Goldfine v. Kelly

No. 98 Civ. 8328(WCC) (80 F. Supp. 2d 153, 49 ERC 2046) (S.D.N.Y. January 3, 2000)

The court dismisses as unripe a developer's civil rights action against a city, a state environmental protection agency, agency employees, and a citizen group that allegedly opposed the developer's construction of a residential subdivision within the city's watershed. The court first holds that the developer's takings, equal protection, and due process claims are not ripe. There has been no final decision on the subdivision because the developer has yet to apply to the agency for the necessary approval. Also, there has been no final decision in the agency's attempt to purchase the subdivision because the agency never made an official purchase offer. Further, the developer's allegations do not invoke the futility exception to the final decision requirement. Although the developer had the information and opportunity to submit a meaningful application to the agency, it failed to do so. Moreover, although the record supports the developer's allegations of hostility by the agency and others toward the subdivision, these allegations are insufficient to show that the prospect of refusal was certain. Similarly, a delay of three years in the subdivision's development is insufficient to create futility. In addition, even if the futility exception applied, the claim would not be ripe because of the developer's failure to show that the state does not provide a remedy for the alleged violations.

The court next holds that the developer's claim against agency employees for supervisory liability is unripe. For a supervisor to be liable under 42 U.S.C. § 1983 there must have been an underlying constitutional violation, but the developer has not adequately alleged such a violation. Likewise, the court holds that the developer's municipal liability claim that the city has a custom or policy of inducing the agency to discourage development within the watershed is not ripe for review. The developer's allegations are sufficient to infer a custom or policy to discourage development. However, because the city has not made a finaldecision regarding the subdivision, the developer's equal protection claim is not ripe. Further, the developer's due process claims against the city are not ripe because the city has broad discretion to approve or reject the subdivision. Thus, the developer has no property interest in the approval of the development. Even if it did have a property interest, the city did not issue a final decision regarding the subdivision. Moreover, the developer's § 1983 conspiracy claim is not ripe because he has not alleged a violation of his federal rights. Likewise, the developer's conspiracy claims against all defendants under 42 U.S.C. § 1985 must be dismissed because the developer failed to allege that the defendants discriminated against him because of his membership in a protected class.

The full text of this opinion is available from ELR (12 pp., ELR Order No. L-159).

Counsel for Plaintiff
John J. Hogan
Stephens & Hogan
Prospect Hill Rd., Brewster NY 10509
(914) 279-4226

Counsel for Defendants
Michael D. Hess
Office of Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303

[30 ELR 20256]

[NO TEXT IN ORIGINAL]