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Development
Taking Claim Ripe In Light of Town's Failure to Act
Village Green at Sayville, LLC v. Town of Islip, 2022 WL 3130648, U.S. Ct. App, Second Circuit (Opinion by Pooler, J.)
In an action by developer against the town asserting claims for takings and violation of the Fair Housing Act, developer appealed from the District Court's dismissal of the claims as unripe. The Second Circuit reversed, holding that the town board's failure to act on developer's request constituted a final decision.
In 2006, the town board granted developer's application to rezone the property for residential use, subject to conditions and restrictions, including a requirement that the development contain only condominiums, not rental units, and a requirement that the development connect to an off-site sanitary treatment plant. The town engineer then authorized construction of 38 attached condominiums. Developer allegedly sought to make the project accessible to a low income and minority population, and the conditions became difficult to satisfy. In 2014, developer petitioned to allow it to construct a complex with 64 rental units with an on-site sanitary treatment plant. Twenty percent of the rental units were to be set aside as affordable units. The town board referred the proposal to the planning board, which failed to approve the application. Developer then modified the plan to build 59 rental units. The planning board did not act on the application, and the town board placed it on its agenda. When the town supervisor moved for approval of the application, no one on the board seconded the motion, and the town board took no further action. The town attorney informed developer that the town was treating the failed motion to approve as a denial of the application. Developer then brought this action alleging a taking and a violation of equal protection and the fair housing act. The District Court dismissed the claim as unripe and developer appealed.
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