Posted by: Patricia Salkin | November 21, 2014

NY Appellate Court Finds First Amendment Constitutional Challenge to Zoning Ordinance Not Ripe for Review

Plaintiff applied for and was granted, by the City of Troy, a certificate of occupancy for a business described as a gift shop. Soon after the business opened, a complaint was made to the City claiming that adult material was being sold on premises. The Code Inspector found that the majority of the store’s inventory consisted of adult material and that viewing booths had been constructed without seeking a permit for such. As a result, the Inspector issued a stop work order and padlocked the entrance, leaving a message for the owner that the business was being shut down based on a zoning violation.

Plaintiff did not seek a CPLR Article 78 review of the matter, but rather brought a constitutional challenge seeking a reinstatement of its certificate of occupancy and damages, asserting among other things, that the City Code did not specify a zone where adult materials may be sold. The Court noted that the City’s Assistant Plans Examiner stated that if a particular use is not set forth in the Code as permitted as of right or subject to special permit (as was the case with adult uses), that the zoning board has authority to grant use variances.
The Court concluded that since the plaintiff did not disclose the extent of the adult material when applying for the certificate of occupancy and therefore neglected to follow the procedure set forth in the Code, and harm was speculative and that under the circumstances, plaintiff’s challenge to the constitutionality of the Code was not ripe for review.

With respect to plaintiff’s due process claim based on the allegation that the City neglected to reinspect the property or issue an appearance ticket for City Court, the appellate court noted that “where, as asserted here, the alleged deprivation arises from an unauthorized act of a governmental employee, it ‘will not support a due process claim…if adequate…post-deprivation remedies are available.’” Here, the court said, the plaintiff should have brought a CPLR Art. 78 petition for relief. Plaintiff also failed to respond to three notices of violation, and therefore his due process claim was properly dismissed.

Your Place, LLC v City of Troy, 2013 WL 6474899 (NYAD 3 Dept. 11/20/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/518620.pdf


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