District Judge Gary Sharpe
Firetree operates residential re-entry facilities under contract with the Bureau of Prisons. In 2007 it agreed to buy property in defendant town, closing thereon in 2008. Its applications for a commercial zoning verification (CZV) from the town’s buildings department described its proposed new building as a “community corrections facility” and “community reentry center.” The issued CZVs were rescinded by Rosch, the head of the town’s building department. In 2010 a state court held Rosch authorized to rescind the CZVs, and that Firetree’s failure to appeal that decision precluded judicial review. District court granted defendant town and certain officials judgment in Firetree’s 42 USC §1983 action alleging breach of Fifth Amendment rights. Citing the two-pronged test in Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, the court found no record evidence that Firetree sought redress through state procedure. Such failure was fatal to Firetree’s claim. The court further noted that despite Firetree’s claim that rescission was arbitrary, the town defendants had the right to rescind the CZV and/or disapprove Firetree’s minor site plan to alter the parcel’s existing structure.