Pro se Plaintiff John Carney alleged that Defendants sent him a letter “without benefit of NYS or US Constitutional Due Process” that informed him that “the use of his sawmill is prohibited.” Plaintiff claimed this letter denied him “the use of his property and interferes with his freedom to contract.” Additionally, Plaintiff alleged that Defendants did not “respond to Plaintiff’s reply dated October 15, 2015 asking for discovery of definitions and statutory authorization of zoning codes.”
The court found that Plaintiff’s Complaint failed to allege that he appealed Defendants’ initial allegation that he violated the Town Building and Zoning Codes by operating an illegal saw mill and maintaining an improper structure on his property. Furthermore, Plaintiff failed to allege that he requested a variance to operate his saw mill or that he applied for a building permit for the structure. Likewise, Defendants demonstrated that Plaintiff had not appealed these issues, and that the Town’s Zoning Board of Appeals had not taken any action. As such, the court determined that until Plaintiff appealed these issues, there was no “final decision” giving the court jurisdiction to adjudicate Plaintiff’s claims. As to the futility exception to the finality requirement, the court found nothing in the Complaint suggested that the ZBA had “dug in its heels” or has otherwise prevented Plaintiff from appealing these decisions. Accordingly, the court held that Plaintiff’s claims were not ripe for judicial review until he obtained a final decision from the ZBA.
Carney v. Swanson, 2016 WL 7450459(WDNY 12/28/2016)