624 F.Supp.3d 261
E.D.N.Y2022Background
- South Nassau Building Corp. bought 3171 Elm Place (a 1925 Colonial Revival house) in March 2020 for ~$1,000,000 and applied in July 2020 to subdivide the lot into two buildable lots to construct and sell two houses.
- The Nassau County Planning Commission approved the subdivision in September 2020; Planning staff had found no evidence warranting historic designation.
- Neighbors submitted a landmark application; after hearings the Town of Hempstead Landmarks Preservation Commission recommended designation and the Town Board unanimously designated the property a landmark in February 2021.
- Plaintiff sued alleging: categorical and non-categorical regulatory takings (Fifth Amendment), substantive due process (Fourteenth Amendment), and vagueness of the Town’s landmark ordinance; claims against the Landmarks Commission were also pleaded.
- The court dismissed claims against the Landmarks Commission as not a suable entity, found the challenge ripe/final, dismissed the categorical-taking claim, but allowed the non-categorical taking (Penn Central) claim to proceed contingent on the parcel-definition question; it also denied dismissal of plaintiff’s substantive due process and vagueness claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suability of Landmarks Commission | Landmarks Commission is a defendant amenable to suit for its actions in recommending designation | Landmarks Commission is a non‑suable municipal subunit | Dismissed claims against the Landmarks Commission (no separate legal existence) |
| Ripeness / Finality | Landmarking is a final, concrete government action that injures plaintiff’s property rights | Plaintiff must seek variances, permits, or administrative relief before federal suit (Williamson County posture) | Challenge is ripe: Town Board made a definitive decision after hearings; no meaningful administrative remedies remain |
| Parcel definition for takings analysis (Murr denominator) | Property should be treated as two legally approved lots (denominator = each lot), so one lot’s value was effectively taken | Property should be treated as a single parcel (denominator = whole property) | Cannot decide as a matter of law on motion to dismiss; factual inquiry required — plaintiff plausibly alleged reasonable expectation to treat as two parcels |
| Categorical taking (Lucas/Tahoe‑Sierra) | Landmarking nullified subdivision rights and eliminated economically beneficial use of one lot | Some beneficial uses (residence, sale) remain; not a total deprivation | Dismissed: not a categorical taking (plaintiff retained some productive uses) |
| Non‑categorical (Penn Central) taking | Landmarking caused substantial economic loss and thwarted investment‑backed expectations to develop/sell two homes | Economic impact is modest (approx. 15% diminution); character of action and remaining uses weigh against a taking | Survives as to hypothesis that property is two parcels; would fail if treated as single parcel (Penn Central balancing depends on parcel definition) |
| Substantive due process (sham/abuse of power) | Landmarking was arbitrary/irrational (misstated uniqueness, reliance on alleged nonexistent ‘‘quantitative’’ expert analysis, procedural oddities) | Landmarking was within discretion and not constitutionally arbitrary | Survives: complaint plausibly alleges arbitrary/sham exercise of landmark power |
| Vagueness of ordinance | Ordinance is vague facially and as‑applied, permitting arbitrary enforcement | Ordinance is sufficiently definite / challenge premature | Denied dismissal: vagueness claim may proceed (court declines to dismiss now given overlap with other issues) |
Key Cases Cited
- Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (landmark designation analyzed under Penn Central takings framework)
- Murr v. Wisconsin, 137 S. Ct. 1933 (standard for defining parcel/denominator in regulatory takings)
- Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (ripeness rules for takings claims — finality prong)
- Knick v. Township of Scott, 139 S. Ct. 2162 (overruled Williamson County’s exhaustion requirement; takings claim accrues when government takes without compensation)
- Tahoe‑Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (categorical‑taking principle; total deprivation standard)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (categorical takings when all economically beneficial use is eliminated)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (character-of-governmental-action inquiry in Penn Central context)
- Pakdel v. City & County of San Francisco, 141 S. Ct. 2226 (reiterating modest finality requirement)
- Sherman v. Town of Chester, 752 F.3d 554 (2d Cir.) (ripeness / futility exception where administrative submissions would be pointless)
- Jenkins v. City of New York, 478 F.3d 76 (2d Cir.) (municipal departments are not separate suable entities)