In 2000, Plaintiff Steven Sherman applied to the Town of Chester Planning Board for subdivision approval while in the process of purchasing nearly 400 acres for $2.7 million dollars. According to the Second Circuit Court of Appeals in its recent decision in Sherman v Town of Chester, 752 F3d 554 [2d Cir 2014], “[t]hat application marked the beginning of his journey through the Town’s ever-changing labyrinth of red tape.”

The short version of the more than a decade’s worth of red tape by the Town includes: a six-month moratorium on major subdivision approvals; extension of the moratorium by the Town which singularly affected the Plaintiff; litigation by the Plaintiff to end the moratorium; changes to the Town’s zoning regulations; amendments to Plaintiff’s application to satisfy the new requirements; additional changes to the Town’s zoning regulations; the Town Board’s refusal to entertain the application after Planning Board approval; and the Town amending its zoning regulations for a third, fourth and fifth time.

Additionally, because the application was originally filed in 2000, a Supplemental Draft Environmental Impact Statement (“DEIS”) was required with the resubmitted application.  Certain Town staff changed since the initial filing, including the Town Engineer.  The Plaintiff was charged the expense of having the new engineer review the entire project, although he had previously been charged to have the project reviewed by the earlier engineer.

Moreover, in September of 2009, and after the Plaintiff submitted two different versions of his earlier subdivision proposal, he learned that the Planning Board Chairman had been replaced with a new Chairman, who was known to be openly hostile to the project, and had, in fact, written letters to the Town in 2001 in opposition to the project.  The new Chairman requested $25,000.00 in consulting fees, required an additional “cluster plan” of the Plaintiff, and, lastly canceled the Plaintiff’s appearance at the Planning Board’s monthly meeting, demanding an additional $40,000 more in consultants’ fees.

In 2008, Sherman filed suit against the Town and other defendants in federal court, alleging, in part, a taking of his property by the Town.  Sherman voluntarily dismissed the first case, then filed another action seeking similar relief in state court.  The Town removed to federal court, and moved to dismiss on ripeness grounds.  The District Court for the Southern District in Sherman v Town of Chester, US Dist Ct, SD NY, 12 Civ 647, Ramos, J., 2013, dismissed some of his claims on the merits, and most because they were unripe.  The District Court concluded that Sherman had failed to show that seeking a final decision from the Town would be futile, applying the first prong of the two part test set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 [1985], requiring that the state regulatory entity has rendered a “final decision” on the matter.

On May 16, 2014, the Second Circuit issued a decision that reversed the District Court’s holding and determined that Sherman’s takings claim was ripe.  The Court held that seeking a final decision from the Town would be futile because the Town had used unfair and repetitive procedures to avoid a final decision.

As set forth in the decision:

Every delay in zoning approval does not ripen into a federal claim.  Unfortunately, it is no simple task to distinguish procedures that are merely frustrating from those that are unfair or would be futile to pursue.  But when the government’s actions are so unreasonable, duplicative, or unjust as to make the conduct farcical, the high standard is met.

And it was met in this case.  Seeking a final decision would be futile because the Town used—and will in all likelihood continue to use—repetitive and unfair procedures, thereby avoiding a final decision.  Sherman is therefore not required to satisfy the first prong of Williamson County.  This conclusion is consistent with the principles behind Williamson County. The final decision requirement ensures that a court knows how far a regulation goes before it is asked to determine whether that regulation “goes too far.”  In this case, we are not dealing with any one regulation but the Town’s decade of obstruction. A final decision is not necessary to evaluate whether that obstruction was itself a taking.

Sherman v Town of Chester, 752 F3d at 563, emphasis added.  The Court thereafter considered a number of other issues, including the merits of the takings claim, and found that Sherman had stated a claim that the Town effected a taking.  The Court remanded the matter to the District Court for further proceedings consistent with its opinion.