Posted by: Patricia Salkin | March 27, 2016

Fed. Dist. Court in NY Dismisses Claims on Ripeness Ground Due to Owners’ Failure to Obtain a Final Decision from Town on Applications for Special Exemption Permits for Two Cabarets

Plaintiffs Billy Dean and Rori Leigh Gordon were the president and vice president of plaintiff One55Day Inc. (“One55Day”) and own the Wantagh Cabaret. Additionally, Gordon was the president and Dean the vice president of Look Entertainment, Ltd. (“Look Entertainment”) and Green 2009 Inc. (“Green 2009”). Plaintiffs brought this action against defendants Town of Hempstead, the Town’s Building Inspector, the Town’s Supervisor, and the individual members of the Town’s Board of Appeals, pursuant to 42 U.S.C. § 1983. Specifically, the plaintiffs sought a judgment declaring that the defendants’ denial of their applications for special exception permits, certificates of occupancy, and public assembly licenses for two cabarets violated the First, Fifth, and Fourteenth Amendments to the United States Constitution.

As to the Wantagh Property, the defendants claimed that the plaintiffs have not received final decisions from the Town as to: Dean’s application for a special exception permit from the Board to operate a cabaret on the Wantagh Property; and Dean’s application for a certificate of occupancy to operate a restaurant on the Wantagh Property. Specifically, the defendants argued that the plaintiffs’ first application for a special exception permit to operate a cabaret—initially granted after a hearing, and subsequently denied after a rehearing—was not a “meaningful application” because it was denied on the grounds that the plaintiffs “had not submitted a complete truthful application and had misled the Board.” Here, the plaintiffs had not resubmitted a plan to operate a cabaret and thus had not received a determination on the merits that, if favorable, would render their claims moot. Furthermore, there was no indication that the plaintiffs applied to the Board for, or received, a variance. Likewise, the court found the Bellmore applications to be unripe, as evidenced by plaintiffs’ complaint, “to date, the Defendants have refused to act on the Plaintiffs’ pending application to renew the permit for the Bellmore Cabaret or for a variance for off-street parking.” Plaintiffs’ First Amendment claims were also dismissed due to their failure to show some injury independent of the challenged land-use decision.

The court then analyzed whether and further efforts to obtain final decisions from the Town would be futile. The defendants identified a number of “non-discretionary building and zoning code deficiencies and violations” in connection with the applications, and outlined the steps the plaintiffs need to take to remedy these deficiencies. The court found that because the Board did not make a determination about the special exception permit application on its merits, it would not be futile for the plaintiffs to avail themselves of the procedures set forth by the Town’s laws. With respect to the Bellmore applications, the defendants consistently stated that to apply for and receive a hearing on the application for a special use permit, the plaintiffs needed to first resolve their open building permit issues, which entailed applying to New York State for a variance, and receiving the same. Lastly, the court found that the delays in receiving a decision cited by the plaintiffs did not excuse the plaintiffs from Williamson’s final decision requirement. Even though, the Town imposed several burdensome steps on Dean, the court held that a federal lawsuit at this stage would “inhibit the kind of give-and-take negotiation that often resolves land use problems, and would in that way impair or truncate a process that must be allowed to run its course.”

Dean v. Town of Hempstead, 2016 WL 660884 (EDNY 2/18/2016)


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