Posted by: Patricia Salkin | July 25, 2009

Although Court Applied Futility Exception to Exhaustion of Administrative Remedies in Fifth Amendment Case, Plaintiffs Failed to Seek Compensation in State Court First

Plaintiff Donovan Realty owns a parcel of land which it rents to a recreational vehicle and boat retailer.  The retailer had been using an overflow parking lot to store sold units until customers picked them up.  This use violated the approved site plan, which designated the overflow lot “[as] to be used solely for RV ‘camping’ sites.”  Defendants Town of New Baltimore Planning Board notified the plaintiff that the storage was not an approved use and requested that the stored vehicles be removed.  Shortly thereafter plaintiffs attended a board meeting and discussed plans to apply for an amendment to the site plan.  At the conclusion of the meeting both parties arranged for a site visit by the board to attempt to resolve the conflict.  Following the meeting, plaintiffs’ counsel cancelled the site visit, noting that the board had allegedly demonstrated a complete refusal to consider amending the site plan at the previous meeting.  Plaintiff brought suit against defendants on the grounds that the refusal to amend to the site plan amounted to a taking without just compensation, in violation of plaintiffs’ substantive and procedural due process rights.

On a motion for summary judgment the defendants challenged the ripeness of the claim.  The first prong of the Williamson County ripeness test requires the plaintiff to demonstrate that the regulatory entity has rendered a final decision on the matter.  The Second Circuit has recognized a futility exception to this rule. Here, the Plaintiff provided two affidavits that a planning board member stated that the board would not consider the Plaintiff’s site plan amendment under any circumstance.  Although the Defendants denied such a statement was made at the meeting, the Court found that the Plaintiff’s showing was beyond conclusory allegations and sufficient to survive a motion for summary judgment.  To satisfy the second prong of the ripeness test the plaintiff must have sought just compensation by means of an available state procedure.  Donovan Realty had not sought compensation in New York State courts, therefore the court found the Fifth Amendment taking claim to be not ripe.  Accordingly the court granted the defendants’ motion for summary judgment on the Fifth Amendment takings claim.

With respect to the Plaintiff’s Due Process claim, the Court noted that since the planning board has wide discretion to approve or deny modifications to site use plans, the Plaintiff  cannot be said to be entitled to an approval on their amendment proposal because the discretion is too wide to “virtually assure” approval.  Therefore, the Plaintiff did not possess a constitutionally protected property interest for purposes of a Substantive Due Process claim.

Donovan Realty, LLC. v. Davis, 2009 WL 1473479 (N.D.N.Y. 5/27/2009)

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