Country View Estates @ Ridge v. Town of Brookhaven

Page 142

452 F.Supp.2d 142

COUNTRY VIEW ESTATES @ RIDGE LLC, Plaintiff, v. TOWN OF BROOKHAVEN; Building Department of the Town of Brookhaven; Daniel Gulizio Individually and as commissioner of the Department of Planning, Environment and Development of the Town of Brookhaven; Department of Planning, Environment and Development, of the Town of Brookhaven; Robert T. Reilly, Chairman; Karen M. Wilutis; Robert L. Hughes; Donald W. Leo; Peter Cris; Stephen E. Keegan; M. Cecile Forte, constituting the Planning Board of the Town of Brookhaven; New York State Builders Association, Defendants.

No. CV-04-4901(BMC)(MLO).

United States District Court, E.D. New York.

September 25, 2006.

Richard I. Scheyer, Scheyer & Jellenik, Nesconset, NY, for Plaintiff.

Paul F. Millus, Snitow, Kanfer, Holtzer & Millus, LLP, New York, NY, Kimberely C. Lawrence, Hinman Straub, P.C., Albany, NY, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT

COGAN, District Judge.

Plaintiff Country View Estates @ Ridge LLC sues the Town of Brookhaven and other defendants for (1) deprivation of its procedural and substantive due process rights pursuant to the Fourteenth Amendment; (2) violation of its right to equal protection pursuant to the Fourteenth Amendment; (3) violation of its civil rights pursuant to 42 U.S.C. § 1983; (4) violation of its civil rights pursuant to 42 U.S.C. § 1988; (5) violation of its Fifth Amendment right to be free from a regulatory taking of property without just compensation; and (6) violation of some unspecified laws of the State of New York.

On May 4, 2005, District Judge John Gleeson (previously assigned to this case) referred defendants' motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) to Magistrate Judge Michael L. Orenstein. Judge Orenstein issued his Report and Recommendation finding that plaintiffs claims are not yet ripe for consideration by this Court and recommending that this court either grant defendants' motion for judgment on the pleadings without prejudice and with leave to replead at such time as the claims do become ripe or hold the case in abeyance pending the final adjudication of the proceedings in state court. Despite being granted an extension of time nunc pro tunc in which to file its objections, plaintiff has not filed any objections to the Report and Recommendation. Nonetheless, I have reviewed the parties' submissions on the motion together with Judge Orenstein's Report and Recommendation.

I agree with and accept the Report and Recommendation. Judge Orenstein is clearly correct that the case is not ripe for adjudication at this time. With regard to the alternative ruling of staying this case pending the outcome of the Article 78 proceeding suggested by Judge Orenstein, I believe that dismissal rather than a stay is appropriate.

Ripeness goes to the existence of a case or controversy under the Constitution and thus presents a jurisdictional issue. Metropolitan Washington Airports Authority, et al. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n. 13, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991). If the case is not ripe, there is no subject matter jurisdiction, and thus no basis to issue a stay. Dismissal without prejudice is therefore the proper disposition in the ripeness context.¹

It is therefore

ORDERED that plaintiffs complaint is dismissed in its entirety without prejudice.

SO ORDERED.

REPORT AND RECOMMENDATION

ORENSTEIN, United States Magistrate Judge.

On May 4, 2005, District Judge John Gleeson referred to the undersigned, defendants' future motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) dismissing plaintiff Country View Estates @ Ridge, LLC's ("plaintiff' or "Country View Estates") complaint with prejudice and granting such other and further relief as the Court deems just and proper. Order, dated May 4, 2005, Gleeson, D.J. The parties filed their motion papers and memoranda of law, including an amicus memorandum of law in January 2006. Additional matter was filed in June 2006.

For the reasons that follow, this Court respectfully reports and recommends that (i) the Court grant defendants' motion for judgment on the pleadings without prejudice and with leave to replead at such time when plaintiff is able to allege sufficient facts that would satisfy the requirements of the Williamson ripeness test, and (ii) the Court decline to exercise jurisdiction over plaintiffs state law claims. In the alternative, this Court respectfully reports and recommends that the Court hold the case in abeyance pending the final adjudication of proceedings in the state court with a view to avoid duplication of judicial resources and to have the benefit of the state court's decisions.

FACTUAL BACKGROUND

The following summary of facts is based upon the Complaint. See Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir.2005).

Plaintiff is the owner of a 10.7 acre parcel of property located at the intersection of Middle County Road and Wading River Hollow Road in the Town of Brookhaven (hereinafter the "property" or "parcel" or "site"). (Compl.¶ 11). On January 11, 2000, plaintiff applied to the Brookhaven Town Board to change the zoning on the property from "J-2 Business and A-1 Residential" to "MF-1 Multi Family,"¹ in order to construct its proposed project which consisted of 66 two-story, residential attached housing units on the subject site (hereinafter the "project"). (Id. at ¶ 13).

The Town Planning Board held a hearing on plaintiffs application on May 10, 2001 and conditionally approved plaintiff's change of zoning application to permit the building of 37 residential attached housing units. (Id. at ¶¶ 16-17). Plaintiff thereafter reapplied to the Town Planning Board to increase the number of housing units, and on December 12, 2001 the Town Board amended its approval of plaintiffs application for the change of zone classification to permit the construction of 42 units. (Id. at ¶¶ 18-19). The approved zoning change was to be effective on June 3, 2002. (Id. at ¶ 21). Plaintiff submitted a site plan application to the Planning Board on December 18, 2002. (Id. at ¶ 24).

Following a meeting with Commissioner Gulizio, plaintiff resubmitted its site plan application to the Town Planning Board on February 3, 2003. (Id. at ¶¶ 27-28). From February 2003 to April 2003, plaintiff communicated with officials in the Town's various departments regarding plaintiffs pending site plan application. (Id. at ¶¶ 29-31). In May 2003, the Town Planning Board notified plaintiff that it was awaiting comments from other Town Departments before the project could commence, and in June 2003 the Town's engineer had test holes performed on the subject property. (Id. at ¶¶ 32-33). Plaintiff subsequently met with representatives of the Town Planning Board in July 2003 to review the site plan application and to obtain the Planning Board's written comments. (Id. at ¶ 34). While plaintiff made a written list of the Planning Board's comments regarding its application, the Planning Board did not issue its comments in writing to plaintiff. (Id. at ¶ 35).

On July 8, 2003, the Town imposed a six month moratorium on, inter alia, MF-1 applications for properties located in Coram, Middle Island and Ridge, New York, which has remained in effect through continuous renewals.² (Id. at ¶¶ 36-37). The moratorium included plaintiffs application. (Id. at ¶ 38). Plaintiff applied for a hardship exemption from the moratorium in August 2003. (Id. at ¶ 39). Sometime between August 6, 2003 and August 11, 2003, the Town Board voted to exempt from the moratorium, change of zone applications which were effective within the prior two years of the moratorium, which included plaintiffs site plan application. (Id. at ¶¶ 40-41).

Following additional meetings with the Town Planning Department, plaintiff revised and resubmitted its site plans based on the Planning Department's comments in September 2003. (Id. at ¶¶ 42-44). The Planning Board held a public hearing on November 3, 2003, and at this meeting, Commissioner Gulizio advised the Planning Board that Section 85-79 of the Town Code³ provided that construction on a project must be commenced within one year from the effective date of a change of zone. (Id. at ¶ 46). Commissioner Gulizio also stated that because plaintiffs project had not commenced in accordance with an approved site plan within a one year period, the Town Planning Board was without authority to act on plaintiffs application. (Id. at ¶¶ 47-49). Commissioner Gulizio advised plaintiff that pursuant to Section 85-79 the Town Planning Board may, if deemed necessary, initiate proceedings to reclassify plaintiffs property to its original zoning and informed plaintiff that it would have to apply to the Town Board for an extension of the time limit for commencement of construction under this section. (Id. at ¶¶ 52-53).

By letters dated November 6, 2003 and November 19, 2003, plaintiff notified the Town of its objections to Commissioner Gulizio's statements at the hearing. (Id. at ¶¶ 54-55). While the Town Board did not directly respond to plaintiffs letters of objection, the Town informed plaintiff by letter dated January 14, 2004, that the Planning Board would review plaintiffs site plan application under Section 85-79. (Id. at ¶¶ 55-56). Plaintiff submitted documents in support of the review and sent follow up letters to the Planning Board. (Id. at ¶¶ 57-58). By letter dated March 16, 2004 to the Town Planning Board, plaintiff requested final site plan approval, and the Planning Board placed the matter on its calendar for a public hearing scheduled for April 19, 2004. (Id. at ¶¶ 59-60). Prior to the hearing, the Planning Board notified plaintiff that the hearing would not be held on that day. (Id. at ¶ 61).

Plaintiff then met with Commissioner Gulizio and was informed that plaintiffs site plan application would be placed on the Planning Board's May 2004 c...