Posted by: Patricia Salkin | May 19, 2012

Fed. Dist. Court in NY Finds Failure to Pursue Article 78 Makes Constitutional Challenge to Wetlands Permit Application Claim Unripe

The plaintiff in the case owns property in the town of Brookhaven on which he has a house, a pool, and various other buildings.  The plaintiff sought approval from the town to construct three new structures, to legalize a few structures already built, and to perform an expansion of his house.  After hearings and testimony, the town granted plaintiff’s application, subject, however, to the issuance of a wetlands permit.  Seeking to set aside the approval, plaintiff’s neighbors filed an Article 78 petition in the state trial court, which was largely denied.  On appeal, the appellate court reversed and vacated the variances.  Meanwhile, the plaintiff’s wetlands permits were suspended during the initial action but were ultimately issued before the Appellate Division’s decision.  The permits were issued with conditions, however, many of which would decrease the value of the property.  

After the appellate court decision, plaintiff ultimately amended his application for the wetlands.  Subsequently, plaintiff’s application was granted and has not been challenged.  Plaintiff filed this complaint, alleging that the town intentionally delayed his wetlands permit application, in violation of his constitutional rights.  The defendants move to dismiss.  

The court begins with defendant’s argument that this case is not ripe for adjudication.  The court explains that to be ripe, first, the government must have reached a final decision and, second, the plaintiffs must have sought compensation through state measures.  Here, the court looks only at the first prong and finds the plaintiff did not satisfy it.  The court finds it is undisputed that the plaintiff failed to commence an Article 78 hearing to compel the town to issue a wetland’s permit.                  

Although the plaintiff argues that his neighbors Article 78 proceeding constituted a final judgment, the court finds that the neighbor’s Article 78 related to the variances, not the issuance of the wetlands permit.  Similarly, the plaintiff argues that the wetlands permit was ministerial after the issuance of the variance, and was equivalent.  The court finds that the Appellate Division’s decision relating to variances was unrelated to plaintiff’s allegations that the town did not process his wetlands permit promptly.  Thus, the court holds that the claim is unripe.  

Further, the court finds that the Appellate Division has vacated the variances initially issued by the town, prompting plaintiff to submit a second wetlands permit application.  This application, finds the court, was ultimately approved.  Thus, the claim is now moot.  Therefore, the court holds the claim is both unripe and moot and grants defendant’s motion to dismiss.  

Lewis v. Carrano, 2012 WL 591984 (E.D.N.Y. 02/23/2012) 

The opinion can be accessed at:,33

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