Plaintiffs, who purchased a property within the Town of Babylon with the intended purpose of operating a facility providing care and counseling services to recovering drug users, alcohol users, and others, commenced an action alleging that the Town had violated their right to due process and equal protection by impeding them from utilizing the property for this purpose. The Town moved to dismiss the complaint as non-justiciable because Plaintiffs “never submitted a complete application for a building permit, a special use permit, or any other type of permit or approval, and since the Town never reached any final decision with respect to any such land use application.”  Despite this, the Supreme Court denied the Town’s motion to dismiss. On appeal, the Appellate Division, Second Department reversed.

In granting the Town’s motion to dismiss, the Court noted that the Planning Board had deemed the building permit application incomplete and informed Plaintiffs that they needed to submit an application for site plan review for a “change of use.”  In lieu of the requested documents, Plaintiffs submitted an “architectural site plan.”  The Planning Board refused to accept the alternative documents, and Plaintiffs failed to take any further steps to acquire a building permit, or for that matter any other type of permit or approval.  In light of this, the Court found that the process was still ongoing and the Town had yet to reach a final decision. As such, the Plaintiffs claims were not justiciable until the municipality “arrived at a definitive position on the issue that inflicts an actual, concrete injury.” The Court then dismissed the complaint.

The case was Loskot-D'Souza v. Town of Babylon, 137 A.D.3d 751 (N.Y. App. Div. 2016).