Posted by: Patricia Salkin | October 28, 2008

NY District Court Finds Takings Claim Not Ripe Where Developer Did Not Seek Variance and Did Not Pursue Action in State Court for Compensation

In an ongoing effort to develop a parcel of property for multi-family housing in the Town of Greenburgh (NY), the developer was told prior to purchasing the land that it was located in a CA (Central Avenue Mixed Use Impact District) which would allow for the development of a multi-family complex containing at least 82 bedrooms. At the time of acquisition, the Town zoning map also reflected this designation.  Following a significant amount of pre-acquisition due diligence (examining all available versions of prior zoning maps, retention of an architect and an appraiser), the developer purchased the property and demolished the existing structure pursuant to a Town permit.  Immediately following the demolition, the developer was notified that a neighboring Nature Center opposed the development of the property containing more than one or two homes. This began a series of meetings where moratoria, conservations easements and possible condemnation of the property were discussed as the public and political leaders were voicing opposition to the proposed development of the parcel. This was followed by a “discovery” by a Town Board member that the property had actually been zoned R-20, a one-family residence district and not a CA zone, and the Town Engineer was directed to alter the zoning map to reflect change based on the fact that the previous map designation was in error.


The developer appealed this change to the zoning board of appeals who voted to sustain the Town staff member’s determination that the property was actually zoned R-20.  The decision filed with the Town Clerk held that the changed zoning map was zoned R-20 and that the developer had failed to present documentation that established that the Property was ever legally zoned CA.  The developer then filed the current lawsuit alleging, among other things, takings, due process, and equal protection claims.


The District Court, on a motion to dismiss action, agreed with the Town that the developer’s claims were not ripe. The Court noted that before commencing a lawsuit, a land developer must receive a final agency action – “a definitive position as to how it can use the property from the entity charged with implementing the zoning regulations.” Since the developer did not seek a variance to develop a multi-family housing project on the property once the zoning board determined it was in an R-20 zone, it cannot know whether the zoning board would permit the project.  The Court said that this determination is distinguishable from the opinion the Board did render with respect to the zoning classification of the property.


Further, the Court determined that the futility exception did not apply here since although the developer faced opposition from Town officials and influential Town groups, “it has not shown that the prospect of refusal…would be certain.”  Further, the Court noted that the Town’s alleged hostility and bias cannot be imputed to the zoning board of appeals.  The Court also stated that the futility exception “requires that at least one meaningful application be made in order to consider a claim ripe for adjudication” and that here the developer made no application to the zoning board.


Lastly, the District Court noted that the developer did not allege that they pursued any action in state court for compensation before filing the current action, and that the second prong of Williamson County, 473 U.S. at 194 requires such action prior to takings, due process and equal protection claims in federal court.


S & R Development Estates, LLC v Bass, 2008 WL 4525777 (S.D.N.Y. 9/26/2008).


  1. I don’t know why landowners’ attorneys haven’t gotten the message that the federal courts now consider themselves primarily a criminal court system and that they will do anything possible to keep land use cases away from their dockets, no matter what damage they do to the underlying substantive law.

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