    12-4343
    Kowalczyk v. Barbarite



                             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 (WITH THE NOTATION “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
    7th day of November, two thousand fourteen.

    PRESENT:
                ROBERT A. KATZMANN,
                                  Chief Judge,
                PETER W. HALL,
                SUSAN L. CARNEY,
                                  Circuit Judges.
    ____________________________________________

    JOSEPH KOWALCZYK; ALIL PERICIC,

                              Plaintiffs-Appellants,

                      v.                                         No. 12-4343

    JOHN BARBARITE; GORDON JENKINS;
    VILLAGE OF MONTICELLO, a municipality of
    the State of New York,

                              Defendants-Appellees,

    SUE FLORA,

                              Defendant.

    ____________________________________________



                                                       1
For Plaintiffs-Appellants:                      Gerald Orseck, Orseck Law Offices PLLC, Liberty,
                                                NY.

For Defendants-Appellees:                       Richard S. Sklarin, Miranda Sambursky Slone
                                                Sklarin Verveniotis LLP, Elmsford, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Ramos, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Joseph Kowalczyk appeals from the September 26, 2013 judgment of

the district court (Ramos, J.), which dismissed all of his claims against Defendants-Appellees

John Barbarite, Gordon Jenkins, and the Village of Monticello as not ripe for adjudication.1 On

appeal, Kowalczyk argues that the district court improperly dismissed his substantive due

process, procedural due process, and equal protection claims as unripe. Because we agree that

Kowalczyk’s claims predicated on these violations are not ripe, we affirm the judgment of the

district court dismissing these claims. We assume the parties’ familiarity with the facts,

procedural history, and issues on appeal.

        Kowalczyk challenges the district court’s dismissal of his constitutional claims on two

grounds. First, Kowalczyk argues that the district court improperly applied the ripeness standards

first articulated in Williamson County Regional Planning Commission v. Hamilton Bank of

Johnson City (“Williamson”), 473 U.S. 172 (1985), and later extended by several decisions of

this Court. In relevant part, the doctrine, as established in this Circuit, requires a party to obtain a

        1
         A second plaintiff-appellant, Alil Pericic, did not file a brief in support of his appeal,
and Kowalczyk’s counsel, who also represents Pericic on appeal, stated in Kowalczyk’s brief
that “Pericic does not appeal.” Appellant’s Br. 2.



                                                   2
final determination from a local land-use governing body before bringing certain types of

constitutional challenges based on land-use disputes. Second, Kowalczyk contends that, even if

the Williamson ripeness doctrine applies to the claims at issue, his failure to obtain a final

decision on a variance application should be excused under the futility exception to the final-

decision requirement.

       We review de novo both a district court’s grant of a motion for summary judgment and

its determination on ripeness. See Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 225 (2d

Cir. 2013); Sunrise Detox V, LLC v. City of White Plains, No. 13-2911, -- F.3d --, 2014 WL

4922130, at *3 (2d Cir. Oct. 2, 2014). Since ripeness is a jurisdictional inquiry, see, e.g., Island

Park, LLC v. CSX Transp., 559 F.3d 96, 110 (2d Cir. 2009), a district court “must presume that

[it] cannot entertain [a plaintiff’s] claims unless the contrary appears affirmatively from the

record.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005) (internal

quotation marks omitted).

       In Williamson, the Supreme Court articulated a two-prong ripeness test applicable to

Takings Clause claims arising from local land-use disputes. First, the local regulatory body must

render a “final decision” on the matter. Williamson, 473 U.S. at 186. Second, a plaintiff is

required to seek compensation through an available state procedure before bringing suit in

federal court. Id. at 194.2 After the Supreme Court decided Williamson, the Second Circuit

extended the doctrine to certain other constitutional claims, including substantive due process

and equal protection challenges relating to land-use disputes. See, e.g., Dougherty v. Town of N.

       2
        The district court did not base its ripeness determination on this Williamson prong, so
we need not consider its applicability here.



                                                  3
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88–89 (2d Cir. 2002). Further, this Court has

made clear that procedural due process claims are unripe if they are based on the same set of

facts as unripe substantive due process and takings claims. See, e.g., Kurtz v. Verizon New York,

Inc., 758 F.3d 506, 515–16 (2d Cir. 2014); Dougherty, 282 F.3d at 88–89.

       For a claim covered by the Williamson doctrine to be ripe, a plaintiff must establish that

the local land-use governing body rendered a final decision. In practice, the final-decision

requirement “conditions federal review on a property owner submitting at least one meaningful

application for a variance.” Murphy, 402 F.3d at 348; see also Williamson, 473 U.S. at 190.

However, in certain narrow instances, the absence of a final decision regarding a variance may

be excused. The relevant exception in the context of this appeal is futility, which occurs “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.” Murphy, 402 F.3d at 349; see also Sherman v. Town of

Chester, 752 F.3d 554, 561 (2d Cir. 2014).

       Under existing Circuit precedent, the final-decision requirement of the Williamson

doctrine applies to Kowalczyk’s claims alleging substantive due process and equal protection

violations arising from local zoning disputes. See Dougherty, 282 F.3d at 88–89. Kowalczyk

does not deny that he failed to obtain a final decision from Monticello’s Zoning Board of

Appeals on an application for a zoning variance. Kowalczyk does argue, however, that those

claims satisfied the final-decision requirement and became ripe upon the evictions of tenants

from his apartments in 2008. But we find that Kowalczyk’s substantive due process and equal

protection claims did not ripen after those evictions because the local land-use governing body

had not reached a final determination as to the permitted use of his property or whether the


                                                 4
eviction was justified. Because the Zoning Board of Appeals has the authority to determine

whether zoning regulations were properly applied, see N.Y. Town Law § 267-b, the district court

correctly concluded that Kowalczyk’s failure to seek a variance left “undetermined the permitted

use of the property in question,” Murphy, 402 F.3d at 353.

       We also see no reason that, under existing Circuit precedent, the Williamson final-

decision requirement would not apply to Kowalczyk’s claims asserting procedural due process

violations.

       Kowalczyk’s procedural due process claims are unripe to the extent that they seek either

to collect damages based on or to challenge the same land-use decisions as his substantive due

process and equal protection claims do. See Kurtz, 758 F.3d at 516; Dougherty, 282 F.3d at 88–

89. The rationale behind this requirement is to prevent a party from artfully pleading a claim in a

way that circumvents the Williamson ripeness bar. Kurtz, 758 F.3d at 516. Accordingly, any

procedural due process claims emanating from the Village’s denials of permits or of certificates

of occupancy are unripe for the same reasons that other related claims alleging constitutional

violations based on those decisions are also unripe.

       Additionally, Kowalczyk asserts that he was denied both pre- and post-deprivation

process based on the eviction of tenants in 2008 from his property at 37–39 High Street. Because

he did not plead claims based on procedural due process violations in his complaint,3 Kowalczyk

does not specify what relief he requests for any alleged violations. But it does appear clear from


       3
         For purposes of this appeal, we assume arguendo that Kowalczyk would be permitted to
amend his complaint to assert claims based on procedural due process violations, as the district
court assumed below.



                                                 5
the record that any deprivation that Kowalczyk might have suffered based on his tenants’

evictions is not ongoing because Kowalczyk has received several valid certificates of occupancy

in and after 2009. Because the deprivations are not ongoing, Kowalczyk cannot seek injunctive

relief to restore the pre-eviction status quo or to force local officials to provide adequate process.

Instead, he is limited to seeking damages for any erroneous deprivation resulting from

inadequate process, as well as possible nominal damages for any inadequate process that did not

result in erroneous deprivation. See, e.g., Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Kassim

v. City of Schenectady, 415 F.3d 246, 250 (2d Cir. 2005).

        Because Kowalczyk can seek only damages for any deprivation here, we find that the

final-decision requirement applies and has not been satisfied as to Kowalczyk’s procedural due

process claims arising from his tenants’ 2008 evictions. As this Court has recently explained, and

as is true here, “[r]egardless of the basis of the claim that the local action violated federal rights,

the relief sought brings the case squarely within the compass of Williamson County and its

progeny.” Sunrise Detox, 2014 WL 4922130, at *4. For Kowalczyk to recover non-nominal

monetary damages resulting from the evictions, he must show not only that he was denied

procedural due process, but also that the resulting deprivation was erroneous. To grant

Kowalczyk’s requested relief, the Court must therefore determine whether the local land-use

body correctly decided the relevant zoning disputes and properly applied its zoning laws — the

exact determinations that a court would need to make to resolve Kowalczyk’s substantive due

process and equal protection claims. Accordingly, the same final-decision requirement that

would otherwise govern constitutional claims based on local land-use decisions applies with

equal force to Kowalczyk’s procedural due process claims arising from the 2008 evictions.


                                                   6
       Finally, we are not persuaded that Kowalczyk’s failure to obtain a final decision on a

variance application should be excused for futility. In asserting futility, Kowalczyk relies on

evidence of hostility by certain local officials regarding his zoning compliance. However,

Kowalczyk fails to connect any of this hostility to the Zoning Board of Appeals, the body

charged with deciding such an application. The district court correctly concluded that

Kowalczyk’s evidence of hostility, standing alone, fails as a matter of law to demonstrate that the

Zoning Board of Appeals had “dug in its heels and made clear that all such applications will be

denied.” Sherman, 752 F.3d at 561 (internal quotation marks omitted).

       We have considered Kowalczyk’s remaining arguments as to the ripeness of his claims

and find them to be without merit. Accordingly, the district court’s judgment dismissing

Kowalczyk’s claims is AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                                 7
