Saturday, May 17, 2014

Catch-22 and the ripeness of a takings claim: the Second Circuit weighs in

The Second Circuit's decision last week in the case of Sherman v. Town of Chester set a new standard for literary allusion in land use cases.  Here are the opening lines of the decision:

*1  Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But things were not so simple on Catch–22's Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of missions to 30, forcing Hungry Joe to unpack his bags and rewrite his happy letters. At the time, Yossarian had flown 23 missions.
The Colonel later increased the number to 35. When Yossarian was just three away from that mark, the number was increased to 40, and then to 45. When Yossarian had 44 missions under his belt, the Colonel made the number 50. And later 55
When Yossarian reached 51 missions, he knew it was no cause to celebrate: “He'll raise them,” Yossarian understood. He appealed to squadron commander Major Major to be exempted from flying his four remaining missions. “Every time I get close he raises them,” Yossarian complained. Major Major responded, “Perhaps he won't this time.” But of course Yossarian was right. Colonel Cathcart raised the number to 60, then 65, then 70, then 80, with no end in sight.
Plaintiff Steven M. Sherman must have felt a lot like Yossarian in his decade of dealing with defendant Town of Chester. In 2000, Sherman applied for subdivision approval while he was in the process of buying a nearly 400 acre piece of land for $2.7 million. That application marked the beginning of his journey through the Town's ever-changing labyrinth of red tape.
In 2003, the Town enacted a new zoning ordinance, requiring Sherman to redraft his proposed development plan. When he created a revised proposal in 2004, the Town again enacted new zoning regulations. When he created another revised plan in 2005, the Town changed its zoning laws once more. And again in 2006. And again in 2007
On top of the shifting sands of zoning regulations, the Town erected even more hurdles. Among other tactics, the Town announced a moratorium on development, replaced its officials, and required Sherman to resubmit studies that he had already completed. When the Town insisted that Sherman pay $25,000 in consultants' fees before he could obtain a hearing, he might have thought, “The Colonel will just raise it again.” And he would have been right. After paying the $25,000, he was told he owed an additional $40,000, and that he would also have to respond to a lengthy questionnaire.
By the time this lawsuit was filed, over ten years had passed. In that time, Sherman became financially exhausted—forced to spend $5.5 million on top of the original $2.7 million purchase. The District Court (Edgardo Ramos, Judge ) ruled that Sherman's claim under the Takings Clause was not ripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because Sherman had not received a final decision on his property and seeking a final decision would not be futile. The court reasoned that while Sherman may have to jump through more hoops in the future, he had not established that his application would definitely be denied in the end. To Sherman, this must have sounded a lot like: “Perhaps he won't raise the number this time.”
*2 We conclude that under these circumstances, Sherman was not required to obtain a final decision from the Town. Sherman's takings claim was ripe and adequately alleged. Accordingly, we REVERSE that part of the District Court's decision that dismissed the takings claim, and we REMAND for further proceedings consistent with this opinion.

Sherman v. Town of Chester, 13-1503-CV, 2014 WL 1978726 (2d Cir. 2014).  A fun, poignant, and pointed introduction to the opinion.

Stephen R. Miller

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And the Pacific Legal Foundation is claiming victory:

Posted by: Jamie Baker Roskie | May 19, 2014 5:12:06 AM

Good catch, Jamie. I think the facts here are too much an outlier to have too great an effect on practice, despite PLF's press release. Good fodder for talk radio where PLF excels, but not much news for law practice. How many towns rezone a parcel four times in four years?

Posted by: Stephen Miller | May 21, 2014 7:00:25 PM