17-3747-cv
Pulte Homes v. Town of Carmel


                            UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT


                      AMENDED 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 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 13th day of June, two thousand eighteen.

PRESENT:        JON O. NEWMAN,
                JOSÉ A. CABRANES,
                SUSAN L. CARNEY,
                             Circuit Judges.




PULTE HOMES OF NEW YORK LLC,

                        Plaintiff-Appellant,

                v.                                                     17-3747-cv

TOWN OF CARMEL, TOWN OF CARMEL PLANNING
BOARD,

                        Defendants-Appellees.

______________________________________________
FOR PLAINTIFF-APPELLANT:                              MICHAEL V. CARUSO, William A. Shilling, Jr.,
                                                      P.C., Carmel, N.Y.

FOR DEFENDANTS-APPELLEES:                             MAURIZIO SAVOIARADO III (Richard P.
                                                      Epstein, on the brief), Miranda Sambursky Slone
                                                      Sklarin Verveniotis LLP, Mineola, N.Y.




     Appeal from a judgment of the United States District Court for the Southern District of
New York (Vincent L. Briccetti, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the October 27, 2017 judgment of the District Court is AFFIRMED.



         Plaintiff-appellant Pulte Homes of New York, LLC (“plaintiff” or “Pulte”) appeals from a
final order granting defendants’ motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiff brought suit pursuant to 42 U.S.C. § 1983 against the Town of Carmel and the
Town of Carmel Planning Board (collectively, “the Town” or “defendants”), alleging that
defendants violated its constitutional rights to equal protection and procedural and substantive due
process when the Town assessed $749,000 in fees on plaintiff with respect to plaintiff’s effort to
build multiple new housing developments in the Town of Carmel. The District Court dismissed all
of plaintiff’s § 1983 claims as time-barred, and implicitly exercised supplemental jurisdiction over
plaintiff’s state law claim for a declaratory judgment and denied the claim by dismissing the
Amended Complaint in its entirety. Pulte Homes of N.Y., LLC v. Town of Carmel, 16 CV 8093 (VB)
2017 WL 4877427 at *3 (S.D.N.Y. October 27, 2017). We assume the parties’ familiarity with the
facts, the procedural history of the case, and the issues on appeal.

                                         BACKGROUND

        Pulte owns approximately 100 acres of land in the Town of Carmel. On February 3, 2006,
the Town Planning Board approved Pulte’s request to use the land for development of residential
units. The Town subsequently required that Pulte pay a $3,500 per unit “recreation fee,” amounting
to $749,000 total, in exchange for approval to develop the land. Pulte paid two separate sets of
recreation fees: one on October 28, 2008 (“the 2008 fees”), and the other on October 18, 2013 (“the
2013 fees”). Pulte paid the 2008 fees after being informed by the Town that, pursuant to a local law
enacted on May 18, 2006, Pulte would have to pay the recreation fees in order to begin construction.

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Pulte does not make clear in its Amended Complaint precisely when it became aware that the 2006
law subjected it to these fees. The Town Planning Board subsequently passed three resolutions on
November 12, 2008, in which it adopted Pulte’s site plan amendments contingent on payment of the
recreation fees. The fees had been paid approximately two weeks earlier, on October 28, 2008. Pulte
paid the 2013 fees after the Town Planning Board passed two similar resolutions on September 27,
2013, in which it approved amendments to Pulte’s construction plans, also contingent on the
payment of the recreation fees.

         Pulte’s challenge to the recreation fees forms the basis of its lawsuit, in which it seeks to
recover the fees it paid to the Town in 2008 and 2013. Pulte’s principal claim on appeal is that the
District Court improperly dismissed all federal claims as time-barred. We disagree.

                                             DISCUSSION

        The statute of limitations applicable to § 1983 claims in New York is three years. Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). “While state law supplies the statute of limitations
for claims under § 1983, federal law determines when a federal claim accrues.” Connolly v. McCall, 254
F.3d 36, 41 (2d Cir. 2001) (internal quotation omitted). “Under federal law, a cause of action
generally accrues when the plaintiff knows or has reason to know of the injury that is the basis of
the action.” M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003) (internal quotation
marks omitted).

          Pulte argues that all of its claims remain timely by virtue of the continuing violation doctrine.
We reject this argument, as the continuing violation doctrine plainly does not apply to the Town’s
assessment of a construction fee on two occasions. “[A] continuing violation cannot be established
merely because the claimant continues to feel the effects of a time-barred discriminatory act.” Harris
v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999).

        In the alternative, Pulte argues that its claims accrued in March of 2014, when the Town
refused to return to Pulte the 2008 and 2013 fees. The Town argues that the claims accrued earlier,
when Pulte had reason to know that it would be subject to the fees if it wanted to begin
construction on its land. The Town thus contends that, at the latest, Pulte became aware that it
would be subject to the 2008 fees on October 28, 2008, when it paid the first set of fees, and it
became aware that it would be subject to the 2013 fees on September 27, 2013, when the Town
passed resolutions subjecting Pulte to the 2013 fees.


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        We reject Pulte’s argument that its claims with respect to both the 2008 and 2013 fees
accrued in March of 2014, when the Town refused to return the recreation fees. Pulte first paid the
2008 fees it now alleges to be unconstitutional more than 5 years prior to the Town’s refusal to
return the fees. It clearly challenged the fees as unconstitutional prior to March of 2014, when it
argued as much in its Article 78 Petition. It does not matter whether Pulte’s 2008 fees claim accrued
when it paid the fees or at an earlier time when it first learned it would be subject to them. Either
way, this claim is time-barred. Because Pulte does not sufficiently allege a continuing violation, it
would have had to file suit within three years of October 28, 2008, at the latest. It did not file suit
until October 17, 2016. The District Court thus properly dismissed Pulte’s claims relating to the
2008 fees.

         We also reject Pulte’s argument with respect to the 2013 fees. At a minimum, Pulte knew
that it would be subject to new recreation fees when the Town passed its September 27, 2013
resolutions. Although it did not pay the 2013 fees until October 18th of that year, “[t]he proper focus
is on the time of the discriminatory act, not the point at which the consequences of the act become
painful.” Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (emphasis in original). Under Chardon, plaintiff’s
claim accrued no later than September 27, 2013, when the Planning Board passed the resolutions
and formally imposed the recreation fees on Pulte.

        Pulte argues that it did not have reason to know that the fees would be imposed when the
September 27, 2013 resolutions were passed. We disagree. Pulte clearly alleged in its complaint that
in public hearings from May 2013 through September 2013, it actively objected to the imposition of
further recreation fees because it knew that the Town would impose such fees as a condition on
further construction. Am. Compl. Par. 33. Pulte also attended a September 25, 2013 hearing in
which the Town preliminarily approved its site plans, specifically contingent upon Pulte’s payment
of the $3,500 per unit recreation fee. Its claim that it was not made aware of the imposition of the
fees until well after the resolutions were passed, and that it was not actively involved in resisting
otherwise imminent resolutions that mandated recreation fees, is thus without merit.

         Finally, Pulte argues that the District Court erred in dismissing its state law claim seeking a
declaratory judgment requiring the Town to refund Pulte’s recreation fees. Pulte previously pursued
this claim in state court and lost. See Pulte Homes of N.Y., LLC v. Planning Bd. of Town of Carmel, 136
A.D. 3d 643 (2d Dep’t 2016). A United States district court is not the proper forum for an appeal
from a state court decision. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
Accordingly, the District Court properly dismissed this claim.


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                                       CONCLUSION

        We have considered all of Pulte’s remaining arguments and find them to be without
merit. Accordingly, for the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk of Court




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