Posted by: Patricia Salkin | November 7, 2014

Second Circuit Rejects Futility Argument in Failure to Obtain a Final Decision on a Variance Application

Plaintiff–Appellant Joseph Kowalczyk claimed that the district court improperly dismissed his substantive due process, procedural due process, and equal protection claims as unripe. Kowalczyk argued that the district court improperly applied the ripeness standards articulated in Williamson County (“Williamson”), 473 U.S. 172 (1985) which requires a party to obtain a final determination from a local land-use governing body before bringing certain types of constitutional challenges based on land-use disputes. Kowalczyk contended that even if the Williamson ripeness doctrine applies to the claims at issue, his failure to obtain a final decision on a variance application should have been excused under the futility exception to the final-decision requirement.

The relevant exception to Williamson in the context of this appeal is futility, occurs when a zoning agency lacks discretion to grant variances or has made it clear that all such applications will be denied. For Kowalczyk to recover non-nominal monetary damages resulting from the evictions, he was required to show not only that he was denied procedural due process, but also that the resulting deprivation was erroneous. Therefore, the court needed to determine whether the local land-use body correctly decided the relevant zoning disputes and properly applied its zoning laws, which were the same determinations that a court would need to make to resolve Kowalczyk’s substantive due process and equal protection claims.

In his claim of futility, Kowalczyk relied on evidence of hostility by certain local officials regarding his zoning compliance. However, because he failed to connect this hostility to the Zoning Board of Appeals, the body charged with deciding such an application, the court found this evidence was insufficient to justify the Williamson exception. Accordingly, the district court’s judgment dismissing Kowalczyk’s claims was affirmed.

Kowalczyk v. Barbarite, 2014 WL 5785477 (CA 2d Cir. 11/7/2014)

The opinion can be accessed at:

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