Second Circuit Holds Failed Motion To Approve Application Constituted A Final Decision

This post was authored by Matthew DeLuca, Esq.

This appeal arose from the denial of an application to amend certain covenants and restrictions (“C&Rs”) on real property in Sayville, New York. Plaintiff Village Green at Sayville LLC (“Village Green”) had agreed to the C&Rs when Defendant Town of Islip (“Town”) rezoned the property Residence CA, which allows both condominiums and apartments. Among other things, the C&Rs required that the project connect to an off-site sanitary treatment plant (“STP”) and that only condominiums may be built. When it became impossible to connect to an off-site STP, Village Green filed an application to modify both the STP and the condominium requirements.

Following three years of public hearings, studies, and amendments to its application, Village Green’s application finally went to the Town Board for a vote. However, the Town Board’s motion to approve failed for lack of a second, and no vote was held. After the failed vote, the Town Attorney communicated that the failed vote was being treated as a denial, and no further proceedings would be held. Village Green later filed suit under the FHA, alleging that the Town had blocked its proposal to build rental apartments, including a number of affordable rental units, based on discriminatory animus.

The district court dismissed the case as unripe, holding that Village Green had not received a final decision on its application where the motion to approve had failed for lack of a second. On appeal, the Second Circuit reversed, holding that the Town Board demonstrated it had arrived “at a definitive position on the issue that inflicts[ed] an actual, concrete injury.” The Court noted that the Town Board’s resolution had all of the indica of finality, and in keeping with that, the Town Board refused to schedule additional proceedings in the seven years since. Coupled with the Town Attorney’s representation that the failed vote would be treated as a denial, the Court held wrote that it “cannot fathom why Village Green should now be penalized for having believed him.” Thus, the lower court’s decision was vacated and the case was reinstated.

Village Green At Sayville, LLC v. Town of Islip43 F.4th 287 (2d Cir. 2022).