Bulson v. Town of Brunswick et al

Filing 56

MEMORANDUM-DECISION AND ORDER granting 36 Town Defendants' Motion to Dismiss; granting 42 Herringtons Motion for Judgment on the Pleadings. Plaintiffs claims are DISMISSED without prejudice. The Clerk shall close this action. Signed by Senior Judge Lawrence E. Kahn on 3/7/2025.(oca).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHARLES J. BULSON,
Plaintiff,
-against-

1:24-CV-503 (LEK/DJS)

TOWN OF BRUNSWICK, et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On April 11, 2024, Plaintiff Charles Bulson commenced this action by filing a complaint

against the Town of Brunswick, the Town of Brunswick Zoning Board of Appeals, Charles
Golden, Tom Cioffi, Philip Herrington (collectively, “Town Defendants”), Kenneth Herrington
(“Herrington”), Andrew Gilchrist, and Herrington Farms, Inc. Dkt. No. 1 (“Complaint”). Now
before the Court is the Town Defendants’ motion to dismiss, Dkt. No. 36-20 (“Town Motion”)
and Herrington’s motion for judgment on the pleadings, Dkt. No. 42-1 (“Herrington Motion”)
(collectively, “Motions”). Plaintiff filed responses to the Motions. Dkt. No. 48 (“Response to
Town Motion”); Dkt. No. 49 (“Response to Herrington Motion”). The Town Defendants and
Herrington replied. Dkt. Nos. 55, 54.
For the reasons that follow, the Town Motion and the Herrington Motion are granted.
II.

BACKGROUND
The following facts are set forth as alleged in the Complaint and incorporated by

reference. Mindful that the Complaint is 72 pages and contains 560 paragraphs, the Court limits
its narration only to those facts relevant to resolving the Motions.

On July 21, 2017, Plaintiff submitted a building permit application with the Town of
Brunswick (“Town”), “seeking to construct a 2,000 square-foot ‘tractor shed,’ or barn” on his
property. Compl. ¶ 142. Plaintiff’s application “included building plans for the structure that
showed a 40-foot by 50-foot foundation.” Id. ¶ 143. Brunswick Zoning Law (“BZL”) § 160-29
states that “[a]ll roofed accessory structures, except for agricultural buildings, shall in the
aggregate comprise not more floor area than . . . 1,500 square feet.” Id. ¶ 146. “As submitted,
Plaintiff’s proposed 2,000 square-foot structure exceeded the 1,500 square foot limit.” Id. ¶ 145.
Plaintiff maintained, however, that his proposed structure was exempted from the square footage
limit because it was “clearly an agricultural building.” Id. ¶ 156.
In October 2017, Plaintiff received a call from Charles Golden, the Town’s Code
Enforcement Officer, who told Plaintiff that his permit was approved. Id. ¶ 152. “An area
variance . . . was not requested or required by [] Golden when he approved the building permit
for Plaintiff’s 2,000 square-foot barn.” Id. ¶ 155. Golden “confirmed” on “several occasions”
that Plaintiff’s structure “was clearly an agricultural building not subject to the 1,500 square-foot
limit of [BZL] § 160-29,” so Plaintiff was “not required to apply for an area variance.” Id. ¶ 156.
Ultimately, “Plaintiff built a smaller, more efficient structure than the approved 40-foot
by 50-foot building.” Id. ¶ 160. The structure was a “24.6-foot by 50-foot barn and included an
arched gable roof rather than a sloped gable roof that was necessary for the larger building.” Id.
“Golden was aware of the changes to make the barn smaller,” and he “did not determine a new
or amended building permit was warranted or that an area variance was required.” Id. ¶¶ 166–67.
However, on April 13, 2021, Golden served Plaintiff with a stop work order (“SWO”).
Id. ¶ 185. The Town claimed the permit was issued by mistake. Id. ¶¶ 48, 229. Attached to the
SWO was a letter from Golden dated April 9, 2021, stating:

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An inspection occurred sometime ago for an auxiliary structure that
was supposed to be a 40x50 gable roofed single story building.
Somehow this structure turned into a 25x50 gambrel roofed, two
story barn. I have placed a stop work order on the barn and am going
to have to receive a new building permit application with drawings
for what was built. The building permit application will include a
plot plan that shows the location of this building in relation to the
rear property line to confirm that the building is not located within
the rear setback.
An area variance will also have to be submitted because the current
building is over the maximum of 1500 sq. ft. allowed for an
accessory structure because of the second story. The current foot
print of 1250 sq. ft is doubled for the second floor and the size of the
building with the second floor is 2500 sq ft.
Dkt. No. 36-6 at 2. 1
On March 21, 2022, Plaintiff submitted an amended building permit application “with
drawings for the barn he built.” Id. ¶ 233. Neither Golden, nor any other representative for the
Town, responded to Plaintiff’s application. Id. ¶ 236.
Eventually, “Golden requested access to inspect Plaintiff’s property.” Id. ¶ 255. “Golden
measured the barn, went inside it, and took photos of it.” Id. ¶ 260. Golden then told Plaintiff that
“he needed an area variance for his barn.” Id. ¶ 261. On a separate occasion, the Town also
“instruct[ed] Plaintiff to apply for an area variance for square footage of his barn,” “claim[ng]
that his barn was not an agricultural building.” Id. ¶¶ 513, 253. However, Plaintiff does not
allege that he ever applied for a variance. See generally id.; Resp. to Town Mot. at 39. Plaintiff
maintains that he could not, because BZL § 160-8 states that “no appeal seeking a variance shall
be reviewed or acted upon . . . for any premises upon which there is an existing violation [of the
BZL].” Resp. to Town Mot. at 39.
1

The Court finds that all documents and exhibits cited in this Order are incorporated by
reference in the Complaint. See Lancaster v. Am. Textile Co., Inc., 719 F. Supp. 3d 204, 216
(N.D.N.Y. 2024) (finding that a document is incorporated by reference when the complaint
makes a clear, definite, and substantial reference to it).
3

Ultimately, Golden “refus[ed] to issue a determination on Plaintiff’s [] amended building
permit application.” Compl. ¶ 263. Plaintiff interpreted this refusal to be a “constructive denial”
of his application, giving him the right to appeal to the Town’s Zoning Board of Appeals
(“ZBA”). Id. On November 7, 2022, Plaintiff notified the Town of his appeal. Id. ¶ 264. For
several months after filing his appeal, Plaintiff “had written several letters to the Town Building
Department to follow-up, and had received no response.” Id. ¶ 286. He also attended a Town
board meeting to inquire about his application. Id. ¶ 285. At those meetings, he also spoke about
other “matters of great public concern.” Id. ¶¶ 554–55.
Then, on April 18, 2023, the ZBA issued a decision stating that it did not have
jurisdiction to hear Plaintiff’s appeal, because Golden had not “issue[d] a written decision
approving or denying” Plaintiff’s application. Id. ¶ 270. The ZBA “had jurisdiction only for
appeals from a ‘written order, requirement, decision, interpretation, or determination’ by []
Golden.” Id.
One day later, Golden issued a determination letter on Plaintiff’s application. Id. ¶ 274.
According to Plaintiff, the letter “constituted a written denial,” id. ¶ 279, and it noted that
Plaintiff needed to “apply[] for an area variance due to [the] building size.” Dkt. No. 36-19 at 2.
On June 16, 2023, Plaintiff filed a second appeal with the ZBA over the denial of his
amended building permit application. Compl. ¶ 280. Plaintiff argued, inter alia, that “[n]o area
variance was required for the barn because it was exempt as an agricultural building” under BZL
§ 160-29. Id. ¶ 281. On December 5, 2023, the ZBA denied Plaintiff’s appeal. Id. ¶ 283; see Dkt.
No. 36-8 at 2–11. In its decision, the ZBA “determine[d] the proper meaning and interpretation”
of an “agricultural building” under BZL § 160-29 and applied its interpretation to Plaintiff’s

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structure. Dkt. No. 36-8 at 5–11. It concluded that the evidence did not support a finding that
Plaintiff’s structure was an “agricultural building.” Id. at 11.
Arising out of these events, Plaintiff brings this action asserting several causes of action
pursuant to 42 U.S.C. § 1983. He alleges that Defendants violated his procedural due process,
substantive due process, and equal protection rights under the Fourteenth Amendment when his
building permit application and subsequent appeal were denied. Compl. ¶¶ 335–358, 373–536.
Further, Plaintiff brings an as-applied void-for-vagueness challenge to BZL § 160-29 and asserts
that Defendants violated his First Amendment rights by retaliating against him for speaking at
Town meetings and for submitting land use applications. Id. ¶¶ 359–368, 553–560. Plaintiff also
alleges a conspiracy to violate his civil rights and a violation of his vested property rights. 2 Id. ¶¶
537–552.
Plaintiff seeks a declaration that BZL § 160-29 is unconstitutionally vague, a declaration
that Plaintiff’s property rights have vested, an injunction that lifts the SWO, and damages. Id. at
71–72.
III.

LEGAL STANDARD
The standard of review for a motion to dismiss and a motion for judgment on the

pleadings are indistinguishable. LaFaro v. N.Y. Cardiothoracic Grp. PLLC, 570 F.3d 471, 475
(2d Cir. 2009). Therefore, to survive either motion, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Div. 1181
Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94

2

Included in the causes of action listed in the Complaint is “declaratory judgment.” Compl. ¶¶
369–72. “[I]t is well-settled that a request for declaratory . . . relief is not an independent cause of
action.” Daytree at Cortland Square, Inc. v. Walsh, 332 F Supp. 3d 610, 627 (E.D.N.Y. 2018).
Therefore, the Court construes Plaintiff’s “cause of action” to be a request for a declaratory
judgment.
5

(2d Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court must draw all
inferences in favor of the plaintiff. Id. (citing Austin v. Town of Farmington, 826 F.3d 622, 625
(2d Cir. 2016)). A complaint may be dismissed only where it appears that there are not “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Plausibility requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [the alleged misconduct].” Id. at 556. The plausibility standard
“asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). Where a court is unable to infer more than the mere
possibility of the alleged misconduct based on the pleading facts, the pleader has not
demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678–79.
IV.

DISCUSSION
A. Due Process and Equal Protection Claims
Plaintiff alleges that Defendants violated his procedural due process, substantive due

process, 3 and equal protection rights when Golden and the ZBA denied the building permit
application for his barn. The Town Defendants and Herrington argue that these claims must be
dismissed because they are not ripe for litigation. Town Mot. at 7–10; Herrington Mot. at 4–8.
The Court agrees with the Town Defendants and Herrington.
“[T]he ripeness doctrine stems, at least in part, from limitations placed on judicial power
by Article III of the Constitution.” United States v. Quinones, 313 F.3d 49, 57 (2d Cir. 2002).
“To be justiciable, a cause of action must be ripe—it must present ‘a real, substantial

3

In the portion of the Complaint that alleges a substantive due process violation, Plaintiff cites
only to “Defendants’ actions” as evidence of any constitutional violation. See Compl. ¶¶ 350–58.
Mindful that a vague reference to the “actions” of a defendant would ordinarily be insufficient to
state a claim, the Court infers that the substantive due process claim relates to Plaintiff’s building
permit application for his barn.
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controversy, not a mere hypothetical question.’” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d
682, 687 (2d Cir. 2013) (quoting AMSAT Cable Ltd. v. Cablevision of Conn. Ltd. P’ship, 6 F.3d
867, 872 (2d Cir. 1993)). “A claim is not ripe if it depends upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’” Id. (quoting Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)).
“Land use challenges, whether pursued as a takings claim under the Fifth Amendment or
as violations of equal protection or due process, are subject to the ripeness requirement”
articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S.
172 (1985). Ferncliff Cemetery Ass’n v. Town of Greenburgh, 834 F. App’x 665, 665–66 (2d
Cir. 2021). Following the Supreme Court’s modification of the Williamson County test in Knick
v. Township of Scott, 588 U.S. 180 (2019), “Williamson’s ripeness test states that a land use
challenge is not ripe for judicial review until the government entity charged with implementing
the relevant regulations has reached a ‘final decision’ regarding their application to the property
at issue.” Ferncliff, 834 F. App’x at 666.
The Second Circuit has held that Williamson County’s “final decision” requirement
“conditions federal review on a property owner submitting at least one meaningful application
for a variance.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005); see
also Ferncliff, 834 F. App’x at 666. “This is so because through the variance process local
zoning authorities function as ‘flexible institutions; what they take with the one hand they may
give back with the other.’” Murphy, 402 F.3d at 353 (quoting MacDonald, Sommer & Frates v.
Yolo County, 477 U.S. 340, 350 (1986)). Indeed, by requiring that a landowner submit at least
one meaningful application for a variance, the courts can better “distinguish between those cases
in which a plaintiff has suffered a concrete and particularized, actual or imminent injury, and

7

those in which the injury is merely speculative and may never occur, depending on the final
administrative resolution.” Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 122 (2d
Cir. 2014) (cleaned up). It also “ensures that all non-constitutional avenues of resolution have
been explored first, perhaps obviating the need for judicial entanglement in these constitutional
disputes.” Murphy, 402 F.3d at 354.
While an application for a variance is typically necessary for a “final decision,” this
requirement “is not to be ‘mechanically applied.’” Lost Lake Holdings LLC v. Town of
Forestburgh, No. 22-CV-10656, 2023 WL 8947154, at *5 (S.D.N.Y. Dec. 28, 2023) (quoting
Murphy, 402 F.3d at 349). “A property owner will be excused from seeking a variance . . . if
doing so would be futile.” Ferncliff, 834 F. App’x at 666. “Futility occurs ‘when a zoning agency
lacks discretion to grant variances or has dug in its heels and made clear that all such
applications will be denied.’” Id. (quoting Murphy, 402 F.3d at 349)). When there is “no
practical or logical reason to require [a plaintiff] to apply for a variance,” the court need not
withhold federal review. Lost Lake, 2023 WL 8947154, at *5.
Here, Plaintiff does not allege that he ever filed a variance. See generally Compl.; Resp.
to Town Mot. at 39. Plaintiff does argue, however, that his claims are nevertheless ripe.
First, Plaintiff argues that he received a “final decision” when the ZBA issued a final
determination on his building permit application appeal. Resp. to Town Mot. at 8. However, a
decision on a building permit application appeal—without having applied for a variance—is not
a “final decision” for the purposes of the Williamson County ripeness test. See Ferncliff, 834 F.
App’x at 666 (finding the plaintiff’s land-use challenge unripe because the plaintiff “ma[de] no
allegation that it ha[d] sought or made an application for a variance after the [t]own’s Zoning
Board of Appeals [] upheld the denial of the building permit”).

8

Next, Plaintiff argues that he should be excused from the “final decision” requirement
because it would have been “impossible” to receive a variance. Resp. to Town Mot. at 8–9. He
explains that the Town imposed a SWO on his barn, and BZL § 160-8 states that “no appeal
seeking a variance shall be reviewed or acted upon . . . for any premises upon which there is an
existing violation [of the BZL]” Id. at 8–9, 39. However, other provisions in the BZL and
Plaintiff’s own allegations make clear that BZL § 160-8 does not bar review of a variance
application to address an existing violation; it merely bars review of any variance applications
that are distinct and unrelated to the violation on the applicant’s property. In other words,
residents of the Town may still apply for a variance to resolve an existing violation, but the
Town will not review any other variance applications until the violation is resolved.
This understanding of BZL § 160-8 is clear with context. For one, BZL § 160-119(E)
expressly indicates that “[r]elief or release from any stop-work order may be obtained . . . if a
variance is granted by the Zoning Board of Appeals.” If BZL § 160-8 barred landowners from
applying for a variance after a SWO is issued, BZL § 160-119(E) would have no meaning.
Beyond the statutory text, Plaintiff admits on several occasions that Town representatives
instructed him to apply for a variance to resolve the SWO on his barn. In Golden’s letter attached
to the SWO, he stated that “[a]n area variance will also have to be submitted” to address the
violation. Dkt. No. 36-6 at 2. On a separate occasion, Golden told “Plaintiff and counsel on site
he needed an area variance for his barn.” Compl. ¶ 261. Golden stated the same in his letter
denying Plaintiff’s amended building permit application, writing that Plaintiff needed to “apply[]
for an area variance due to [the] building size.” Dkt. No. 36-19 at 2. The Complaint further states
that “[t]he Town . . . instruct[ed] Plaintiff to apply for an area variance for square footage of his

9

barn.” Compl. ¶ 513. With this context in mind, the Court finds that BZL § 160-8 posed neither a
statutory nor practical bar for Plaintiff to apply for a variance.
Plaintiff further posits that the “final decision” requirement is satisfied because the
ZBA’s denial of his appeal “could have determined that Plaintiff needed a variance, instructed
him to submit a formal application for a variance, or could have granted a variance,” but it did
not. Resp. to Town Mot. at 8. However, the ZBA’s decision did not deny Plaintiff an application
for a variance, nor did it bar Plaintiff from applying for one, nor did it indicate that it would not
grant Plaintiff a variance if he applied for one. See generally Dkt. No. 36-8. Its choice not to
address the possibility of a variance in its denial of Plaintiff’s appeal does not render an
application for a variance futile.
The Complaint is devoid of any other allegations that would support a finding of futility;
there is no showing that the Town would not have been unable to grant Plaintiff a variance, or
that it has “dug in its heels and made clear that all such applications will be denied.” Ferncliff,
834 F. App’x at 666 (quoting Murphy, 402 F.3d at 349). Accordingly, because Plaintiff did not
seek a variance, he never received a “final decision” on his building permit application. The
Court finds Plaintiff’s due process and equal protection challenges to be unripe. Plaintiff’s claims
are dismissed without prejudice.
B. First Amendment Claim
Plaintiff alleges that Defendants retaliated against him for “speaking about matters of
great public concern” and “submitting various land use applications,” in violation of the First
Amendment. The Town Defendants and Herrington argue, inter alia, that Plaintiff’s claim is not
ripe. Town Mot. at 7–10; Herrington Mot. at 4–8. The Court agrees with Defendants.
“Courts have expanded application of [the Williamson County] ripeness doctrine to a
number of constitutional claims, including First Amendment retaliation claims.” Rosendale v.
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Brusie, No. 07-CV-8149, 2009 WL 778418, at *7 (S.D.N.Y. Mar. 25, 2009) (citing Murphy, 402
F.3d at 350). “To determine whether the ripeness test should be applied to [First Amendment]
claims involving land use challenges, courts consider two factors: (1) whether the plaintiff
experienced an immediate injury as a result of the defendant’s actions, and (2) whether requiring
the plaintiff to pursue additional administrative remedies would further define his or her alleged
injuries.” Id. (citing Murphy, 402 F.3d at 351). With respect to the first factor, the Second Circuit
has made clear that a plaintiff must “show that he suffered some injury independent of the
challenged land-use decision.” Sunrise Detox V, 769 F.3d at 123; see also Dean v. Town of
Hempstead, 163 F. Supp. 3d 59, 83 (E.D.N.Y. 2016).
The Second Circuit’s decision in Dougherty v. Town of North Hempstead Board of
Zoning Appeals was among the first to assess whether the Williamson County ripeness doctrine
applies to First Amendment claims in the land-use context. 282 F.3d 83 (2d Cir. 2002). In
Dougherty, the plaintiff brought a suit in federal court alleging that the defendants violated his
equal protection and due process rights when they denied his first building permit application. Id.
at 87. While litigation was ongoing, the defendants granted the plaintiff’s second building permit
application. Id. After the plaintiff submitted a filing opposing the defendants’ motion to dismiss,
the defendants revoked the plaintiff’s permit. Id. The plaintiff subsequently amended his
complaint to add a First Amendment retaliation claim. Id.
The Second Circuit held that the plaintiff’s First Amendment retaliation claim was not
subject to the final decision rule. For one, it was “based upon an immediate injury.” Id. at 90.
The injury was independent from the challenged land-use decision—the plaintiff filed suit to
challenge the denial of his first building permit application, while the alleged injury in the
retaliation claim was the revocation of the permit that the plaintiff received pursuant to his

11

second permit application. Further, the Dougherty court found that the plaintiff’s “pursuit of a
further administrative decision would do nothing to further define his injury.” Id. Whether
Plaintiff received a “final decision” on his first building permit application had no bearing on the
fact that the permit he later received was revoked. The Second Circuit proceeded to assess the
merits of the First Amendment claim. Id. at 91.
Three years later, the Second Circuit distinguished its Dougherty decision in Murphy v.
New Milford Zoning Commission, another case with a First Amendment claim in the land-use
context. 402 F.3d 342 (2d Cir. 2005). There, the plaintiffs asserted violations of their First
Amendment rights to assemble peaceably and exercise their religion freely after the defendants
imposed a cease-and-desist order that required the plaintiffs to stop their weekly prayer meetings.
Id. at 345. The Murphy court noted that “the cease and desist order did not inflict an immediate
injury,” and there existed no other immediate hardship, distinct from the impacts of the ceaseand-desist order itself. Id. at 351. Further, the Murphy court found that “the resolution of the
constitutional and statutory claims we are asked to consider here hinge on factual circumstances
not yet fully developed.” Id. The court concluded that the “final decision” rule applied. Id. at
352.
In its decision, the Murphy court also stressed the “strong policy considerations
supporting prong-one ripeness.” Id. at 349. It noted that the “final decision” requirement “aids in
the development of a full record,” allows a court to “know precisely how a regulation will be
applied to a particular parcel,” may “provide the relief the property owner seeks without
requiring judicial entanglement in constitutional disputes,” and “evinces the judiciary’s
appreciation that land use disputes are uniquely matters of local concern more aptly suited for
local resolution.” Id. at 348.

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Here, the Court finds that the “final decision” rule applies to Plaintiff’s First Amendment
claim. First, Plaintiff has failed to identify any immediate injury independent of the challenged
land-use decision. The Complaint’s allegations of retaliation speak in vague terms, referring only
to “adverse actions taken by [Defendants] against Plaintiff,” and “less favorable and/or unequal
treatment.” Compl. ¶¶ 557, 559. Even after drawing all inferences in favor of Plaintiff, the Court
cannot identify any alleged injuries that are distinct from the challenged land-use decision itself.
Additionally, any local decision on Plaintiff’s application for a variance would further define the
contours of Plaintiff’s claim of First Amendment retaliation. If Plaintiff had filed an application
for a variance, as instructed by both Golden and the Town, it is possible that his barn would have
been permitted despite the initial denial of his building permit application. Indeed, “through the
variance process[,] local zoning authorities function as ‘flexible institutions; what they take with
the one hand they may give back with the other.’” Murphy, 402 F.3d at 353 (quoting
MacDonald, Sommer & Frates, 477 U.S. at 350).
The policy considerations laid out in Murphy further support such a finding. A more fully
developed record would better enable the Court to resolve this claim. It ensures that “federal
review—should the occasion eventually arise—is premised on concrete and established facts.”
Murphy, 402 F.3d at 353. Further, the Court’s interest in avoiding any unnecessary constitutional
adjudication and preserving local land-use disputes for local resolution tip the scales toward
imposing the “final decision” requirement in this case.
Accordingly, the Court applies the “final decision” requirement to Plaintiff’s First
Amendment claim. For the reasons detailed in Part IV.A., Plaintiff has not received a “final
decision” regarding the building permit application for his barn. Therefore, Plaintiff’s First
Amendment claim is unripe and dismissed without prejudice.

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C. Void-for-Vagueness Claim
Plaintiff argues that Defendants violated his rights by enforcing BZL § 160-29 against
him, because it is unconstitutionally vague. 4 The Court finds this claim to be similarly unripe.
The “final decision” rule has been imposed to as-applied, void-for-vagueness challenges
to local ordinances. “[W]here a plaintiff mounts an as-applied challenge to the enforcement of a
land-use or zoning statute or regulation, such as [the plaintiff’s] . . . as-applied vagueness claims,
a final decision adverse to the property holder is generally required for a claim to be ripe.”
LuxuryBeachfrontGetaway.com, Inc. v. Town of Riverhead, No. 17-CV-4783, 2018 WL
4635736, at *8 (E.D.N.Y. June 25, 2018), report and recommendation adopted in part, 2018 WL
3617947 (E.D.N.Y. July 27, 2018); see also Yee v. City of Escondido, 503 U.S. 519, 533–34
(1992) (noting that an as-applied challenge to a zoning ordinance “would be unripe” under
Williamson County). Similar exceptions to the “final decision” requirement apply “if the plaintiff
‘can show that he suffered some injury independent of the challenged land-use decision.’”
Riverhead, 2018 WL 4635736, at *8 (quoting Sunrise Detox V, 769 F.3d at 123).
For the reasons discussed in Part IV.B, the Court finds that this claim is also unripe. For
one, Plaintiff failed to plead an injury independent of the challenged land-use decision. The only
injury alleged by Plaintiff in this portion of the Complaint is “the deprivation of Plaintiff’s
protected rights,” which is neither specific enough nor sufficiently independent of the challenged
land-use decision. Compl. ¶ 367. Further, similar policy considerations favor imposing the

4

In the Town Motion Response, Plaintiff argues that his “facial challenge” to BZL § 160-29
survives the instant Motions. Resp. to Town Mot. at 32–35. However, the Court understands the
Complaint only to assert an as-applied challenge to the ordinance. See Compl. ¶¶ 359–68
(contesting the constitutionality of BZL § 160-29 “[a]s applied and enforced herein”). New
claims not specifically asserted in the Complaint may not be considered by the Court when
deciding a motion to dismiss. Lerner v. Forster, 240 F. Supp. 2d 233, 241 (E.D.N.Y. 2003).
Accordingly, the Court will not consider a facial challenge to the ordinance.
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ripeness requirement. Requiring a “final decision” allows for the development of a more robust
record which will better enable to the Court to resolve this claim, and it ensures that “all nonconstitutional avenues of resolution have been explored first, perhaps obviating the need for
judicial entanglement in these constitutional disputes.” Murphy, 402 F.3d at 354.
Accordingly, the “final decision” requirement must be satisfied before the Court can rule
on Plaintiff’s as-applied void-for-vagueness claim. Because Plaintiff has not received a “final
decision” regarding the building permit application for his barn, see Part IV.A, his claim is
unripe and dismissed without prejudice.
D. Vested Property Right Claim
Unlike the aforementioned claims, Plaintiff’s claim that Defendants deprived him of a
vested property right is not subject to the Williamson County ripeness doctrine. See Londregan v.
Town of East Lyme, 666 F. Supp. 3d 192, 199–200 (D. Conn. 2023) (noting that the Williamson
County “final decision” rule does not apply to a landowner’s claim that their property rights have
vested); Cedarwood Land Planning v. Town of Schodack, 954 F. Supp. 513, 521 (N.D.N.Y.
1997) (considering whether the plaintiff’s property rights had vested despite finding his takings
claim unripe under Williamson County). Accordingly, the Court finds that subject matter
jurisdiction exists with respect to this claim.
1. Colorado River Abstention
The Town Defendants argue that the Court should “nonetheless abstain from hearing
Plaintiff’s challenges pursuant to the Colorado River Doctrine,” because there exists parallel
state court litigation that could result in comprehensive disposition of litigation. Town Mot. at
10–12. The Court disagrees.
“Abstaining from exercising federal jurisdiction ‘is the exception, not the rule.’”
Mochary v. Bergstein, 42 F.4th 80, 84 (2d Cir. 2022) (citing Colorado River Water Conservation
15

Dist. v. United States, 424 U.S. 800, 813 (1976)). “Where a federal court has subject matter
jurisdiction, it has a virtually unflagging obligation to exercise that jurisdiction, even if an action
concerning the same matter is pending in state court.” Id. (cleaned up). “[T]he balance is heavily
weighed in favor of the exercise of jurisdiction.” Woodford v. Cmty. Action Agency of Green
Cty., Inc., 239 F.3d 517, 522 (2d Cir. 2001) (cleaned up).
A threshold determination in a Colorado River analysis is whether the state court
litigation is “parallel” to the federal court proceedings. Mochary, 42 F.4th at 85. “Suits are
parallel when substantially the same parties are contemporaneously litigating substantially the
same issue in another forum.” Id. (quoting Dittmer v. County of Suffolk, 146 F.3d 113, 118 (2d
Cir. 1998)). “Mere ‘commonality in subject matter’ does not render actions parallel.” Id. at 86
(quoting Dittmer, 146 F.3d at 118).
Here, Plaintiff’s state court proceeding is not parallel to the federal litigation in this
Court. Plaintiff’s proceeding in state court includes only the Town and the ZBA as defendants,
while the instant litigation includes several other defendants. See Bulson v. Town of Brunswick,
N.Y.S. EF2024-275788, Dkt. No. 92. Further, the state court action seeks only a judgment for
equitable and declaratory relief under state law; it brings no federal constitutional claims and
seeks no monetary damages. Id. Accordingly, because the state and federal actions “involve
different parties, different issues, and different remedies,” they are not sufficiently parallel to
satisfy Colorado River’s threshold determination. See Mochary, 42 F.4th at 86.
Because the Court finds that the concurrent proceedings are not parallel, the Court need
not continue with its Colorado River analysis. The Court declines to dismiss this case under
Colorado River abstention.

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2. Failure to State a Claim
In the Complaint, Plaintiff alleges that his property rights vested because Defendants
initially issued Plaintiff a building permit, and Plaintiff incurred substantial expenses in reliance
on that permit. 5 Compl. ¶¶ 546–552. Defendants argue that Plaintiff’s property rights never
vested. Town Mot. at 39–40. The Court agrees with Defendants.
“The Second Circuit uses a strict entitlement test to determine whether a party’s interest
in land-use regulation is protectible under the Fourteenth Amendment. The entitlement test
applies to claims—such as the one raised here—involving a local government’s revocation of a
land-use benefit that the plaintiffs had previously been granted.” Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 784 (2d Cir. 2007) (cleaned up). In applying the entitlement test, courts
“look[] to ‘existing rules or understandings that stem from an independent source such as state
law to determine whether a claimed property right rises to the level of a right entitled to
protection.’” Id. (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir.
1998)). Accordingly, the Court turns to New York state law to determine whether Plaintiff
enjoys a protectible property right. See id.
“Under New York law, a property owner has no right to an existing land-use benefit
unless that right has ‘vested.’” Id. “[A] vested right can be acquired when, pursuant to a legally
issued permit, the landowner demonstrates a commitment to the purpose for which the permit
was granted by effecting substantial changes and incurring substantial expenses to further the
development.” Id. (quoting Town of Orangetown v. Magee, 665 N.E.2d 1061, 1064 (N.Y.

5

Plaintiff does not identify which law Defendants breached when they deprived him of a vested
property right. However, Plaintiff notes that he brings the vested rights claim pursuant to Section
1983. Compl. ¶ 9. Accordingly, the Court interprets Plaintiff’s claim to allege that Defendants
violated his Fourteenth Amendment due process rights when they deprived him of a vested
property right.
17

1996)). However, “vested rights cannot be acquired in reliance upon an invalid permit.” Astoria
Landing, Inc. v. New York City Envtl. Control Bd., 50 N.Y.S.3d 448, 450 (N.Y. App. Div. 2017)
(quoting Westbury Laundromat, Inc. v. Mammina, 879 N.Y.S.2d 188, 191 (N.Y. App. Div.
2009)). “The mistaken or erroneous issuance of a permit does not estop a municipality from
correcting errors, even where there are harsh results.” Id. (cleaned up). Indeed, if a building
permit was issued in violation of existing zoning laws, the landowner cannot claim that his
property right has vested. See id. at 450–51 (finding that the plaintiff’s property right did not vest
because the permit did not comply with a local zoning ordinance); Westbury Laundromat, 879
N.Y.S.2d at 191 (same).
The dispositive question in this case, then, is whether Plaintiff’s building permit was
issued in violation of existing zoning laws, such that it was invalid at the time of issuance. New
York state courts have held that determining whether a building permit complies with existing
zoning laws is “an appropriate inquiry” for the local zoning board. Perrotta v. City of New York,
486 N.Y.S.2d 941, 944–45 (N.Y. App. Div. 1985) (“A determination as to whether [the plaintiff]
had vested rights under his building permit must, of necessity, involve an examination of the
validity of the permit, as well as compliance with technical provisions of the [zoning ordinance],
and this is clearly an appropriate inquiry for agency expertise.”). In questions relating to the
zoning board’s expertise, the zoning board’s “interpretation of the statute’s terms must be given
great weight and judicial deference, so long as the interpretation is neither irrational,
unreasonable nor inconsistent with the governing statute.” Toys R Us v. Silva, 676 N.E.2d 862,
866 (N.Y. 1996) (cleaned up). “[D]eference is appropriate where the question is one of specific
application of a broad statutory term.” Peyton v. New York City Bd. of Standards and Appeals,
164 N.E.3d 253, 259 (N.Y. 2020) (quoting O’Brien v. Spitzer, 851 N.E.2d 1195, 1196 (N.Y.

18

2006)). “Its determination, moreover, must be sustained if it has a rational basis and is supported
by substantial evidence.” Toys R Us, 676 N.E.2d at 866.
The Town Defendants argue that Plaintiff’s “permit was improperly issued under the
applicable Town Code” because BZL § 160-29 requires that all accessory structures, except for
agricultural buildings, be less than 1,500 square feet. Town Mot. at 40. Plaintiff does not dispute
that his structure exceeded the 1,500 square foot limit. See Compl. ¶ 154. Rather, he contends
that the permit was properly issued because his structure fits into the “agricultural buildings”
exception to the square footage requirement under BZL § 160-29. Id. ¶ 156; see Resp. to Town
Mot. at 29–30. In determining whether Plaintiff’s structure fits into the “agricultural building”
exception, the Court finds that deference to the ZBA is appropriate. This is a “specific
application of a broad statutory term.” Peyton, 164 N.E.3d at 259. Accordingly, the Court will
sustain the ZBA’s determination if it has a rational basis and is supported by substantial
evidence. Toys R Us, 676 N.E.2d at 866.
The ZBA’s conclusion that Plaintiff’s structure did not fit under the “agricultural
building” exception to BZL § 160-29 is neither irrational, unreasonable, nor inconsistent. 6 See
Dkt. No. 36-8 at 5–11. In its decision, the ZBA first identified the BZL’s definition of the word
“agriculture.” Id. at 5. Next, it explained that under BZL § 160-29, an “agricultural building” is a
structure that “relates to or is used in connection with a farm operation, a commercial equine
operation, a commercial horse boarding operation, compost, mulch or other biomass crops, a
timber operation, an accessory agribusiness, and/or agricultural tourism—each as specifically

6

In the Town Motion Response, Plaintiff cites to statements from Golden as evidence that his
structure fits into the “agricultural building” exception under BZL § 160-29. Resp. to Town Mot.
at 29. However, it is the determination of the ZBA, not Golden, that is relevant to this analysis.
See Toys R Us, 676 N.E.2d at 866.
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defined in Town Code § 160-12.” Id. at 6. Then, the ZBA considered multiple letter submissions
and other correspondence from Plaintiff, and analyzed whether Plaintiff’s structure fell into this
definition. Id. at 8–11. The ZBA concluded that the evidence could not support such a finding.
Id. at 11. The Court finds that the ZBA’s decision has a rational basis and is supported by
substantial evidence. See Toys R Us, 676 N.E.2d at 866. Accordingly, the Court defers to the
ZBA’s determination that Plaintiff’s building permit was in violation of existing zoning laws,
such that it was invalid at the time of issuance. Because “vested rights cannot be acquired in
reliance upon an invalid permit,” Plaintiff’s vested property right claim fails, and it is dismissed
without prejudice. See Astoria Landing, 50 N.Y.S.3d at 450.
E. Conspiracy to Violate Civil Rights Claim
“A [Section] 1983 conspiracy claim will stand only insofar as the plaintiff can prove the
sine qua non of a [Section] 1983 action: the violation of a federal right.” Bertuglia v. Schaffler,
672 F. App’x 96, 102 (2d Cir. 2016) (quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d
Cir. 1995)) (alterations omitted). “Thus, if a plaintiff cannot sufficiently allege a violation of his
rights, it follows that he cannot sustain a claim of conspiracy to violate those rights.” Romer v.
Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000). Because none of Plaintiff’s
constitutional claims survive the Motions, he cannot sustain a claim of conspiracy to violate his
civil rights. Plaintiff’s conspiracy claim is dismissed without prejudice.
V.

THE REMAINING DEFENDANTS
Despite its excessive length, the Complaint does not identify which claims are brought

against which defendants. In an abundance of caution, the Court assumes that Plaintiff intended
to bring every claim against every defendant named in this action. While Defendants Andrew
Gilchrist and Herrington Farms, Inc. are not parties to the instant Motions, Plaintiff’s unripe
claims are sua sponte dismissed without prejudice against them at this time. See Simmonds v.
20

I.N.S., 326 F.3d 351, 358 n.8 (2d Cir. 2003) (“Article III ripeness is a constitutionally mandated
jurisdictional prerequisite, and so its absence must be noted by a court sua sponte.”). Further,
because the Court found that Plaintiff did not possess a vested property right and that his
conspiracy to violate civil rights claim cannot survive without a sufficiently alleged violation of
his rights, the Court sua sponte dismisses these claims against Gilchirst and Herrington Farms,
Inc. as well.
VI.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Town Defendants’ motion to dismiss, Dkt. No. 36, is GRANTED;

and it is further
ORDERED, that Herrington’s motion for judgment on the pleadings, Dkt. No. 42, is
GRANTED; and it is further
ORDERED, that Plaintiff’s claims are DISMISSED without prejudice; 7 and it is
further
ORDERED, that the Clerk close this action; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

7

In dismissing Plaintiff’s claims without prejudice, the Court “does not bar the bringing of a
subsequent action on the same claim or claims.” Santos v. State Farm Fire and Cas. Co., 902
F.2d 1092, 1094–95 (2d Cir. 1990). If Plaintiff elects to bring any subsequent action, he is
reminded of Rule 8’s requirement that the complaint include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added).
“Each allegation must be simple, concise, and direct,” Fed. R. Civ. P. 8(d)(1), to give “fair notice
of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S.
41, 47 (1957).
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DATED:

March 7, 2025
Albany, New York
LAWRENCE E. KAHN
United States District Judge

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