Dougherty v. North Hempstead Bd. of Zoning Appeals, Town of
Citation: 32 ELR 20462
No. No. 01-7223, 282 F.3d 83/(2d Cir., 02/26/2002)
The court affirms the dismissal of a landowner's due process and equal protection claims against a zoning board that denied the landowner's application for a building permit, but reverses the denial of the landowner's motion to amend the complaint to include a First Amendment retaliation claim. The court first holds that the landowner's due process and equal protection claims set forth in his original complaint were properly dismissed on grounds of ripeness. The landowner has not sought a variance, thus, the permit denial does not constitute a final decision. The court next holds, however, that the lower court erred in denying as futile the landowner's motion to amend. The landowner's First Amendment retaliation claim—alleging that the board's revocation of a previously issued permit was retaliatory—is ripe for adjudication. The claim is based upon an immediate injury. Moreover, in the First Amendment context, the ripeness doctrine is somewhat relaxed. In addition, the landowner stated a legally cognizable First Amendment claim under § 1983. His proposed amended complaint adequately sets forth specific facts, which, if proven, can support a finding of retaliatory motive.
Counsel for Plaintiff
Robert L. Dougherty
Pittoni, Bonchonsky & Zaino
226 7th St., Garden City NY 11530
Counsel for Defendants
Kaufman, Borgeest & Ryan
747 Third Ave., New York NY 10017
Feinberg, J. Before Cardamone and Sotomayor, JJ.