Posted by: Patricia Salkin | August 21, 2008

Second Circuit Upholds District Court’s Dismissal on Ripeness Grounds Finding Futility Exception Did Not Apply

Lost Trail, LLC claimed that the town attorneys erred in concluding that their recorded subdivisions were legally ineffective under Connecticut law and in denying their building permits.  The Second Circuit, in affirming the dismissal of the federal lawsuit, noted that land use challenges, whether pursued as takings claims or as violations of equal protection or due process, are subject to the ripeness requirement as set forth in Williamson County Reg’l Planning Comm’s v. Hamitlon Bank, 473 U.S. 172 (1985).


The first prong of the Williamson County test requires that to be ripe for review, the government entity charged with implementing the relevant regulation must have reached a “final decision” on the application.  In finding that the Plaintiff’s failed to satisfy this prong, the Court explained that although Lost Trail bases it’s argument on the fact that the town attorneys do not believe they are entitled to approval of their subdivision, under State law, it is not the town attorneys who make this decision, rather, the responsibility rests with the planning and zoning commission.  Lost Trail never applied to the planning and zoning commission for subdivision approval, nor has it appealed to the zoning board of appeals the denial of the only building permit application it sought. Although Lost Trail alleged that its failure to pursue a final decision should be excused by the doctrine of futility since there is a fundamental disagreement as to whether the property constitutes four lots (Plaintiff’s view) or one lot (Plaintiff claims this is the view of town officials), since the Plaintiff has not alleged that the planning and zoning commission lacks the ability to grant the relief it seeks, nor has it made clear that the town entities with authority to review their application have made clear that the requested relief will be denied, the noted disagreement alone is not enough to demonstrate futility.  Further, although the Plaintiff alleged that the town attorney advised the planning and zoning commission not to issue the building permit, the Plaintiff did not claim that the attorney ever advised the commission not the approve an application for subdivision of the property. The Court noted that the attorney had even advised Lost Trail to apply for the subdivision approval and to appeal any denial of the building permit application to the zoning board of appeals.   


Lost Trail, LLC v. Town of Weston, 2008 WL 3485778 (2nd Cir. 8/8/2008 ).


The summary order can be accessed at:

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