Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

What Is Property for Due Process Purposes?

By Stewart E. Sterk
October 01, 2023

Although the federal constitution protects against deprivation of property without due process, the Second Circuit and federal district courts have erected significant barriers to due process claims by landowners who challenge municipal permit denials or revocations. Arizona Hudson Valley, LLC v. Allen, 2023 WL 3936640, illustrates three of those barriers: ripeness, the narrow definition of property for due process purposes, and the outrageous governmental conduct courts require to sustain a due process claim.

The Arizona Hudson Valley Facts

Developer purchased a resort property with the intention of redeveloping and expanding the site. Developer received site plan approval and a special use permit. Disgruntled neighbors then brought a state court challenge, contending that there were questions about the use category that applied to the proposed plan. State Supreme Court granted the petition in part, holding that the planning board had acted on an unclear record in granting the permit. The court remanded to the board, which again granted the permit. One of the neighbors brought a second article 78 challenge, and while the challenge was pending, the local political landscape shifted. The town building inspector revoked the special use permit and the town created a zoning task force to suggest legislation to the town board. Developer appealed the permit revocation, but the appeal languished in the zoning board of appeals for six months, allegedly to allow time for enactment of new legislation that would block the development. At that point, the developer brought a federal action in the Northern District of New York under 42 USC §1983 contending that the town had violated its procedural and substantive due process rights. The town moved to dismiss for failure to state a claim.

Ripeness

In dismissing developer's claim, Judge Dennis Hurd concluded that the claim was unripe because developer had not received a final decision on its permit application. Because developer's appeal was still pending before the zoning board of appeals the claim would only be ripe if developer could establish that pursuing the appeal or seeking a variance would be futile. The court held, however, that mere hostility by local officials was not enough to satisfy the futility requirement, and emphasize that a "relatively short time has passed" since developer processed its appeal.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.

The Stranger to the Deed Rule Image

In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.