Dougherty v. Town of North Hempstead Bd. of Zoning

• Decision Date: 26 February 2002
• Docket Number: Docket No. 01-7223.
• Citation: 282 F.3d 83
• Parties: Michael C. DOUGHERTY, Plaintiff-Appellant, v. TOWN OF NORTH HEMPSTEAD BOARD OF ZONING APPEALS, David Mammina, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Edward Smith, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Donal McCarthy, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Mildred Little, individually and in her official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Sondra Pardes, individually and in her official capacity as a member of the Town of North Hempstead Board of Zoning Appeals and William Smalley, individually and in his official capacity as Town of North Hempstead Building Inspector, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

282 F.3d 83

Michael C. DOUGHERTY, Plaintiff-Appellant, v. TOWN OF NORTH HEMPSTEAD BOARD OF ZONING APPEALS, David Mammina, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Edward Smith, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Donal McCarthy, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Mildred Little, individually and in her official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Sondra Pardes, individually and in her official capacity as a member of the Town of North Hempstead Board of Zoning Appeals and William Smalley, individually and in his official capacity as Town of North Hempstead Building Inspector, Defendants-Appellees.

Docket No. 01-7223.

United States Court of Appeals, Second Circuit.

Argued: November 15, 2001.

Decided: February 26, 2002.

COPYRIGHT MATERIAL OMITTED

Robert L. Dougherty, Garden City, NY, for Plaintiff-Appellant Michael C. Dougherty.

Joan Gilbride, New York, NY (Kaufman, Borgeest & Ryan), for Defendants-Appellees Town of North Hempstead Board of Zoning Appeals, David Mammina, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Edward Smith, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Donal McCarthy, individually and in his official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Mildred Little, individually and in her official capacity as a member of the Town of North Hempstead Board of Zoning Appeals, Sondra Pardes, individually and in her official capacity as a member of the Town of North Hempstead Board of Zoning Appeals and William Smalley, individually and in his official capacity as Town of North Hempstead Building Inspector.

Before: FEINBERG, CARDAMONE, and SOTOMAYOR, Circuit Judges.

FEINBERG, Circuit Judge.

This appeal arises out of an action brought by plaintiff Michael C. Dougherty against defendants Town of North Hempstead Board of Zoning Appeals, its individual members, and the Building Inspector of the Town of North Hempstead. Dougherty's complaint, brought under 42 U.S.C. §§ 1983 and 1985, alleged that defendants violated his constitutional rights in denying his application for a building permit to allow construction on his bungalow unit.

Dougherty asks us to review a January 2001 order of the United States District Court for the Eastern District of New York, Nicholas G. Garaufis, J, granting defendants' motion to dismiss Dougherty's complaint pursuant to Fed.R.Civ.P. 12(b)(6), and denying Dougherty's motion for leave to amend his complaint. The judge held that (1) Dougherty's claims in the original complaint were not yet ripe for review and (2) the proposed amended complaint, which added a First Amendment claim, similarly could not survive a motion to dismiss. We affirm in part, and reverse and remand in part.

I. Background

The record before us discloses the following. In January 1996, Dougherty purchased shares entitling him to occupy a cooperative unit in the Beacon Hill Bungalow Association Development located in Port Washington, New York. Shortly after purchase, Dougherty began renovating and replacing portions of his bungalow unit. Soon after, Dougherty received a cease and desist order from the Town of North Hempstead (hereafter the Town).¹ According to defendants, the bungalow units in the Beacon Hill Development are nonconforming dwellings under the Town's building code.

After receiving the cease and desist order, Dougherty applied to the Town for a permit. In May 1996, the Town Building Department denied Dougherty's application, stating that he had violated § 70-208(F) of the Town Code, which prohibits enlargement of a nonconforming dwelling.² A few weeks later, Dougherty appealed to the Town Board of Zoning Appeals (hereafter the Board), claiming that his construction had not increased and would not increase the existing nonconformity. The Board held a hearing in August 1996, at which it decided that Dougherty had to submit a Draft Environmental Impact Statement (EIS) to the Town Planning Department.

In September 1996, Dougherty commenced an Article 78 proceeding in the New York Supreme Court challenging the Board's determination. In June 1997, that court found no rational basis for the Board's requirement of an EIS and remanded the case to the Board to consider the merits of Dougherty's application. The Board appealed, and in May 1999 the Appellate Division, Second Department affirmed.

In August 1999, Dougherty again applied for a building permit but received no immediate response. In October 1999, the Board held a hearing — pursuant to the state court remand on Dougherty's first application — to determine whether Dougherty's alterations violated § 70-208(F). In prior correspondence with the Board and in the 1996 state court action, Dougherty had argued that he had not increased the existing footprint of the dwelling. But during the October 1999 Board hearing, Dougherty conceded that he had constructed an additional four-foot by four-foot expansion to the bungalow. In a decision apparently issued orally in December 1999 and published the following month, the Board upheld the denial of a permit based upon Dougherty's admitted violation of § 70-208(F). The Board nevertheless noted that, "should [Dougherty] be so advised, [he] should seek [variance] relief from this Board."

Dougherty, however, had already filed this action in the Eastern District alleging, among other things, that defendants had violated his constitutional rights to equal protection and procedural due process, and his substantive due process right to be free from arbitrary and capricious government action. Dougherty also alleged a taking of his property under the Fifth Amendment. He requested compensatory and punitive damages and injunctive relief directing the Board to grant him a permit. In January 2000, defendants moved to dismiss the Eastern District complaint, arguing that plaintiff's claims were not ripe and also that the complaint failed to state a cause of action.

On February 2, 2000, the Town Building Department nevertheless granted Dougherty's second application and issued a permit enabling him to proceed with his renovations. On February 17, 2000, Dougherty's architects met with the Town's building inspector Matthew Cardone to discuss the proposed construction. Cardone approved the plans, and in the following weeks, substantial work was done on the property and Dougherty incurred significant expense.

Dougherty claims that on March 10, 2000 he served papers by mail opposing the Town's motion to dismiss. By letter dated March 14, 2000, the Town revoked Dougherty's permit, stating that it had been issued "in error." Thereafter, Dougherty moved in the Eastern District for leave to amend his complaint to include a First Amendment claim, alleging that the Board revoked his permit in retaliation for his continued pursuit of the Eastern District action.

In an opinion filed in January 2001, the district court granted the Board's motion to dismiss the complaint and denied Dougherty's motion to amend his complaint, holding that the claims in the complaint were not ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), and that Dougherty's proposed amendments to the complaint would be futile for the same reason. This appeal followed.

II. Discussion

We review de novo the district court's grant of defendants' motion to dismiss, accepting the allegations in Dougherty's initial and proposed amended complaints as true, and drawing all inferences in Dougherty's favor. Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001); Connolly v. McCall, 254 F.3d 36, 40 (2d Cir.2001). We review the denial of a motion for leave to amend for an abuse of discretion. Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45, 49 (2d Cir.1999). If that denial was based on an interpretation of law, we review that legal conclusion de novo. Id. at 49. Leave to amend a complaint shall be freely given when justice so requires. Fed.R.Civ.P. 15(a). "[U]ndue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of amendment" will serve to prevent an amendment prior to trial. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6). Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991).

1. Ripeness of the constitutional claims in the initial complaint

Dougherty argues that the district court erred in granting the motion to dismiss his initial complaint on the ground of lack of ripeness.

The key issue before us on this aspect of Dougherty's appeal is whether the ripeness test announced in Williamson applies to his equal protection and due process claims. In Williamson, plaintiff owner of a tract of land sued a Tennessee regional planning commission alleging that the commission's application of various zoning laws and regulations to the plaintiff's property amounted to an unconstitutional "taking" under the Fifth Amendment. Williamson, 473 U.S. at 175, 105 S.Ct. 3108. The Court held that plaintiff's claim was not ripe for federal court review. Id. at 186, 105 S.Ct. 3108. The Court stated that to meet the ripeness requirement, a plaintiff alleging a Fifth Amendment taking of a property interest must satisfy a two-prong test and show that (1) the state regulatory entity has rendered a "final decision" on the matter, and (2) the plaintiff has sought just compensation by...