12

- 3385

- cv

Dreher v. Doherty

, et al.

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 mu st cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing 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 21 st day of August, two thousand thirteen

.

PRESENT: J OSÉ A. C ABRANES
,

C HESTER J. S TRAUB
, S USAN L. C ARNEY
,

Circuit Judges.

_____________________________________

M ICHAEL P. D REHER
, C HRISTINA D REHER
, et ux

. ,
Plaintiffs

- Ap p ellants

,

v. No. 12

- 3385

- cv

K ATHERINE D OHERTY
, Supervisor of the Town of Kent

, J ULIANN B UTLER , Building Inspector of the Town of Kent, T HE T OWN B OARD
, T OWN OF K ENT
, T OWN OF K

ENT
, N ESTOR V ELEZ
,
Defendant s

- Appell ant s

.

_____________________________________

FOR PLAINTIFFS

- APPELLANT S : Michael P. Dreher

, Christina Dreher, pro se
, Vernon, NJ.

FOR DEFENDANTS

- APPELLEE S : Adam I. Kleinberg

, Anthony Cardoso, Sokoloff Stern LLP, Carle Place, NY; Nestor Velez, pro se , Carmel, NY.2

Appeal from a judgment of the United States District Court for the Southern Di strict of New York ( Cathy Seibel

, Judge ).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the July 24, 2012 judgment of the District Court is

AFFIRMED

.

Appellants Michael and Christina Dreher, proceeding pro se , appeal from the District C ourt’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

vio lations of equal protection or due process, are subject to the ripeness requirement articulated by the Supreme Court in Williamson C ounty Regional Planning Comm ission v. Hamilton Bank , 473 U.S. 172 (1985) (“ Williamson ”)

. See Murphy v. New Milford Zoning C omm’n , 402 F.3d 342, 34 8

- 4 9 (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 re gulatory entity has

rendered a ‘f

inal 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,

1 After dismissing the federal claims at issue, the District Court declined to exercise supplemental jurisdiction over the remaining state law claims.3

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.

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, c ontrary to the Drehers’ assertion , mere doubt that their application would be denied is insufficient to esta blish 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 Cambridge , 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 conclude d 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 Artic le 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; 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’ argument s on appeal and find them to be without

merit. F or the reasons stated, we AFFIRM the District Court’s July 24, 2012 judgment.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk