Scott E. Mollen
Scott E. Mollen ()

Land Use—Allegations of Intentional and Improper Delay by Town Officials Who Abused Their Authority and Pandered to a Vocal Minority to Block Development of an Otherwise Permitted Asphalt Facility—Case Dismissed—Dispute Was Not Ripe for Decision—Project Application Was Still Pending—42 U.S.C. §1983 Claims

A plaintiff alleged that the defendant town and defendant member of the town board (defendants) “used improper, discriminatory and unconstitutional means to thwart plaintiff’s efforts to construct a hot mix asphalt plant” (project) in an industrial park. The plaintiff alleged that the defendants discriminated against the plaintiff “by: applying different standards to [the project] than to other projects proposed by similarly situated businesses; deliberately prolonging the processing of [plaintiff's] site plan application…; enacting an ordinance designed to delay, hinder and prevent [the project], and then lying about the purpose of the ordinance; refusing, in bad faith, to process [plaintiff's] site plan application; refusing to withdraw the ordinance, despite publically acknowledging its defects, and instead forcing [plaintiff] to litigate the issue in the [NYS] Supreme Court; purposefully delaying processing the site plan after the Supreme Court struck down the ordinance; and by passing a new ordinance that repeated the same problems as the earlier one.”

The complaint sought damages based on 42 U.S.C. §1983 and violations of substantive due process. The plaintiff also alleged a violation of its constitutional right to equal protection and sought a declaratory judgment that development of the project “‘shall be pursuant to the Zoning Code, Town Comprehensive Plan and other regulations regarding property development as they existed the day that’ the local ordinance, ‘which had been judicially nullified due to notice defects, was enacted.’”

The defendants had moved to dismiss. The court granted the motion to dismiss on the grounds that the plaintiff’s claims were not “ripe.” The court explained that “[i]n the zoning context, the proponent of jurisdiction must show that the court can ‘look to a final, definitive position from a local authority to assess precisely how they can use their property.’” That rule is applicable to constitutional takings claims, as well as “equal protection and due process claims in the context of land use challenges.” The court further stated that “[a] plaintiff must meet a two-part test, demonstrating that (1) the state regulatory entity has rendered a ‘final decision’ on the matter, and (2) the plaintiff has sought just compensation by means of an available state procedure.”

The plaintiff contended that it had been victimized by “on-going pervasive…government-sponsored disparate treatment and other civil rights violations[.]” The complaint further alleged that the defendants had failed to make land use decisions based “ on a level playing field” and pursuant to “a comprehensive plan”(plan). The plaintiff noted that asphalt production had been permitted in the industrial park since at least 1985, and had been permitted in a revision of the plan in 2006. The plaintiff stated that town officials had abused their authority and permitted “a vocal minority and ‘petty prejudices’ to stand in the way of the project.”

In May 2011, allegedly in reliance on the fact that the town had “‘considered the propriety of allowing the manufacturing of blacktop in’ the industrial park,” the plaintiff signed a 20-year lease agreement for property in the industrial park. In June 2011, the plaintiff applied to the town planning board for approval to build the project. The planning board referred the site plan to the county planning board, which determined that “the matter was local and returned the plan to the town board.” The planning board reviewed the application, but had neither approved nor rejected it. The planning board, “allegedly out of a desire to prevent an approval of the project and despite the fact that the blacktop plant was an expressly permitted use, issued a decision that required [plaintiff] to produce an environmental impact statement” (EIS).

The parties then had disputes as to “the propriety and legal standing of amendments to the town’s zoning ordinances….” State court decisions overturned and enjoined such ordinances. The planning board had also requested further revisions to the EIS. The plaintiff, allegedly based on the defendants’ “deliberate delays and attempts to derail the project,… requested that the planning board resume processing its site plan application, accept the draft [EIS] as complete, and begin a public comment period.” The planning board rejected such request and insisted on further revisions to the EIS. The plaintiff alleged that even after it made such revisions, the planning board still refused to accept the EIS. Finally, on Sept. 14, 2014, the planning board accepted the draft EIS and set a hearing date.

A State Supreme Court thereafter issued an order granting the plaintiff’s request to enjoin the defendants “from enforcing… [the second ordinance] to plaintiff-petitioner’s application to construct” the project. The Supreme Court directed that “processing shall continue… unaffected by [the second ordinance] as of the date of this order.”

The plaintiff asserted that based on the time and expense of litigation, the need to challenge and nullify “the town’s illegal enactments,” and because the town would merely enact another roadblock, it “decided to recast its application” on the basis that its application was really for “improvements,” as opposed to a “use.” The town rejected that attempt, and found that all “uses” in the IP had to be “permitted and appear in the use table contained in the zoning law.” The town’s Zoning Appeals Board (ZBA) affirmed that decision.

The plaintiff alleged that the defendants “opposed the construction of a business that was legal under the town’s current zoning plan,” and took numerous steps “which violated local laws and rules… to prevent the construction of that project.” The complaint alleged that defendants’ actions had wrongfully stopped the project and the plaintiff was entitled to damages.

The court held that even if it accepted the allegations as true, the case was “not ripe for disposition using the standards for zoning cases….” Nothing in the complaint indicated that the Town Zoning Board or the ZBA had ever ruled on the plaintiff’s application for a permit to construct its asphalt plant. Although the complaint stated “voluminous allegations” detailing the town officials’ alleged bad faith, the plaintiff had not alleged that its “initial application has ever been withdrawn or rejected.” The State Court decision which restrained application of an ordinance, which the plaintiff cited as “evidence of defendants’ chicanery,” directed the town to continue processing the plaintiff’s application. Nothing indicated that the plaintiff had abandoned its initial application or that an appeal of the initial denial had been completed.

Thus, the court opined that the plaintiff had not “completed the application process.” The plaintiff was “convinced that the game is rigged to prevent approval of the plan.” However, the court noted that the plaintiff admitted that “the approval process is still ongoing.” The court reasoned that approval of the plaintiff’s plan “would vitiate plaintiff’s claims, and the court will not expend judicial resources on a matter than may in the end be moot.” The court believed that case would “‘be better decided later and that the parties will not have constitutional rights undermined by the delay.’”

The plaintiff had argued that allegations of “intentional and improper delay, as opposed to challenging an adverse decision,” are sufficient in order to bring a Section 1983 claim based on a zoning decision. The plaintiff had cited “non-binding precedent from other circuits and districts.” The plaintiff asserted that it was not seeking damages for injuries caused by the defendants’ current refusal to permit the project, but was seeking “damages for injuries caused by defendants’ earlier intentional and improper delay of the project.”

The court explained that “[t]he law in this circuit is clear that a case involving a zoning decision is not ripe until a final and definitive decision on the project in question is issued” by the subject agency. Here, the plaintiff admitted that “no such decision ha[d] been issued” and at least part of the delay seemed attributable “to litigation initiated by the plaintiff in seeking to overturn ordinances rather than by demanding a final decision on [plaintiff's] plans for an asphalt plant.” The court reasoned that any damages that the plaintiff might claim from the delays “are dependent on the ultimate outcome of the zoning process; plaintiff’s damages would certainly be less if the plaintiff eventually obtains a permit.” Thus, the court held that there was “no reason to press forward with the case now” and dismissed the damage claims based on “ripeness.” The court further noted that “[c]ourts have found that the ripeness doctrine pertains to equal protection and due process claims, which are plaintiff’s constitutional claims as expressed in the various counts.” Accordingly, the court also dismissed the declaratory judgment cause of action.

Dolomite Products Co. v. Town of Ballston, 1:15-CV-917, NYLJ 1202768914935, at *1 (NDNY, Decided Sept. 27, 2016), McAvoy, J.

Land Use—Allegations of Intentional and Improper Delay by Town Officials Who Abused Their Authority and Pandered to a Vocal Minority to Block Development of an Otherwise Permitted Asphalt Facility—Case Dismissed—Dispute Was Not Ripe for Decision—Project Application Was Still Pending—42 U.S.C. §1983 Claims

A plaintiff alleged that the defendant town and defendant member of the town board (defendants) “used improper, discriminatory and unconstitutional means to thwart plaintiff’s efforts to construct a hot mix asphalt plant” (project) in an industrial park. The plaintiff alleged that the defendants discriminated against the plaintiff “by: applying different standards to [the project] than to other projects proposed by similarly situated businesses; deliberately prolonging the processing of [plaintiff's] site plan application…; enacting an ordinance designed to delay, hinder and prevent [the project], and then lying about the purpose of the ordinance; refusing, in bad faith, to process [plaintiff's] site plan application; refusing to withdraw the ordinance, despite publically acknowledging its defects, and instead forcing [plaintiff] to litigate the issue in the [NYS] Supreme Court; purposefully delaying processing the site plan after the Supreme Court struck down the ordinance; and by passing a new ordinance that repeated the same problems as the earlier one.”

The complaint sought damages based on 42 U.S.C. §1983 and violations of substantive due process. The plaintiff also alleged a violation of its constitutional right to equal protection and sought a declaratory judgment that development of the project “‘shall be pursuant to the Zoning Code, Town Comprehensive Plan and other regulations regarding property development as they existed the day that’ the local ordinance, ‘which had been judicially nullified due to notice defects, was enacted.’”

The defendants had moved to dismiss. The court granted the motion to dismiss on the grounds that the plaintiff’s claims were not “ripe.” The court explained that “[i]n the zoning context, the proponent of jurisdiction must show that the court can ‘look to a final, definitive position from a local authority to assess precisely how they can use their property.’” That rule is applicable to constitutional takings claims, as well as “equal protection and due process claims in the context of land use challenges.” The court further stated that “[a] plaintiff must meet a two-part test, demonstrating that (1) the state regulatory entity has rendered a ‘final decision’ on the matter, and (2) the plaintiff has sought just compensation by means of an available state procedure.”

The plaintiff contended that it had been victimized by “on-going pervasive…government-sponsored disparate treatment and other civil rights violations[.]” The complaint further alleged that the defendants had failed to make land use decisions based “ on a level playing field” and pursuant to “a comprehensive plan”(plan). The plaintiff noted that asphalt production had been permitted in the industrial park since at least 1985, and had been permitted in a revision of the plan in 2006. The plaintiff stated that town officials had abused their authority and permitted “a vocal minority and ‘petty prejudices’ to stand in the way of the project.”

In May 2011, allegedly in reliance on the fact that the town had “‘considered the propriety of allowing the manufacturing of blacktop in’ the industrial park,” the plaintiff signed a 20-year lease agreement for property in the industrial park. In June 2011, the plaintiff applied to the town planning board for approval to build the project. The planning board referred the site plan to the county planning board, which determined that “the matter was local and returned the plan to the town board.” The planning board reviewed the application, but had neither approved nor rejected it. The planning board, “allegedly out of a desire to prevent an approval of the project and despite the fact that the blacktop plant was an expressly permitted use, issued a decision that required [plaintiff] to produce an environmental impact statement” (EIS).

The parties then had disputes as to “the propriety and legal standing of amendments to the town’s zoning ordinances….” State court decisions overturned and enjoined such ordinances. The planning board had also requested further revisions to the EIS. The plaintiff, allegedly based on the defendants’ “deliberate delays and attempts to derail the project,… requested that the planning board resume processing its site plan application, accept the draft [EIS] as complete, and begin a public comment period.” The planning board rejected such request and insisted on further revisions to the EIS. The plaintiff alleged that even after it made such revisions, the planning board still refused to accept the EIS. Finally, on Sept. 14, 2014, the planning board accepted the draft EIS and set a hearing date.

A State Supreme Court thereafter issued an order granting the plaintiff’s request to enjoin the defendants “from enforcing… [the second ordinance] to plaintiff-petitioner’s application to construct” the project. The Supreme Court directed that “processing shall continue… unaffected by [the second ordinance] as of the date of this order.”

The plaintiff asserted that based on the time and expense of litigation, the need to challenge and nullify “the town’s illegal enactments,” and because the town would merely enact another roadblock, it “decided to recast its application” on the basis that its application was really for “improvements,” as opposed to a “use.” The town rejected that attempt, and found that all “uses” in the IP had to be “permitted and appear in the use table contained in the zoning law.” The town’s Zoning Appeals Board (ZBA) affirmed that decision.

The plaintiff alleged that the defendants “opposed the construction of a business that was legal under the town’s current zoning plan,” and took numerous steps “which violated local laws and rules… to prevent the construction of that project.” The complaint alleged that defendants’ actions had wrongfully stopped the project and the plaintiff was entitled to damages.

The court held that even if it accepted the allegations as true, the case was “not ripe for disposition using the standards for zoning cases….” Nothing in the complaint indicated that the Town Zoning Board or the ZBA had ever ruled on the plaintiff’s application for a permit to construct its asphalt plant. Although the complaint stated “voluminous allegations” detailing the town officials’ alleged bad faith, the plaintiff had not alleged that its “initial application has ever been withdrawn or rejected.” The State Court decision which restrained application of an ordinance, which the plaintiff cited as “evidence of defendants’ chicanery,” directed the town to continue processing the plaintiff’s application. Nothing indicated that the plaintiff had abandoned its initial application or that an appeal of the initial denial had been completed.

Thus, the court opined that the plaintiff had not “completed the application process.” The plaintiff was “convinced that the game is rigged to prevent approval of the plan.” However, the court noted that the plaintiff admitted that “the approval process is still ongoing.” The court reasoned that approval of the plaintiff’s plan “would vitiate plaintiff’s claims, and the court will not expend judicial resources on a matter than may in the end be moot.” The court believed that case would “‘be better decided later and that the parties will not have constitutional rights undermined by the delay.’”

The plaintiff had argued that allegations of “intentional and improper delay, as opposed to challenging an adverse decision,” are sufficient in order to bring a Section 1983 claim based on a zoning decision. The plaintiff had cited “non-binding precedent from other circuits and districts.” The plaintiff asserted that it was not seeking damages for injuries caused by the defendants’ current refusal to permit the project, but was seeking “damages for injuries caused by defendants’ earlier intentional and improper delay of the project.”

The court explained that “[t]he law in this circuit is clear that a case involving a zoning decision is not ripe until a final and definitive decision on the project in question is issued” by the subject agency. Here, the plaintiff admitted that “no such decision ha[d] been issued” and at least part of the delay seemed attributable “to litigation initiated by the plaintiff in seeking to overturn ordinances rather than by demanding a final decision on [plaintiff's] plans for an asphalt plant.” The court reasoned that any damages that the plaintiff might claim from the delays “are dependent on the ultimate outcome of the zoning process; plaintiff’s damages would certainly be less if the plaintiff eventually obtains a permit.” Thus, the court held that there was “no reason to press forward with the case now” and dismissed the damage claims based on “ripeness.” The court further noted that “[c]ourts have found that the ripeness doctrine pertains to equal protection and due process claims, which are plaintiff’s constitutional claims as expressed in the various counts.” Accordingly, the court also dismissed the declaratory judgment cause of action.

Dolomite Products Co. v. Town of Ballston, 1:15-CV-917, NYLJ 1202768914935, at *1 (NDNY, Decided Sept. 27, 2016), McAvoy, J.