Posted by: Patricia Salkin | March 1, 2021

2nd Circuit Court of Appeals Finds Claims Related to the Denial of a Building Permit Were Not Ripe

This post was authored by Matthew Loescher, Esq.

Plaintiff-Appellant Ferncliff Cemetery Association appealed from a judgment in favor of Defendant-Appellee Town of Greenburgh, New York. In that decision, the District Court granted the Town’s motion to dismiss Ferncliff’s First Amended Complaint, which alleged constitutional violations principally arising from the Town’s denial of Ferncliff’s application for a building permit, for lack of subject matter jurisdiction on the ground that the claims were not ripe for review.

In its appeal Ferncliff contended that the District Court erred in concluding that its constitutional claims failed the first part of Williamson’s ripeness test, submitting that there was a final decision as to the parcel. The court rejected this contention, finding Ferncliff failed to allege that it sought or made an application for a variance after the Town’s Zoning Board of Appeals (“ZBA”) upheld the denial of the building permit. Rather than do this, Ferncliff appealed the ZBA’s decision in state courts, which affirmed the ZBA’s decision, and then filed a motion for leave to appeal to the New York Court of Appeals. While Ferncliff argued that its failure to obtain a final decision by way of making a variance application was excused by the doctrine of futility, Ferncliff failed to show that the entities charged with approving use variances lacked discretion to grant the relief it sought, nor had Ferncliff alleged that the ZBA has made clear that Ferncliff’s applications for relief by way of a variance would be denied. The court found that the subsequent actions by the Town Board and Tax Assessor alleged on appeal did not suffice as substitutes for evidence that the ZBA or the relevant entity had “dug in its heels and made clear that all such variance applications will be denied.”  Since Ferncliff had not obtained a final determination or demonstrated that the futility exception applied, the court held that Ferncliff’s federal constitutional claims were premature. Accordingly, the District Court did not err in dismissing Ferncliff’s claims for lack of subject matter jurisdiction on the ground of ripeness.

Ferncliff Cemetery Association, Inc. v Town of Greenburgh, 2021 WL 31948 (2nd Cir CA 2/1/2021)


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