Michael C. Dougherty v. Town of North Hempstead Board of Zoning Appeals, David Mammina, Individually and in His Official Capacity as a Member of the Town of North Hempstead Board of Zoning Appeals, Edward Smith, Individually and in His Official Capacity as a Member of the Town of North Hempstead Board of Zoning Appeals, Donal McCarthy Individually and in His Official Capacity as a Member of the Town of North Hempstead Board of Zoning Appeals, Mildred Little, Individually and in Her Official Capacity as a Member of the Town of North Hempstead Board of Zoning Appeals, Sondra Pardes, Individually and in Her Official Capacity as a Member of the Town of North Hempstead Board of Zoning Appeals and William Smalley, Individually and in His Official Capacity as Town of North Hempstead Building Inspector

Citations: 282 F.3d 83; 32 Envtl. L. Rep. (Envtl. Law Inst.) 20462; 2002 U.S. App. LEXIS 2954Docket: 01-7223

Court: Court of Appeals for the Second Circuit; February 25, 2002; Federal Appellate Court

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Michael C. Dougherty filed an appeal against the Town of North Hempstead Board of Zoning Appeals and its members, along with the Town's Building Inspector, alleging violations of his constitutional rights under 42 U.S.C. §§ 1983 and 1985 due to the denial of his building permit application for his bungalow unit. The appeal seeks review of a January 2001 order from the United States District Court for the Eastern District of New York, which granted the defendants' motion to dismiss Dougherty's complaint under Federal Rule of Civil Procedure 12(b)(6) and denied his request to amend the complaint to include a First Amendment claim. The district court ruled that Dougherty's original claims were not ripe for review and that the amended complaint would also not survive dismissal. The appellate court affirmed the dismissal in part, but reversed and remanded in part. The background indicates that Dougherty purchased shares to occupy a cooperative unit in the Beacon Hill Bungalow Association in January 1996 and began renovations, resulting in a cease and desist order from the Town, which claimed the bungalow units were nonconforming under its building code.

Dougherty applied for a permit after receiving a cease and desist order, but his application was denied by the Town Building Department in May 1996 due to a violation of Town Code 70-208(F), which prohibits enlarging nonconforming dwellings. Dougherty appealed to the Town Board of Zoning Appeals, asserting his construction did not increase nonconformity. The Board required a Draft Environmental Impact Statement (EIS) and Dougherty subsequently initiated an Article 78 proceeding in the New York Supreme Court, which found the EIS requirement unwarranted and remanded the case to the Board. The Board's appeal was affirmed by the Appellate Division in May 1999.

In August 1999, Dougherty reapplied for a building permit but received no immediate response. During an October 1999 hearing, he admitted to a four-foot by four-foot expansion of the bungalow, leading the Board to uphold the permit denial for violating 70-208(F), though they suggested he seek a variance. Dougherty then filed a federal lawsuit alleging violations of his constitutional rights and a Fifth Amendment taking, seeking damages and an injunction for permit approval. 

In January 2000, the defendants moved to dismiss the case as unripe and for failure to state a claim. Despite this, the Town issued a permit on February 2, 2000, which was revoked on March 14, 2000, citing an error. Dougherty then sought to amend his complaint to include a First Amendment claim, alleging retaliatory permit revocation. The district court later dismissed Dougherty's complaint and denied the amendment, ruling the claims were unripe and that the amendments would be futile. An appeal followed.

The review of the district court's dismissal of Dougherty's complaints is conducted de novo, accepting all allegations as true and favoring Dougherty in drawing inferences. The denial of a motion to amend is reviewed for abuse of discretion, with legal interpretations also subject to de novo review. Under Federal Rule of Civil Procedure 15(a), amendments should be granted freely unless there is undue delay, bad faith, repeated failures to cure deficiencies, undue prejudice to the opposing party, or if the amendment would be futile. An amendment is deemed futile if a proposed claim cannot survive a motion to dismiss under Rule 12(b)(6).

Dougherty contends that the district court incorrectly dismissed his initial complaint for lack of ripeness, questioning whether the ripeness test from Williamson applies to equal protection and due process claims. In Williamson, the Supreme Court established a two-prong test for ripeness in Fifth Amendment taking claims, requiring a 'final decision' from the state regulatory entity and the pursuit of just compensation through available state procedures. Dougherty argues that he satisfies this requirement by applying for and being denied a variance, which he claims constitutes a final decision.

Defendants counter that the Williamson test does apply to Dougherty's claims and argue that he only sought a permit, not a variance, thus not achieving a final decision. The district judge sided with the defendants, stating that Dougherty's failure to apply for a variance means there has been no final decision from the Town of North Hempstead Building Department or Board of Zoning Appeals regarding his property use, rendering his claim not ripe for federal court.

The ripeness requirement established in Williamson has been extended beyond takings claims to include equal protection and due process claims in land use challenges, as demonstrated in various case law. The district court agreed that this ripeness test applies to Dougherty's constitutional claims in his original complaint. Dougherty's assertion that he applied for a variance was addressed, with the court noting that the record does not reflect any such application or denial; thus, he has not received a final decision as required by Williamson. Although the court acknowledged Dougherty's grievances regarding delays and perceived unfair treatment by the Board, it ultimately concluded that his claims were not ripe and affirmed the dismissal of his original complaint.

Dougherty's second major argument on appeal involved a proposed amended complaint that included a First Amendment retaliation claim. The district court denied this motion, labeling it as futile due to the Williamson requirement, which Dougherty contested. The defendants maintained that the Williamson test was applicable and that Dougherty failed to present sufficient facts for his claim. The court noted that it had not specifically addressed whether the Williamson ripeness requirement applies to a First Amendment retaliation claim in a land use context, although it referenced Kittay v. Giuliani, where such an application was acknowledged but not definitively resolved.

In Kittay, the trustee for a bankrupt landowner contested the constitutionality of New York City's zoning regulations aimed at protecting its watershed, alleging violations of constitutional rights, including a First Amendment right to petition the government. The plaintiff claimed that the defendants' agreement not to challenge the regulations rendered futile its ability to seek help from local or state representatives.

The ripeness requirement serves to confirm that a dispute has resulted in a significant injury, meeting the Article III case or controversy threshold, and prevents federal courts from engaging in premature disputes. Dougherty's First Amendment retaliation claim differs from his due process and equal protection claims, as it involves an immediate injury occurring upon permit revocation. Further administrative decisions would not clarify this injury, indicating that Dougherty's First Amendment claim is not subject to the Williamson ripeness test.

Additionally, the ripeness doctrine is more lenient in First Amendment cases due to the potential for irretrievable loss of rights. As such, Dougherty's claim regarding the retaliatory revocation of his permit is deemed ripe for adjudication.

Defendants argue that Dougherty has not adequately pleaded his First Amendment claim. To succeed in a retaliation claim under Section 1983, Dougherty must demonstrate that his conduct was protected by the First Amendment and that it prompted or substantially caused the defendants' actions.

The First Amendment protects the rights to complain to public officials and seek administrative and judicial relief. This right to petition is closely linked to other First Amendment rights such as free speech and free press. Dougherty's actions in filing and pursuing this lawsuit are deemed protected conduct under the First Amendment. In his claim of retaliatory permit revocation by the Board, Dougherty presents circumstantial evidence, including the timing of the revocation relative to his filing of opposition papers, which he argues indicates a retaliatory motive. The chronology of events shows that after receiving a permit and incurring expenses for renovations, the Board revoked the permit shortly after Dougherty asserted his status as a prevailing party in his opposition to the defendants' motion to dismiss. Defendants contest this chronology, claiming the permit was revoked due to an error and that they were unaware of Dougherty's opposition at the time. However, Dougherty argues that the overall timeline reveals a pattern of mistreatment by the Board over five years, which presents factual issues not suitable for resolution at the motion to dismiss stage. Consequently, the court concludes that Dougherty’s proposed amended complaint sufficiently alleges facts that, if proven, could support a finding of retaliatory intent, affirming that he has a valid First Amendment claim under 1983. The district court's denial of Dougherty's motion to amend the complaint as futile is deemed erroneous.

The district court's dismissal of Dougherty's initial complaint was affirmed due to lack of ripeness under the Williamson standard. However, the court reversed the denial of Dougherty's motion to amend the complaint to include a First Amendment retaliation claim and remanded the case for further proceedings consistent with this ruling. The Town Code stipulates that nonconforming buildings can only be altered if such changes do not increase their nonconformity, and variances must be sought for any expansions. Dougherty conceded that Williamson applies to his substantive due process claims, which, along with equal protection claims, were deemed not ripe since he did not apply for a variance. Consequently, Dougherty may only pursue his First Amendment claim in the district court. Additionally, a motion for a stay related to Reliance Insurance's defense obligations was declined, as the related 90-day stay request from the Commonwealth Court of Pennsylvania had expired, and the defendants were advised to raise any future stay requests with the district court.