Posted by: Patricia Salkin | November 8, 2015

Second Circuit Court of Appeals Affirms Dismissal of Inverse Condemnation and Vagueness Claim

Plaintiff Arrigoni Enterprises, LLC brought this action against Defendants the Town of Durham, the Durham Planning and Zoning Commission (“PZC”), and the Durham Zoning Board of Appeals (“ZBA”), alleging that Defendants’ denial of Arrigoni’s applications for land development permits constituted an unconstitutional inverse condemnation of Arrigoni’s property and violated its rights to substantive due process and equal protection. Arrigoni further argued that § 12.05 of the Town of Durham’s zoning regulations was unconstitutionally vague, both facially and as applied to Arrigoni. In this case, Arrigoni appeals the granting of summary judgment in favor of the Town by the District Court.

The court first affirmed the dismissal of the inverse condemnation claim as unripe because Arrigoni failed to seek compensation through the procedures the State had provided. Next, the court found that a constitutionally cognizable property interest in a land use permit arises only when a plaintiff can show a “clear entitlement” to the permit, which exists only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.” Here, due to the discretionary nature of the state-authorized special permit process, the District Court properly concluded that Arrigoni lacked a constitutionally cognizable property interest in the special development permit.

Next, the court found no abuse of discretion in the District Court’s exclusion of Arrigoni’s late-submitted comparator evidence from the equal-protection trial. In addition to having had ample opportunity to disclose this comparator in discovery, the court noted that the PZC rejected Arrigoni’s application because it proposed high-volume rock crushing in a zone in which rock crushing is prohibited. Therefore, there was no basis for concluding that the extra evidence would have persuaded the jury that Arrigoni was treated differently than the proposed comparators without any plausible explanation for the disparity. Finally, the court affirmed the denial of Arrigoni’s request for a declaratory judgment that § 12.05 was unconstitutionally vague both as applied and facially. It found that the regulation informed the reader that the activity in which Arrigoni proposed to engage was prohibited, and it used terms that gave a reasonably prudent person fair warning of what activities were prohibited. Accordingly, the District Court’s holding was affirmed.

Arrigoni Enterprises, LLC v Town of Durham, 2015 WL 6118204 (2d Cir. CA 10/19.2015)


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