Posted by: Patricia Salkin | November 9, 2018

Second Circuit Court of Appeals Holds Property Owner’s Failure to Pursue Special Permit Under Town’s Rear-Lot Regulation Did Not Preclude Action from Being Ripe

This post was authored by Matthew-Loeser, Esq,

Appellant Timothy Martin appealed from a judgment dismissing his §1983 action against the Town of Simsbury and various town officials. Martin owned a property which he intended to build a one-family home on. Appellees informed Martin that he first needed to conduct an inland-wetlands investigation. Believing his property did not contain any inland wetlands, Martin instead applied for a building permit. Appellee Michael Glidden informed him that no building permit would be issued until Martin completed the wetlands investigation. Additionally, Martin was told that he could not build on his property because the lot did not have the requisite street frontage. Glidden suggested that Martin apply for a special permit under the town’s rear-lot regulation. Martin instead appealed to the Simsbury Zoning Board of Appeals (“ZBA”), which affirmed. Martin then sought a variance from the frontage requirement, which was denied. Finally, Martin filed this action, claiming that Appellees’ actions effected an unconstitutional taking of his property, denied him due process, and violated equal protection. The district court dismissed Martin’s claims, finding that Martin had failed to meet the final-decision prong of Williamson County.

On appeal, Martin contended that pursuing a special permit under this regulation would have been futile. Under Article 7(C)(8) of the Simsbury Zoning Regulations, a prospective developer could seek a special exception allowing a lot to be divided to create a new lot that can be developed, notwithstanding the newly created lot’s failure to meet the frontage requirement, provided certain conditions are met. The court determined, however, that this regulation applied to the dividing of a lot, required that the lot have been in its current configuration since 1969, and applied only if the current lot met the applicable frontage requirements. Here, Martin was not looking to divide his lot. Additionally, his lot did not meet the applicable frontage requirements, and was created in 2011. Thus, on its face, the regulation was inapplicable to Martin’s property, and pursuing this course would therefore have been futile. Accordingly, Martin’s failure to seek such an exception did not affect the finality of the ZBA’s decision.

Next, appellees argued that Martin could have merged his property with an abutting lot and then sought a permit to build an accessory structure, such as a swimming pool or a tennis court. The court rejected this, finding that requiring Martin to exhaust all the potential uses of his property before bringing his constitutional claims would have conflated prudential ripeness with the merits. Accordingly, the court found that the district court erred by ruling that Martin failed to satisfy the first prong of Williamson County, and vacated the district court’s judgment dismissing Martin’s amended complaint.

Martin v Town of Simsbury, 735 Fed. Appx. 750 (2nd Cir CA 2018)

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