Lujan Home Builders, Inc. v. Town of Orangetown

• Decision Date: 07 March 1991
• Citation: 150 Misc.2d 547,568 N.Y.S.2d 850
• Parties: LUJAN HOME BUILDERS, INC., Petitioner, v. TOWN OF ORANGETOWN, et al., Respondents.
• Court: New York Supreme Court

Page 850

568 N.Y.S.2d 850

150 Misc.2d 547

LUJAN HOME BUILDERS, INC., Petitioner, v. TOWN OF ORANGETOWN, et al., Respondents.

Supreme Court, Rockland County.

March 7, 1991.

Bower & Gardner, New York City, for respondents.

JOAN B. LEFKOWITZ, Justice.

Petitioner applied to the Planning Board of the Town of Orangetown for preliminary approval of a sketch plat of 2.8 acres of land located in the Town of Orangetown. A substantial portion of the property is located in a designated flood plain.

In due time, on February 28, 1990, the Planning Board denied approval for stated reasons. Petitioner commenced a CPLR article 78 proceeding for review and asserted a second cause of action for damages under the authority of First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Respondents moved to dismiss the petition. On August 13, 1990 Judge Carey denied the motion and severed the claim for damages. On October 19, 1990 Judge Carey annulled the Planning Board's determination and directed approval of the preliminary plat. Respondents have again moved to dismiss the remaining portion of the petition for damages. Petitioner does not oppose the application but also has not withdrawn the severed portion of the petition for damages.

Both before and after First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, supra, 482 U.S. 304, 107 S.Ct. 2378, the rule in New York has been that officials and municipalities are insulated from damage claims for zoning and land use decisions as well as other types of reasoned judgments that are discretionary or quasi-judicial in nature. Tango v. Tulevech, 61 N.Y.2d 34, 39-42, 471 N.Y.S.2d 73, 459 N.E.2d 182 (1983); Ilson v. Incorporated Village of Ocean Beach, 79 A.D.2d 697, 699, 434 N.Y.S.2d 272 (2nd Dep't 1980); Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330 (2nd Dep't 1964), aff'd, 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866 (1965); Goldberg v. Penny, 163 A.D.2d 352, 558 N.Y.S.2d 564, 565-66 (2nd Dep't 1990). In the last cited case the Court stated: "It is well settled that zoning decisions are discretionary acts for which an official and a municipality cannot be held liable" (ibid. at 354, 558 N.Y.S.2d 564).

First English did not change the above principle. All that was decided by the United States Supreme Court in First English was that a moratorium or temporary denial of all use supported a claim for damages for a temporary taking. In fact, it was ultimately held that no such taking occurred. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 210 Cal.App.3d 1353, 258 Cal.Rptr. 893 (1989), cert. den. 493 U.S. 1056, 110 S.Ct. 866, 107 L.Ed.2d 950 (1990).

The Supreme Court has held that the mere assertion of jurisdiction by a governing body does not constitute a regulatory taking. Hodel v. Virginia Surface Mining & Reclamation Assn. Inc., 452 U.S. 264, 293-94, 101 S.Ct. 2352, 2369, 69 L.Ed.2d 1 (1981). Application of land use laws or regulations to property is not a taking where a permit or variance process exists. Wedinger v. Goldberger, 71 N.Y.2d 428, 527 N.Y.S.2d 180, 522 N.E.2d 25 (1988); Church of St. Paul v. Barwick, 67 N.Y.2d 510, 505 N.Y.S.2d 24, 496 N.E.2d 183 (1986); see United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).

In Agins v. Tiburon, 447 U.S. 255, 263 n. 9, 100 S.Ct. 2138, 2143, n. 9, 65 L.Ed.2d 106, 113, n. 9 the Supreme Court noted that "Mere fluctuations in value during the process of government decision making, absent extraordinary delay, are 'incidents of ownership. They cannot be considered as a "taking" in the constitutional sense.' "

The Court of Appeals for the Third Circuit has addressed the issue presented here and held that as long as the land use decision making process passes constitutional muster in the procedural sense and a full judicial mechanism exists to challenge the administrative determination, no cause of action exists for deprivation of use of the property for the period of time the property could not be used as requested by reason of administrative denial of relief. Bello v. Walker, 840 F.2d 1124, 1127-28 (3rd Cir.1988), cert. den. 488 U.S. 851, 868, 109 S.Ct. 134, 176, 102 L.Ed.2d 107, 145 (1988). The Court also observed that any delay in securing judicial relief could not be charged against...