state remedy was sought first. A decision is final where it “is a ‘definitive position on the issue that inflicts an actual, concrete injury.’” Finality is important as it creates a record for review and it ensures that non-constitutional avenues have been explored.
The court found that the plaintiffs’ equal protection and due process claims failed the ripeness inquiry because the plaintiffs did not seek a final decision concerning their respective properties. Where a party is denied a land use application, the matter is not yet final or ripe for review. To obtain finality, the land owner must apply for at least one variance. Plaintiff Kowalczyk had sought a variance in 2002, but withdrew the application in reliance on the Village Attorney. Further, when Kowalczyk was later advised in 2009 to seek a variance, he neglected to do so. As applied to Kowalczyk, the causes of action were not ripe because he did not meaningfully attempt to obtain a variance. Pericic likewise failed to establish ripeness, as the only action Pericic took was to apply for a special use permit, which was denied. The court stated that denial of a special permit application does not meet the finality requirement. As these claims fail the ripeness requirement, the defendants’ motion as to these counts was granted.
The District Court then addressed the plaintiffs’ claim that the ripeness deficiencies should be excused due to futility. The court explained that claims can survive a ripeness failure where the plaintiff adequately demonstrates that seeking a final determination at the local level would be a futile endeavor. Futility can be demonstrated where it is shown that the local forum cannot grant the variance or where the decision-making body has “dug in its heels” and stated that the application will be denied. The plaintiffs allege defendant Barbarite, a Village official, was hostile towards the plaintiffs and was clear that development approval would not be granted. The District Court stated that these claims were insufficient because mere allegations alone will not support a futility claim. In addition, the plaintiffs failed to show that the zoning board of appeals, the body charged with hearing variance applications, made any showing of hostility.
Kowalczyk’s also sought partial summary judgment for a procedural due process claim that was not included within his complaint. Federal courts are permitted to consider unraised issues when the other party would not be prejudiced. Even though the court assumed arguendo that there would be no prejudice, the court found the claim failed the first prong of the aforementioned ripeness test. Thus, the District Court denied Kowalczyk’s motion for summary judgment, and granted the defendants’.
The District Court then addressed the issues remaining in the defendants’ motion for summary judgment. The court granted summary judgment in favor of the defendants on the plaintiffs’ 42 U.S.C. § 1985 and § 1986 and conspiracy claims. Similar to the other claims, the conspiracy claims were not ripe due to lack of finality. The court also granted summary judgment in favor of the defendants on the plaintiffs’ declaratory judgment claims. The federal claim failed because the underlying Constitutional violations were not ripe, and the New York claims were dismissed because the court refused to exercise supplemental jurisdiction over these state law claims. Lastly, the District Court granted summary judgment in favor of the defendants on the plaintiffs’ claim for attorney’s fees.
Kowalczyk v. Barbarite, 2012 WL 4490733 (S.D.N.Y., Sept. 25, 2012).
The opinion can be accessed here.