Posted by: Patricia Salkin | July 11, 2015

Fed. Dist. Court in NY Upholds Denial of Motion for Reconsideration Based on Futility Grounds

The Plaintiff’s claims arose under 42 U.S.C. § 1983 from two decisions by the Defendant Town of Southampton Planning Board involving conditional approvals of the Plaintiff’s applications for a building permit for the construction of a barn on its property. The Plaintiff also commenced two related state court proceedings pursuant to Article 78 to challenge the decisions of the Planning Board as affected by errors of law, as arbitrary and capricious, as an abuse of discretion, and as not supported by a rational basis. On April 8, 2015, the court granted in part and denied in part the Defendants’ motion for reconsideration of the court’s August 19, 2014 denying the Defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction; failure to state a claim upon which relief can be granted, and, as to the Individual Defendants, on the basis of qualified immunity.

On April 22, 2015, the Defendants moved pursuant to Local Civil Rule 6.1 for reconsideration of the court’s April 8, 2015 order, claiming that the Court misapprehended their ripeness-based argument. On May 8, 2015, the court granted the Defendants’ motion for reconsideration on the basis that this action was unripe for review, due to the December 2014 decision in the State Court Article 78 action. The complaint was dismissed without prejudice with leave to refile at such time as the claims became ripe or an exception to the ripeness doctrine could be shown. On May 15, 2015, the Plaintiff moved pursuant to Local Civil Rule 6.3 for reconsideration of the May 8, 2015 order. The Plaintiff contends in part that, in declining to find that further proceedings before the Planning Board were not futile, the Court misapprehended the permitting restrictions of Sections 330–51 and 330–50(d)(2) of the Southampton Town Code.

The court first noted that the futility exception to the ripeness doctrine, sets forth that a property owner will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. Furthermore, in a land use context, the futility exception is applied when the relevant “agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.” Safe Harbor Retreat, LLC v. Town of E. Hampton, 2015 WL 918771 (E.D.N.Y. Mar. 2, 2015). While the Court agreed with the Plaintiff to the extent that any consideration of its land use applications by the Planning Board under Section 330–51(a) would be futile, it found the Plaintiff had not shown futility with regard to consideration of those land use applications under the permitted use under the Grant of the Agricultural Reserve Area (“ARA”) as open, fallow, landscaped, and wooded areas.

The court determined that it was not entirely clear that the Plaintiff’s land use applications were not a permissible use of the ARA, and the Planning Board failed to consider this possibility. Because it appeared that neither the Town Attorney nor the Planning Board had made any pronouncements on this possibility, separate and apart from their litigation positions with regard to Section 330–50(D)(2), it denied the Plaintiff’s motion for reconsideration.

545 Halsey Lane Properties, LLC v Town of Southampton, 2015 WL 3824050 (EDNY 6/19/2015)

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