Plaintiff Arrigoni Enterprises, LLC (“Plaintiff), brought suit against the Town of Durham, the Planning and Zoning Commission, and the Zoning Board of Appeals (collectively “Defendants”) claiming that the denial of Plaintiff’s permit application by the Defendants was an unconstitutional inverse condemnation and violated the Plaintiff’s rights under the Due Process and Equal Protection Clauses. In instant decision, Plaintiff is appealing from District Court’s summary judgment in favor of the Town.

On appeal, the Second Circuit affirmed the District Court’s ruling on all counts. Regarding the inverse condemnation claim, the Second Circuit agreed that the claim was unripe as the Plaintiff had not sought compensation under the existing State procedures for the alleged taking. For the Equal Protection claim, the court also upheld dismissal on the grounds that the application sought to permit “rock-crushing” in a zone where rock crushing was expressly prohibited, thus undermining any attempts to show better comparable treatment for another entity.

On the issue of the development permit, the Court noted that a constitutionally cognizable property interest only vests when the Plaintiff can show “clear entitlement” to the permit. This “entitlement” only exists when the issuing agency has so little discretion as to make it that approval is “virtually assured.” As the permit process affords the ZBA broad discretion, this does not apply and there is no property interest under which a Due Process claim can be made. Thus the Second Circuit affirmed the decision on all counts.

The case was Arrigoni Enterprises, LLC v Town of Durham, 2015 WL 6118204 (2d Cir. 2015).