Plaintiff Carney, appearing pro se, alleged Defendants (the Town Code Enforcement Officer, Town Supervisor, four Town Councilmen, and Town Assessor) sent him a letter that informed him that “the use of his sawmill is prohibited” by the local zoning ordinances.  Plaintiff claimed this letter denied him “the use of his property and interferes with his freedom to contract.”  Plaintiff also alleged Defendants violated due process when they did not “respond to Plaintiff’s reply dated October 15, 2015 asking for discovery of definitions and statutory authorization of zoning codes.” Defendants moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction, and the District Court for the Western District of New York  granted their motion and dismissed the claim.

In so holding, the Court noted that ripeness was a “jurisdiction prerequisite” for determining that an injury is not speculative.  Here, the Complaint failed to allege that Plaintiff appealed Defendants’ initial allegation that he violated the Town Building and Zoning Codes by operating an illegal saw mill. Plaintiff also failed to allege that he requested a variance applied for a building permit for the structure, thus legalizing the activity. As Defendants demonstrated that Plaintiff had not appealed these issues, and that the Town’s Zoning Board of Appeals had not taken any action, the Court held that there was no “final decision” giving the court jurisdiction to adjudicate Plaintiff’s claims.

As to the futility exception, the Court found no basis to believe that the ZBA had “dug in its heels” or has otherwise prevented Plaintiff from appealing. Accordingly, the Court held Plaintiff’s claims were not ripe until he obtained a final decision from the ZBA, and dismissed the case.

The case was Carney v. Swanson, 2016 WL 7450459 (W.D.N.Y. December 28, 2016).