Roe et al v. Town of Mamakating et al
Filing
47
OPINION & ORDER re: 29 MOTION to Dismiss . filed by Stosh Zamonsky, William Herrmann, Mort Starobin, Town of Mamakating Planning Board, Town of Mamakating, Town of Mamakating Town Board, 35 CROSS MOTION to Amend/Correct 4 Complaint, . filed by Reinhardt Farms LLC, Burlingham Woods LLC, Duane Roe, Freeman Properties Inc. For the reasons set forth above, defendants' motion to dismiss is GRANTED on the ground that plaintiffs' claims are not ripe for review; plaintiffs' motion for leave to file an amended complaint is DENIED as futile. Accordingly, this action is dismissed without prejudice. The Clerk of Court is directed to close the motions at ECF Nos. 29 and 35, and to terminate this action. (As further set forth in this Order) (Signed by Judge Katherine B. Forrest on 6/9/2016) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
DUANE ROE, BURLINGHAM WOODS, LLC,
:
FREEMAN PROPERTIES, INC., and
:
REINHARDT FARMS LLC,
:
:
Plaintiffs,
:
:
-v:
:
TOWN OF MAMAKATING, TOWN OF
:
:
MAMAKATING TOWN BOARD, TOWN OF
:
MAMAKATING PLANNING BOARD, STOSH
ZAMONSKY, MORT STAROBIN, and WILLIAM :
:
HERRMANN,
:
:
Defendants.
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: June 9, 2016
15-cv-6682 (KBF)
OPINION & ORDER
Plaintiff Duane Roe, a property developer in the Town of Mamakating (the
“Town”) commenced this action in August 2015 against the Town, its town board
(the “Town Board”) and planning board (the “Town Planning Board”), and three
members of those boards, seeking damages and injunctive relief arising from, inter
alia, defendants’ alleged conspiracy to impede three of Roe’s land use development
projects. (Compl., ECF No. 4.)1 Plaintiffs’ initial (and still operative) complaint
alleges claims for violation of their substantive due process rights under the
Fourteenth Amendment and the New York State Constitution.
1 The three projects at issue in plaintiffs’ initial complaint are the Burlingham Woods Subdivision
(“Burlingham Woods”), the Freeman Properties Subdivision (“Freeman Properties”), and the
Reinhardt Farms Subdivision (“Reinhardt Farms”). The complaint also names as plaintiffs three
corresponding entities that Roe owns or controls: Burlingham Woods, LLC; Freeman Properties, Inc.;
and Reinhardt Farms LLC.
Pending before the Court are defendants’ motion to dismiss the complaint
(ECF No. 29), and plaintiffs’ cross-motion to file an amended complaint (ECF No.
35). In their proposed First Amended Complaint (“FAC”), plaintiffs seek to add,
inter alia, allegations bolstering their previously asserted claims, claims relating to
a fourth development project, the Pantelop Road Subdivision (“Pantelop Road”), two
individual board members as defendants, and equal protection claims arising under
the Fourteenth Amendment and the New York State Constitution. (First Am.
Compl. (“FAC”), ECF No. 38-6; see also Pls.’ Mem. of Law in Opp. to Defs.’ Mot. to
Dismiss and in Support of Pls.’ Cross-Mot. for Leave to Amend at 25, ECF No. 36.)
Defendants raise several arguments in their motion to dismiss, including,
inter alia, that: (1) plaintiffs’ claims are not yet ripe for review, (2) none of plaintiffs’
federal due process claims allege a protectable property interest or any conscienceshocking behavior, (3) plaintiffs do not state a plausible “class of one” equal
protection claim, (4) plaintiffs’ claims against the individual officials are duplicative
of those alleged against the Town and the officials are otherwise entitled to
qualified immunity, and (5) plaintiffs may not assert their state law claims because
federal law provides an alternative remedy. Plaintiffs argue that each of their
claims, as revised and supplemented in the FAC, are ripe and sufficiently plausible
to withstand defendants’ motion.
For the reasons set forth below, the Court concludes that, even when one
considers the more robust allegations included in plaintiffs’ FAC, plaintiffs’ claims
are not yet ripe for review. The Town has not yet reached a final decision with
2
regard to plaintiffs’ requests relating to any of their four projects, and plaintiffs
have not met their burden to show that the history of the projects and defendants’
alleged hostility to Roe and plaintiffs’ proposals warrant application of the futility
exception at this juncture. Defendants’ motion to dismiss is therefore GRANTED,
and plaintiffs’ cross-motion for leave to file an amended complaint is DENIED.
Accordingly, this action is dismissed without prejudice.
I.
BACKGROUND
A.
Procedural History
Plaintiffs commenced this action in August 2015 by filing a complaint against
the Town of Mamakating, its Town Board and Planning Board, and three members
of those boards. (ECF No. 4.)2 The initial complaint—which sets forth one cause of
action for each development project—alleges claims for substantive due process
under the Fourteenth Amendment and the New York State Constitution.3 The
action was assigned from the outset to the undersigned as related to another action
that was then before this Court and subsequently dismissed at the pleading stage.
See Town of Mamakating v. Lamm (“Lamm”), No. 15-cv-2865 (KBF) (S.D.N.Y.).
After the Court granted a number of extension requests to allow the parties
an opportunity to engage in (ultimately unsuccessful) settlement discussions (ECF
Plaintiffs dropped the Town Board and the Town Planning Board as defendants in the FAC
because neither is a suable entity.
2
3 Although the initial complaint (and the FAC) also contain allegations that arguably suggest a First
Amendment retaliation claim (see Mem. of Law in Support of Defs.’ Mot. to Dismiss at 9-10, ECF No.
31), plaintiffs have expressly disclaimed any intention to assert such a claim in either complaint
(Pls.’ Reply Mem. of Law in Support of Mot. to Amend at 1, ECF No. 43). Plaintiffs have also
expressly disavowed any intention to assert any procedural due process claims. (Id. at 5 n.6.) The
Court therefore need not further discuss any potential First Amendment retaliation or procedural
due process claims that could be construed from plaintiffs’ allegations.
3
Nos. 21, 24, 26), on January 15, 2016, defendants moved to dismiss the complaint
pursuant to Rule 12(b)(6) on several grounds that the Court has set forth above
(ECF No. 29). On February 29, 2016, plaintiffs opposed the motion and cross-moved
for leave to file the proposed First Amended Complaint, adding, as stated above,
two new individual defendants, claims relating to a fourth development project, and
equal protection claims arising under the Fourteenth Amendment and the New
York State Constitution. (ECF Nos. 35, 36.) The FAC seeks, inter alia, a
declaration that plaintiffs’ rights have been violated, injunctive relief,
compensatory, consequential and punitive damages, and attorneys’ fees and costs.
On March 1, 2016, the Court held a telephonic status conference with the
parties in which the Court set a schedule for the remainder of the briefing in
relation to both parties’ motions. The Court explained that, in light of the identical
standards governing motions to dismiss and motions to file amended pleadings, the
Court would—for efficiency purposes—look to the allegations in the FAC, rather
than the still operative initial complaint, in its factual recitation in any written
decision addressing the pending motions. (See ECF No. 41.) In accordance with the
schedule set forth in the March 1, 2016 Order, defendants filed their reply brief in
support of their motion to dismiss and opposition to plaintiffs’ cross-motion to
amend on April 1, 2016. (ECF No. 42.) On April 14, 2016, plaintiffs filed their reply
brief in support of their cross-motion to amend. (ECF No. 43.) On April 22, 2016,
defendants filed their sur-reply brief in further support of their motion to dismiss
and in opposition to plaintiffs’ motion to amend. (ECF No. 45.)
4
B.
Factual Allegations4
1.
Parties
Plaintiff Duane Roe is an individual residing in the Town of Mamakating, a
municipality located in Sullivan County, New York. (FAC ¶¶ 1, 7.) Roe is the sole
shareholder and officer of plaintiff Freeman Properties, Inc., a New York
corporation, the sole member of plaintiff Reinhardt Farms, LLC, a New York
limited liability company, and a member with 50% ownership of plaintiff
Burlingham Woods, LLC, a New York limited liability company. (FAC ¶¶ 2-6.)
Defendant William Herrmann has, during the events giving rise to this
dispute, been the Town Supervisor and a member of the Town Board, the duly
elected legislative body of the Town. (FAC ¶ 8.) At certain times during the
relevant period, defendant Mort Starobin was a member and chairman of the Town
Planning Board, a municipal agency vested with the power to: (1) issue findings
statements and negative declarations for purposes of the State Environmental
Quality Review Act (“SEQRA”), (2) issue special use permits and site plan approvals
pursuant to the Town’s zoning code and New York’s Town Law, and (3) issue
conditional and final subdivision approvals pursuant to the Town’s zoning code and
New York’s Town Law. (FAC ¶ 9.) During periods relevant to this suit, defendant
Stosh Zamonski was a member and chairman of the Town Planning Board,
4 The Court here recounts only those allegations necessary to resolve the parties’ pending motions.
As stated above, for the sake of judicial efficiency and as previously explained to the parties, the
below recitation of plaintiffs’ factual allegations is drawn from the FAC, rather than from plaintiffs’
still operative initial complaint.
5
defendant Janet Lybolt was a member of the Town Planning Board, and defendant
Matt Taylor was a member of the Town Board. (FAC ¶¶ 10-12.)
2.
Plaintiffs’ Land Use Projects and Defendants’ Alleged Conduct
The FAC alleges that, based on their political animus against Roe, the
individual defendant members of the Town Board and the Town Planning Board
entered into a conspiracy to stop and impede the four development projects that are
the subject of this action. (FAC ¶¶ 20, 29.) The allegations supporting the alleged
conspiracy are vague and, where not conclusory, are at best only indirectly
suggestive of the existence of animus against Roe. The FAC alleges that the
defendants held clandestine meetings amongst themselves and with Town
consultants in the winter and spring of 2015, at which they discussed methods to
stop Roe’s projects. (FAC ¶¶ 21-24.) The FAC further alleges that the individual
defendants caused Town consultants to submit inordinately high bills charged to
Roe and gave improper orders to Town employees in relation to these projects,
including directing the Building Inspector to halt one of Roe’s projects. (FAC ¶¶ 25,
28.) The FAC alleges that the Town Planning Board’s assistant clerk, Nicole
Peleschuck, was instructed to spend the bulk of her time gathering and reviewing
Roe’s documents instead of assisting with billing, the public purpose given for her
hiring. (FAC ¶ 23.) The FAC alleges that the defendants took these actions
because of a general dissatisfaction with Roe’s association with Hasidic Jews who
had moved into the Town and nearby communities. (FAC ¶ 27.)
Plaintiffs allege that defendants’ delay and obstruction of their development
projects constitutes conscience-shocking behavior engaged in with the intention to
6
deprive plaintiffs of vested rights and due process of law. (FAC ¶ 30; see also FAC
¶¶ 91-92, 127, 202, 231, 233.)5 Plaintiffs allege that defendants have knowingly and
intentionally treated them differently from everyone else based on irrational, wholly
arbitrary, and improper politically-motivated reasons. (FAC ¶¶ 31-32; see also FAC
¶¶ 94, 129, 205, 235.) Below, the Court describes the history and present status of
each of the four development projects at issue in this case, focusing on the facts
relevant to this Court’s resolution of the pending motions.
a)
Burlingham Woods
Burlingham Woods began as a 2-lot subdivision located on approximately 41
acres in the Town. (FAC ¶ 33.) On January 11, 2011, Roe’s surveyor presented the
subdivision to the Town Planning Board and explained that the 2-lot subdivision
would include one lot of approximately 8.4 acres and another lot of approximately
32.7 acres. (FAC ¶ 36.) On February 22, 2011, the Town Planning Board held a
hearing on the proposal, after which it voted a SEQRA Negative Declaration and
voted to approve the subdivision. (FAC ¶ 37.) In March 2011 and February 2012,
Roe requested that the Town Board add further uses to the zoning district where
the property is located; in or about 2012, the Town Board approved Roe’s original
Plaintiffs also allege that defendants’ alleged animus against Roe is demonstrated by the fact of the
Lamm action that the Town (and the Village of Bloomingburg) commenced in this Court in April
2015, in which the Town and the Village alleged various claims against Roe and a number of other
individuals and entities. (FAC ¶ 18.) In that action, which this Court dismissed in September 2015
pursuant to Rule 12(b)(6), Town of Mamakating, N.Y. v. Lamm, No. 15-cv-2865 (KBF), 2015 WL
5311265 (S.D.N.Y. Sept. 11, 2015), the Town and the Village alleged that Roe participated in a
racketeering conspiracy involving fraud, bribery, intimidation, voter fraud and corrupt influence of
public officials and government institutions for the purpose of taking control of local institutions and
erecting a high density residential development project (see FAC ¶ 19). The Court’s dismissal of the
Lamm action was affirmed by the Second Circuit by summary order on June 8, 2016. Town of
Mamakating v. Lamm, No. 15-3182-CV, 2016 WL 3188862 (2d Cir. June 8, 2016) (summary order).
5
7
request to rezone the district for retail usage (that request contemplated that the
site would include a gas station and convenience store). (FAC ¶¶ 38, 40, 41, 43.)
On January 28, 2014, Roe’s engineer presented a proposal to the Town
Planning Board to further subdivide 3.9 acres from the 8.4 acre parcel to construct a
gas station and convenience store of approximately 2,000 square feet. (FAC ¶ 46.)
The Town Planning Board held a public hearing for Roe’s proposal at its May 27,
2014 meeting, at which the Town Planning Board requested that Roe prepare an
archaeological study, accident reports, and a long-form Environmental Assessment
Form (“EAF”). (FAC ¶¶ 48, 49.) Over the succeeding months, Roe submitted a
long-form EAF, revised architectural plans, and accident reports to the Planning
Board, as well as an approval letter from the Sullivan County Department of Public
Works, and a Stormwater Pollution Prevention Plan accepted by the Town’s
engineer; Roe also submitted an archaeological study to the New York State Office
of Parks, Recreation and Historic Preservation, which that office approved in
August 2014. (FAC ¶¶ 50-54, 62-63.)
During a site visit on August 5, 2014, defendant Starobin told Roe that Roe
had placed the Town Planning Board “in a terrible position” by associating with
Shalom Lamm and that the “politics” of the situation required the Town Planning
Board to be particularly cautious in reviewing any projects proposed by Roe. (FAC
¶ 56.) At the site visit, Starobin and Zamonski suggested that Roe drop the request
for the second lot (for which no usage plan had been submitted) and Roe agreed.
(FAC ¶ 58.) Roe also agreed to make a number of other changes to the development
8
plan during the site visit. (FAC ¶¶ 59-61.) On October 28, 2014, the Planning
Board voted to close the public hearing. (FAC ¶ 66.) On November 25, 2014, the
Planning Board reached a tie vote on the SEQRA Negative Declaration, so the vote
did not carry. (FAC ¶ 67.) Plaintiffs allege that defendant Zamonski voted against
the Negative Declaration “based upon the [proposal’s] encroachment into the stream
buffer,” despite the fact that Roe cooperated in addressing Zamonski’s requests at
the August 2014 site visit. (FAC ¶ 67.)
In December 2014, Roe’s engineer responded to the adverse SEQRA votes
with an alternative project proposal; the Town Planning Board’s engineer requested
that the proposal be altered to conform with the Town’s Design Guidelines, even
though those guidelines did not mandatorily apply to the zoning district in which
Burlingham Woods is located. (FAC ¶¶ 68-74.)6 Roe submitted revised renderings
to the Town Planning Board in March 2015, as well as letters from the Sullivan
County Department of Public Works and the New York State Department of Health
approving the revisions. (FAC ¶¶ 76-78.)
After the March 2015 submission, the Town Planning Board’s secretary
advised Roe that he had to contribute additional funds to the Town Planning
Board’s escrow account. (FAC ¶ 79.) By that time, plaintiffs had already given
approximately $15,000 to the Town Planning Board in fees and consultant charges.
(FAC ¶ 79.) Initially, Roe refused to pay. (FAC ¶ 80.) In November 2015, plaintiffs’
attorney was advised that the project was not moving forward because plaintiffs
6 Plaintiffs allege that the Town Planning Board approved a project similar to Burlingham Woods in
Wurtsboro in April 2014. (FAC ¶ 75.)
9
owed the Planning Board $942 in consultant fees. (FAC ¶ 81.) In December 2015,
Roe tendered a check in the amount of $974.76 after receiving confirmation that
that was in fact the amount due. (FAC ¶ 82.) Soon thereafter, Roe’s attorney was
advised that another sum of $3,750 had to be paid before the project could be
considered, which plaintiffs have not alleged that they have paid. (FAC ¶ 83.) The
project has since not moved forward based on Roe’s failure to tender the additional
sum of $3,750. Plaintiffs allege that this latest request for more escrow money is
merely a continuation of the Town Planning Board’s bad faith delay tactics for
which there is no legitimate basis. (FAC ¶¶ 84-85.) Plaintiffs allege that they
already incurred substantial costs and expenses in connection with Burlingham
Woods, including engineering and surveying costs in the amount of $46,500 and
municipal fees in the amount of $15,000. (FAC ¶ 87.)
b)
Freeman Properties
Freeman Properties is a 10-lot subdivision located on approximately 43 acres
in the Town. (FAC ¶ 99.) The Town Planning Board granted conditional final
approval for the subdivision in November 2008, with those conditions being fulfilled
over the succeeding months. (FAC ¶¶ 101-08.) In October 2013, Roe’s engineer
prepared a bond estimate for the public improvements contemplated in the project
in the amount of $184,300; the Town Board approved the proposed bond, to be
secured by a letter of credit, in December 2013. (FAC ¶¶ 109-14.)7 The FAC alleges
that Roe made “numerous inquiries” between December 2013 and May 2014
The Town Board’s engineer informed plaintiffs by letter that a bond would be necessary to allow
plaintiffs to file the approved project map with the County Clerk’s Office; it serves as a performance
guarantee to insure completion of all proposed public improvements. (FAC ¶¶ 110-11.)
7
10
regarding the status of the actual bond, which is traditionally drafted and approved
by the Town Board’s attorney. (FAC ¶ 115.) Specifically, the FAC alleges that Roe
met with defendant Hermann in February or March 2014, at which time Hermann
stated that he would look into the status of the posting of the bond. (FAC ¶ 116.)
The FAC further alleges that in May 2014 Roe wrote to the Town Planning Board’s
secretary, Linda Franck, inquiring as to the status of the bond, who informed him
that his previous requests had been forwarded to the Town Board and its attorneys.
(FAC ¶ 117.) As currently pled, the FAC does not allege whether Roe made any
additional efforts to inquire into the status of the bond subsequent to May 2014 or
that he has sought any other means by which to secure the bond other than the
inquiries expressly stated in the FAC.
Plaintiffs further allege, on information and belief, that defendant Hermann
stated to at least one Town Board member that he would not allow Roe’s project to
be placed on the Town Board’s agenda. (FAC ¶ 118.) The FAC is, however, devoid
of any allegation that Hermann has sole authority to determine what items are
placed on the Town Board’s agenda, and it does not explain whether resolution of
the bond issue even requires that Freeman Properties to be placed on that agenda.
Plaintiffs allege that they cannot complete the necessary work on Freeman
Properties until the Town provides Roe with the instrument to be utilized for the
performance guarantee or specifies the type of instrument required and signs the
subdivision map, a task that the Town has not fulfilled. (FAC ¶¶ 121-22.) Plaintiffs
allege that there has been no other instance of a developer in the Town who, after
11
receiving final subdivision approval, was delayed by Town officials refusing to
provide the developer with an agreement to allow him to post a bond. (FAC ¶ 121.)
Plaintiffs also allege that the Town has not indicated, despite Roe’s attorney’s
inquiry, whether the posting of a bond or letter of credit will actually cause
Freeman Properties to be completed. (FAC ¶ 123.) Plaintiffs allege that, to date,
they have incurred substantial costs and expenses in connection with Freeman
Properties in excess of $200,000. (FAC ¶ 120.)
c)
Reinhardt Farms
Reinhardt Farms is a 27-lot subdivision located on approximately 50 acres in
the Town. (FAC ¶¶ 134, 136.) A portion of the property has been used and
operated as a mine for over a decade, and Roe initiated the process of applying for a
more extensive mining operation covering 12 acres on the property in 2004. (FAC
¶¶ 137, 139.) The New York State Department of Environmental Conservation
(“DEC”) issued Roe a mining permit in July 2005, and in October 2005 the Town
Planning Board stated that the mining operation could proceed without any effect
on Roe’s proposed subdivision. (FAC ¶¶ 143-44.)
In December 2008, a sketch plan of a revised subdivision was presented to
the Town Planning Board, and in July 2009 Roe’s surveyor advised the Town
Planning Board that Reinhardt Farms would be accomplished in two phases, with
the first phase being comprised of 16 lots that were not affected by reclamation of
the mining operations on the property, and the second phase consisting of 11 lots
that would have to await final action from the DEC. (FAC ¶¶ 145, 147.) The Town
Planning Board held a public hearing on the project in August 2009, and
12
subsequently issued a SEQRA Negative Declaration for the entire subdivision in
September 2009. (FAC ¶¶ 148-49.) The Town Planning Board granted preliminary
approval to phase I of the proposal in October 2009, and granted conditional final
approval for a total of 17 lots for phase I in March 2010, with the remaining
conditions being that the Town’s engineer and the Town’s attorney review the plan
and that the bonding issues associated with the project be resolved. (FAC ¶¶ 15051.)
The DEC renewed Roe’s mining permit in August 2010; Roe continued
operating the mine thereafter. (FAC ¶¶ 153-54.) In June 2013, Roe’s engineer sent
the DEC a written application to modify the mining permit. (FAC ¶ 155.)
Following negotiations over several months, Roe and the DEC entered into a
Consent Order in May 2014 to allow for the expedited approval of the change from a
mine to a residential subdivision in exchange for Roe performing final reclamation
of the site. (FAC ¶¶ 158-62.)
Plaintiffs allege that, on information and belief, the Town Planning Board’s
engineer approved the road bonding estimate for the project in the latter part of
2013. (FAC ¶ 156.) In May 2014, plaintiffs sent the new Town Planning Board
engineer a letter indicating that the total bond for the project was $1,123,700, and
that Roe was prepared to file a bond in that amount and thereupon file phase I of
the subdivision map. (FAC ¶¶ 163-65.)
After Roe had made several submissions to show compliance with the
Consent Order, on March 16, 2015, the DEC issued Roe a Notice of Violation setting
13
forth various observations made during an inspection of reclamation efforts at the
site. (FAC ¶ 173; see also FAC ¶¶ 166-72.) That same day, March 16, 2015, counsel
for the Town and the Town Planning Board sent a letter to the DEC regarding the
proposed mine expansion, which stated—for the first time—that neither the
original mining operation nor the proposed expansion was permitted by the Town’s
Zoning Code, and also stated that the March 2010 conditional final approval for the
residential subdivision had lapsed because Roe had not requested an extension.
(FAC ¶¶ 174-77.) Plaintiffs allege, upon information and belief, that the Town
Planning Board has never otherwise deemed a conditional final approval to have
expired because of a failure to request an extension. (FAC ¶ 178.)
In April 2015, the DEC advised Roe that his modification plan was
incomplete and alleged several violations associated with the mine. (FAC ¶¶ 18288.) On June 19, 2015, the Town issued a Notice of Violation to Reinhardt Farms
alleging that mining was prohibited in the zoning district and directing Reinhardt
Farms to stop all mining operations and related work except that which was
necessary to remedy violations or comply with the reclamation plan. (FAC ¶¶ 18992.) The Town Board has since rezoned the subject area to require larger minimum
lot sizes which would destroy the approved subdivision if the Town Board is allowed
to retract its prior approvals of the plan. (FAC ¶ 193.) Plaintiffs allege that they
cannot secure final approval and complete the necessary reclamation work at
Reinhardt Farms until the Town ceases its efforts to retract its prior approvals.
14
(FAC ¶¶ 197, 203-04.) Plaintiffs allege that they have incurred substantial costs in
connection with Reinhardt Farms of approximately $300,000. (FAC ¶ 195.)
d)
Pantelop Road
Pantelop Road is a 12-lot subdivision involving 3 parcels in the Town that
totals approximately 30 acres. (FAC ¶¶ 212-13.) After extensive revisions had been
made to Roe’s proposed subdivision in response to the Town Planning Board’s
concerns, on April 23, 2013, the Town Planning Board, after a public hearing, voted
a SEQRA Negative Declaration and then for preliminary approval of the project.
(FAC ¶¶ 215-16.) On August 27, 2013, the Town Planning Board granted
conditional final approval to the subdivision, with the conditions being finalization
of drainage easements and meeting the Town engineer’s comments. (FAC ¶ 217.)
On January 28, 2014, the subdivision was withdrawn from the Town Planning
Board’s consideration because plaintiffs were to appear before the Town Board for
consideration of a proposed drainage district associated with the project. (FAC ¶
218.)8
In July 2014, Roe’s engineer submitted a report regarding the proposed
drainage district to the Town Board, and completed another report in December
2015 that addressed the Town Board’s engineer’s verbal comments on the initial
proposal. (FAC ¶¶ 220, 222-23.) On January 4, 2016, Roe’s attorney mailed the
December 2015 report to defendant Hermann, but did not receive a response as of
the date of plaintiffs’ submission of the FAC. (FAC ¶¶ 224-25.) Plaintiffs allege
8 The purpose of the drainage district is to allow the Town to set up a taxing structure if the project
owner fails to properly maintain storm water management. (FAC ¶ 221.)
15
that they cannot compete the necessary remaining work on the project until the
Town establishes the drainage district and signs the subdivision map. (FAC ¶¶
228-29, 234.) Plaintiffs have incurred substantial costs in connection with Pantelop
Road in excess of $125,000. (FAC ¶¶ 227.)
II.
LEGAL STANDARDS
A.
Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, “the plaintiff must provide the
grounds upon which [its] claim rests through factual allegations sufficient ‘to raise a
right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). In other words, the complaint must allege “enough facts to state a
claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592
F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (same). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678.
The Court does not, however, credit “mere conclusory statements” or
“threadbare recitals of the elements of a cause of action.” Id. If the court can infer
no more than “the mere possibility of misconduct” from the factual averments—in
other words, if the well-pleaded allegations of the complaint have not “nudged
claims across the line from conceivable to plausible,” dismissal is appropriate.
Twombly, 550 U.S. at 570; Starr, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679).
16
On a motion to dismiss, the Court accepts as true the factual allegations in
the pleadings and draws all inferences in plaintiffs’ favor. See Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 555-57). If a fact is susceptible to two or more
competing inferences, in evaluating these motions, the Court must, as a matter of
law, draw the inference that favors the plaintiff so long as it is reasonable. N.J.
Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 121
(2d Cir. 2013). “[T]he existence of other, competing inferences does not prevent the
plaintiff[s’] desired inference from qualifying as reasonable unless at least one of
those competing inferences rises to the level of an obvious alternative explanation.”
Id. (internal quotation marks omitted).
Where necessary, the Court may supplement the allegations in the complaint
with facts from documents either referenced in the complaint or relied upon in
framing the complaint. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint.”); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002) (“[W]here plaintiff has actual notice of all the information in the movant's
papers and has relied upon these documents in framing the complaint[,] the
necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely
dissipated.” (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d
Cir. 1991)).
17
To the extent that a defendant seeks to dismiss a claim or an action on the
ground that the Court lacks the authority to adjudicate it, this Court “must accept
as true all material factual allegations in the complaint, but . . . not draw inferences
from the complaint favorable to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Schs.,
386 F.3d 107, 110 (2d Cir. 2004). The Court may also “consider affidavits and other
materials beyond the pleadings to resolve the jurisdictional issue, but . . . may not
rely on conclusory or hearsay statements contained in the affidavits.” Id.
B.
Motion to Amend
Rule 15(a) of the Federal Rules of Civil Procedure requires that leave to
amend be freely granted “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave
to amend a complaint need not be granted when amendment would be futile.
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir.
2015). Futility turns on whether an amended pleading could withstand a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ricciuti
v. New York City Transit Auth., 941 F .2d 119, 123 (2d Cir. 1991).
C.
Ripeness
“Article III, § 2, of the Constitution restricts the federal ‘judicial Power’ to the
resolution of ‘Cases’ and ‘Controversies.’” Sprint Commc’ns Co., L.P. v. APCC
Servs., Inc., 554 U.S. 269, 273 (2008). “To be justiciable, a cause of action must be
ripe—it must present a real, substantial controversy, not a mere hypothetical
question.” Kurtz v. Verizon New York, Inc., 758 F.3d 506, 511 (2d Cir. 2014). “A
claim is not ripe if it depends upon contingent future events that may or may not
occur as anticipated, or indeed may not occur at all.” Id. Because ripeness raises a
18
jurisdictional question, it is appropriate to address an argument that a claim is not
ripe for review before turning to other, merit-based grounds for dismissal. In the
Matter of the Application of Hampshire Recreation, LLC v. Vill. of Mamaroneck,
No. 14-cv-7228 (CS), 2016 WL 1181727, at *11 (S.D.N.Y. Mar. 25, 2016); see also
Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990).
A court must presume that it cannot entertain plaintiffs’ claims “‘unless the
contrary appears affirmatively from the record.’” Murphy v. New Milford Zoning
Comm’n, 402 F.3d 342, 347 (2d Cir. 2005) (quoting Renne v. Geary, 501 U.S. 312,
316 (1991)). “The plaintiff bears the burden of proving subject matter jurisdiction
by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc.,
426 F.3d 635, 638 (2d Cir. 2005).
“[T]he Supreme Court has developed specific ripeness requirements
applicable to land use disputes.” Murphy, 402 F.3d at 347; Congregation Rabbinical
Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 597 (S.D.N.Y. 2013).
That precedent holds that land use challenges are generally not ripe “until the
government entity charged with implementing the regulations has reached a final
decision regarding the application of the regulations to the property at issue.”
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473
U.S. 172, 186 (1985). “A final decision is ‘a definitive position on the issue that
inflicts an actual, concrete injury.’” R-Goshen LLC v. Vill. of Goshen, 289 F. Supp.
2d 441, 448 (S.D.N.Y. 2003), aff’d sub nom. R-Goshen LLC v. Andrews, 115 F. App’x
465 (2d Cir. 2004) (summary order) (quoting Williamson, 473 U.S. at 193); see also
19
S&R Dev. Estates, LLC v. Bass, 588 F. Supp. 2d 452, 461 (S.D.N.Y. 2008) (“A final
decision exists when a development plan has been submitted, considered and
rejected by the governmental entity with the power to implement zoning
regulations.”). Four considerations undergird the final decision rule: (1) requiring a
final decision from the local authority aids in the development of a full record, (2) it
allows a court to know precisely how a regulation will be applied to a particular
parcel, (3) the claimant might be able to obtain the sought relief without requiring
judicial entanglement, and (4) requiring a meaningful application by the claimant
respects principles of federalism. Murphy, 402 F.3d at 348.
Notwithstanding the foregoing, “the finality requirement is not mechanically
applied.” Murphy, 402 F.3d at 349. A property owner may be “excused from
obtaining a final decision” if doing so “would be futile,” such as, for example, if the
zoning agency “has dug in its heels and made clear that all such applications will be
denied.” Id.; see also Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1014 n.3
(1992) (stating that application for a variance not required when it would be
“pointless”). “District courts ‘have found that in order to invoke the futility
exception, a plaintiff must demonstrate: (1) the inevitability of refusal of their
application, taking into consideration factors such as the defendants’ hostility, delay
and obstruction; and (2) that plaintiff has filed at least one meaningful application.’”
Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 111 F. Supp. 3d 459,
479 (S.D.N.Y. 2015) (quoting Quich Cash of Westchester Ave. LLC v. Vill. of Port
Chester, No. 11-CV-5608 (CS), 2013 WL 135216, at *8 (S.D.N.Y. 2013)). “Futility
20
does not exist merely because public officials are hostile to the proposal at issue.”
Id.; accord S&R Development Estates, 588 F. Supp. 2d at 463. Similarly,
“[g]overnment authorities . . . may not burden property by imposition of repetitive
or unfair land-use procedures in order to avoid a final decision.” Palazzolo v. Rhode
Island, 533 U.S. 606, 621 (2001); see also Sherman v. Town of Chester, 752 F.3d
554, 561 (2d Cir. 2014) (identifying “unfair/repetitive procedures” as a second
exception distinct from futility but for which the analysis is the same where the
plaintiff argues that seeking a final decision would be futile because the defendant
used and likely will continue to use “repetitive and unfair procedures in order to
avoid a final decision”).
Although originally applied in the context of a takings claim, the Second
Circuit has applied Williamson and its progeny to other land use challenges,
including claims alleging equal protection and due process violations. Lost Trail
LLC v. Town of Weston, 289 F. App’x 443, 444 (2d Cir. 2008) (summary order);
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88-89 (2d
Cir. 2002); see also Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 123
(2d Cir. 2014) (“We think . . . that a plaintiff alleging discrimination in the context
of a land-use dispute is subject to the final-decision requirement unless he can show
that he suffered some injury independent of the challenged land-use decision.”);
Murphy, 402 F.3d at 349-50 (citing decisions from other circuits). Courts have also
applied the final decision requirement to land use challenges arising under New
York law. Congregation Rabbinical Coll., 915 F. Supp. 2d at 598 (collecting cases).
21
III.
DISCUSSION
In addition to raising several merit-based grounds for dismissal, defendants’
motion to dismiss contends that this Court lacks subject matter jurisdiction over
plaintiffs’ claims because those claims are not yet ripe for review. Defendants argue
that neither the Town Planning Board nor the Town Board have issued a final
decision as to any of plaintiffs’ land use applications and plaintiffs have not
adequately demonstrated that any of their application will inevitably be refused.
All of plaintiffs’ claims, including all due process and equal protection claims arising
under federal and state law, are subject to the same ripeness inquiry, and therefore
the Court considers all claims together for purposes of this analysis.
At the outset, plaintiffs do not dispute that the Town Planning Board has not
issued a final adverse decision as to any of the four development projects that are
the subject of this action. (See Pls.’ Mem. of Law in Opp. to Defs.’ Mot. to Dismiss
and in Support of Pls.’ Cross-Mot. for Leave to Amend at 8-9, 15-16, 21; Pls.’ Reply
Mem. of Law in Support of Mot. for Leave to Amend at 2-3, ECF No. 43.)9 Thus, the
sole question for purposes of the Court’s jurisdictional inquiry is whether plaintiffs’
9 Defendants’ motion does not directly argue that plaintiffs’ claims relating to Freeman Properties
are unripe, instead challenging such claims solely on the merits. (See Mem. of Law in Support of
Defs.’ Mot. to Dismiss at 10-13, 17-18.) Plaintiffs’ initial opposition brief does acknowledge, however,
that no final adverse decision has been reached as to Freeman Properties. (Pls.’ Mem. of Law in
Opp. to Defs.’ Mot. to Dismiss and in Support of Pls.’ Cross-Mot. for Leave to Amend at 15-16.)
Because “Article III ripeness is a constitutionally mandated jurisdictional prerequisite, . . . its
absence must be noted by a court sua sponte.” Simmonds v. I.N.S., 326 F.3d 351, 358 n.8 (2d Cir.
2003); see also Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 429 (2d Cir. 2013)
(“‘[T]he question of ripeness may be considered on a court’s own motion.’” (quoting Nat’l Park
Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003))). Therefore, the Court addresses
whether the claims relating to Freeman Properties are ripe for review notwithstanding the fact that
the parties have not specifically focused on the ripeness of that project in their briefing.
22
allegations are sufficient to show that waiting to obtain a final decision from the
Town Planning Board (or, where applicable, from the Town Board) would be futile.
Before discussing the adequacy of plaintiffs’ showing, the Court reiterates
that it is plaintiffs who must affirmatively prove the existence of subject matter
jurisdiction, and it is therefore plaintiffs who bear the burden of demonstrating
ripeness and, in this case, futility. Murphy, 402 F.3d at 347; Greenlight
Reinsurance, Ltd. v. Appalachian Underwriters, Inc., 958 F. Supp. 2d 507, 518
(S.D.N.Y. 2013). In order to show futility, plaintiffs must show the inevitability of
defendants’ refusal of their applications, and that they have filed at least one
meaningful application. Bloomingburg, 111 F. Supp. 3d at 479. The standard for
futility is a high one; the doctrine only applies “when the government’s actions are
so unreasonable, duplicative, or unjust as to make the conduct farcical.” Sherman,
752 F.3d at 563; see also Dix v. City of New York, No. 01 CIV. 6186 (LAP), 2002 WL
31175251, at *6-7 (S.D.N.Y. Sept. 30, 2002) (describing futility exception as a
“narrow” one). A rejected meaningful application alone may not be sufficient to
invoke the futility exception. Goldfine v. Kelly, 80 F. Supp. 2d 153, 160 (S.D.N.Y.
2000). With these principles in mind, the Court explains why plaintiffs have not
shown futility as to any of the four development projects at issue in this case. Of
course, this conclusion does not foreclose plaintiffs from bringing a new action at a
later time if the defendants render a final decision or if the alleged hostile and
obstructive behavior persists with respect to any of plaintiffs’ development projects.
23
In attempting to show that further compliance with defendants’ requests
would inevitably be followed by rejection, plaintiffs’ argument primarily relies on
generalized allegations and affidavits and other statements that the individual
defendants began to harbor animus against Roe personally in late 2014. Rather
than focusing their assertion of futility on the particular history of the four projects
or the actions that defendants have taken to delay and obstruct each project,
plaintiffs primarily assert that they have demonstrated futility through allegations
and affidavits showing that certain Town Board and Town Planning Board
members have participated in a conspiracy and engaged in corrupt acts to obstruct
Roe as an individual because of his association with Hasidic Jews in the Town.
The FAC alleges that the defendants participated in a conspiracy to stop or
impede Roe’s development projects that involved, inter alia, hiring an assistant
clerk to gather documents regarding Roe’s past and current projects (e.g., FAC ¶¶
20-32), and alleges that the Town’s animus is demonstrated by the allegations it
made in the Lamm action that Roe and others participated in a racketeering
enterprise to commit fraud and other unlawful conduct against the Town (FAC ¶¶
18-19). The FAC also alleges that defendant Starobin made a stray remark during
an August 2014 site visit to Burlingham Woods to the effect that Roe had placed the
Town Planning Board “in a terrible position” by associating with Shalom Lamm and
that the “politics” of the situation required the Town Planning Board to be
particularly cautious in reviewing any projects proposed by Roe. (FAC ¶ 56.)
Additionally, and as relevant only to the jurisdictional ripeness issue, plaintiffs
24
have also submitted unsworn statements by former Town Board member Russell
Wood (Smith Decl., Ex. 1, ECF No. 38-1), former Town Board member Robert
Justus (Smith Decl., Ex. 2, ECF No. 38-2), and former assistant Town clerk Nicole
Peleschuck (Smith Decl., Ex. 5, ECF No. 38-5), none of which establish that the
Town Board or Town Planning Board harbor so strong an animus against Roe that
any land use application he submits would inevitably be rejected.10 Wood and
Justus state only that they heard other Town Board and Town Planning Board
members say that they wanted to find ways (and believed they had) to stop certain
of Roe’s development projects, and that Nicole Peleschuck was ostensibly hired to
aid in billing but spent most of her time reviewing Roe’s past projects. In her
statement, Peleschuck states that the Town Planning Board’s attorney directed her
to pull files for Roe’s past projects and that certain Town Planning Board members
met to review the files, and that the Town was generating excessive bills to Roe out
of escrow. Peleschuck also states that Linda Franck, the Town Planning Board’s
secretary, told her that she was being asked to pull Roe’s files because he was
disliked because of his association with the Hasidim involved in the Chestnut Ridge
project. Finally, Roe himself submitted a sworn affidavit explaining that he has
had 25 years of real estate development experience in the Town and that his
treatment in regards to these recent projects has been different than that which he
received in the past. (Smith Decl., Ex. 4, ECF No. 38-4.)
10 Plaintiffs have also submitted an unsworn statement by John Piazza, who served as Chairman of
the Town Planning Board from 1993 to 2010. (Smith Decl., Ex. 3, ECF No. 38-3.) Piazza’s statement
does not provide any information regarding defendants’ alleged animus.
25
Although the defendants’ hostility to Roe and his projects is relevant to
whether plaintiffs are able to show that their land use applications would inevitably
be rejected, futility does not exist merely because the defendants are hostile to the
plaintiffs’ proposal. Bloomingburg, 111 F. Supp. 3d at 479; see also BT Holdings,
LLC v. Vill. of Chester, No. 15-CV-1986 (CS), 2016 WL 796866, at *7 (S.D.N.Y. Feb.
23, 2016) (collecting cases); Kowalczyk v. Barbarite, No. 08-CV-6992 (ER), 2012 WL
4490733, at *9 (S.D.N.Y. Sept. 25, 2012) (“Hostility alone, while perhaps
unjustifiable, does not make certain that a zoning variance would be opposed or
rejected.”), aff'd, 594 F. App’x 690 (2d Cir. 2014) (summary order). Moreover,
“conclusory assertions that defendants acted with malicious intent and bad faith in
processing plaintiff’s application in order to delay and obstruct” are insufficient to
establish futility. Country View Estates @ Ridge LLC v. Town of Brookhaven, 452
F. Supp. 2d 142, 154 (E.D.N.Y. 2006) (collecting cases). Here, as detailed above,
plaintiffs rely on generalized allegations of hostility and stray remarks that, in
large part, are conclusory or grounded in hearsay, and in any event largely do not
support the broad conspiracy theory that plaintiffs argue demonstrates that his
land use proposals will inevitably be rejected. Such allegations are not themselves
sufficient to meet plaintiffs’ burden to show that any further compliance with the
Town Board’s or Town Planning Board’s processes will be futile, as plaintiffs’
allegations and the unsworn statements they have submitted in opposition to
defendants’ motion do not make certain that defendants will not give full
consideration to any proposal. Courts have rejected parties’ invocations of the
26
futility exception where the allegations of hostility were at least as robust as those
present here. E.g., Homefront Org., Inc. v. Motz, 570 F. Supp. 2d 398, 408
(E.D.N.Y. 2008) (collecting cases); Dix, 2002 WL 31175251, at *8; Goldfine, 80 F.
Supp. 2d at 161. Having found plaintiffs’ generalized allegations regarding
defendants’ alleged animus to be insufficient to establish futility, the Court next
explains why plaintiffs’ allegations regarding the history and current status of each
of the four development projects do not meet plaintiffs’ burden.
With respect to Burlingham Woods, after receiving necessary approvals from
the Town Board and the Town Planning Board in 2011 and 2012, the FAC alleges
that in January 2014 Roe submitted a proposal to construct a gas station and
convenience store of approximately 2,000 square feet on a 3.9 acre parcel of the
approximately 41-acre lot. Plaintiffs allege that, after requesting various further
submissions from Roe, the Town Planning Board reached a tie vote on a SEQRA
Negative Declaration in November 2014. Roe subsequently submitted a revised
proposal in March 2015 and alleges that the Town Planning Board’s secretary told
Roe that he needed to contribute more money to the Board’s escrow fund. At least
based on the allegations in the FAC, Roe refused to contribute more to the escrow
fund until November 2015, when his attorney inquired as to why the project was
not moving forward. In December 2015, Roe tendered a check for the $974.76
amount that he was told was due, and was subsequently advised that another sum
of $3,750 would have to be paid before the project could be considered. Plaintiffs
have refused to pay this additional sum, and argue that it would be futile to do so
27
because the Town Planning Board’s request is unreasonable and it would in any
event be met with a further demand for Roe to take additional unnecessary action.
Even accepting the facts alleged in the FAC as true, plaintiffs have not come
close to meeting their burden to establish futility with respect to Burlingham
Woods. The only condition at this juncture holding up plaintiffs’ application is of
their own making; namely, their refusal to provide additional funds to the Town’s
escrow account to cover professional fees. See Sheri Torah, Inc. v. Vill. of S.
Blooming Grove, No. 10 Civ. 3762(LAP), 2013 WL 1454953, at *7 (S.D.N.Y. Mar. 28,
2013) (finding land use claims unripe where the plaintiff refused to provide the
municipality with requested information that the plaintiff argued was frivolously
sought). A significant chunk of the delay in the project was plaintiffs’ refusal to pay
any additional escrow funds between March 2015 and November 2015; on the facts
alleged, the Town Planning Board’s second request for an additional sum of $3,750
does not establish that any further efforts to comply would be futile or pointless.
The alleged obstacles to the project, and the requests made by the Town Planning
Board, are as yet a far cry from presenting facts that other courts have found
sufficient to invoke the futility exception; the history and status of Burlingham
Woods much more closely resembles cases in which courts have found further
compliance to not be futile. E.g., Motz, 570 F. Supp. 2d at 409. Even if the Town
Planning Board’s failure to approve a SEQRA Negative Declaration may be
considered a rejection of one meaningful application, “often courts have required
more than one rejected application to invoke the futility exception.” Goldfine, 80 F.
28
Supp. 2d at 160; see also Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 98
(2d Cir. 1992) (stating that a rejection of one development proposal has been found
insufficient to invoke futility exception). Although precedent has not established a
specific threshold beyond which excessive delay presumptively reaches futility,
courts have stated that the delay must be “considerable.” Kinzli v. City of Santa
Cruz, 818 F.2d 1449, 1454 n.5 (9th Cir. 1987). Whatever extent of excessive
postponement constitutes “considerable” delay, it cannot mean that the standard is
met any time that a municipal body makes multiple rounds of requests over a
period of a couple years for additional studies and escrow funds to cover professional
fees.
With respect to Reinhardt Farms, plaintiffs allege that they first encountered
obstruction and delay when, in March 2015, the Town Attorney sent a letter to the
DEC—the entity responsible for approving the modification of Reinhardt Farms’
mining permit—that reneged on prior approvals and permits (and deemed a
conditional final approval for phase I of the subdivision to be expired) in a manner
allegedly without precedent in the Town. In April 2015, the Town directed
Reinhardt Farms to cease all mining operations and related work, and subsequently
rezoned the area including and around Reinhardt Farms to require larger minimum
lot sizes that would preclude implementation of the development proposal for which
plaintiffs previously received conditional final approval. Plaintiffs do not allege
that they have applied for renewed subdivision approval or that they have been
29
rejected—or that they have even reapplied—for renewal of the mining permit since
receiving the March 2015 and April 2015 letters.
It is plainly apparent that the facts and circumstances pertaining to
Reinhardt Farms do not meet the high standard for futility. Absent from plaintiffs’
allegations is any indication that further applications or efforts at compliance would
be futile, as plaintiffs have not even demonstrated that they have sought and been
denied a variance from the new zoning regulations or that the Town Planning
Board has taken a definitive position on whether plaintiffs will be able to renew the
mining permit. To the extent that plaintiffs seek to show futility based on the Town
Attorney’s position stated in his March 2015 letter, this is insufficient because that
letter reflects a legal argument and not a statement of how the Town Planning
Board itself would consider any new application by plaintiffs. 545 Halsey Lane
Properties, LLC v. Town of Southampton, No. 14-cv-800 (ADS)(AYS), 2015 WL
2213320, at *7 (E.D.N.Y. May 8, 2015), reconsideration denied, 2015 WL 3824050
(E.D.N.Y. June 19, 2015). The Court observes, as well, that plaintiffs’ own
allegations demonstrate that the DEC, which is not alleged to have any animus
towards plaintiffs, has been at least as responsible for delays in the project due to
plaintiffs’ failure to complete the agreed upon reclamation of the mining site.
Pantelop Road is a 12-lot subdivision set on approximately 30 acres that in
August 2013 received conditional final approval from the Town Planning Board.11
Plaintiffs first sought leave to add claims relating to Pantelop Road when they submitted the
proposed First Amended Complaint on February 29, 2016. The Court has no indication whether
there have been any further developments or changes with respect to Pantelop Road or any of the
other properties at issue since that date. Even assuming that the Town has taken no further action
11
30
The conditions for final approval were the finalization of drainage easements and
meeting the Town engineer’s comments on the proposal—two conditions that
plaintiffs do not allege were fulfilled as of plaintiffs’ motion to amend the complaint
on February 29, 2016. The FAC does allege that Roe’s engineer submitted a report
regarding the proposed drainage district in July 2014, and submitted a
supplemental report in December 2015 that addressed verbal comments made by
the engineer for the Town Board. Plaintiffs allege that waiting for a final decision
from the Town Board and/or the Town Planning Board is futile because—at least as
of February 2016—they have not received any response to the December 2015
supplemental report.
Even if one assumes that plaintiffs have yet to receive a response as of June
2016, only six months have passed since Roe’s engineer submitted the requested
supplemental report. While plaintiffs contend that the delay of approval has been
unnecessarily protracted, the reasonableness of this period must be compared to the
approximately year and a half period that it took for plaintiffs’ engineer to respond
to the Town engineer’s comments. There is, furthermore, nothing specific to
Pantelop Road in the FAC or the other materials that plaintiffs submitted in
opposition to defendants’ motion to dismiss suggesting that the Town Board or
Town Planning Board have any particular hostility to that project. These
circumstances are plainly insufficient to show that the Town Board has dug in its
heels or that disapproval is inevitable such that plaintiffs may be excused from the
on any of these projects as of the date of this Opinion & Order, that would not alter the Court’s
conclusion that plaintiffs have failed to establish futility.
31
final decision requirement. Dougherty, 282 F.3d at 89; see also Dean v. Town of
Hempstead, No. 14-cv-04951 (JG) (SMG), 2016 WL 660884, at *20 (E.D.N.Y. Feb.
18, 2016) (collecting cases).
Lastly, as the Court previously noted, Freeman Properties is the only project
that defendants do not directly assert is not yet ripe for review. As the Court has
noted above, however, ripeness is a jurisdictional question and therefore may
appropriately be considered by the Court sua sponte; the Court must undertake
that inquiry here because plaintiffs have not identified any adverse final decision by
the Town Planning Board or Town Board that they seek to challenge. Rather,
plaintiffs (who, again, bear the burden of affirmatively showing the existence of
subject matter jurisdiction) essentially contend that, like the other development
projects in this case, waiting for action from defendants would be futile given
defendants’ animus and unwarranted delays to date. Plaintiffs allege that, despite
making inquiries to defendant Hermann and the Town Planning Board’s secretary,
they have been waiting since October 2013 for the Town Board’s attorney to draft
and prepare a bond in the amount of $184,300 for public improvements for the
project. Plaintiffs further allege that defendant Hermann told another Town Board
member that he won’t allow Freeman Properties to be placed on the Town Board’s
agenda, and they also allege that there has never been another instance in the
Town of officials refusing to provide a developer who has received final subdivision
approval with a draft agreement to allow the developer to post a bond.
32
Although further delay or obstruction by the Town or the Town Board’s
attorney in providing a bond document (or at least explaining why that will not be
forthcoming) or precluding Roe from being heard on the status of Freeman
Properties could provide a sufficient ground for finding that waiting for action from
the Town would be futile, the allegations—at least as currently pled in the FAC—
are insufficient to show that such a point has yet been reached.
First, with respect to the alleged animus against the project, plaintiffs rely
solely on a hearsay statement that defendant Hermann made to another Town
Board member that provides no indication that the Town will refuse to provide the
documents necessary to allow plaintiffs to post the required bond. Moreover, as
stated above, the FAC does not allege that Hermann has the authority to determine
whether an item can be kept off of the Town Board’s agenda, nor does it allege
whether Freeman Properties even needs to be placed on the Town Board’s agenda to
secure the bond or to otherwise finalize the project. Absent such allegations, it is
unclear how Hermann’s statement has any bearing on plaintiffs’ actual ability to
secure the bond documents.
As to the length of the alleged delay in providing the bond agreement, the
Court agrees that a delay of more than two years appears to be excessive and
without seeming justification. That does not mean, however, that further inquiries
or other efforts to obtain a bond agreement that would allow the project to go
forward are futile. Until this stage of the project, plaintiffs have not alleged that
they received any opposition or obstruction from the Town. Plaintiffs allege only
33
that Roe made numerous inquiries through May 2014 to individuals that included
Hermann and the Town Planning Board’s secretary. The FAC is devoid of a
description of efforts that Roe undertook subsequent to that date, or whether Roe
has tried any other avenues (or whether any other avenues exist) to secure the bond
that will allow Roe to finalize the project. In short, plaintiffs have not overcome the
reasonable inference that the issue has simply become stale as a result of inaction
on both sides, and they have not shown the possibility that other avenues exist that
would allow them to complete the project. Under the circumstances alleged here,
plaintiffs have not met their high burden to show futility. Dougherty, 282 F.3d at
89; Dean, 2016 WL 660884, at *20. Therefore, the Court finds that plaintiffs’ claims
relating to Freeman Properties are similarly not yet ripe for review based on the
allegations in the FAC.12
In sum, because plaintiffs have not met the high bar of showing that awaiting
a final decision from the Town Board or the Town Planning Board as to any of the
four land use projects at issue would be futile, plaintiffs’ claims—as alleged in
either the operative complaint or the proposed First Amended Complaint—are not
12 Even if the Court determined that it had jurisdiction to consider plaintiffs’ claims relating to
Freeman Properties on the merits, the Court has serious doubts that plaintiffs’ allegations for this
project plausibly allege a substantive due process or equal protection claim under either federal or
state law. See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010) (stating
that a plaintiff alleging a class of one equal protection claim must allege that he was intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment); Lisa’s Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 17 (2d Cir. 1999) (requiring a
plaintiff alleging a substantive due process claim for wrongful denial of a land use permit to show
that the defendant’s action was so outrageously arbitrary as to be a gross abuse of governmental
authority). The Court observes that, if it were to conclude that plaintiffs’ claims relating to Freeman
Properties were not futile, the Court believes that it would be likely to grant defendants’ motion as to
those claims on the merits. If that were to occur, plaintiffs’ claims would be dismissed with
prejudice, in contrast to the dismissal without prejudice that results from resolution on ripeness
grounds.
34
ripe for review at this time. To the extent that plaintiffs suffer further delay,
obstruction and/or hostility with respect to any of these projects, they may seek to
bring a new action asserting any appropriate claims at that time.
IV.
CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss is GRANTED
on the ground that plaintiffs’ claims are not ripe for review; plaintiffs’ motion for
leave to file an amended complaint is DENIED as futile. Accordingly, this action is
dismissed without prejudice.
The Clerk of Court is directed to close the motions at ECF Nos. 29 and 35,
and to terminate this action.
SO ORDERED.
Dated:
New York, New York
June 9, 2016
KATHERINE B. FORREST
United States District Judge
35
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?