Posted by: Patricia Salkin | January 18, 2014

Fed. Dist. Court in NY Dismissed Plaintiff’s Fifth Amendment Takings Claim for Lack of Ripeness

On January 3, 2006, the Town of North Hempstead “enacted a zoning ordinance that included a prohibition on the development of vacant corner lots that were at least 100 feet wide on each side adjacent to the street.” In September 2008, Qing Dong purchased an undeveloped lot on the corner of Rutland Road and Somerset Drive with dimensions measuring 154 feet by 80 feet.

In October 2009, the North Hempstead Department of Buildings denied Dong’s application for a building permit. Dong then sought a variance from the town’s Board of Zoning Appeals, but that was also denied. On November 12, 2009, Dong commenced an Article 78 proceeding to reviewing the Zoning Board’s denial of her application for a variance. The Supreme Court of New York, Nassau County, sustained the board’s denial of the variance. Dong then appealed to the Appellate Division, Second Department, which affirmed the denial of a variance. Dong then commenced an action in federal court, “alleging a Fifth Amendment takings claim under . . . and seeking an injunction to require [the Town] to either issue [Dong] a building permit or a variance.”

The Town argued that Dong’s takings claim was not ripe for review, which the East District of New York agreed. Ripeness is especially important in the area of land use because it “is intended to avoid premature adjudication of administrative action.” Sunrise Dev., Inc. v Town of Huntington, N.Y., 62 F. Supp.2d 762 770 (E.D.N.Y. 1999)

The District Court applied the two-prong test the United States Supreme Court established in Williamson Cnty. Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 (1985). The first prong is whether the “entity charged with implementing the regulations” has reached a final decision. The second prong requires “the plaintiff [to] exhaust all reasonable, certain, and adequate state procedures to recover just compensation.” In the instant case, the second prong was at issue.

New York State law allows a party to make a takings claim or just compensation claim either by commencing an Article 78 proceeding or making an argument “under New York’s Eminent Domain Procedure Law.” The District Court stated that while Dong commenced an Article 78 proceeding, she did not seek just compensation but merely a review of the denial. Therefore, she did not satisfy the ripeness requirement set forth in Williamson. In response, Dong argued that a just compensation claim in New York State court “would have been futile because a pre-ownership regulation does not constitute a taking under the New York State Constitution,” and could only be successful in federal court. The District Court found Dong’s argument of futility insufficient for two reasons: first, that a plaintiff could always avoid dismissal based on ripeness for merely alleging futility in state court, and second, futility is only an exception to the first prong of Williamson.

In addition to its ripeness argument, the Town further asserted that the doctrine of collateral estoppel barred Dong’s claim; the District Court agreed. Dong’s claims in District Court were the exact claims she raised at the Article 78 proceeding, and Dong admittedly states that the proceeding provided her with a fair and full opportunity to litigate. Therefore, Dong’s claim was barred by collateral estoppel. The District Court granted the town’s motion to dismiss, with prejudice.

Qing Dong v Town of North Hempstead, 2013 WL 6407724 (E.D.N.Y. 12/9/2013)

The opinion can be accessed at:

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