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EXCEPTION TO FINALITY RULE WHERE IT IS CLEAR FURTHER ADMINISTRATIVE PROCEEDINGS WOULD BE FUTILE; DEVELOPER DID NOT HAVE A PROPERTY INTEREST IN A SITE PLAN APPROVAL WHICH WOULD SUPPORT A VIOLATION-OF-DUE-PROCESS CAUSE OF ACTION.

In finding the town planning board’s motion for summary judgment on several causes of action brought by respondent developer should have been granted, the Second Department explained (1) the finality rule need not be mechanically applied where it is clear further administrative proceedings would be futile, and (2) the developer did not have a property interest in a site plan approval which would support a violation-of-due-process cause of action:

 

“To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied'” … . “The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury'” … .

In the area of land use, “[a] final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations” … . In this regard, “[a] property owner, for example, will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile. That is, a property owner need not pursue such applications 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” … . Additionally, an exception to the finality requirement exists where the municipal entity uses “repetitive and unfair procedures in order to avoid a final decision” … . …

[Respondent developer] alleged that it had a cognizable property interest in the approval of the application that was injured in violation of its right to due process under both the United States and New York State Constitutions. However, as the Planning Board has significant discretion in reviewing site plan applications … , East End does not have a cognizable property interest in the approval of a particular site plan application …. .  East End Resources, LLC v Town of Southold Planning Bd., 2016 NY Slip Op 00476, 2nd Dept 1-27-16

 

ADMINISTRATIVE LAW (FINALITY RULE NOT APPLIED WHERE FURTHER PROCEEDINGS FUTILE)/ZONING (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/DUE PROCESS (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)/SITE PLAN (DEVELOPER DID NOT HAVE PROPERTY INTEREST IN SITE PLAN APPROVAL)

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