Posted by: Patricia Salkin | March 19, 2016

NY Appellate Court Holds Lawsuit Was Not Ripe for Judicial Review Since No Final Decision was Rendered by Town Regarding Use of Property for Care and Counseling Services for Recovering Drug Users

Plaintiffs purchased a property within the Town of Babylon with the intended purpose of operating a facility providing care and counseling services to recovering drug users, alcohol users, and others. They commenced this action alleging that the Town violated their right to due process and equal protection by prohibiting them from utilizing the property for this intended purpose. The Town moved pursuant to CPLR 3211(a) to dismiss the complaint, arguing that the controversy was not justiciable since the plaintiffs never submitted a complete application for a building permit, a special use permit, or any other type of permit or approval, and since the Town never reached any final decision with respect to any such land use application. The Supreme Court denied the Town’s motion to dismiss, and the Town appealed.

Here, the Planning Department deemed the building permit application incomplete, informing the plaintiffs that they needed to submit an application for site plan review to the Town’s Planning Board regarding a “change of use.” Instead, the plaintiffs submitted an “architectural site plan,” which they urged the Planning Board to accept in lieu of the requested full set of civil drawings. After the architectural site plan was not accepted, the plaintiffs failed to take any further steps to complete an application for a building permit, change of use permit, or any other permit or approval with the Planning Board or the Town’s Board of Zoning Appeals. Because of this, the court found that no “final decision” was rendered by the Town which is ripe for judicial review. For the aforementioned reasons, and because there was no evidence of futility, the court found the action to be unripe.

Loskot-D’Souza v. Town of Babylon, 2016 WL 802858 (NYAD 2 Dept. 3/2/2016)

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