The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 asserting that Defendants violated his constitutional right to due process. This is Plaintiff's second action arising from the same circumstances and making the same claims. See Hennelly v. Town of Middletown, 3:10-CV-966 (N.D.N.Y.)("Hennelly I"). Defendants move to dismiss the instant action on various grounds, including that the matter is not ripe for adjudication. Lack of ripeness was the reason for dismissal of Hennelly I. See 10/28/10 Dec. & Ord. [dkt. # 11] in Hennelly I. Plaintiff has opposed some, but not all, of the grounds for dismissal of the instant action. For the reasons that follow, the motion is granted.
Plaintiff owns a 150-acre parcel of land in the Town of Middletown, New York. He resided in a single-family dwelling on the property. In 2005, Plaintiff sought to build a second single-family dwelling on the property. He applied to Defendant Carl P. Davis, Town of Middletown Code Enforcement Officer, for a building permit authorizing construction of the second dwelling. Davis issued the building permit on March 7, 2005. Plaintiff thereafter spent approximately $450,000.00 in the construction of a second single-family dwelling. However, in April of 2006, when Plaintiff applied for a Certificate of Occupancy for the second dwelling, Davis advised Plaintiff that Town of Middletown zoning regulations prohibited two single-family dwellings on a single lot. Davis agreed to issue the Certificate of Occupancy for the second dwelling on the condition that Plaintiff sign an affidavit indicating that he would use the older dwelling only for storage. Although Plaintiff did not want to abandon use of the older dwelling as a residence, he signed the affidavit. As he did in Hennelly I, Plaintiff brings the present action asserting that Davis' and the Town's conduct deprived him of his property rights in the use of the two dwellings without due process of law.
In Hennelly I, Defendants moved to dismiss the action contending,
inter alia , that the constitutional claims were
not ripe for adjudication. Defendants asserted that because Plaintiff
failed to utilize any of the available administrative mechanisms
whereby he might have obtained approval to utilize both structures as
single-family dwellings, the constitutional claims were not ripe for
adjudication inasmuch as there was no final local
authority determination on Plaintiff's sought-after land use.
Plaintiff did not dispute that he failed to pursue any of these
available administrative mechanisms but argued that such efforts would
have been futile because Town regulations were clear that two
single-family dwellings are not permitted on the same lot. He
contended that subdivision, a variance, or a waiver would have likely
been denied because the second-dwelling is situated on a portion of
the lot without road frontage. *fn1
The Court held that the case was not ripe for adjudication and dismissed the action without prejudice. See 10/28/10 Dec. & Ord. [dkt. # 11] in Hennelly I. In so holding, the Court wrote: "Although there is no dispute that the pertinent zoning regulations are clear, Plaintiff has not alleged either in his Complaint or in opposition to the instant motion that any Town official indicated that Plaintiff would be denied a variance if he had applied for one. Under these circumstances, the futility exception is inapplicable." Id. p. 6 (citations omitted).
In the present action, Plaintiff makes the same allegations as he did in Hennelly I with the addition that:
Following the denial of plaintiff's certificate of occupancy, defendant Davis told plaintiff that appealing the denial of his certificate of occupancy, applying for a variance, seeking subdivision approval, or seeking a waiver from the Town Planning Board would be futile, as there is no way the town would ever let plaintiff use both dwellings on his parcel as single family residences. Complaint at ¶ 21.
a. Ripeness & Futility Exception
As the Court explained in Hennelly I, "Land use challenges, whether pursued as a takings claim under the Fifth Amendment or as violations of equal protection or due process, are subject to the ripeness requirement articulated in Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed.2d 126 (1985)." Lost Trail LLC v. Town of Weston, 289 Fed. Appx. 443, 444 (2d Cir. 2008); see also Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 349 (2d Cir. 2005); Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88-89 (2d Cir. 2002). Under Williamson County, to establish jurisdictional ripeness in a zoning dispute, Plaintiff bears a "high burden of proving that [the Court] can look to a final, definitive position from a local authority to assess precisely how [Plaintiff] can use [his] property." Murphy, 402 F.3d at 347 (citation omitted). "[P]rong-one ripeness reflects the judicial insistence that a federal court know precisely how a property owner may use his land before attempts are made to adjudicate the constitutionality of ...