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Filipowski v. Village of Greenwood Lake

United States District Court, Second Circuit

July 3, 2013

ADAM J. and TINIE H. FILIPOWSKI, Plaintiffs,

Michael H. Sussman, Sussman & Watkins, Goshen, New York, Counsel for Plaintiffs.

Terry Rice, Rice & Amon, Suffern, New York, Counsel for Defendant.


CATHY SEIBEL, District Judge.

Before the Court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint. (Doc. 22.) Defendant moves to dismiss both on ripeness grounds pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Because Plaintiffs' claims are not ripe, there is no subject matter jurisdiction, and Defendant's Motion to Dismiss is GRANTED.


For purposes of Defendant's Motion, I accept as true the facts, but not the legal conclusions, as set forth in Plaintiff's First Amended Complaint ("FAC"). (Doc. 15.)

Since 1989, Plaintiffs have owned a 9.2 acre parcel[1] of residentially-zoned property in the Village of Greenwood Lake. (FAC ¶ 4.) As of 1998, the parcel was subject to a three-acre minimum lot size requirement, a prohibition of construction of two-family homes, and a 25% slope restriction.[2] ( Id. ¶¶ 5-6.) In late 2003, Plaintiffs received sketch plan approval for a proposed three-lot subdivision of the parcel. ( Id. ¶ 7.) In late 2004, however, in connection with the proposed subdivision, the Village's Zoning Board of Appeals ("ZBA") denied Plaintiffs' application for variances from both the minimum lot size requirement and the Steep Slope Law. ( See id. ¶ 8; Filipowski v. Zoning Bd. of Appeals of Greenwood Lake ( Filipowski I ), 832 N.Y.S.2d 578, 580-81 (2d Dep't 2007).) Plaintiffs challenged the ZBA's denial in New York Supreme Court, which upheld the ZBA's decision. (FAC ¶ 11.) On appeal, the Appellate Division reversed in part, ordering the ZBA to grant a variance from the minimum lot size requirement for one of the three proposed lots. ( Id. ¶ 12; see Filipowski I, 832 N.Y.S.2d at 581.)

After Filipowski I, Plaintiffs returned first to the Village Planning Board, and later to the ZBA, seeking approval for a two-lot subdivision. (FAC ¶¶ 13-14.) In the meantime, the Village had amended its Steep Slope Law to reduce the maximum slope to 15%. ( Id. ¶ 15.) The ZBA denied Plaintiffs' requested variance from the new Steep Slope Law for the proposed two-lot subdivision, and also indicated for the first time that Plaintiffs' parcel lacked road frontage, implying that no construction would be possible. ( See id. ¶¶ 16-17.)

The New York Supreme Court dismissed Plaintiffs' Article 78 challenge to this second ZBA denial on res judicata and collateral estoppel grounds. ( See Rice Decl. ¶ 38; Lipman Decl. ¶¶ 11-12; Filipowski v. Zoning Bd. of Appeals of Greenwood Lake ( Filipowski II ), 909 N.Y.S.2d 530, 531 (2d Dep't 2010).)[3] The Appellate Division reversed and remanded to the Supreme Court for a determination on the merits. ( See Rice Decl. ¶ 39; Lipman Decl. ¶ 13; Filipowski II, 909 N.Y.S.2d at 531.) On remand, the Supreme Court considered Plaintiffs' standing, found that they owned half of the paper street (Louise Lane) on which they contend their property borders, ( see FAC ¶ 18), and directed the ZBA both to consider in the first instance whether that ownership interest is sufficient to grant the requested area variance, and to give de novo consideration to Plaintiffs' application for the proposed two-lot subdivision, ( see Rice Decl. ¶¶ 42-44; id. Ex. M; Lipman Decl. ¶¶ 16-18).

Plaintiffs appealed and moved for reargument. (Rice Decl. ¶ 45; Lipman Decl. ¶ 19.) Upon the granted reargument, the Supreme Court adhered to its original decision in large part, but directed that Plaintiffs need not apply for an area variance with respect to one of their proposed lots, because that proposed lot was substantially the same as the lot addressed by the Appellate Division in Filipowski I. ( See Rice Decl. ¶ 45; id. Ex. N; Lipman Decl. ¶ 19.) Plaintiffs perfected their appeal and were scheduled for oral argument before the Appellate Division on September 15, 2012. ( See Rice Decl. ¶ 45; Lipman Decl. ¶ 19.) Plaintiffs apparently have not returned to the ZBA with respect to their application for a two-lot subdivision or otherwise pursued their remand. ( See Rice Decl. ¶¶ 46-47; Lipman Decl. ¶¶ 20-21.)

Before this Court, Plaintiffs allege that the Steep Slope Law and the ZBA's determination that their parcel lacks road frontage "effectively prohibited [them] from using their parcel for [ sic, any] purpose, " ( id. ¶ 20), and that the Village's enforcement of its zoning laws against them violates their constitutional right to equal protection, ( id. ¶¶ 22-27, 32). They therefore seek redress pursuant to 42 U.S.C. § 1983. ( Id. ¶ 32.)

Plaintiffs initiated this action by filing a Complaint on March 5, 2010. (Doc. 1.) In the Complaint, Plaintiffs alleged violations of the Takings Clause, the Due Process Clause, and the Equal Protection Clause of the U.S. Constitution. (Complaint ¶¶ 32-34.) After receiving leave to do so, ( see Minute Entry dated June 21, 2010), Defendant moved to dismiss the Complaint, (Doc. 8). On August 5, 2011, I rendered an oral decision on Defendant's first Motion to Dismiss. (Minute Entry dated August 5, 2011.) I first addressed whether Plaintiffs' claims were ripe; deciding that they were not, I dismissed all of Plaintiffs' claims (with leave to replead). ( See Tr. 8.)[4] I then proceeded to address substantive issues with the Complaint that Plaintiffs would need to address in the event they chose to amend. Specifically, I advised Plaintiffs that, if I had subject matter jurisdiction, I nevertheless would have dismissed all of Plaintiffs' claims for failure to state a claim. ( See id. at 9-21.)

Plaintiffs filed the FAC on September 13, 2011. (Doc. 15.) In it, Plaintiffs allege only a violation of the Equal Protection Clause. (FAC ¶ 32.) At a conference held on January 25, 2012, the parties and I discussed the status of the state court proceedings; I later ordered the parties to mediation, (Doc. 17). The parties returned on July 23, 2012, at which I point I set a briefing schedule for the instant Motion. I have received no request for a second leave to amend, nor am I aware of any developments in or the present status of the state court proceedings beyond what is set forth above.


A. Motion to Dismiss Pursuant to ...

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