Posted by: Patricia Salkin | April 25, 2016

NY Appellate Court Finds No Cognizable Property Interest to Support Due Process Claim in Subdivision Request Based on 25 Year Old SEQRA Review

In 1987, in connection with a proposal to subdivide a 950-acre parcel of real property then owned by the plaintiffs/petitioners Leonard and Habiague in the Town of Union Vale, the Town Planning Board issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA). Thereafter plaintiffs/petitioners sought and received approval from the Planning Board to subdivide a portion of the property, which was developed.

In 2012, Habiague, Leonard, and the plaintiff/petitioner Dryfoos, to whom a portion of the property had been sold, applied for preliminary plat approval to subdivide the remainder of the parcel. The application used the 1987 negative declaration. The Planning Board determined that the 1987 negative declaration was inapplicable to the subject application and, therefore the application was incomplete. Plaintiffs/petitioners the commenced this action to recover damages pursuant to 42 USC § 1983, on the ground that the Planning Board’s determination concerning the negative declaration violated their substantive due process rights. The plaintiffs/petitioners appealed the trial court’s decision granting that branch of the defendant/respondent’s motion alleging a violation of constitutional rights pursuant to 42 USC § 1983; and (2) from an order of the same court which denied their motion for leave to renew their opposition to that branch of the defendant/respondent’s motion alleging a violation of constitutional rights pursuant to 42 USC § 1983.

The appellate court noted that to establish a violation of substantive due process rights, plaintiffs are required to establish “a cognizable or vested property interest, not the mere hope of one. Here, the plaintiffs/petitioners were required to establish a “legitimate claim of entitlement’ ” to have the 1987 negative declaration applied to their present application for preliminary plat approval. Because the Planning Board’s discretion in this respect was not “so narrowly circumscribed” the application of the 1987 negative declaration to the present project was “virtually assured,” the plaintiffs/petitioners failed to allege a cognizable property interest.

Leonard v Planning Bd. of Town of Union Vale, 136 AD3d 873 (NYAD 2 Dept 2/17/2016)

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