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Ripeness: Determining when a land use case can be filed.

Written by Daniel P. Dalton on July 20, 2016 Category: Land Use and Zoning, RLUIPA Tags:

Sheri Torah, Inc. (“Plaintiff”) is a religious corporation that operates a yeshiva, a Jewish religious school. Yeshivas are part of the religious practice of Hasidic Jews, whose faith requires full-time instruction of children in schools within walking distance of their homes. In 2008, Plaintiff entered into an agreement to lease a 26.5-acre portion of a larger 655-acre property (the “Lake Ann Property”) located in the Village of South Blooming Grove (the “Village”). On June 4, 2009, Plaintiff submitted an application to the Village for a special permit to use a building on the Lake Ann property as a yeshiva. Upon denial of the application, Plaintiff brought suit against the Village of South Blooming Grove and the Planning Board of the Village of South Blooming Grove (the “Planning Board”) (collectively, “Defendants”). Plaintiff’s complaint alleged that Defendants’ failure to act on an application for a special permit to operate a yeshiva on Plaintiff’s leased property violates Plaintiff’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); the First Amendment to the United States Constitution; and 42 U.S.C. § 1982.

Trial Court Decision

From January 2011 to May 2012, the Village Board of Trustees and Planning Board held several meetings in consideration of Plaintiff’s application. Referenced in these meetings, the issue in dispute was the necessity of an environmental review of the larger parcel of land on which Plaintiff’s leasehold sat. On November 30, 2009, Plaintiff commenced an action in New York state court, Sheri Torah, Inc. v. Village of South Blooming Grove, No. 13428/2009 (N.Y. Sup.Ct. Orange County), challenging the legality of the application fee demanded. The Village filed a counterclaim challenging the legality of a purported “judicial subdivision” by which the 26.2-acre property on which Sheri Torah sought to build was subdivided from the much larger Lake Ann property pursuant to a rabbinical arbitration award. The Village argued that the issue of land ownership and the legality of the subdivision were crucial to whether or not the Village could properly evaluate Plaintiff’s application because of the possibility that the land was once the site of an illegal waste transfer station. Consequently, the Village requested that Plaintiff provide the disputed environmental review to address “potential site contamination on and adjoining the project site” and asked that the audit “review the project site and the original [655–acre] adjoining parent parcel.”

However, Plaintiff failed to provide the Planning Board with the requested information, and on September 5, 2012, the Board passed a resolution denying Plaintiff’s application without prejudice. The Board based its denial on the failure of the Plaintiff to comply with the demands made by the Planning Board for environmental review on the Lake Ann property at large. In contrast, Plaintiff argued that because its application only related to the 26.5-acre sub parcel, it should not be obligated to provide the requested information. Plaintiff further asserted that the Village’s request for information was merely an excuse to allow the Village to refuse to act on Plaintiff’s application. In response, the Village argued that because the denial was without prejudice and Plaintiff was required to submit the necessary materials specifically enumerated in the Resolution, Plaintiff has yet to obtain a “final decision” on that application. On December 31, 2012, the New York Supreme Court held that the deed to the Lake Ann property was “null and void and invalid” and that “the Village [was] entitled to . . . deny any application for any other building permit, certificate of occupancy, or any other permit pertaining to the use or development of the subject property until appropriate subdivision approval is secured from the Village Planning Board.”

Rule

Whether a case is ripe for judicial review speaks to the question of whether proper subject matter jurisdiction exists. See Murphy v. New Milford Zoning Comm’n, 402 F.3d 342. 347 (2d Cir. 2005). The concept of “ripeness” is “rooted in Article III’s case or controversy requirements and the prudential limitations on the exercise of judicial authority.” S & R Dev. Estates, LLC v. Bass, 588 F.Supp.2d 452, 460 (S.D.N.Y. 2008). The ripeness requirement “ensure[s] that a dispute has generated injury significant enough to satisfy the case or controversy requirement of Article II of the U.S. Constitution.” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002). This requirement also prevents courts from “entangling [themselves] in abstract disagreements over-matters that are premature for review because injury is merely speculative and may never occur, depending on the final administrative resolution.” The ripeness requirement defers federal review of claims until they have “arisen in a more concrete and final form.” Murphy, 402 F.3d 342, 347 (2d Cir. 2005).

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Supreme Court created a two pronged ripeness test for the Fifth Amendment takings context: (1) the government entity must have rendered a “final decision” on the matter; and (2) the plaintiff must have “sought just compensation by means of an available state procedure.” Dougherty, 282 F.3d at 88 (quoting Williamson, 473 U.S. at 186, 194-95). In the land-use context, prong one of the Williamson ripeness test also applies to Section 1983 equal protection claims. See id. at 88-89; see also Lost Trail LLC v. Town of Weston, 289 F.App’x 43, 444 (2d Cir. 2008) (summary order). The final decision requirement ensures that, when analyzing a Section 1983 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 prove the relief the landowner seeks. Lawson v. E. Hampton Planning and Zoning Comm’n, No. 07 Civ. 1270, 2008 U.S. Dist. LEXIS 72506, at *7-8 (D. Conn. Sept. 22, 2008); accord to Lost Trail LLC, 289 F.App’x at 445.

According to Osborne v. Fernandez, No. 06 Civ. 4127, 2009 WL 884697 (S.D.N.Y. Mar. 31, 2009),

“[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) (quoting Williamson, 473 U.S. at 193), aff’d, 115 F.App’x 465 (2d Cir. 2004). In a land use development context, a final decision requires that “a development plan must be submitted, considered, and rejected by the governmental entity. Even when the plaintiff applies for approval of a subdivision plan and is rejected, a claim is not ripe until plaintiff also seeks variances that would allow it to develop the property.” Country View Estates@ Ridge, LLC v. Town of Brookhaven, 452 F.Supp.2d 142, 149 (E.D.N.Y. 2006). It follows, conversely, that a delay in rendering a final decision—eight years in the Williamson case, see 473 U.S. at 177-81—does not inflict the actual, concrete injury necessary to render a claim ripe. See Dougherty, 282 F.3d at 89 (not ripe despite five-and-a-half-year delay); Homefront Org. v. Motz, 570 F.Supp.2d 398, 406 n.6 (E.D.N.Y. 2008).

The Court of Appeals has applied these requirements to bar RLUIPA and First Amendment claims where Plaintiff has failed to obtain a final decision. Plaintiff bears the “high burden” of proving that the Court “can look to a final, definitive position from a local authority to assess precisely how they can use their property.” Murphy, 402 F.3d at 347. A plaintiff may be excused from obtaining a final decision if it is clear that further appeals to the agency in question would be futile. Id. at 349. That is, Plaintiff may circumvent this requirement if the Village “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, 1012 n. 3 (1992) (an application is not required when it would be “pointless”). To establish such futility however, absent a showing that the Village lacks discretion to grant the application Plaintiff must allege that the Village has “made clear that applications for relief will be denied.” See Lost Trail LLC, 289 F. App’x 443, 445 (2d Cir.2008); see also Country View Estates, 452 F.Supp.2d at 154 (“[C]onclusory assertions that defendants acted with malicious intent and bad faith in processing plaintiff’s application in order to delay and obstruct the construction of plaintiff’s … project without more is insufficient to establish that the prospect of refusal [of approval of the application] is certain and invoke the narrow futility exception.”)

Appellate Court Decision

In Sheri Torah, Inc. v. Village of South Blooming Grove, the New York Appellate Court held that Plaintiff had not plead that it had obtained a final decision from the Village on its application, nor had Plaintiff shown that the narrow futility application to this rule applies. The court noted that the Planning Board met several times over the course of two years to consider Plaintiff’s application and gain the necessary information in order to make a decision. Nevertheless, Plaintiff asserted that the Village had “refused to take action” on its application. However, the court found no basis to find that the Village was “hostile to plaintiff’s proposed [application] or acting in bad faith.” Osborne, 2009 WL 884697, at *6.

Further, the court noted that, while the Village had consistently maintained that the issues regarding land ownership and environmental review must be resolved before any special permit would be appropriate. Plaintiff, in contrast, consistently maintained that this is proof of the Village’s refusal to act. Ultimately, the court held that the trial court opinion validated the Planning Board’s denial of Sheri Torah’s application until the application is complete, and therefore, relitigation of this issue was precluded. According to the court, “[t]he Village has given Plaintiff clear and legitimate instructions as to how the application can be completed and then considered. Until that time, this case will not be ripe for adjudication because a “final decision” has not been rendered and plaintiff has not sought variances that will allow it to develop the property.”

Do you need help in determining if you case is “ripe” to file?  Call a professional at Dalton & Tomich PLC to assist you with your land use matter.

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