Carney v. Swanson et al

Filing 22

DECISION AND ORDER. Defendants' Motion to Dismiss 8 is GRANTED, and this case is DISMISSED WITHOUT PREJUDICE. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 12/28/2016. A copy of this Order and NEF have been mailed to the pro se Plaintiff. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN CARNEY,
Plaintiff,
Case # 15-CV-1060-FPG
v.
DECISION AND ORDER
JEFF SWANSON et al.,
Defendants.

INTRODUCTION
Pro se Plaintiff John Carney (“Plaintiff”) brings this action against Jeff Swanson, in his
official capacity as Town of Busti Code Enforcement Officer, Jesse Robbins, in his official
capacity as Town of Busti Supervisor, Kenneth J. Lawton, James Andrews, Todd M. Hanson,
and Brett A. Muchech, in their official capacities as Town of Busti Councilmen, and Kevin P.
Okerlund, in his official capacity as Town of Busti Assessor (collectively the “Defendants”).
ECF No. 1. Plaintiff asserts that his constitutional rights were violated when he was informed
that he was operating an illegal saw mill and maintaining an improper building on his property in
violation of local zoning ordinances. Id.
On March 9, 2016, Defendants moved to dismiss pursuant to Rules 12(b)(1) and (6) of
the Federal Rules of Civil Procedure. ECF No. 8. After he was granted several extensions of
time, Plaintiff responded in opposition to Defendants’ Motion on September 16, 2016. ECF No.
20. For the reasons that follow, Defendants’ Motion to Dismiss is GRANTED and this action is
DISMISSED WITHOUT PREJUDICE.

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BACKGROUND1
Plaintiff resides in Chautauqua, New York, in the Town of Busti (the “Town”), where the
events at issue occurred. ECF No. 1, at 1. Plaintiff alleges that on September 28, 2015,
Defendants sent him a letter “without benefit of NYS or US Constitutional Due Process” that
informed him that “the use of his sawmill is prohibited.” Id. at 2. Plaintiff claims that this letter
denied him “the use of his property and interferes with his freedom to contract.” Id. He also
complains that Defendants did not “respond to [P]laintiff’s reply dated October 15, 2015 asking
for discovery of definitions and statutory authorization of zoning codes.” Id.
Plaintiff also alleges that on October 14, 2015, Defendant Swanson, “with knowledge to
co-defendants by return mail of [P]laintiff,” informed Plaintiff by letter that he was “operating an
illegal saw mill” and “had an illegal building on his property.” Id. at 3.
Finally, Plaintiff alleges that on November 4, 2015, Defendants mailed two “Orders for
Remedy” for Plaintiff to complete. Id. at 4. Plaintiff claims that these were “thinly veiled threats
of fines and imprisonment” and he notes that he “was referred to the Town of Busti Clerk.” Id.
Plaintiff asserts that these actions constituted “a denial of due process, a takings claim, a
civil rights violation, a denial of the right of obligation to contract, infringement on a right, [and]
obstruction of justice.” Id. at 1.
LEGAL STANDARD
In ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction,
courts may rely on “evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). It is the plaintiff’s burden to establish subject matter jurisdiction by a
preponderance of the evidence. See Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); see

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The following allegations are taken from Plaintiff’s Complaint (ECF No. 1) and are accepted as true for the
purpose of evaluating Defendants’ Motion to Dismiss.

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also Goonewardena v. New York, 475 F. Supp. 2d 310, 321 (S.D.N.Y. 2007) (“[T]he burden of
demonstrating that the court has subject matter jurisdiction over the case falls on the plaintiff as
it is the plaintiff who seeks to invoke the court’s jurisdiction.”).
Because Plaintiff is proceeding pro se, his pleadings are held to “less stringent standards
than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (internal
quotation marks omitted), and are interpreted “to raise the strongest arguments that they
suggest,” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).
DISCUSSION
Defendants moved to dismiss all claims for failure to state a claim and for lack of subject
matter jurisdiction. ECF No. 9. Specifically, Defendants argue that this Court lacks subject
matter jurisdiction because Plaintiff’s claims are not ripe for adjudication as he did not obtain a
final decision from the Town zoning authorities before commencing this suit. ECF No. 9, at 1115. Because subject matter jurisdiction is a constitutional prerequisite, this Court must first
determine whether Plaintiff’s claims meet the ripeness requirements. See Rhulen Agency, Inc. v.
Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) (“[T]he court should consider the
Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter
jurisdiction, the accompanying defenses and objections become moot and do not need to be
determined.”) (citation omitted).
Ripeness of an alleged claim is a jurisdictional prerequisite. See, e.g., Murphy v. New
Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005). The ripeness doctrine prevents a
federal court from deciding cases where the injury is merely speculative. See Abbott Labs. v.
Gardner, 387 U.S. 136, 148 (1967).

“As the Supreme Court has explained, the ripeness

doctrine’s ‘basic rationale is to prevent the courts, through avoidance of premature adjudication,

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from entangling themselves in abstract disagreements.’” Murphy, 402 F.3d at 347 (quoting
Abbott Labs., 387 U.S. at 148).
“The ripeness doctrine has particular import in land use cases.” Hunter v. Town of Chili,
New York, No. 09-CV-6285, 2010 WL 598679, at *2 (W.D.N.Y. Feb. 18, 2010) (citing Murphy,
402 F.3d at 347). The Supreme Court has held that a takings claim is ripe if the plaintiff
received a “final decision” from the local zoning authorities. Williamson Cnty. Reg’l Planning
Comm’n v. Hamilton Bank, 473 U.S. 172 (1985); see also Dougherty v. Town of North
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (noting Williamsom’s ripeness
requirement, although originating in the takings context, has been applied to due process and
equal protection claims). Specifically, a plaintiff must request a variance from the local zoning
authorities before a determination becomes final. Id. at 186-89. The Second Circuit has held
that “[u]nless a court has a final decision before it, it cannot determine whether a claimant was
deprived of property and whether the government conduct was arbitrary or capricious.”
Southview Assocs. Ltd. v. Bongartz, 980 F.2d 84, 97 (2d Cir. 1992) (applying ripeness analysis to
due process claims).
Four policy rationales support the finality requirement. First, obtaining a final decision
aids the development of a full record. Murphy, 402 F.3d at 348. Second, “only if a property
owner has exhausted the variance process will a court know precisely how a regulation will be
applied to a particular parcel.” Id. Third, a variance may provide the plaintiff relief by avoiding
judicial adjudication of constitutional claims, furthering “the long-standing principle that
disputes should be decided on non-constitutional grounds whenever possible.” Id. Finally,
“[r]equiring a property owner to obtain a final, definitive position from zoning authorities

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evinces the judiciary’s appreciation that land use disputes are uniquely matters of local concern
more aptly suited for local resolution.” Id.
Here, Plaintiff’s Complaint fails to allege that he appealed Defendants’ initial allegation
that he violated the Town Building and Zoning Codes by operating an illegal saw mill and
maintaining an improper structure on his property.

Plaintiff also does not allege that he

requested a variance to operate his saw mill or that he applied for a building permit for the
structure.

Moreover, Defendants’ submissions further demonstrate that Plaintiff has not

appealed these issues and that the Town’s Zoning Board of Appeals (“ZBA”) has not taken any
action. ECF No. 8-2, at 4-5. Until Plaintiff appeals these issues, there is no “final decision” that
gives this Court jurisdiction to adjudicate his claims. See Hunter, 2010 WL 598679, at *2
(granting motion to dismiss for lack of subject matter jurisdiction because the plaintiff’s
complaint failed to allege that he appealed the defendants’ initial decision denying his request for
a permit pursuant to town regulations).
The rigidness of the finality requirement may be relaxed if pursuing an appeal or
requesting a variance would be futile. Williamson, 473 U.S. at 349. “[A] property owner need
not pursue such applications 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. Here, the ZBA is
authorized to “grant use variances authorizing a use of the land which otherwise would not be
allowed or would be prohibited[.]” Code of Town of Busti, New York § 405-84(B)(1)(a).
Moreover, nothing in the Complaint suggests that the ZBA has “dug in its heels” or has
otherwise prevented Plaintiff from appealing these decisions. Thus, Plaintiff’s claims are not
ripe for judicial review until he obtains a final decision from the ZBA.

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CONCLUSION
For the reasons stated, Defendants’ Motion to Dismiss (ECF No. 8) is GRANTED, and
this case is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to terminate
this action.
IT IS SO ORDERED.
Dated: December 28, 2016
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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