Dong v. Town of North Hempstead

Land Use and Planning

New York Law Journal

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Judge Joanna Seybert

Defendant town's 2006 zoning ordinance barred development of vacant corner lots measuring less than 100 feet on each side adjacent to the street. In 2008 Dong bought a corner lot measuring 154 feet by 80 feet. After being denied a building permit because the property's dimensions did not meet the zoning ordinance requirements, Dong sought a variance from the Town of North Hempstead Board of Zoning Appeals (BZA). State appellate court affirmed supreme court's ruling upholding the BZA's denial of a variance. Dong's Jan. 16, 2013, action in district court alleged a takings claim under the Fifth Amendment and sought an injunction either issuing Dong a building permit or variance. The court dismissed Dong's complaint with prejudice. Her action was collaterally estopped by her prior Article 78 proceeding. Moreover, her Fifth Amendment takings claim was unripe for review. The second prong of the Supreme Court's test in Williamson Cnty. Regional Planning Com'n v. Hamilton Bank of Johnson City—that all "reasonable, certain and adequate" state procedures available to recover just compensation be exhausted—was not met. Dong's Article 78 proceeding sought annulment of the BZA's decision, but did not seek just compensation.

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