Check out the U.S. Court of Appeals for the Second Circuit's opinion in Village Green of Sayville, LLC v. Town of Islip, No. 19-3353 (Aug. 5, 2022), a case in which the court held the Town reached a final decision denying Village Green's request to develop a 64-unit apartment complex on Long Island.
Final decision ripeness under the surviving part of Williamson County, you say? So this is a takings case, right? No, not quite. The claims asserted by the developer included a takings claim (although it seems to have played a more minor role) and the claims were mostly about the Town allegedly discriminating against affordable housing and the people who build and live in affordable housing. See slip op. at 11.
But as you know, many courts -- including the Second Circuit -- apply Williamson County's final decision ripeness requirements to anything vaguely land usey. Even RLUIPA and ADA claims (yes, ADA claims). Why there needs to be a special ripeness requirement applicable only to "land use" cases, and why the courts cannot simply apply the usual federal court ripeness rules applicable to, you know, every other type of challenge, isn't really clear to us, except that federal courts just don't like to deal with land use cases.
But let's put that aside here, because as the title of this post notes, the Second Circuit actually allowed this land use claim to move forward. Since the ripeness issues turned on what the Town did or didn't do, it's worth a walk-through of what the developer wanted to do, what it asked the Town to do, and how the Town reacted.
As we noted above, the case involved the developer wanting to build affordable housing. It obtained a rezoning of the property from Business to Residence, but the rezone was subject to two conditions, one involving the ability to rent the units and the other about the property's sewer lines. Those conditions became a sticking point, and eventually the developer asked the Town to allow it to develop the 64 units without the conditions. "Local opposition was strong." Slip op. at 6.
Town officials seemed to have reacted to that opposition by doing what they could to avoid saying yes to the proposal, while also avoiding saying no. Eighteen months elapsed, and the Planning Board finally considered approving: "Put to a vote, though, the seven-member Planning Board failed to pass the motion: After the vice chairman recused himself, the vote was 3-3 and deemed a 'non-action.'" Slip op. at 7. The usual pattern ensued - the developer submitted a more modest application with more public goodies included. That did not assuage the opposition. "Members of the public again made hostile comments, discussing 'Section 8' and 'transients,' and pledging that townspeople 'will not forget if this project is approved.'" Slop op. at 7-8.
Four months later, the developer's application was back on the Planning Board's agenda. But no deal, and consideration it was again continued. Two weeks later, the same. This time, the motion to approve the application was at least made. But since no Board member seconded the motion, no vote was held. The Town's lawyer let the developer know that the failed motion to approve was being treated as a denial and that "no further proceedings before the Town Board, Planning Board, or any other Town Agency would be held." Slip op. at 9.
Next stop, U.S. District Court. Despite its lawyer's earlier statement that the application process was done, in court the Town argued otherwise, claiming that it had not been given the opportunity to commit to a position. Slip op. at 24. Having never voted on the application, the Town argued, it can't be said to have made a final decision denying the development, no?
The Second Circuit held no:
The parties seem to agree a no-vote on November 17, 2016, would have ripened the dispute. But because the Town Board declined to give its position this way, we must assess the more unusual route it did take: first, noting in an official resolution that the “motion to approve fails for lack of second,” App’x at 317; then apparently choosing to “treat[] the failed motion to approve as a denial of the application” and promising that no town agency would hear anything further on the matter; App’x at 32-33 ¶ 67; and finally, true to that promise, scheduling no further proceedings on the application in the almost six years since.We conclude that, through this sequence of events, the Town Board demonstrated its “arriv[al] at a definitive position on the issue that inflict[ed] an actual, concrete injury” on Village Green.
Slip op. at 25-26.
The fact that it took the court 30 pages of opinion, and that it was even a close call, tells you what you need to know about the ruling. Sure, it's the proper result. But at the same time, the case highlights how reluctant courts are to hold the government's feet to the fire not only where the government plainly is trying to avoid making a decision, but as here, where the Town's lawyer actually told the developer "no mas."
It shouldn't be that hard.
Village Green at Sayville, LLC v. Town of Islip, No. 19-3353 (2d Cir. Aug. 5, 2022)
