Posted by: Patricia Salkin | July 16, 2013

Fed. Dist. Ct. in NY Holds Takings, Due Process and Equal Protection Claims are Unripe for Review Since Plaintiffs Failed to Seek a Variance from ZBA on New Steep Slope Regulations

In another piece of litigation in a protracted battle in both state and federal courts regarding Plaintiffs’ desire to subdivide their 9.2 acre parcel into three buildable lots.  Initially, the parcel was subjected to a three-acre minimum lot size, a prohibition of two-family homes, and a 25% slope restriction. After state litigation, the appellate court ordered a variance for one of the lots, and the Plaintiff returned to the planning board and the zoning board of appeals to seek permission for a two-lot subdivision which was now subject to an amended 15% slope restriction.  The request was denied and the zoning board indicated for the first time that the Plaintiff’s parcel lacked road frontage, implying that no construction would be possible. A second round of litigation in state court ensued.  Plaintiffs have not returned to the zoning board to seek another variance.

Now in federal district court, the plaintiffs alleged that the steep slope law and the zoning board’s determination that the parcel lacks road frontage, effectively prohibits them from using their parcel for any purpose and that the Village’s enforcement of such violates their constitutional rights. Following a court ordered mediation and no further movement in the state court litigation, the district court judge proceeded on the Village’s motion to dismiss.

The Judge concluded that the case is not yet ripe for review because the plaintiffs have not sought a variance again.  The Judge acknowledged that the facts in this case were somewhere on the spectrum between MacDonald, Sommer & Frates v Yolo County, 477 U.S. 340 (1986) and Palazzolo v Rhode Island, 533 U.S. 606 (2001).  The Judge stated that although the plaintiffs had submitted more than one variance request, they did not demonstrate that the zoning board would not approve anything. Although in their amended complaint the plaintiffs pointed to statements by two zoning board members expressing a view that the plaintiffs should not be able to develop on the property and that they should sell to the Appalachian Trial, another board member indicating that the comprehensive plan suggests that the land should not be built on, that the purported lack of road frontage contravened a prior determination of the zoning board, and that these actions had demonstrated that the board “dug its heels in” and would not grant a requested variance, the Judge concluded that they did not meet the ripeness test in Williamson County, 473 U.S. 172 (1985).   The Judge said that the plaintiffs’ conclusory statement about the board having “dug in its heels” was conclusory and unsupported. Further, the Judge said that the statements by a couple of board members cannot lead to the conclusion that a majority of the board has taken a similar position. Therefore, the Court dismissed the case.

The Judge did continue that even if he were to find that the matter was ripe, he would have dismissed for failure to state an equal protection claim.  Assuming the plaintiffs intended to bring a class of one claim, the Judge noted that plaintiffs offered 10 comparators who had allegedly been granted building permits or who allegedly built without application of the steep slope law despite having slopes greater than 25%, yet the Judge concluded that the complaint failed to allege “other facts sufficient to plausibly suggest the requisite extremely high degree of similarity.”  The Judge listed a number of facts he would need to make these similarities, including what zoning districts the other parcels are in, the minimum lot size in those zones, etc.

Lastly, in dismissing the matter, the Court reiterated that federal courts should be wary of “transforming run-of-the-mill zoning cases into cases of constitutional right,” (citing Olech) and that “[F]ederal courts should be extremely reluctant to upset the delicate political balance at play in local land use disputes.”

Filipowski v Village of Greenwood Lake, 2013 WL 3357174 (SDNY 7/3/2013).

The opinion can be accessed at:

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