approval at any point prior to the enactment of Local Law # 5, his rights in the density bonus provision cannot have vested.
(b) The Planning Board's Discretion
Furthermore, "to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.... He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577. This "entitlement" test is strictly applied in determining whether a party's interest in land-use regulation is protected by the Fourteenth Amendment. Zahra, 48 F.3d at 680; Gagliardi v. Village of Pawling, 18 F.3d 188, 192 (2d Cir. 1994); RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 107 L. Ed. 2d 191, 110 S. Ct. 240 (1989).
"The question of whether an applicant has a legitimate claim of entitlement to the issuance of a license or certificate should depend on whether, absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted." Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985). Rather than focusing on the probability of the grant or denial of the application, however, this analysis looks to the extent of the discretion that may be exercised by the issuing authority in reaching a decision. Crowley v. Courville, 76 F.3d 47, 52 (2d Cir. 1996); Zahra, 48 F.3d at 680 (collecting cases).
Under the New York Town Law, planning boards are vested with the authority to weigh the evidence and exercise their discretion in approving or denying approval of a subdivision plat. M&M Partnership v. Sweenor, 210 A.D.2d 575, 619 N.Y.S.2d 802, 803 (3d Dep't 1994); Currier v. Planning Bd. of Town of Huntington, 74 A.D.2d 872, 426 N.Y.S.2d 35, 36 (2d Dep't), aff'd, 52 N.Y.2d 722, 436 N.Y.S.2d 274, 417 N.E.2d 568 (1980); see also Thomas v. Brookins, 175 A.D.2d 619, 572 N.Y.S.2d 557, 557 (4th Dep't 1991) ("Whether to approve or disapprove petitioners' subdivision proposal was within the discretion of the Planning Board"). In exercising its discretion, a planning board may consider, inter alia, the impact of the development on adjacent territory, Van Euclid Co. v. Sargent, 97 A.D.2d 913, 470 N.Y.S.2d 750, 753 (3d Dep't 1983), or the adequacy of a proposed sewage system, Parmadale Dev., Inc. v. Planning Bd. of Town of Parma, 35 A.D.2d 904, 316 N.Y.S.2d 842, 843 (4th Dep't 1970). This wide discretion is fatal to plaintiff's due process claims.
In keeping with the mandate that "federal courts should not become zoning boards of appeal to review nonconstitutional land use determinations," Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986), the Second Circuit has consistently rejected claims that a landowner has a constitutionally protected property interest in a building approval or permit where the issuing authority has wide discretion in reaching a determination. See, e.g., Crowley, 76 F.3d at 50 (where Zoning Board had wide discretion in granting variance, landowner had no property interest); Orange Lake Associates, 21 F.3d at 1224 (adopting district court's conclusion that planning board's discretionary approval powers precluded finding of vested property right in landowner); Dean Tarry Corp. v. Friedlander, 826 F.2d 210, 213 (2d Cir. 1987) (planning board's wide discretion to reject plan on basis of plan's effect on health, safety and general welfare "prevented [landowner's] expectation of success from rising to the level of certainty required to give rise to a cognizable property right"); Yale Auto Parts, 758 F.2d at 59-60 (broad discretion of town officials prevented applicant from having sufficient expectation of success in application approval). Because the Schodack Planning Board had wide discretion in determining whether or not to approve plaintiff's subdivision plan, plaintiff had no constitutionally protected property right in such approval.
Since plaintiff has failed to raise a genuine issue of material fact as to the existence of a protectible property interest, its due process and § 1983 claims must be dismissed.
(3) Equal Protection
A violation of equal protection under the Fourteenth Amendment by selective enforcement arises if:
(1) the person, compared with others similarly situated, was selectively treated; and (2) ...such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.
LaTrieste Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981)). Because plaintiff does not allege selective treatment based upon race, religion, or any effort by the Town to punish him for exercising his constitutional rights, he must demonstrate that the Town maliciously singled out his request for an exemption from Local Law # 5 with the intent to injure him. Crowley, 76 F.3d at 53.
Defendants assert that at least one other developer applied for, and was denied, an exemption from Local Law # 5, thus reducing the proposed development from 124 to 17 units. (See Stewart Supp. Aff., Ex. C). Plaintiff offers no evidence of any similarly situated developer who was granted an exemption to Local Law # 5. Thus, plaintiff cannot show an issue of fact as to the first prong of the selective enforcement analysis, and his equal protection claim therefore must be dismissed.
(4) Plaintiff's Takings Claims
Defendants argue that plaintiff's takings claims are not ripe for review. Under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985), a two-part test is use to determine the ripeness of takings clause type claims. See Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 95 (2d Cir. 1992), cert. denied sub nom, 507 U.S. 987, 123 L. Ed. 2d 153, 113 S. Ct. 1586 (1993). The first part "requires the government entity charged with enforcing the regulations at issue to have rendered a 'final decision.'" Bongartz, 980 F.2d at 95 (quoting Williamson, 473 U.S. 172 at 186). The second part requires a "plaintiff to have sought compensation if the state provides a 'reasonable, certain and adequate provision for obtaining compensation.'" Id. Defendants argue that plaintiff's failure to seek a variance with the Zoning Board from the more restrictive zoning ordinance (as amended by Local Law # 5) compels the conclusion that a final decision has not been rendered.
Plaintiff first argues that seeking such a variance would be futile. Such an argument was rejected by the Supreme Court in Williamson, however, which noted that "there is no evidence that [plaintiff] applied to the Board of Zoning Appeals for variances from the zoning ordinance." Williamson, 473 U.S. at 188. Moreover, plaintiff offers no evidence to support his contention that the Planning Board's denial of his request for an exemption would render futile a request for a variance from the Zoning Board of Appeals. Cf. Xikis v. City of New York, 1990 U.S. Dist. LEXIS 13715, 1990 WL 156155 at *6 (E.D.N.Y.) ("the Court notes that the alleged 'hostility' of the Board and the Community Board towards the plaintiff's re-zoning application does not necessarily mean that an application for a zoning variance would be opposed by the Community Board and/or denied by the Board").
Plaintiff ultimately argues that the issue of whether he had vested rights under the density bonus provision and whether he is entitled to a variance from Local Law # 5 are two separate issues, the first of which was finally determined by the Planning Board when it denied his request for an exemption. Thus, seeking a variance, which focuses on a developer's showing of undue hardship if forced to comply with the more restrictive law, would not address plaintiff's injury in being denied his vested rights.
Plaintiff offers no support in the case law for this analysis, and the Court fails to see its logic. The ripeness requirement in the takings context allows courts to "determine adequately the economic loss -- a central factor in the inquiry -- occasioned by the application of the regulatory restrictions. Unless a final decision has been rendered, it remains unclear just how far the regulation goes." Bongartz, 980 F.2d at 96 (emphasis added). The final decision to be determined is not whether plaintiff has vested rights, but "whether [the developer] will be denied all reasonable beneficial use of its property." Williamson, 473 U.S. at 194. Plaintiff's attempt to separate his denial of an exemption from the possibility of a variance is thus a distinction without a difference:
Resort to the procedure for obtaining variances would result in a conclusive determination by the Commission whether it would allow respondent to develop the subdivision in the manner respondent proposed. The Commission's refusal to approve the preliminary plat does not determine that issue ; it prevents respondent from developing its subdivision without obtaining the necessary variances, but leaves open the possibility that respondent may develop the subdivision according to its plat after obtaining the variances. In short, the Commission's denial of approval does not conclusively determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision.
Id. at 193-94 (emphasis added). Here, the Planning Board's determination that plaintiff did not have vested rights under the density bonus provision did not conclusively determine whether plaintiff would be "denied all reasonable beneficial use of its property." Id. Since plaintiff has not shown that seeking such variances would be futile, plaintiff's takings claims are unripe for review.
Finally, plaintiff argues that the ripeness objection does not apply to its claim that Local Law # 5 was unconstitutional on its face. Facial challenges based upon the takings clause "do not depend on the extent to which [landowners] are deprived of the economic use of their particular pieces of property or the extent to which these petitioners are compensated," and thus are ripe for review. Yee v. City of Escondido, 503 U.S. 519, 534, 118 L. Ed. 2d 153, 112 S. Ct. 1522 (1992); see also Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470, 495, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987); Agins v. City of Tiburon, 447 U.S. 255, 260, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980). Thus, plaintiff's claim that Local Law # 5 is unconstitutional on its face is ripe for review, and defendants' motion for summary judgment is denied as to the Third Count of the Complaint.
For all of the foregoing reasons, then, it is hereby
ORDERED, that defendants' motion for summary judgment is GRANTED, and the Complaint dismissed, with respect to plaintiff's due process, equal protection, and § 1983 claims; and it is further
ORDERED, that defendants' motion for summary judgment is GRANTED, and the Complaint dismissed, with respect to plaintiffs claim that Local Law # 5, as applied to plaintiff, was a taking in violation of the New York State and Federal Constitutions; and it is further
ORDERED, that defendants' motion for summary judgment is DENIED with respect to plaintiff's claim that the enactment of Local Law # 5 was an unconstitutional taking on its face.
IT IS SO ORDERED.
Binghamton, New York
January 28, 1997
Hon. Thomas J. McAvoy
Chief U.S. District Judge