Dreher v. DohertyDreher v. Doherty
In the course of sentencing the defendant the court explicitly stated that it read the relevant submissions and considered the
Finally, nothing in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) conflicts with this Court‘s decisions in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) and United States v. Hendry, 522 F.3d 239 (2d Cir. 2008) because neither foreclose a sentencing court‘s consideration of a Fast-Track variance.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Appellants Michael and Christina Dreher, proceeding pro se, appeal from the District Court‘s dismissal of their constitutional claims against, inter alia, the Town of Kent on the ground that their federal claims were not ripe for review.1 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
DISCUSSION
A.
We review de novo a district court‘s dismissal of a complaint pursuant to Rule 12(b)(1). See Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Land use challenges, whether pursued as a takings claim under the Fifth Amendment or as violations of equal protection or due process, are subject to the ripeness requirement articulated by the Supreme Court in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (“Williamson“). See Murphy v. New Milford Zoning Comm‘n, 402 F.3d 342, 348-49 (2d Cir. 2005); Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88-89 (2d Cir. 2002). This two-pronged ripeness inquiry requires a plaintiff to show that: “(1) the state regulatory entity has rendered a ‘final decision’ on the matter, and (2) the plaintiff has sought just compensation by means of an available state procedure.” Dougherty, 282 F.3d at 88.
Under Williamson‘s first prong, “federal review [is conditioned] on a property owner submitting at least one meaningful application for a variance.” Murphy, 402 F.3d at 348. However, a party need not apply for a variance “when a zoning agency lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied.” Id. at 349. Under Williamson‘s second prong, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson, 473 U.S. at 195, 105 S.Ct. 3108.
B.
We identify no error in the District Court‘s dismissal of the Drehers’ claims because the Drehers have not satisfied either prong of the Williamson test.
First, it is undisputed that the Drehers never filed a building proposal or applied for a variance. The record also belies any assertion that the futility exception to ripeness should apply here because the Drehers were informed by the Town of Kent that they could apply for a variance—an invitation they ultimately declined. Moreover, contrary to the Drehers’ assertion, mere doubt that their application would be denied is insufficient to establish futility. See, e.g., Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1035 (9th Cir. 2005); Gilbert v. City of Cam-bridge, 932 F.2d 51, 61 (1st Cir. 1991). Accordingly, the District Court properly found that the Drehers’ claims were not ripe under Williamson‘s first prong.
Second, the District Court also correctly concluded that the Drehers did not satisfy Williamson‘s second prong. In New York, a plaintiff may address a takings or just compensation claim either through an Article 78 proceeding or under New York‘s Eminent Domain Procedure Law. See Island Park, LLC v. CSX Transp., 559 F.3d 96, 109-10 (2d Cir. 2009) (New York‘s Eminent Domain Procedure Law); Vandor, Inc. v. Militello, 301 F.3d 37, 39 (2d Cir. 2002) (Article 78). Because the Drehers did not avail themselves of either of these procedures provided by New York State law, their claims are not ripe under Williamson‘s second prong. See Williamson, 473 U.S. at 194-97, 105 S.Ct. 3108; see also Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 380 (2d Cir. 1995) (holding that state exhaustion is required for both physical and regulatory takings claims).
CONCLUSION
We have considered all of the Drehers’ arguments on appeal and find them to be without merit. For the reasons stated, we AFFIRM the District Court‘s July 24, 2012 judgment.