Posted by: Patricia Salkin | November 18, 2010

Federal District Court in NY Dismisses Taking Claim on Ripeness Grounds

Plaintiff resided in a single-family dwelling on a 150-acre parcel of land he owned, and he wanted to a build a second single-family dwelling on the property.  Plaintiff applied for a building permit, which was granted.  As a result, he spent about $450,000 to construct the second dwelling. Plaintiff then applied for a Certificate of Occupancy for the second dwelling, but the Town Code Enforcement Officer told the Plaintiff that the town zoning regulations did not permit two single-family dwellings on one parcel of land. The Code Enforcement Officer offered to issue the certificate of occupancy on the condition that the Plaintiff sign an affidavit indicating he would use the older dwelling only for storage. The Plaintiff did not want to agree to this, but signed the affidavit anyway, and then brought an action asserting that he was deprived of his property rights without due process.   The Town moved to dismiss on the grounds that the Plaintiff failed to exhaust his administrative remedies.  Specifically, the Plaintiff never appealed the determination to the zoning board of appeals, he never applied for subdivision approval, he never sought a variance, and he never applied for a waiver of the subdivision regulations. The Plaintiff did not dispute that he did not pursue these appeals/reviews, claiming that to do so would have been futile. The Court agreed with the Town that the claim was not ripe for review since the Plaintiff had not applied for a variance, and hence there was no final decision on the application.  The futility argument failed because the Court said that the Plaintiff did not allege that any Town official indicated that a variance request would be denied.

Hennelly v. Town of Middletown, 2010 WL 4366917 (N.D.N.Y. 10/28/2010).

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