Posted by: Patricia Salkin | August 6, 2020

Second Circuit Finds Section 1983 and 1985 Claims Over Zoning Enforcement were Time Barred

This post was authored by Matthew Loescher, Esq.

Plaintiffs Dennis Sant and Kathleen Sant obtained a building permit to add a pole barn to their property, which they used as living quarters for Dennis Sant’s brother. However, Plaintiffs were unable to obtain permission to regularize the use of the barn as living quarters. In 2008, the Town informed plaintiffs that the property could not be used for multi-residential use. In 2009, plaintiffs applied to the Town Planning Board for a zoning variance, but approval was not granted. In 2013, plaintiffs were served with an appearance ticket for a building code violation. The Town Court dismissed the ticket in 2016, and the Appellate Division affirmed the dismissal on May 23, 2017. On September 26, 2017, plaintiffs brought an Article 78 proceeding to compel the Town to grant them a variance. The action was dismissed as unripe on March 20, 2018 because plaintiffs failed to submit an application to the Town Zoning Board of Appeals and therefore had not exhausted administrative remedies available to them. Plaintiffs then filed this action, alleging that their difficulties obtaining a zoning grant were the result of retaliation by defendants for Dennis Sant’s public criticism of Stephens, and that the Town engaged in selective enforcement of the zoning code. The district court granted defendants’ motion to dismiss and this appeal followed.

The record reflected that the action was filed on October 29, 2018, thus any §1983 and §1985 claims premised on acts that accrued prior to October 29, 2015 were untimely. Additionally, most of the cognizable acts alleged in the Complaint were “discrete unlawful acts” that occurred well before 2015. Accordingly, the district court did not err in concluding that plaintiffs’ claims pursuant to §1983 and §1985 that were premised on these discrete acts were time-barred. The only continuing violation alleged was that Plaintiffs applied for a zoning variance in 2009, but the Town never granted the variance. Even if this claim was brought timely, the court noted that any claims premised on this alleged inaction would still fail because plaintiffs did not file all the proper applications needed to obtain the variance.

Lastly, the Complaint alleged one discrete action that occurred within the limitations period: the Town’s measurement of setbacks in March 2018. Although timely, the court held any §1983 and §1985 claims premised on this act would nonetheless fail because plaintiffs did not allege that Stephens personally participated in causing the setback measurement.

Sant v Stephens, 2020 WL 4307094 (2nd Cir. CA 7/28/2020)

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