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Takings Claim Dismissed for Failure to be Ripe for Judicial Review

The Second Circuit Court of Appeals issued a summary order denying an appeal from a decision dismissing the claim of regulatory taking, by a property owner whose property was not placed in any zoning district. In the case of BT Holdings, LLC v Village of Chester, the Circuit Court found that the District Court properly dismissed the claim, pursuant to 42 USC §1983, as there had not been a final determination with respect to whether the property owner could utilize its property.

Plaintiff’s property had been annexed from the Town of Chester to the Village of Chester. After the annexation, the Village of Chester failed to place the property in a zoning district. Due to the lack of zoning designation, the Plaintiff could not apply for site plan or other approvals necessary to develop Plaintiff’s property. As a result, Plaintiff commenced this action claiming a regulatory taking.

Citing the two step ripeness test, established by the United States Supreme Court in County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186–97 (1985), the Circuit Court concluded the Plaintiff had failed to meet the first prong of that test. It noted that the District Court properly held:

‘“[t]he final decision requirement ensures that when analyzing a challenge to the constitutionality of a local land use decision, a federal court has the benefit of a fully developed record, a precise demonstration of how local regulations would be applied to the particular property, and knowledge of whether a variance or approval of alternative plans could provide the relief the landowner seeks.’Id. (internal quotation marks omitted).”

Plaintiff claimed that without a zoning designation it was precluded for seeking site plan approval or even a variance. Therefore, Plaintiff argued that any application was futile and it could seek relief from the Court. Incredibly, four months before oral argument, the property did receive a zoning designation, but neither party informed the Court. It only came out, for the first time, during oral argument that the property had been placed in a zoning district. In fact, during oral argument, Plaintiff’s Counsel acknowledged that by the Village finally designating the zoning of Plaintiff’s property, Plaintiff’s “claim is over.”

“Because both parties agree that today the property has zoning, Plaintiff-Appellant has no justification for failing to submit a plan for developing its property, the required next step under regulatory takings ripeness analysis.”

The Court then concluded the only potential remaining claim would be for a temporary taking due to the failure, for approximately three years, to place Plaintiff’s property in a zoning district. However, the Court concluded that Plaintiff’s lack of action also precluded the temporary taking claim.

“This claim, too, is without merit. In its briefing, Plaintiff- Appellant provided no evidence in the record that it ever formally petitioned the Village Board to apply one of the Village of Chester’s zoning districts to its property and that the Village Board voted against such a petition. At oral argument, moreover, when questioned as to whether Plaintiff-Appellant had ever formally petitioned the Village Board to apply a zoning district to BT Holdings’s property, BT Holdings acknowledged that it never did so….Under Plaintiff-Appellant’s interpretation of the Village Code, such an application would be the necessary prerequisite before seeking either a site plan approval or a variance, and the burden is squarely on the plaintiff to provide evidence that it did so apply in order to establish that its claim was ripe.”

The Plaintiff had sought an amendment to one of the Village zoning districts that was denied.  The Court, again citing Williamson held that petition was not ‘“a final decision regarding the application of the regulations to the property of issue.’ Williamson County, 473 U.S. at 186 (emphasis added)”.

The Court therefore concluded there was no basis for reversing the District Court.

-Steven Silverberg


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