10-2635-cv
Monroe Equities v. Village of Monroe

                                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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 15th day of April, two thousand eleven.

PRESENT:
            RALPH K. WINTER,
            JOSEPH M. McLAUGHLIN,
            PETER W. HALL,
                        Circuit Judges.
______________________________________________

MONROE EQUITIES LLC,
                                            Plaintiff-Appellant,

                           v.                                                No. 10-2635-cv

VILLAGE OF MONROE,
                                            Defendant-Appellee.

______________________________________________

FOR PLAINTIFF-APPELLANT:                                      JAMES G. SWEENEY, Goshen, New York.

FOR DEFENDANT-APPELLEE:                                       CYNTHIA DOLAN, Ostrer Rosenwasser, LLP,
                                                              Chester, New York.

        Appeal from a judgment of the United States District Court for the Southern District of

New York (Seibel, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,



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ADJUDGED, AND DECREED, that plaintiff’s appeal is DISMISSED in part and the

judgment of the district court is AFFIRMED in part.

       In this dispute over property development, plaintiff Monroe Equities LLC appeals from

the district court’s dismissal of its 42 U.S.C. § 1983 complaint against defendant Village of

Monroe on the ground that the claim was not ripe for review. On appeal, plaintiff argues

principally that the district court erred in arriving at this determination because under New York

law a landowner cannot obtain just compensation as a result of a regulatory taking. We assume

the parties’ familiarity with the underlying facts and procedural history of the case.

       At oral argument, plaintiff and the Village clarified that pursuant to a final judgment of

the Orange County Supreme Court dated August 20, 2009, the Village is precluded from

enforcing its own regulations pertinent to this matter. Monroe Equities, LLC v. Village of

Monroe, No. 995/2009, Judgment at 3 (N.Y. Sup. Ct. Aug. 20, 2009). That court’s decision,

which has not been appealed, was based on precedent holding that a municipality’s power to

regulate property is limited to the lands within its territorial limits. Id. Plaintiff apparently

solicited and received a letter from the New York Attorney General’s Office articulating that

office’s view that the affected municipality (here, the Village) is responsible for policing the

watershed and interpreting and applying the New York Department of Health (“DOH”)

regulations. Letter of J. Gardner Ryan, Ass. Att. Gen. (Apr. 22, 2009), J.A. at 56. When

defending the attack on its regulations, however, the Village did not argue to the supreme court

that the Village was enforcing DOH regulations with respect to plaintiff’s property that were

worded identically to its own municipal regulations. Nor did the Village argue that the DOH had




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delegated to the Village the authority to administer and enforce those DOH regulations. In that

regard the court noted:

       Here, the defendant Village does not argue that the plaintiff’s property is located
       within its territorial limits, or that there has been a valid delegation of authority to
       it to regulate the property. Rather, the defendant Village notes only that the
       relevant statutes grant it certain enforcement rights concerning the area, e.g., the
       defendant Village may inspect the watershed area to ascertain whether the
       relevant rules and regulations are being complied [sic], issue a violation notice if
       they are not, and seek penalties and other relief against violators provided certain
       conditions precedent are met (e.g., the local board of health fails to act) (see
       Public Health law §§ 1102, 1003).

In sum, insofar as concerns the arguments before us on this appeal, the issue decided squarely by

the Orange County Supreme Court appears to have been the enforceability of the Village’s own

regulations. In light of that decision on the one hand and on-going collateral proceedings in the

New York State Court of Claims on the other, plaintiff’s appeal to us fails for two reasons.

       First, given the unappealed Orange County Supreme Court decision, the Village’s denial

of plaintiff’s application based on the Village’s enforcement of its own regulations is of no

present effect. J.A. at 56, 59. Thus, to the extent plaintiff’s claim for just compensation can be

read as one based on the Village’s enforcement of its regulations with respect to plaintiff’s

property, this claim is moot. The appeal from the district court’s dismissal of that claim must be

dismissed. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (“[A] case is moot when the

issues presented are no longer live or the parties lack a legally cognizable interest in the

outcome.” (internal quotation marks omitted)); see also Coll. Standard Magazine v. Student

Ass’n of State Univ. of N.Y. at Albany, 610 F.3d 33, 35 (2d Cir. 2010).

       Second, regarding plaintiff’s claim that the Village’s enforcement of applicable DOH

regulations effects an uncompensated taking, on January 26, 2009, plaintiff filed in the court of


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claims an action against the DOH under the New York Court of Claims Act and 42 U.S.C. §

1983, which the parties informed this Court at oral argument is still on-going. In that action

plaintiff is advancing a just compensation claim rooted in the DOH regulations that plaintiff

asserts are being applied by the Village to limit its use of its property. Because plaintiff’s state

claim for just compensation based on the ostensible enforcement of the DOH regulations has not

been finally adjudicated, plaintiff’s same claim in the district court based on the Village’s

authority to apply and enforce those DOH regulations (authority plaintiff submits in its

arguments to us the DOH has properly delegated to the Village) is not ripe for review. See

Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985); see

also Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 99 (2d Cir. 1992). Accordingly, although

we ground our ripeness analysis in the on-going state court of claims proceedings, we affirm that

portion of the district court’s judgment dismissing plaintiff’s DOH regulatory takings claim as

unripe. See Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010) (“We may affirm

the district court’s decision on any ground appearing in the record.”). 1




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         It is unclear from the text of the Orange County Supreme Court’s decision whether that
court’s holding, precluding the Village from exercising authority over property within its
watershed but outside the Village boundaries, applies only to the Village’s enforcement of its
own code provisions or would also be applicable to the Village’s enforcement of the DOH
regulations regarding the watershed if it can be shown that the Village has received properly
delegated authority to regulate such property. We do not attempt to answer that question here,
nor do we presume to suggest how that question should be answered. We do note, however, that
the question may well need to be resolved in the New York State courts having jurisdiction over
these matters, in either the court of claims or in the appropriate supreme court (e.g., through
further Article 78 proceedings), or in both fora, before a takings claim will be ripe for
adjudication in the federal courts.

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       For the reasons stated, plaintiff’s appeal is DISMISSED as moot insofar as plaintiff

asserts the Village’s application of the Village’s regulations to the subject property constitutes a

taking requiring just compensation. The judgment of the district court dismissing as unripe

plaintiff’s claims that the Village’s enforcement of the DOH regulations constitutes a taking

requiring just compensation is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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