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Another Ripeness decision on RLUIPA claims

Written by Daniel P. Dalton on January 11, 2013 Category: RLUIPA
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A case from the Federal District Court for the Eastern District of New York provides a thorough yet straightforward blueprint of what is needed for establishing ripeness for a RLUIPA claim. In Twersky v. Town of Hempstead, Plaintiffs were the co-owners of a burial plot in a cemetery in the town of Hempstead, NY. Plaintiffs sought to build an ohel over the grave of their father. An ohel, according to the opinion, is a “stand-alone structure customarily built over the graves of righteous scholars and leaders of the Hassidic Jewish community.” In order to do this, the Town notified Plaintiffs that they would need a building permit. The permit would require, among other things, the signature of the owner of the cemetery in which the burial plot was located. Plaintiffs submitted the appropriate paperwork but did not include the signature of the owner of the cemetery. The Building Plans Examiner reviewed the application and issued a Planning Department Objection Sheet on the grounds that the application had not been signed by the cemetery owner. Plaintiffs subsequently brought a lawsuit against the Town without appealing the denial of the permit.

The court begins by noting that there are four factors that must be assessed when determining the ripeness of a land use case: “(1) whether a requirement that the plaintiff ‘obtain a final decision from a local land use authority aids in the development of a full record;’ (2) whether the property owner has exhausted the variance process; (3) whether ‘a variance might provide the relief the property owner seeks without requiring judicial entanglement in constitutional disputes;’ and (4) whether federalism principles further support a requirement of finality.” The court found that the plaintiffs failed to sufficiently satisfy these factors.

First, the court found that the plaintiffs had not suffered an immediate injury. Although Plaintiffs claimed that they were injured as a result of not being able to memorialize their father, the court found that the only injury suffered through the denial of a permit was the “loss of desired use of their property.” Additionally, the court said that if Plaintiffs appealed the denial of the permit to the zoning board, the result would more clearly define any alleged injury. Next, the court found that the plaintiffs had not established that there was a “final, definitive position from the local authority.” The court pointed out that since Plaintiffs did not take advantage of the appeal available to them it was not possible to say for certain what the final position of the Town would have been.

The court also found that an appeal to the zoning board would help “in the development of a full record.” The court said that since the requirement of the signature of the cemetery owner was in question, an appeal to the zoning board would have likely revealed more information as to the Town’s reasoning behind the requirement if in fact it was a requirement at all. Perhaps most importantly, the court observed said that “federalism principles weigh in favor of a requirement of finality.” The court rightly points out that the plaintiffs had asked it to interpret the Town’s building code and that the zoning board was surely in a better position to take such action than the federal court. Finally, the court noted that the plaintiffs had made no showing that an appeal to the zoning board would have been futile. Since the claims were not ripe, the court dismissed the claims without prejudice.

This opinion does a good job of laying out the ripeness requirements for a land use claim in federal court. While each case will present its own issues depending on the facts, finality in a land use decision will often be required by courts before the question of ripeness can be settled. An attorney should be consulted in order to determine the ripeness question in regard to a certain case.

The attorneys at Dalton & Tomich, plc have extensive experience with land use and many other different matters across the country. We represent both individuals and organizations. If you feel your rights are being violated or you are entitled to damages, please do not hesitate to contact us.

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.