E.D.N.Y. Upholds Denial of Motion for Reconsideration on Futility Grounds

Plaintiff’s 42 U.S.C. § 1983 claims arose from two decisions by Defendant Town of Southampton Planning Board to conditionally approval Plaintiff's applications for a building permit for the construction of a barn on its property. Plaintiff also commenced two related Article 78 proceedings in state court to challenge the Planning Board decisions as errors of law, arbitrary and capricious, an abuse of discretion, and not supported by a rational basis. On August 19, 2014 the Court denied Defendants' motion to dismiss for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and, for the Individual Defendants, qualified immunity.

On April 8, 2015, the Court granted in part and denied in part Defendants' motion for reconsideration, rejecting the section pertaining to Defendants’ ripeness argument. Defendants moved pursuant to Local Civil Rule 6.1 for reconsideration of the court's April 8, 2015 order, claiming the Court misapprehended their ripeness-based argument. The court granted the Defendants' motion for reconsideration on the basis that this action was unripe for review, due to the December 2014 decision in the Article 78 action. The complaint was dismissed without prejudice with leave to refile when the claims became ripe or an exception to the ripeness doctrine could be shown. On May 15, 2015, Plaintiff moved pursuant to Local Civil Rule 6.3 for reconsideration of the May 8, 2015 order. Plaintiff contends in part that, in declining to find that further proceedings before the Planning Board were not futile, the Court misapprehended the permitting restrictions of Sections 330–51 and 330–50(d)(2) of the Southampton Town Code.

The Court first noted that the futility exception to the ripeness doctrine states that a property owner will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. Alternatively, the futility exception is applied when the relevant “agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.”  The Court agreed with Plaintiff that any consideration of its land use applications by the Planning Board under Section 330–51(a) would be futile, but foudn Plaintiff had not shown futility with regard to those land use applications as a permitted use under the Grant of the Agricultural Reserve Area (“ARA”) as open, fallow, landscaped, and wooded areas.

The court determined that it was not entirely clear that the Plaintiff's land use applications were not a permissible use of the ARA, and the Planning Board failed to consider this possibility. As it appeared that neither the Town Attorney nor the Planning Board had made any pronouncements on this possibility, separate and apart from their litigation positions with regard to Section 330–50(D)(2), the Court denied the Plaintiff’s motion for reconsideration and stated it would not entertain further motions for reconsideration on the issue of futility.

The case was 545 Halsey Lane Properties, LLC v Town of Southampton, 2015 WL 3824050 (E.D.N.Y. June 19, 2015).

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