Posted by: Patricia Salkin | December 5, 2016

Second Circuit Court of Appeals Finds Claim of an Ongoing Regulatory Taking was Moot

Plaintiff-Appellant BT Holdings, LLC appealed from the order and opinion of the United States District Court for the Southern District of New York, which granted Defendants-Appellees Village of Chester and Village of Chester Board of Trustees’s motion to dismiss BT Holdings’s regulatory takings claim as unripe. Plaintiff-Appellant’s complaint asserted a claim under 42 U.S.C. § 1983 alleging an unconstitutional regulatory taking in violation of the Fifth and Fourteenth Amendments. On appeal, Plaintiff-Appellant alleged that because its property lacked any zoning whatsoever and because both the Village’s Planning Board and its Zoning Board of Appeals could consider an application for a site plan or a variance only for a property already zoned, it would be futile to submit an application to either body.

At oral argument, the parties for the first time informed the court that the property in question had zoning applied to it almost four months earlier. Because both parties agreed that the property now has zoning, Plaintiff-Appellant had no justification for failing to submit a plan for developing its property, the required next step under regulatory takings ripeness analysis. Accordingly, BT Holdings was left only with the argument that there was a temporary taking for the period of time during which it “had no use of the property or was unable to use the property. The court found that this claim was also without merit, as Plaintiff-Appellant provided no evidence in the record that it ever formally petitioned the Village Board to apply one of the Village of Chester’s zoning districts to its property and that the Village Board voted against such a petition.

Because Plaintiff-Appellant’s claim of an ongoing regulatory taking was moot, and its temporary takings claim failed to satisfy the Williamson County test, the court affirmed the district court’s dismissal of this action.

BT Holdings v Village of Chester, 2016 WL 6561493 ( 2nd Cir. CA 11/4/2016)


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