17-2450-cv Martin v. Town of Simsbury 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29 th day of May, two thousand eighteen. PRESENT: PETER W. HALL, SUSAN L. CARNEY, Circuit Judges, JOHN G. KOELTL, * District Judge.

_________________________________________ Timothy G. Martin, Plaintiff-Appellant , v. 17-2450-cv Town of Simsbury, Hiram Peck, Howard Beach, Michael Glidden, Margery C. B. Winters, Jason Levy, Jim Morrison, Darren Cunningham, Craig MacCormac, Donna Beinstein, Donald Rieger, Defendants-Appellees , Jennifer Kertanis, Kristin Kula, Defendants . * Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.2 _________________________________________

FOR PLAINTIFF-APPELLANT: T IMOTHY G. M ARTIN , pro se, Lakeville, CT. FOR DEFENDANTS-APPELLEES: Jonathan C. Zellner, Ryan Ryan Deluca LLP, Stamford, CT. Appeal from a judgment of the United Stat es District Court for the District of Connecticut (Hall, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the case is REMANDED for further proceedings. Appellant Timothy Martin, proceeding pro se, appeals from a judgment dismissing his 42 U.S.C. § 1983 action against the To wn of Simsbury and various town officials. Martin owned a property on Lark Road in Simsbury, CT. He intende d to develop that property by building a onefamily home on it. Appellees informed him that he first needed to conduct an inland-wetlands investigation. Believing his property did not cont ain any inland wetlands, Martin instead applied for a building permit. Appellee Michael Glidden informed him that no building permit would issue until Martin completed the wetlands inves tigation. Glidden additionally informed Martin that he could not build on his prope rty because the lot did not have the requisite street frontage. Glidden suggested that Martin investigate applyi ng for a special permit under the town’s rear-lot regulation. Martin appealed to the Simsbury Zoning Board of Appeals (“ZBA”), which affirmed. He sought a variance from the frontage requirement, which was denied. He then filed this action, claiming that Appellees’ actions effected an unc onstitutional taking of his property, denied him due process, and violated equal pr otection. He also asserted claims under state law. The district3 court dismissed Martin’s constitutional claims, concluding that he had not satisfied the finaldecision prong of the prudential-st anding analysis. Having dismissed the federal claims, the court declined to exercise supplemen tal jurisdiction over Martin’s st ate law claims. This appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, which we explai n only as necessary to explain our decision to

vacate and remand.

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985), the Supreme Cour t set forth a two-prong prudentia l-ripeness test applicable to takings claims arising from lo cal land-use disputes. First, th e local regulatory body must render

a “final decision” on the matter. Id. at 186. Second, the plaintiff must have sought compensation through an available state procedure before filing a federal complaint. Id. at 194. 1 We have

extended Williamson County ’s prudential-ripeness doctrine to due process and equal protection challenges arising from the same set of facts. See, e.g. , Kurtz v. Verizon N.Y., Inc. , 758 F.3d 506, 515–16 (2d Cir. 2014); Dougherty v. Town of N. Hemp stead Bd. of Zoning Appeals , 282 F.3d 83, 88–89 (2d Cir. 2002). We review de novo a district court’s pr udential-ripeness ruling. See Sherman v. Town of Chester , 752 F.3d 554, 560 (2d Cir. 2014).

The district court concluded that Martin ha d failed to meet the final-decision prong of Williamson County . To satisfy the final-decision prong, a litigant must have obtained an adverse decision from the local land-use authority and submitted “at least one meaningful application for

1 Martin sued Simsbury and others in state c ourt, asserting claims for negligence and reverse condemnation. See Martin v. Town Clerk for the Town of Simsbury , No. HHDCV155039448, 2017 WL 1656809 (Conn. Super. Ct. Apr. 11, 2017). The st ate court dismissed his reverse-condemnation claim—a ruling currently on appeal—and his re maining claims are still pending. See id. at *10–12.4 a variance.” Murphy v. New Milford Zoning Comm’n , 402 F.3d 342, 348 (2d Cir. 2005). Martin did just that. He applied for a building permit, which was denied by Glidden; unsuccessfully appealed that decision to th e ZBA; and then sought a varian ce from the frontage requirement,

which was also denied. The district court noneth eless concluded that Martin should have availed himself of Glidden’s suggestion that he investigate whether a special permit under the rear-lot regulation would have allowed him to develop his property. Under Article 7(C)(8) of the Simsbury Zoning Regulations, a prospective developer can seek a special exception allowing a lot to be divide d to create a new lot that can be developed, notwithstanding the newly created lot’s failure to meet the frontage requirement, provided certain conditions are met. Martin argue s that pursuing a special permit unde r this regulation would have been futile. We agree. On its face, the regul ation was inapplicable to Martin’s property, and pursuing this course would therefore have been futile. Cf. Sherman , 752 F.3d at 561 (“‘[T]he finality requirement is not mechanically applied. A property owner, for example, will be excused from obtaining a final decision if pursuing an app eal to a zoning board of appeals or seeking a variance would be futile.’” (quoting Murphy , 402 F.3d at 349)). The regulation applies to the dividing of a lot (which Martin wa s not looking to do), requires that the lot have been in its current configuration since 1969 (Martin’s lot was created in 2011), and ap plies only if the current lot meets the applicable frontage requirements (Martin ’s did not). Accordingl y, Martin’s failure to seek such an exception does not affect the finality of the ZBA’s decision. Appellees additionally argue that Martin should have pursued other opportunities to develop his property. For instance, he could have merged his property w ith an abutting lot and then sought a permit to bu ild an accessory structur e, such as a swimming pool or a tennis court.5 We are unpersuaded. Requiring Mart in to exhaust all the potential uses of his property before bringing his constitutional claims would conflate prudential ripe ness with the merits: he would have to demonstrate that he has a winning case be fore he even stepped through the courtroom door.

See Sherman , 752 at 564–66 (applying noncategorical test for regulatory taking after concluding that claim was ripe). True, the Supreme Court ha s sometimes concluded that a regulatory-takings claim was not ripe where the prospective develope r still has other viable options. For example,

in MacDonald, Sommer & Frat es v. Yolo County , 477 U.S. 340 (1986), the Supreme Court held that a landowner had failed to satisfy the final- decision requirement because the possibility existed that “some development will be permitted,” id. at 352. But the MacDonald Court required the

landowner to first submit a more modest subdivision proposal. Id. It did not require the landowner to replace its plans to build a subdivision with pl ans to build a swimming pool. Accordingly, we conclude that the district cour t erred by ruling that Martin failed to satisfy the first prong of Williamson County . We therefore vacate the district court’s judgment dismissing Martin’s amended complaint. We leave it to the district court to determine in the first instance whether, in order to a dvance his takings claim based on th e denial of the zoning permit,

Martin must have dealt with bot h the wetlands issue, which may or may not be resolved, and the inverse condemnation claim, which as represen ted at oral argument is pending appeal. We express no view as to the proper outcome. Having revived his federal claims, at least for now, we also reinstate his state law claims, as to which th e district court declined to exercise supplemental jurisdiction because all federal claims had been dismissed. See, e.g. , Rogoz v. City of Hartford , 796 F.3d 236, 251 (2d Cir. 2015); Velez v. Levy , 401 F.3d 75, 102 (2d Cir. 2005).6 Accordingly, we VACATE the district court’s judgment and REMAND for further proceedings.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court